SAWAI SINGHAI NIRMAL CHAND versus UNION OF INDIA

SA WAI SINGHAI NIRMAL CHAND

UNION OF INDIA

September 2~, 1965

[P. B. GAJENDRAGADKAR. C.J., K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH AND S. M. SIX.RI,. JJ.]-

Code of Civll Procedure (Act 5 of 1908), s. 80 and 0. 21, r. 63-Claim suit against governn1ent-Notice, if necessary.

In execution of an ordeir for restitution of money, the respondent-:Union of India-applied for attachment and sale of certain immovable ,properties as belonging to the person from \vho1n the money was claimed. The properties were ordered to be atlacheO, and the appellant claiming ..O\VTiership of the properties, objected to the attachment under 0. 21, r. 58 ,of the Civil Procedure Code, 1908. The objection was over-ruled and .'his application was dismissed. Therefore, he filed suit under 0. 21, r. 63 and before filing the suit gave notice to thel 1respondent under s. 80 of the Code. If s. 80 applied to the suit and the period covered by the -notice could be taken into account, the suit was within timer, but if "· 80 did not apply and the period of notice could not be taken inlo account,~ the suit would be barred by time. The trial court and High ·C.ourt answered the question against the appellant and dismissed the suit :as barred by time.

In appeal to this Court,

HELD : The view that suits under 0. 21, r. 63 did not attract the pro-visions of s. 80 is inconsistent with the plain, categorical and unambi-.guous words used by it. [993 F]

The material words used ill s. 80 arc wide and unambiguous; they :are "express, explicit and m3.ndatory" and it would be difficult to except iron1 their operation any proceeding which can be regrurded as suit against the government. The proceedings which the aggrieved party ..commences by virtue of 0. 21, r. 63 are intended to be suit. They are commenced by the presentation of plaint as required by s. 26 of the Code, and art. 11 of the Limitation Act, 1908, under which the plea of limitation was raised in the present case, shows that the proceeding \Vas suit. Such proceeding under 0. 21, r. 63 cannot be regarded as either continuation of the objection proceedings under r. 58, or as form of an appeal against the order passed in them, becall.98, It.hoe scope of the ·suit is different from and wider than that of the investigation under r. 58. In fact, it is the order made in the investigation under 0. 21, r. 58 that is the cause of action of the suit under r. 63. The object or main purpose of the notice is to give previous intimation to the government about the nature of the claim which party wants to make against it. But that does not affect the interpretation of the plain \VOrds of s. 80 [989 E, G; 991 C, E; 992 DJ

P.Jiul Kumari v. Ghanshyam Misra, (1907) 1.L.R. 35 Cal. 202 (P.C.) ·and Amar Nath Dogra v.' Union of India, [1963] I S.C.R. 657, explained. Bhagchand Da;::adusa v. Secretary of State for India in Council and, •others. 54 I.A. 338, aopli;d. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 928 of 1963.

Appeal from the judgment and decree dated March 14, 1961 of the Madhya Pradesh High Court in First Appeal No. 57 of 1959.

Bishan Narain, S. N. Prasad and J. B. Dadachanji, for the appellant.

N. D. Karkhanis and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

Gajendragadkar, C.J. The short question of Jaw which arises in this appeal is whether suit filed in pursuance of 0. 21 r. 63 of the Code of Civil Procedure attracts the provisions of s. 80 of the Code. This point arises in this way. One Phool Chand, the predecessor-in-title of the appellant Sawai Singhai Nirmal Chand, instituted suit against the respondent, the Union of India. in the Court of the Second Additional District Judge, Jabalpur, and obtained decree on 25-4-1951 for Rs. 24,234-14-0 and proportionate costs with interest @ 4 % per annum. The res-D pondent challenged the said decree by preferring an appeal in the High Court. Pending the appeal, the respondent deposited the decreta! amount of Rs. 31,849-9-9. On December 14, 1952, Phool Chand withdrew Rs. 28,032-12-0 out of the said amount after furnishing due security in that behalf. Ultimately, the res-pondent's appeal was partly allowed on June 26, 1954, and the decretal amount was reduced to Rs. 10,971-15-6. In the result, the total decretal amount due to the decree-holder Phool Chand came to Rs. 12,691-13-6; and that meant that he had withdrawn Rs. 15,340-14-8 in excess of his legitimate dues.

