The interpretation of Section 80, Civil Procedure Code in relation to the requirement of notice for suits against public officers is limited to past acts completed or begun but incomplete and not to threatened acts.

Ramesam, J.

1. The plaintiff is the appellant before us. The suit was for a declaration that the suit properties belonged to him and defendants 3 and 4 and for a perpetual injunction restraining the 1st defendant, who was the Official Receiver of the Ramnad District, from selling them as the properties of the 2nd defendant in I.P. No. 9 of 1917 on his file. The Official Receiver advertised the suit properties for sale on 10th November, 1924. On the 5th November the plaintiff sent a notice of suit to the 1st defendant and the suit was filed on the 7th November, 1924. The Subordinate Judge of Sivaganga dismissed the suit on the ground that two months have not elapsed before the filing of the suit and after the giving of notice. The plaintiff in appeal contends that a notice under Section 80, Civil Procedure Code, is unnecessary. He concedes that the Official Receiver is a public servant but argues that the suit is not in respect of an act purporting to be done in his official capacity. His argument is that the suit is only in respect of a threatened act and not in respect of an act which was begun, and therefore the section does not apply. This contention of the appellant is supported by the decision of the Calcutta High Court in Canada Sundary C haudhurani v. Nalini Ranjan Raha (1908) I.L.R. 36 C 28 at 38 and other decisions of the Bombay High Court which will be referred to presently. In Ganodu Sundary Chaudhurani v. Nalini Ranjan Raha (1908) I.L.R. 36 C 28 at 38, Woodroffe, J., relies on the word done", but I am not satisfied with this line of reasoning. The phrase is not "an act done" but "an act purporting to be done" and the words "to be done" are not inconsistent with a future act. It is possible to describe a future act by a phrase using the words " purporting to be done" by using other appropriate words such as "future" or "intended" indicating that a future act was meant or by the mere use of the future tense in the sentence. As Pratt, J., points out in Muradali Shamji v. B. TV. Lang (1919) ILR 44 B 555 at 560, one mode of indicating past acts only is by using the words "purporting to have been done". The phrase "purporting to be done" uses the present indefinite form and is grammatically wider than the phrase "purporting to have been done". While conceding all this I am still of opinion that as a matter of an ordinary idiom the whole phrase "an act purporting to be done" would ordinarily refer to past acts only whether finished or begun but incomplete and does not refer to future acts. The use of the perfect form is not ordinarily resorted to for describing past acts though grammatically more accurate and if a future act is meant it is expressly described by appropriate words. Where no such words are used, the phrase ought in my opinion to be ordinarily limited to past acts (unless the context requires one to extend it to future acts also there being no grammatical impediment to doing so) as a matter of reasonable construction if not of grammatical necessity. The decision in Secretary of State for India v. Gajanan Krishna Rao (1911) I.L.R. 35 B 362 relates to a suit against the Secretary of State. In Naginlal Chunilal v. The Official Assigned, Bombay (1912) I LR 37 B 243, where the suit was against the Official Assignee of Bombay, the Judges followed the decision of Cunningham, J., in Shahebzadee Shahun Shah Begum v. Fergusson (1881) I L.R 7 C 499. Though I come to the same conclusion I do not wish to adopt that line of reasoning. The decision in Naginlal Chunilal v. The Official Assignee, Bombay (1912) I.L.R. 37 B 243 was followed in the case of Secretary of State for India v. Gulam Rasul (1916) I.L.R. 40 B 392. In Muradali Shamji v. B.N. Lang (1919) ILR 44 B 555 Pratt, J., while differing from the above cases, was merely content to follow them sitting as a single Judge. In Bhagchatid DagaduM v. The Secretary of State for India (1929) I.L.R 48 B 87 at 153, Kemp, J. observed:

The suit is in respect of something