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PETITIONER: AMAR NATH DOGRA

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 15/04/1962

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1963 AIR  424            1963 SCR  (1) 657  CITATOR INFO :  RF         1966 SC1068  (11)  R          1984 SC1004  (8)

ACT: Suit  against  Government-Notice-Plaint  not  conforming  to Civil Procedure-Maintainability-- Punjab Excise Act  (Punjab Act  1 of 1914), S. 40-Code of  Civil Procedure (Act  v.  of 1908), s. 80.

HEADNOTE: The  appellant who obtained a monoply vend-licence  for  the retail sale of country-liquor, served during the subsistence of  the license a notice under S. 80 of the Civil  Procedure Code  on  the Government claiming damages  for  the  alleged breach  of  certain  stipulations.   Thereafter  the  Excise Authorities 658 suspended   the  license  and  themselves  took   over   the management of the vend shops and instituted proceedings  for the  recovery  of  the  monthly  instalments  due  from  the appellant.   The  appellant  filed a suit  for  a  permanent injunction  against the State to restrain it from  realising the  balance of the license fees.  That suit  was  withdrawn and  the  present suit was instituted  claiming  damages  on various   counts  including  damages  consequent  upon   the suspension  of the license.  The Lower Court  dismissed  the suit  for want of a proper notice under s. 80 of  the  Civil Procedure  Code  and also as barred by s. 40 of  the  Punjab Excise  Act.  It also however, recorded its findings on  the merits.  The High Court confirmed the dismissal of the  suit but  reversed the finding on one of the items of the  claim. It  was contended in this Court that the notice under s.  80 was proper and that the suit was maintainable. Held, that if the first suit following the issue of a notice under  s.  80  against the Government was  withdrawn  and  a second suit tiled, if the notice satisfied the  requirements of law in respect of the second suit there was no  necessity for a further notice before filing the subsequent suit. The  notice should be construed not pedantically but in  the

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light of common sense without being hypercritical about  the language  but  as  the purpose of the notice  is  to  convey substantial  information-relative to the claim on the  basis of which the recipient of the notice can consider the  claim of the would-be plaintiff with a view to avert the suit,  if possible, the notice in the present case did not serve  that purpose. State of Madras v. C. P. Agencies, A. I. R. (1960) S.C. 1309 and  Dhian  Singh  Sobha Singh v. Union of  India,  (  1958) S.C.R. 781, referred to. Held,  further,  that the plaint was at  variance  with  the notice  and  claimed  reliefs based on  a  cause  of  action arising  subsequent to the notice and so even on  a  literal reading  of s. 80 of the Civil Procedure Code, it could  not be said that there had been compliance with it. Held, also, that as regards the claim for the refund of  the advance deposit, the suit did not lie as it was barred by s.   40 of the Punjab Excise Act, of 1914.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 417 of 1961. Appeal by special leave from the judgment and  659 order dated December 31, 1958, of the Judicial Commissioner, Himachal Pradesh at Simla in Regular Civil First Appeal  No. 4 of 1958. A.   V.   Viswanatha  Sastri  and  Gopal  Singh,   for   the appellant. V.   D. Mahajan and P. D. Menon, for the respondent. 1962.  April 10.  The judgment of the Court was delivered by AYYANGAR,  J.-This  appeal, by special  leave,  is  directed against the judgment of the Judicial Commissioner,  Himachal Pradesh  affirming a decree of the Senior  Sub-Judge,  Mandi dismissing the appellant’s suit. The facts giving rise to this appeal are briefly as follows. There was a public auction on February 25, 1952 at Mandi  in Himachal Pradesh for the grant of a monopoly vend-licence to sell by retail country-liquor for the year April 1, 1952  to March  3 1, 1953.  The appellant was the highest bidder  for Rs.  1,  28, 600/-and his bid was accepted.   In  accordance with  the  terms and conditions of the auction, 1/6  of  the amount of the bid bad to be deposited by him within a month. This  sum amounting to Rs. 21,460/- was so  deposited.   The appellant who had started working his licence made  payments of  the  monthly instalments of Rs. 10,714/-  each  for  the months  of April and May.  Subsequently thereto  there  were disputes raised by the appellant that the Excise authorities had  defaulted  in  performing certain  of  the  obligations undertaken  by them, in the matter of the supply  of  liquor etc.  and  there was correspondence relating to  it.   There appear  to have been attempts by the authorities  to  remedy the situation but apparently the appellant Was not satisfied with the steps taken, with the 660 result  that he stopped his sales of liquor  and  thereafter served  a  notice under s. 80 of the  Civil  Procedure  Code dated  September  2, 1952 on Government making a  claim  for damages  for alleged breach of certain of the  stipulations, After  receipt  of  this  notice  the  Collector  of  Excise directed the suspension of the appellant’s licence under  s. 36  of the Punjab Excise Act, 1914 and thereafter  proceeded under  s. 39 of that Act to take over the management of  the vend-shops  which theretofore were under the  management  of

