Validity of notice under Section 80, Civil Procedure Code and the inapplicability of Section 80, Railways Act, 1890 to the case of non-delivery of goods.

Kapur, J.

1. This is a plaintiffs appeal against a judgment and decree of the learned Senior Subordinate Judge of Simla dismissing the plaintiffs suit for recovery of Rs. 6000/- as compensation for non-delivery of goods.

2. By a railway receipt No. 157266 dated the 6th August 1947, 200 bags of wheat were booked at railway risk from Pitharo on Jodhpur Rail way to Simla addressed to Bhagat Food Depot who sold the goods to the plaintiffs and thereby transferred all their rights to them. On the 10th July 1948, a notice under Section 80, Civil Procedure Code, was sent to the Chief Admi nistrative Officer of Eastern Punjab Railway by Mr. Manmohan Nath on behalf of the plain tiffs. The relevant portion of this is as follows: "Under instructions from my clients Messrs. Salig Ram Tulsi Ram, merchants, Ganj Bazar, Simla, I have to give the following notice under Section 80, C. P. C. * * "

On the 20th July 1948, a suit was brought by the plaintiffs for recovery of Rs. 6,000/- on the basis of non-delivery of goods. The description of the plaintiffs was as follows: "Salig Ram, Manager and Karta of joint Hindu family firm of Salig Ram-Tulsi Ram, merchants, Ganj Bazar, Simla." In the body of the plaint the word "plaintiffs" has been used in para. Nos. 1, 2 and 3 and in the prayer clause. At the end it is signed in Urdu "Salig Ram, Plaintiffs."

3. The defence was that no notice of claim had been given under Section 77, Railways Act, that the notice under Section 80, Civil P. C., was invalid "inasmuch as no relief has been claimed in it against the defendant and as it does not conform with the provisions of Section 80, C.P.C.", that there was no privity of contract between the plaintiffs and defendant i.e., the Dominion of India and that no decree could be passed against the defendant under Section 80, Railways Act, unless the plaintiffs prove that the suit consignment has been lost over the E. P. Railway or N. W. Railway systems. In para. Nos. 5 and.6 of preliminary objections the defendant stated:

(5) The plaintiffs have no locus stands to sue.

(6) The plaintiffs cannot institute the suit unless their firm is registered. In para. No. 3 on merits the word used by the defendants is "plaintiffs". The other pleas were only denials of liability. In their replication the plaintiffs controverted the written statement and they submitted that the loss had occurred on the E. P. Rail-way and therefore it was liable and that in their correspondence the E. P. Railway never said that the loss had occurred on another Railway. In regard to registration their reply was: "The plaintiffs is a joint Hindu family firm and does not re quire registration."

The rest of the replication is not relevant.

4 The learned Judge framed eight issues and found ail the issues in favour of the plaintiffs except in regard to notice under Section 80, C. P. C., which he held to be invalid and thus dismissed the suit.

5. Counsel for the plaintiffs-appellants has confined his arguments, as indeed he had to, to the question of validity of the notice. He submits that there is really no variation between the name, description and place of residence of the plaintiffs given in the notice and those given in the plaint. The notice was on behalf of firm Salig Ram-Tulsi Ram and the suit was brought by the firm. Only Salig Ram described himself as Karta of firm Salig Ram-Tulsi Ram which was a joint Hindu family firm. The body of the plaint makes it clear that it was not one person who was suing but it was the firm and that the suit was on behalf of plaintiffs and not a plaintiff. This is further made clear by the fact that even the defendants took the firm to be the plaintiffs and for that reason they raised a plea in paragraph No. 6 of their preliminary objections that the firm was not registered. If it had been an individual, so it is submitted, such an objection could not be taken and with this I am in agreement.

The other description of the plaintiffs is the same as was given in