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PETITIONER: GHANSHYAM DASS AND OTHERS

       Vs.

RESPONDENT: DOMINION OF INDIA AND OTHERS

DATE OF JUDGMENT20/03/1984

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) DESAI, D.A. ERADI, V. BALAKRISHNA (J)

CITATION:  1984 AIR 1004            1984 SCR  (3) 229  1984 SCC  (3)  46        1984 SCALE  (1)528

ACT:      Contract with Government and claims arising there from- Contractor issues  notice to  Government  under  section  80 C.P.C. (before  the amendment  in 1976)  but dies before the institution of  the suit-The  legal representations  of  the contractor institutes  the suit  on the  basis of the notice issued  by  the  contractor-Whether  a  fresh  notice  under section 80, C.P.C. is necessary and for want of such a fresh notice the  suit itself  is not  maintainable-Code of  Civil Procedure (Act V of 1908) section 80 (as is stood before the Amendment Act of 1976) Scope of.

HEADNOTE:      The plaintiff’s father Seth Lachhman Dass Gupta entered into a contract with the Governor General-in-Council for the supply of  charcoal to  the Military  Supply Depot, Agra and received payments  for the same at the contractual rate from time to  time. The  contract contained  an escalation clause viz. cl.8  to the  effect that in case the price of charcoal was increased by more than 10% of the stipulated rate during the subsistence  of the  contract, the  contractor would  be entitled to  the price at the higher rate. During the period of the  contract, the rate of charcoal went up continuously. The military  authorities paid  at the enhanced rate for the part of supplies while for the rest they refused to pay more than the contractual rate. He accordingly served a notice to the Government  under s.  80 of the Code of Civil Procedure, 1908 making a claim for payment of a sum of Rs. 20,710.50 p. in terms  of clause  8 of  the contract being the difference between the  enhanced rate  and the contractual rate for the supplies paid  for. But  before  he  could  bring  the  suit against the  Government, he died. Thereupon, the respondents brought a  suit as  his legal  heirs and successors claiming the amount. The defendants contested the claim inter alia on the ground that the notice given by Seth Lachhman Dass could not ensure  for the benefit of the plaintiff’s and therefore the suit was bad for want of notice under s. 80 of the Code. The Court  of first  instance held  that no  further  notice under s.  80 was  necessary as  the  notice  served  by  the plaintiff’s father  Seth Lachhman  Dass must  inure to their benefit.

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    on appeal,  the High Court reversed his decision on the point and  held that  the notice  given by  the  plaintiff’s father was  insufficient and was not a valid notice under s. 80 of  the Code  insofar as  the plaintiff’s were concerned. Against the judgment, the plaintiff’s preferred an appeal by special leave.      Allowing the appeal, the Court 230 ^      HELD: 1.  The question  as to whether a notice under s. 80 is  valid or  not is a question of judicial construction. S. 80  of the  Code is  but a  part of  the . Procedure Code passed to  provide the regulation and machinery, by means of which the  courts may  do justice between the parties. It is therefore merely  a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and  advance the  cause of  justice rather  than to defeat it.  As far as possible, no proceedings in a court of law should be allowed to be defeated on mere technicalities. This is  the principle  on which  ours laws of procedure are based. [238A, 239G-H, 240A-C]      2. The  whole object of serving a notice under s. 80 is to give  the Government sufficient warning of the case which is  going   to  be   instituted  against  it  and  that  the Government, if  it so  wished can  settle the  claim without litigation or afford restitution without recourse to a court of law.  Though the  terms of  s. 80  have  to  be  strictly complied with,  that does not mean that the notice should be scrutinised in a pedantic manner divorced from common sense. The point  to be  considered is  whether  the  notice  gives sufficient information as to the nature of the claim such as would enable  the recipient  to avert the litigation. If the notice substantially  fulfills its  work of  intimating  the parties ’concerned  generally of  the  nature  of  the  suit intended to  be filed,  it would be sufficient compliance of the section.  While interpreting the pre-amended section the courts must  have due  regard to  the change  in law brought about by  sub-s. (3)  of  s.  80,  which  shows  legislative acceptance of  the rule of substantial compliance instead of strict compliance. [240D-E, 242C-E]      Sangram Singh v. Election Tribunal Kotah relied on.      3. In  the present  case the  requirement of s. 80 that there must  be identity  between the cause of action and the relief claimed  in the  notice as  well as in the plaint, 15 fulfilled. As  regards the  requirement of  identity  of the person who  issues the notice with the person who brings the suit, in  this case  the notice  contained the  name of  the original claimant  i.e. the  father of the plaintiffs. The . notice reached  the concerned  department of  the Government where the  Government had opportunity to’ examine the nature of the  claim and decide whether it should accept or contest the claim.  The concerned  Government authorities  served  a reply on  the plaintiff’s  father that  his  claim  was  not acceptable. There  after he  died and  his right to file the suit for  enforcement of  the claim having devolved upon his heirs i.e.  the plaintiff’s,  the plaintiffs  filed the suit for enforcement  of the same claim. In the circumstances, if s. 80 is held to have not been complied with, as done by the High Court,  great injustice would be done to the plaintiffs in the  matter of filing suits to the Government inasmuch as in case  of  insistence  on  fresh  notice,  the  period  of limitation to  file the  suit would  expire in the meantime. Such a  situation is  not intended  by the  Code.  Thus  the requirement of  s. 80 was clearly fulfilled in this case but the High  Court having  allowed the  technical plea  of  the