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the  appellant.   As the appellant did not pay  the  monthly instalments due from and after June, 1952 the Collector also took  steps  for  the recovery of  these  instalments.   The appellant  then filed a suit No. 345 of 1952 on the file  of the  Sub-Judge  of  Mandi on November  26,  1952  (alongwith certain  others in whose names one other liquor licence  had been taken and who were evidently similarly situated) for  a permanent  injunction  restraining  the  State  of  Himachal Pradesh  from realising the balance of the licence-fees  due from  him.  Several technical objections were raised to  the maintainability  of  that suit and thereafter the  suit  was withdrawn  on May 12, 1953, with liberty granted under O  23 r.  1.  Civil  Procedure  Code to file  a  fresh  suit.   In pursuance  of this liberty the suit out of which the  appeal before  us  arises,  was  instituted in  the  Court  of  the District   Judge,   Mandi  on  May  5,   1953,   which   was substantially one for damages for breach of contract. The Union of India against whom the suit was brought, raised several  defences  both  on  the merits  as  well  as  of  a technical nature, the latter being mainly two: (1) that  the suit was bade for want of a proper notice under s. 80 of the Civil Procedure Code, and (2) that the suit was barred under the  Punjab Land Revenue Act as applied to Himachal  Pradesh as  well as under the Punjab Excise Act, 1914 and the  Rules made  thereunder.   The learned District  Judge  upheld  the technical  661 objections  raised  but also recorded his  findings  on  the merits  and the findings on most of the items of claim  were against the appellant.  The appellant’s suit was  dismissed. An  appeal  was  thereupon taken by  the  appellant  to  the Judicial  Commissioner, Himachal Pradesh  who  substantially agreed  with  every  one  of the  findings  of  the  learned District Judge both on the technical objections to the  suit as well as on the merits in so far as they were against  the appellant.   He further reversed the finding on one  of  the items  of  the  claim which the  trial-Judge  had  found  in appellant’s  favour.  The appeal was accordingly  dismissed. The  appellant  thereafter  applied  for  a  certificate  of fitness  under Art. 133 (1)(b) for preferring an  appeal  to this Court but the same having been rejected, he applied for and  obtained special leave from this Court and that is  how the appeal is now before us. It  would be seen from the above narration that what may  be termed  the  merits of the appellant’s;  claim  for  damages could   arise  for  consideration  only  if  the  suit   was maintainable.   As we were clearly of the opinion  that  the appeal must fail principally on the point that the suit  was not  maintainable because of the noncompliance of the  terms of  8.  80  of the Civil procedure Code,  we  did  not  hear learned   Counsel  about  the  merits  of  the   appellant’s complaint  regarding breach of contract on the part  of  the State  and  the  relief  to which  the  appellant  would  be entitled on that basis. We shall therefore confine ourselves to the statement of the facts  necessary for deciding the point regarding  the  suit not  being maintainable because of non-compliance  with  the requisites of s.    80  of  the Civil Procedure  Code.   The section runs:               "80.  No suit shall be instituted against  the               Government  or  against a  public  officer  in               respect of any act purporting to be done by               662               such public officer in his official  capacity,               until the expiration of two months next  after