On September 4, 1954, the respondent applied for restitution of the said amount and claimed interest thereon. The Second Addi-tional District Judge, Jabalpur, allowed the said application, and in execution of it, the respondent sought for the recovery of the said amount by attachment and sale of certain immovable proper-ties of Phool Chand, mentioned in the application. These proper-ties were accordingly ordered to be attached. But, meanwhile, they had been sold by Phool Chand to the appellant by register-ed sale deed executed on January 9, 1953. That is why the appel-lant objected to the said attachment under 0.21 r. 58 of the Code. but his objection was over-ruled and his application was dismissed by the Second Additional District Judge on April J 6, 1957. It is this order which has Jed to the present suit under 0. 21 r. 63 of the Code.

Before the appellant filed the present suit on June 23, ·195g in the Court of the First Additional District Judge, Jabalpur, he gave

notice to the r<!Spondent under s. 80 of the (\xle on April, 12, 1958. In the said suit, he claimed declaration that the properties in question could not be attached and sold inasmuch as the title in respect of the said properties vested in him by virtue of valid sale deed executed in his favour by Phool Chand. The appellant also claimed an injunction restraining the respondent from attach-ing and selling the said properties.

In defence. the respondent raised plea of limitJtion. It is common ground that the period of limitation prescribed for suit under 0. 21 r. 63 by Article 11 of the Li111ir:1tion Act is one year from the date of the order under 0. 21 r. 58. The respon-dent urged thats. 80 of the Code did not apply to the rresent suit·. and so, the period covered by the notice served by the appellant on the respondent could not be excluded for the purpose of calcu-lating limitation in the present case. It is not disputed that ifs. 80 applies to the present suit and the period covered by the notice can he taken into account, the suit is within time. It is also not dis-puted that ifs. 80 does not apply to the present suit and the period of the notice cannot be taken into account. the suit is barred by time; and so. at the preliminary stage, the only question which fell to be determined on the pleadings of the parties was whether s. 80 applies to the present suit. Both the learned trial Judge and the High Court of "1adhya Pradesh. Jabalpur, have answered this question against the appellant. and the suit has, therefore, hccn dismissed as barred by time. It is against this decision that the appellant has come to this Court with certificate granted by the •aid High Court. That is how th~ only point which calls for our decision in the rresent appeal is whether s. 80 of the Code appEes to suit instituted in pursuance of the provisions of 0. 21 r. 6).

Let us hecin bv referring to the provisions of O. 21 rr. 58 and 63. 0. 21 r~ 58 ·deals with the investigation of claims to. and objections to attachment of, attached properties. It is under this rule that per><in whose property is wrongfully att:iched in execu-tion of decree passed against another, is entitled to ohj~ct to the said attachment. On such an application being made._ summ_ary enquiry follows and the :.ttachment is either raised or 1s not raised and the objection to attachment is allowed or is not allowed according as the Court trying the application is satisfied that the objector ·is or is not justified in objecting to the attachment. After the final order is passed or.e way o~ the other as re~ult of the investigation made in such rroceedmgs. r. 63 comes into opera-tion. It provides that where claim or an objection is preferred. the party against whom an order is made may institute suit to

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establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be con-clusive. It is thus plain that where an order is passed in objection proceedings commencing with r. 58, it would be final subject to the result of the suit which party aggrieved by such order may institute; and that means that if party is aggrieved by an order passed in these proceedings, he can have the said order set aside or reversed by bringing suit as provided by r. 63 itself and such suit has to be filed within one year from the date of the impugned order. That is the nature of the suit wh'ch the appellant has brought in the present case.

Jn considering the question whether this suit falls within the purview of s. 80 of the Code, it is necessary to read the relevant portion of s. 80 itself; it provides, inter alia, that no suit shall be instituted against the Government until the expiratiou of two months next after notice in writing has been delivered to or left at the office of the authorities specified by clauses (a), (b) & (c); and it further provides that such notice shall state the cause of action, the name, description and place of residenc~ of the plain-tiff and the relief which he claims; and the plaint shall contain statement that such notice has been so delivered or left.