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defendants, the  plaintiffs have  - - been deprived of their legitimate claim  for at  least 35  years. [238D-H,  239A-C, 240G-H]      S.N. Dutt  v.  Union  of  India,  [1962]1  S.C.R.  560; Mahadev Dattatraya  Rajshri v. Secretary of States for India [1930] 32  Bom. L.R.  604; and Bachchu Singh v. Secretary of State for India in Council, [1902] 25 I.L.R. 187, overruled. 231 Raghunath Dass v. Union of India, [1969] 1 S.C.R. 450; Union of India  v. A  Jeewan Ram  A.I.R. 1958  S.C. 905;  State of Madras v. C.P. Agencies, A.I.R. 1960 S.C. 1309 and Amar Nath Gogra v. Union of India,[1964]1 S.C.R. 651, affirmed.      Bhagchand Dagadusa  v. Secretary  of State  of India in Council, [1927] I.A. 338; Vallayan Chettiar v. Government of the Province of Madras [1947] I.A. 74: and Government of the Province of Bombay v. Pestonji Ardeshir Wadia [1949] 76 I.A. 57; referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No.  82 of 1971.      From Judgment  and Decree  dated 26.2.65  of  Allahabad High Court in first appeal No. 457 of 1952.      J.P. Goyal and S.K. Jain for the appellants.      V.C. Mahajan and A. Subhashini for the respondents.      The Judgement of the Court was delivered by      SEN, J.  This appeal  on certificate  brought from  the judgment and  decree  of  the  Allahabad  High  Court  dated February 26,  1965 reversing  the judgment and decree of the Civil Judge,  Agra dated  August 25, 1952 and dismissing the plaintiffs’  suit  for  recovery  of  Rs.  26,000  raises  a question of  some importance  upon s.80 of the Code of Civil Procedure, 1908.      The facts  giving rise  to this  appeal may  be shortly stated. On  November 12, 1949, the plaintiffs Ghanshyam Dass and his  two minor  brothers Shree Ram and Mohan Lal brought the suit  out of  which this  appeal arises, in the Court of the Civil  Judge, Agra  for recovery  of a sum of Rs. 26,000 against the Dominion of India through the Defence Secretary, New Delhi.  It was  pleaded  that  their  late  father  Seth Lachman Dass Gupta entered into a contract with the Governor General-in-Council  for   the  supply  of  charcoal  to  the Military Supply  Depot at  Agra during the period from April 1, 1943  to March,  31, 1944.  In pursuance thereof, he made necessary supplies and received payments for the same at the contractual rates from time to time. It was pleaded that tho contract contained  an escalation  clause viz.  clause 8, to the effect  that in  case the price of charcoal increased by more than  10% of the stipulated rate during the subsistence of the  contract, the  contractor would  be entitled  to the price at the higher rate. It was alleged that from 232 the date  of the  contract, the  rate of  charcoal  went  up continuously to  44.8% in  July, August  and September 1943, 93.1% in  October November  and December  1943 and  82.7% in January, February  and March  1944. Accordingly Seth Lachman Dass made  a demand  for payment  of price  at the increased rate. The military authorities paid at the enhanced rate for part of  the supplies while for the rest they refused to pay at more  than the contractual rate. Seth Lachman Dass served a notice  Ex. A-8  on the  Dominion  of  India  through  the Defence Secretary  under s.80 of the Code of Civil Procedure 1908. lt  appears  that  before  his  death,.  On  or  about