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             notice  in writing has been delivered  to,  or               left at the office of-               (a)   in  the  case  of  a  suit  against  the               Central Government except where it relates  to               a railway, a Secretary to that Government;               (b)...................................................               (c).....................................               and,   in  the  case  of  a  public   officer,               delivered  to  him  or  left  at  his  office,               stating   the  cause  of  action,  the   name,               description  and  place of  residence  of  the               plaintiff and the relief which he claims;  and               the plaint shall contain a statement that such               notice has been so delivered or left."               That  to  the  suits to which  s.  80  applies               compliance  with  it is mandatory and  that  a               suit  which  does  not satisfy  its  terms  is               liable to be dismissed is not in dispute.  The               submission  which learned Counsel pressed  for               our  acceptance  was  that there  had  been  a               substantial  compliance with its terms and  it               is  to  this  point  that  we  shall   address               ourselves.               As  required  by  the last portion  of  s.  80               reading "the plaint shall contain a  statement               that  such  notice has been  so  delivered  or               left", the appellant stated in paragraph 20 of               his plaint: "The plaintiff delivered a  notice               under  s. 80, Civil Procedure Code  containing               the  requisite  particulars to  the  defendant               through the Collector.  Mandi on September  4,               1952  and  through  the  Chief  Secretary   on               September  3,  1952.   A  previous  suit   for               injunction was withdrawn on May 12, 1953  with               permission to bring a fresh suit on payment of               costs which was deposited on May 13, 1953  per               Challan No. 17 of 1953.  Copy of the order  is               attached herewith".               663               The  Union of India in the  written  statement               filed  by it pleaded that this notice did  not               comply with the requirements of s. 80 and  the               objection was formulated thus-               "A   fresh  notice  was  necessary   for   the               institution  of this suit.  The plaintiff  has               failed  to  serve such a notice under  s.  80,               Civil Procedure Code.  The notice mentioned in               paragraph 20 of the plaint was- not valid;  it               was  defective and not according to law.   The               present  suit, more-over is at  variance  with               the  notice.   The  suit  shall  therefore  be               deemed   to   be  without   notice   and   not                             maintainable." This  plea raised for consideration three matters: (1)  that where after a notice under s. 80 Civil Procedure Code  ,suit is  instituted  but that suit is withdrawn with  liberty  to file  a  fresh suit, it is the requirement of s.  80,  Civil Procedure  Code that there should be a fresh  notice  before the second suit is instituted., (2) that the allegations  in the  plaint and the reliefs claimed in it were  at  variance with the cause of action andreliefs stated in   the notice issued under s. 80,and (3) that the    notice  itself   was defective asnot complying with  the  requirements  of  s. 80.      We, do not consider thatthere is much substance in the

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first objection we have set out above.  If the plaint  which is  being  considered by the Court has been  preceded  by  a notice  which  satisfies the requirements of  H.  80,  Civil Procedure  Code, then the fact that before the  plaint  then under consideration, there had been another plaint which had been  filed and withdrawn cannot, on any principle, be  held to have exhausted or extinguished the vitality of the notice issued. We  consider  it necessary to concentrate  mainly  upon  the second  of  the  objections  raised,  viz.  that  there  was substantial disconformity between the 664 plaint  filed  by the appellant and the notice under  s.  80 which  was relied on in paragraph 20 of the plaint.   It  is necessary  for this purpose to analyse somewhat closely  the allegations  and  reliefs in the plaint, as well as  in  the notice to see how far the disconformity and variance pleaded by  the respondent has been made out.  We shall  begin  with the  plaint.  After reciting the auction dated February  25, 1952  under  which  the  vend-licence  was  leased  to   the appellant  for the year 1952-53 and the material  terms  and conditions of the auction, the plaint alleged in paragraph 2 that  the defendant had broken the contract  which  entitled the plaintiff to file a suit for damages.  The several heads of claim which went to make up the total of the damages  for which a decree was prayed were set out in    paragraphs 3 to 20. The firsthead of claim was   in  relation to  loss  of profitsstated to have arisen    on account of  inadequate supplyof liquor. This was stated in paragraph  3   where the allegation was made that  there  had  been  a  deficient supply of 632 gallonsduring   the  months  of  May   and June,1952 on   account  of  which  the  plaintiff  lost  Rs. 5,11218/-  in the profits that he would have derived if  the supply had been properly made.  While paragraph 4 dealt with the non supply of certain special varieties of liquor during the  months of April, May and June, paragraph  5  complained that  there had been a supply of kerosenic  and  unwholesome liquor  which had been declared unfit for human  consumption by  the  order of the authorities.  The damages  claimed  on this account were computed in paragraph 18 of the plaint  at Rs. 4,222/-, being the sum paid into the Treasury by way  of exciseduty  in  respect of liquor which  bad  been  declared unfit for human consumption.  A claim was made in the  later paragraph  for  the refund of this sum.  In paragraph  6  an allegation was made that the plaintiff had bid at the figure of over one lakh and twenty thousands rupees because of  the condition 665 inserted  in the terms of the auction that liquor  would  be supplied  in  pilfer-proof  bottles with  metal  covers  and because of the non-fulfilment of this condition he had  lost Rs.-/8/-  per bottle which totalled up to Rs. 26,  400/-  on the total number of bottles that would have been supplied to him  if  the  contract had gone on for the  full  year.   In addition,  under the same head there was a further claim  in paragraph 8 for Rs. 1,047/10/-, stated to be the loss caused by  the government charging a price based on the  supply  in pilfer-proof  bottles  though  the  supplies  were  made  in ordinary containers.  Paragraph 7 made a claim for a sum  of Rs. 5,008/11 stated to be the price of deficient quantity of liquor supplied because of the supply in undersized bottles. Paragraph 9 contained a complaint that it was a terms of the contract  that empty bottles would be bought back  but  that this  had not been done, as a result of which the  plaintiff had  lost  Rs. 931/8/-.  Paragraph 10  complained  that  the