It would be noticed that the material words used in s. 80 are wide and unambiguous; they are "express, explicit and mandatory", and it would be difficult to except from their operation any pro-ceeding which can be regarded as suit against the Government. While dealing with the applicability of s. 80, the question to ask is: is it suit against the Government or not? If it is, then s. 80 by the very force of its words must apply. We have already referred to the provisions of 0. 21 r. 63. In terms, the said rule provides that the order passed in the investigation proceedings shall be conclusive, subject to the result of suit which the aggrieved party may institute. So, there can be no doubt that the proceed-ings which the aggrieved party commences by virtne of the pro-visions of 0. 21 r. 63, are intended to be suit. In fact, the present proceedings have commenced with the presentation of plaint as required by s. 26 of the Code; and the very article under which the plea of limitation is rai<ed against the appel-lant shows that it is plea in respect of the institution of suit beyond the period of limitation. It is thus plain that what we are dealing with is suit and that it is suit 1!:!ainst the Uninn of India. Therefore, on fair and reasonable construction of s. 80, we do not <ee how it is possible to hold that suit filed under 0. 21 r. 63 can be taken out of the prnvisions of s. 80 of

the Code. If we were to accede to the argument urged before us by Mr. Karkhanis for the respondent, we would, in substance, have to add certain words of exception in s. 80 itself, and that plainly is not permis~ible.

It is, lrnwcvcr, said that the suit under 0. 21 r. 63 is con-tinuation of attachment proceedings and as such, cannot be regarded as suit proper which is included within the puniew of s. 80. In support of the assumption that suit filed under 0. 21 r. 63 is <:ontinuation of attachment proceedings, reli-ance is placed on the decision of the Privy Council in Pim/ Kumari v. Ghanshyam Misra('). Jn that case, the Privy Coun-cil was dealing with the question of the proper court-fees to be paid for suit under s. 283 of lhc ( o<lc which was th.:n in force, and which cmrc,pon<ls tu 0. ~I r. 63 of the present Lode. Anide 17 of Sch. II of the Court Fees Act (No. VII of 1870) with which the Privy Council was dealing was cxpre;sly made t,> apply to "Plaint nr Memorandum of Appeal in each of the fol-lowing suib: I. To alter or set aside summary decision or order of any of the Civil Courts not establi.shc<l hy Letters Patent, or of any Revenue Court"; •md the Privy Council had to examine thl'. question as to \\·hethcr :i ~uit tiled under '.'.. 283 for the purpose of the relevant article prescribing the court-foes to he paid on the plaint was. or was not, suit to alter or set a:-;idc surnn1ary dcci-.ion or ordc.:r of any civil court. In ans,,·er-ing this quc.stion in the affirmative, the Privy Council obscrvc<l that the difference between the words used in the plaint in the case before it and the words used in the relevant article of the Court Fees Act. was merely serbal. In the plaint, the plaintiff had "categorically asked from the Court the several decrees which she had asked from the Subordinate Judge, and which tbe Subordinate Jttd)!e had refused." In other words, the plaint did not, in terms. ask for the setting asi<lc of the said decrees. or reversing them. The Privy Council did not attach any import-ance to this verbal difference and held that in substance. the plaint was one filed with the object of getting summary deci-sion of the court set aside as contemplated by s. 283. 1t is in that connection that the Privy Council made the observation on which reliance has been placed by the courts below. Says the Privv Council. "Mi~led by the form of the action directed by s. 2~3. both parties have treated the action as if it were r.ot simply form of appeal. but as if it were unrelated to any <lccree fonning the cause of action." Tn other word,, the effect of the

observations made by the Privy Council is just this that when a. suit is brought under s. 283, it is no more than suit to set aside summary decision by which the plaintiff feels aggrieved. It would be noticed that the question which had been raised before the Privy Council had reference to the payment of proper court-fees; and the decision of the Privy Council and its observations must, therefore, be read in the light of the article which the Privy Council applied. It would, we think, be unreasonable to ex-tend the said observations to the present case and treat them as enunciating proposition of law that for all purposes, suit brought under 0. 21 r. 63 is either continuation of the objec-tion proceedings, or is form of an appeal against the order passed in them. In our opinion, this extension is not justified, because the Privy Council could not have intended to lay down such broad proposition. Therefore, the argument that the present suit is outside the purview of s. 80 of the Code because it is continuation of the attachment proceedings, must be rejected.In this connection, we ought to bear in mind that the scoptl of the enquiry under 0. 21 r. 58 is very limited, and is confined to questions of possession as therein indicated, while suit brought under 0. 21 r. 63, would be concerned not only with the question of possession, but also with the question of title. Thus the scope of the suit is very different from and wider than that of the investigation under 0. 21 r. 58. Jn fact. it is the order made in the said investigation that is the cause of action of the suit under 0. 21 r. 63. Therefore, it would be impossible to hold that such suit is outside the purview of s. 80 of the Code.