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September 15,  1948 he  received a  letter from the military authorities rejecting his claim for payments at the enhanced rate but  before he  could institute  any suit  he  died  on October 28,  1949. Thereafter,  on  November  12,  1949  the plaintiffs who  ale his  three sons, brought the suit as his legal  heirs   and  successors   claiming  the  amount.  The defendants contested the claim inter alia on the ground that the notice  Ex. A-8  given by  Seth Lachman  Dass could  not inure for  the benefit  of the  plaintiffs and therefore the suit was  bad for  want of  a notice under s.80 of the Code. The learned  Civil Judge,  however,  held  that  no  further notice under s.80 was necessary as the notice Ex. A-8 served by the  plaintiffs’ father  Seth Lachman Dass must enure for their benefit. He found that the plaintiffs were entitled in terms of  clause 8  of the  contract to receive a sum of Rs. 20,710.50 p.  being the difference between the enhanced rate and the  contractual rate  for the  supplies  paid  for  and accordingly decreed the plaintiffs claim to that extent. But on appeal  the High  Court, his  decision on  the point  was reversed upon  the view that the notice Ex. A-8 given by the plaintiffs’ father  was  insufficient  and  was  nota  valid notice under  s.80 of the Code of Civil Procedure insofar as the plaintiffs were concerned.      The short  question involved  in this appeal is whether the notice  Ex. A-8  given by  the plaintiffs’  father  Seth Lachman Dass  Gupta before  his death under s.80 of the Code of Civil  Procedure, 1908 would enure for the benefit of the plaintiffs.      Section 80  of the  Code as it stood on the date of the institution of  the suit, insofar as material, is reproduced below:           "80. Notice:  No suit  shall be instituted against      (the Government) or against a public officer in respect      of any act purporting to be done by such public officer      in his official 233      capacity, until the expiration of two months next after      notice in writing has been delivered to, or left at the      office of-           (a) in  the  case  of  suit  against  the  Central      Government ........... a Secretary to that Government:      **             **             **             **      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."      In the  celebrated case of Bhagchand Dagadusa & Ors. v. Secretary of State for India in Council & Ors., the Judicial Committee of  the Privy  Council held  that this  section is express,  explicit   an  mandatory   and  it  admits  of  no implications or  exceptions. The  words of  Viscount  Summer delivering the  judgment of  the Privy  Council have  become classical :           "Section 80  is express,  explicit and  mandatory,      and it  admits of implications or exceptions. A suit in      which (inter  alia) an  injunction is  prayed still  "a      suit" within  the words of the section, and to read any      qualification  into   it  is  an  encroachment  on  the      function of legislation. Considering how long these and      similar words  have been  read throughout  most of  the      Courts  in   India  in   their  literal  sense,  it  is      reasonable to  suppose that  the section  has not  been      found to  work injustice, but, if this is not so, it is