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Government   had  not  taken  steps  to   suppress   illicit distillation  which  had caused loss, though ,the  loss  was neither quantified nor any claim made under that head, while paragraphs  II to 13 challenged the legality of  the  action taken  by the Excise authorities in suspending  the  licence and  in taking over the vend-shops under  their  management. In paragraph 16 the plaintiff claimed a refund of Rs. 21,460 /-  which bad been deposited into the Treasury at  the  time the  licence  was granted to the appellant  and  finally  in paragraph  19  the  plaint made a claim that  by  reason  of government having broken the contract the plaintiff had lost a profit every month of Rs. 5. 052/ for the unworked  period of the year of the licence, i. e. from July 1, 1952 to March 31, 1953 which totalled Rs. 45,471/6/-.  These several beads added up to Rs. 1,09,653/11/and the plaint went on to state:               "The  plaintiff  is thus entitled to  a  total               refund and compensation of Rs. 1,09,653/1 1/-               666               the details of which are given in Schedule  B’               (which set out the details of the  computation               by  which  the figures which  we  have  stated               above   were  arrived  at).    The   plaintiff               confines  his claim for damages and refund  of               the  amounts  paid by and due to  him  to  the               extent  of Rs. 74,935/8/3 out of the items  as               may be found due to him."               Finally, after making a claim for a decree for               this sum the plaint prayed in paragraph 22:               "In  addition  to the grant of  the  ancillary               relief  of  the  dependent  being  permanently               restrained from recovering any license fee  or               any other dues from the plaintiff." We shall now turn to the notice of suit which was relied  on by  the appellant as complying with s. 80,  Civil  Procedure Code.  The notice was by a lawyer who had been instructed to serve  the  Collector  of Mandi  and  the  Chief  Secretary, Himachal  Pradesh  with the notice under s. 80,  Civil  Pro- cedure Code.  After stating that the appellant had been  the successful bidder at the auction and reciting certain of the terms of the contract, it stated:               "Whereas  my client has all  along,  beginning               from  April  1, 1952 onwards,  been  complying               with  the  obligations  under  the   agreement               regarding  auction of the said licenses.,  the               Government  of Himachal Pradesh has  miserably               failed   in  honoring  and  implementing   the               conditions thereunder". This was followed by an enumeration of the contravention and these  were  :  (1) that standard  sized  bottles  were  not maintained  by ware-house contractors, (2) Liquor was  being supplied  in  bottles  with paper  capsules  instead  of  in pilfer-proof bottles 667 with  metal lids, (3) that month after month in  respect  of urgent  demands  the  quantity liquor  required  was  either inadequately  supplied  or  not  supplied  at  all.    These complaints were followed by an exhortation to government  to be  alive to its obligations and liabilities and the  notice proceeded, and this is the important paragraph:               "I  am hereunder detailing the items  and  the               details which have mounted the damages in  the               above respects as at present accrued and would               request the Himachal Government to arrange for               immediate  payment thereof.  The loss  accrued               to  L.  Amar Nath Dogra in  respect  of  quota