It is next contended that no notice can be said to be requir-ed for suits under 0. 21 r. 63, because the principal object for enacting s. 80 is absent in the case of such suits. The argument is that the requirement about the statutory notice prescribed hy s. 80 proceeds on the basis that it is desirable to give such notice to afford the Government an opportunity to consider whether the claims made against it should be settled or not. The Legislature thought that if the Government is informed beforehand about civil actions intended to be taken against it, it may in some cases ctvoid unnecessary litigation by accepting the claims if it is satisfied that the claims are well-founded. Jn the case of suit under 0. 21 r. 63, there is hardly any need to give such notice, because the Government was already party in the in-vestigation proceedings and it knows what the appellant's ca~e

was m regard to the attacluuent sought to be levied at its in-<lance. Since the respondent knows all about the claim of the appellant in regard to the properties in question, it is futile and unnecessary to require that notice should be given to the res· pondent before suit can he filed by the appellant under 0. 21 r. 63.

In support of this argument, Mr. Karkhanis has relied on decision of this Court in mar Nath Doi:ra v. Union of llldia(1). In that case, one of the questions which the Court had to con-sider was whether, if suit against the Government is withdrawn and subsequent suit is filed substantially en the same cause of action, the notice given by the plaintiff pdor to the institution of the first suit could be said to satisfy !he rcquir,ments of s. 80 of the Code in respect of the second <uit; and this question was answered in the affinuative. While upholding the appellant's contention that the first notice should ~erve to meet th~ require-ments of s. 80, this Court. no doubt. observed that the main purpose of giving the notice is to give pr~vious intimation to the ·Goverrunent about the nature of the claim which party wants to make against it. But we do not sec how the purpo5e or the reason for requiring the notice can alter the effect of the plain words used in s. 80. What this Court held in the case of Amar Sarli /)(Jgra(') was that the notice given before the institution of the first suit can be said to be good notice ·even for the second suit; and that means that the notice was necessary to be given under s. 80, but it was not necessary to repeat it in the circumstances of the case.It is significant that in large majority of cases. the pica that the Government rai:;es is that notice is necessary and it is p.ener-ally contended that the notice being defective in one particular or another. makes the suit incompetent; and in dcalin!! with such pleas, the courts have naturally sou!!ht to interoret the notices somewhat liberally and have sometimes observed that in enforc-ing the provisions of s. 80, commonsense and sense of propriety ~hould determine the issue. It is very unusual for the Govern-ment to contend that in suit brought against it. no notice is required under s. 80. Tt is plain that such plea has been raised by the respondent in the present case. because it help~ the res-pondent to defoat the appellant's claim on the ground of limita-tion. In any case. the contention based on the nbject or pur-POie of the notice can hardly assist us in interpreting the plain words of s. 80. -·· ·-· (I) [1963) t S.C.R. 6l7.

/I. It will be recalled that prior to the decision of the Privy Council in Bhagchand Dagadusa & Others v. Secretary of State for India in Council and others([1]), there was sharp difference ~f opinion among the Indian High Courts on the question as to whether s. 80 applied to suits where injunction was claimed. Too Privy Council held that s. 80 applied "to all forms of suit and whatever the relief sought,, including suit for an injunc-tion." In dealing with the question about the construction of s. 80, the Privy Council took notice of the fact that some of the decisions which attempted to exclude from the purview of s. 80 suits for injunction, were influenced by the "assumption as to the practical objects with which it was framed". They also pro-C ceeded on the basis that s. 80 was rule of procedure and that any construction which may lead to injustice is one which ought not be adopted, since it would be repugnant to the notion of justice. Having noticed these grounds on which an attempt was judicially made to except from the purview of s. 80 suits, for instance, in which injunction was claimed, Viscount Sumner, who spoke for the Privy Council, observed that "the Act, albeit Procedure Code, must be read in accordance with the natural meaning of its words", and he added that "section 80 is express, explicit and mandatory, and it admits of no implications or ex-ceptions". That is why it was held that suit in which an injunction is prayed, is still suit within the words of the sec-tion, and to read any qualification into it is an encroachment on the function of legislation. In our opinion, these observations apply with equal force in dealing with the question as to whether suit under 0. 21 r. 63 is outside the purview of s. 80 of the Code.

It appears that on this question, there has been divergence of judicial opinion in India. But, in our opinion, the view that suits under 0. 21 r. 63 did not attract the provisions of s. 80, is inconsistent with the plain, categorical and unambiguous words used by it.

The result is, the appeal is allowed, the decree passed by the courts below is set aside and the suit is remanded to the trial Court for disposal in accordance with law. The appellant would be entitled to his costs from the respondent in this Court and in the High Court. Costs in the trial court would be costs in the suit.

Appeal allowed.