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    a  matter to be rectified by an amending Act.      The Privy  Council rejected  the contention put forward before them  that the  section deals with mere procedure and held that  the requirements  of  s.80  are  to  be  strictly complied with  and are applicable to all forms of action and all kinds  of relief.  It further  held that  s.80 imposes a statutory and  unqualified obligation  upon the Court and in the absence  of compliance  with  s.80,  the  suit  was  not maintainable,  either   as  to  the  declaration  sought  or injunction prayed for. 234      Earlier, in  some cases, a liberal construction was put upon the section and it was held that a notice is sufficient if it  substantially fulfils  its objection in informing the parties concerned of the nature of the suit to be filed, and that a  notice is  not invalid merely because it is given by two out  of three  plaintiffs But  since the  Privy  Council judgment in  Bhagchand’s case, supra, strict compliance with the terms  of s.80  has been  enforced and a notice given by one of  two plaintiffs  has been  held to  be  insufficient. Again, in  a case  where the plain tiffs’ father gave notice and then  plaintiffs filed  a suit after the father’s death, the notice  given by the father in respect of the same cause of  action   was  held  insufficient  :  Mahadev  Dattatraya Rajarshi v.  Secretary of  State for  India following Buchan Singh v. Secretary of State.      It is plain from the terms of s.80 that the notice must fulfil the  requirements set  out therein.  It is  essential that the  notice must  state  the  names,  descriptions  and places of  residence of all the plaintiffs. A notice must be such  as  to  enable  the  addressee  or  the  recipient  to indentify the  claimant. In  Vallayan Chettiar & ors. v. The Government of  the Province  of Madras  & Anr.  Lord  Sumner delivering the judgment of the Privy Council referred to the observations of Lord Sumner in Bhagchand’s case that s.80 is explicit and  mandatory and-admits  of  no  implications  or exemptions, and observed that:           "There should be identity of the person who issues      the notice  and who  brings the suit. To hold otherwise      would be to admit an implication or exception for which      there is no justification. " .      There, the  question was  whether a suit brought by two plaintiffs was competent when notice under s.80 was given by only one  of them.  The Privy  Council having  regard to the mandatory requirements  of s.80  of the Code held that there was no  valid notice  and accordingly upheld the judgment of the High  Court dismissing  the plaintiff’s suit. So also in Government of the Province Bombay v. Pestonji Ardeshir Wadia & Ors.,  the Privy  Council reiterated  the same  principles where no notice had been served under s.80 specify- 235 ing  the  names  and  addresses  of  all  the  trustees  and therefore  the  provisions  of  the  section  had  not  been complied with  and it was accordingly held that the suit was incompetent.      As to  the requirement  that the  notice must state the cause of  action and  the reliefs  claimed, there is a large body of  decisions laying  down  that  a  notice  under  the section should  be held to be sufficient if it substantially fulfils its object in informing the parties concerned of the nature of  the suit  to be  filed. In  consonance with  this view, this  Court in Dhian Singh Sobha Singh & Anr. v. Union of India,  Union of  India v. Jeewan Ram, State of Madras v. C.P. Agencies  and Amar Nath v. Union of India has held that though the terms of the section have to be strictly complied