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             unsupplied    or    when    supplied    though               inadequately in under sized bottles, regarding               miscellaneous Excise VIII charged on  supplies               in  ordinary bottles and for  not  maintaining               and enforcing Buy Back system of empty bottles               ;  together with the return of two  months  of               advance  deposits and deposit  regarding  Duty               and   Misc.   Excise  VIII  credited  in   the               treasury  at  Sunder  Nagar  amounts  to   Rs.               74,935/8/3.               I  hereby  make  demand of  the  said  amounts               payable to my client which may either be  paid               direct to him or to me without delay". The  question now for consideration is how far and  to  what extent  there  is  a variance between  the  plaint  and  the notice.  At the outset it might be pointed out that as at  a very  early  stage of the suit the  appellant  withdrew  the relief for a permanent injunction, which was not claimed  in the  notice and the question of this extra relief  need  not therefore be considered. It would have been noticed that the plaint claim was reduced to Rs.74,935/8/3 obviously because that was the figure  that was claimed in the 668 notice of suit.  In the notice however how the total of  Rs. 74,935/8/3 was arrived at, in what manner the several  items claimed were to be related to this figure were not set  out. Nor  can  those  details be inferred or  gathered  from  the detailed  statements  which accompanied the  plaint  on  the basis of which the several items claimed in the plaint  were derived.   There is one other matter which requires  mention in this connection.  There were two items of loss claimed in the  plaint which had and could have absolutely no place  in the  notice  because they arose only  after  the  Government suspended  the licence and later cancelled it and took  over the  vend-shops  under Government’s own  management.   These items  were : (1) loss on the yearly quota of liquor  worked out  at  Rs. 26,400/-, and (2) the loss of  profit  for  the unworked  period i. e., from July 1, 1952 onwards which  was worked out to Rs. 45,471/6/-, If these two items are deduct- ed  from  the  total Rs. 1,09,653111/-,  there  would  be  a balance  of only Hs. 37,782/5/-, whereas with  reference  to the  same  items of complaint a sum of Rs. 74,  935/8/3  was claimed  in  the notice.  Besides, there is one  item  which figures  both  in  the  notice as  well  as  in  the  plaint regarding  which  the  amount  is certain  and  that  is  in relation to the claim for the refund of Rs;. 21,460/-  being the  amount  of initial deposit of 1/6th of the  bid  amount which  had been paid into the Treasury by the  appellant  in March,  1952.   If this were deducted from  Rs.  37,782/5/it would  leave  a  sum  of  Rs.  16,322/5/-  as  against.  Rs. 53,475/813  which could be the sum which was the subject  of claim by the appellant in his notice in respect of his three items  of  complaint, viz., the failure to  supply  standard sized  bottles, failure to observe the buy-back  system  and non-supply  of  liquor in pilfer-proof  bottles.   It  would therefore be apparent from these calculations that there  is a complete variance between the claim made in the notice and the claim in the plaint.  We desire to 669 make  it clear that what we have here is not a case where  a claim  for a definite sum in the notice is later reduced  in the  plaint,  but  one  where there  is  no  possibility  of establishing any relationship between the claim made in  the suit  and  that  in the notice which precedes  it.   On  the

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notice the claim under one head, might for all one knows, be for  an  infinitemally small sum while the other  was  exag- gerated beyond what is found in the plaint, and hence  there is no means of identifying the claim for any particular  sum in the plaint with that for which a claim was being made  in the notice. There  is one other aspect from which the same matter  could be viewed.  In the notice served by the appellant there were several  heads  of  claim, though they all arose  out  of  a single  contract  and we consider that on a  reasonable  and proper  construction  of  s. 80, Civil  Procedure  Code  the authority  on  whom the notice is served has a right  to  be informed  what the claim of the party is in respect of  each of  the several heads.  It is, no doubt, true that a  notice under s. 80 is not a pleading and need not be a copy of  the plaint   and  that  no  particular  or  technical  form   is prescribed  for  such a notice, still having regard  to  the object for which s. 80 has been enacted we consider that the details which it contains should be sufficient to inform the party  on whom it is served of the nature and basis  of  the claim and the relief sought, and in so statiug the  position we  are  merely reproducing the terms of  the  section.   No doubt,  a notice has to be interpreted not pedantically  but in the light of commonsense without one being  hypercritical about the language but the question is whether in the notice before  us there is substantial information conveyed on  the basis  of which the recipient of the notice  could  consider the claim of the would-be plaintiff and avert the suit.  For the  reasons  already  stated  this  question  can  only  be answered in the negative.                             670 Mr.  Sastri  invited our attention to the decision  of  this Court in State of Madras v. C. P. Agencies (1) in which Das, C. J., speaking for the Court, said:               "The object of s. 80 is manifestly to give the               Government  or the public  officer  sufficient               notice  for the case which is proposed  to  be               brought against it or him so that it or he may               consider the position and decide for itself or               himself  whether  the claim of  the  plaintiff               should  be accepted or resisted.  In order  to               enable the Government or the public officer to               arrive  at a decision it is necessary that  it               or he should be informed of the nature of  the               suit  proposed to be filed against it  ow  him               and  the facts on which the claim  is  founded               and the precise reliefs asked for." Reliance  was  also  placed on a  later  passage  where  the learned Chief Justice extracted a passage from the  judgment of  this Court reported as Dhian Singh Sobha Singh v.  Union of India (2) which read :               "The  Privy Council no doubt laid down  in  54               Ind.   App. 338 : (Air 1927 PC 176)  that  the               terms  of  this  section  should  be  strictly               complied  with.   That does not  however  mean               that the terms of the notice should be scruti-               nized  in  a pedantic manner or  in  a  manner               completely divorced from commonsense." On  this line of reasoning this Court held that  the  notice before  them sufficiently complied with the terms of s.  80. It  must, however, be pointed out that this  conclusion  was reached on the notice which gave the details of the  several heads of claim which were there made.  With reference to the notice  then before the Court the learned Justice  observed, after  setting out the several paragraphs of the  notice  in

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which the details were set out (1)  A. 1. R. 1960 S. C. 1309, (2)  [1958] S.C.R. 781. 671               "Therefore, on a fair reading of the notice it               may be said that the fact of the contract  for               the  payment of the godown rent, the  quantity               of  goods  stared the rate at  which  and  the               period  for which the claim was made  and  the               failure of the first defendant to pay the same               are  sufficiently stated so as to  enable  the               first defendent, which is the appellant before               us,  to  know that the plaintiff’s  claim  was               about and whether the claim should be conceded               or resisted". It  is  precisely  these details that  are  lacking  in  the present  case.  No doubt, there is a general complaint  that Government have not conformed to the contract, but these are itemised  in the paragraphs of the notice which we set  out. If the notice had gone on to state the amount claimed  under each  of  the several heads of items claimed it  would  have been possible for the Government to have considered  whether it  was  worth their while to settle with the  plaintiff  by agreeing  to pay the sum demanded.  This they had  never  an opportunity by reason of form of the notice, and the  manner in which the relief claimed was stated. The only item regarding which it could be said that there is a quantification in the notice would be that relating to the claim  for  the refund of Rs. 21,460/- being the  amount  of advance deposit made before the licence was granted, but the plaintiff’s  claim in this regard is barred under the  terms of a. 40 of Punjab Excise Act which runs:               "40.   When  a  license,  permit  or  pass  is               cancelled or suspended under clause (a),  (b),               (o), (d) or (e) of section 36 or under section               37,  the holder shall not be entitled  to  any               compensation    for   its   cancellation    or               suspension  nor to the refund of any fee  paid               or deposit made in respect thereof."               672               The result therefore would be that the  entire               claim  in  the suit must fail  reason  of  the               combined effect of s. 80, Civil Procedure Code               and s. 40 of the Punjab Excise Act.               With reference to s. 80, Civil Procedure  Code               there is one further submission of Mr.  Sastri               to which it is necessary to advert.  He  urged               that whatever other defects there might be  in               the notice dated September 2, 1952, there  was               a  literal compliance with requirements of  s.               80 and that in consequence the Court was bound               to  treat it as valid.  In this connection  he               pointed  out that the only requirements of  s.               80  relevant to the present context were  that                             the  notice should state the course  of  actio n               and   the  relief  which  was  claimed.    His               argument was that the contract was single  and               entire and as the notice had stated that there               had been a breach thereof, and had gone on  to               enumerate the several stipulations which  were               claimed  to have been broken, the  requirement               that the cause of action should be stated  had               been complied with.  Next was the  requirement               that  the relief claimed should be stated  and

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             this  also  satisfied as  the  notice  claimed               damages by way of compensation and had set out               the amount so claimed.  Ho pointed out that in               regard to the claim for damages the plaint had               totalled  up the items to reach the figure  of               Rs.  1,09,653/11/- but had confined the  claim               to Rs. 74,93518/3 which had been the figure at               which damages had been computed in the  notice               and the argument therefore was that the  Court               would have jurisdiction to grant the relief at               least  in respect of those items of the  claim               which  were  common  to  the  notice  and  the               plaint.  We consider that the validity of  the               notice now impugned cannot be sustained on the               basis  suggested.   It would be  noticed  that               when  the notice dated September 2,  1952  was               issued  the  Collector had  not  suspended  or               cancelled                673               the licence and that the claim set out in  the               notice was on the basis of seeking relief  for               branches  of  stipulations  in  a   subsisting               contract.    This  was  made  clear   by   the               paragraphs  that  follow that  which  we  have               extracted earlier.  These run:               "Under   the  conditions   and   circumstances               disclosed,  my client could not be  forced  to               pay in the fees etc. as accrued without  first               making  good  to them by you the  damages  and               losses  that  have resulted hereto  before  on               account  of the Government not fulfilling  the               material   conditions.    It   is    therefore               requested that no untoward action be  proposed               by the Government in that behalf, for it would               otherwise   be   unwarranted,   illegal    and               unjustified.               The  licence, my client has been and would  be               willing  to carry out his part as  relates  to               auction  conditions  if the  Government  gives               immediate redress in the terms aboveboard, and               arrange  supplied  in  pilfer-proof   bottles.               Otherwise, treating the contract determined he               will  be  forced  to take the  matter  to  law               courts in which event the Himachal  Government               will be liable in addition to the damages;  to               costs  and  expenses that may accrue  for  the               stated steps." When  one comes to the plaint however, the entire  basis  or rather  the  cause of action is changed.  By that  date  the contract  had  been  terminated,  the  licence  having  been suspended  and afterwards the Collector had taken  over  the management of the shops under s.39 of the Punjab Excise Act. There was, therefore a radical difference between the  state of  circumstances  when the impugned notice was  issued  and when  the  plaint  was  filed  which  is  reflected  in  the allegations  made  in  the two  documents  and  the  reliefs claimed in each. 674 In   summary,  the  notice  was  based  on  the  breach   of stipulations in a contract which had not been broken and was still  subsisting.   In that sense, it would  be  the  items claimed  in respect of each breach that would  constitute  a cause  of action in the technical sense and it was on  their account  that  the  sum  of  Rs.74,935/8/3  was  claimed  as damages.   In the plaint, however, the cause of  action  was

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different.   By  that  date  the  allegation  was  that  the contract  had been broken by the government  repudiating  it and taking over the shops after cancelling the licence.  The cause  of action then was the breach of the entire  contract and the items set out in the plaint were the heads of  claim under  which  the damages were computed.  In view  of  these circumstances we have no hesitation in holding that even  on a very narrow and strict view of s.     80   there  was   no compliance with its terms. The  result therefore is that the entire claim in  the  suit must  fail for the reasons we have indicated  earlier.   The appeal,   therefore,  fails  and  is  dismissed.    In   the circumstances  of this case we considered that  the  parties should bear their own costs in this appeal. Appeal dismissed.  675