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with,  that   does  not  mean  that  the  notice  should  be scrutinized in  a pedantic  manner or  in a  manner divorced from common  sense. On this principle, it has been held that notice which  states the  cause of  action and  the  reliefs described in  the annexed  copy of  the plaint  (which forms part of  the notice)  though  defective  in  form,  complies substantially with  the section.  The point to be considered is whether the notice gives sufficient information as to the nature of  the claim  such as  would enable the recipient to avert the litigation. The relevant passage from the judgment in Dhian Singh Sobha Singh’s case, supra, is set out below:           "We are  constrained to  observe that the approach      of the  High  Court  to  this  question  was  not  well      founded. The  Privy  Council  no  doubt  laid  down  in      Bhugchand Dagadusa  v. Secretary  of State (1927) LR 54      LA 338)  that the  terms  of  this  section  should  be      strictly complied with. That does not however mean that      the terms  of the  notice should  be scrutinized  in  a      pedantic manner or in a manner completely divorced from      common sense. As was stated by Pollock C.B. in Jones v.      Nicholls (1844)  153 E.R.  149 "We must import a little      common sense into notices of this kind.’’ Beaumont C.J.      also observed  in Chandu  Lal Vadilal  v. Government of      Bombay, ILR  (1943) Bom. 128 "one must construe section      80 with  some regard  to common sense and to the object      with which it appears to have been passed ---------- 236      The question  as  to  whether  notice  under  s.80  was invalid for  want of  identity of  the  plaintiffs  directly arose in  the case  of S.N. Dutt v. Union of India. There, a notice  was  served  by  the  appellant  who  was  the  sole proprietor of  a business  styled S.N.  Dutt &  Co., (in the name of  S.N. Dutt  & Co.)  and thereafter  he filed  a suit against the  Union of  India  describing  the  plaintiff  as "Surendra Nath Dutt sole proprietor of a business carried on under the  name and  style of  S.N. Dutt  & Co.". This Court upheld the  decision of  the Calcutta  High Court dismissing the plaintiff’s  suit holding that the person who issued the notice was  not the  same as  the person who filed the suit. The contention  that the  appellant was carrying on business under an  assumed name and therefore the notice was valid as S.N. Dutt  & Co.  was merely  the  name  and  style  of  the business which  he was  carrying on, was rejected. The Court held that  since no suit could be filed by S.N. Dutt & Co in that name  as it  was not  a partnership  firm, it could not give a  valid and  legal notice  in that  name, and  a valid notice could  only be  given in  the name  of S.N. Dutt. The decision merely  reiterates the rule laid down by this Court in Bhagchand  that  ’section  80,  according  to  its  plain meaning, requires  that there  should  be  identity  of  the person who  gives the  notice with the person who brings the suit". The  Court distinguished the decisions in Dhian Singh Sobha Singh  and C.P.  Agencies on the ground that the Court was dealing  with defect  in describing  the cause of action and the  relief claimed and where it Concerns the relief and the cause of action, it may be necessary to use common sense to find out whether s.80 of the Code has been complied with, and stated:           "But where  it is  a question  o f the name of the      plaintiff, there  is in  our opinion  (little scope for      the use  of common  sense,) for  either the name of the      person suing  is there  in the  notice or it is not. No      amount of  common  sense  will  put  the  name  of  the      plaintiff there, if it is not there."      In the  case of Raghunath Dass. v Union of India & Anr.

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the same  question arose  but the  Court struck a discordant note there.  There, the  notice emanated  from M/s Raghunath Dass Mulkhraj  and in  the body  of the  notice  at  several places the  expression "we" was used. Further, the plaintiff had purported to sign for M/s Raghunath Dass Mulkhraj but at the same  time he  signed the  notice as  proprietor of  M/s Raghunath Dass Mulkhraj. The Court held 237 that was  a clear  indication of the fact that M/s Raghunath Dass Mulkhraj  was a  proprietary concern and the plaintiffs was its  proprietor. In  repelling the contention that there was no  identity of  the person who gave the notice with the person who filed the suit the Court observed:           "Whatever doubts  that might  have  been  possibly      created in  the mind  of the  recipient of  the notice,      after going  through the  body of  the notice as to the      identity of the would be plaintiff, the same would have      been resolved  after going  through  the  notice  as  a      whole."      There, the  plaintiff had averred in the plaint that he was carrying on his business under an assumed name and style of M/s  Raghunath Dass  Mulkhraj meaning  thereby  that  the concern was a proprietary concern and that the name given to it was  only a  trade name. Me had also stated in the plaint that he had given a notice under s.80 of the Civil Procedure Code. In  the written  statement  filed  on  behalf  of  the Dominion of India, the validity of the notice issued was not challenged. Regarding  the notice in question there was only an averment in the written statement that suit was barred by s.80 of  the Code as no notice under that section appears to have been  served on  the Administration.  In repelling  the contention That  the suit was bad for want of notice under s 80 of the Code, the Court said:           "The object  of the  notice contemplated  by  that      section is  to give  to the  concerned Governments  and      public officers  opportunity to  reconsider  the  legal      position and  to make amends or settle the claim, if so      advised without  litigation. The  legislative intention      behind that section in our opinion is that public money      and time should not be wasted on unnecessary litigation      and the  Government and  the public  officers should be      given a  reasonable opportunity  to examine  the  claim      made against  them  lest  they  should  be  drawn  into      avoidable  litigations.   The   purpose   of   law   is      advancement of  justice. The  provisions in s.80, Civil      Procedure  Code   are  not   intended  to  be  used  as      bootstraps against  ignorant and illiterate persons. In      this case  we are concerned with a narrow question. Has      the person mentioned in the notice as plaintiff brought      the present  suit or is he someone else ? This question      has to be decided by reading the notice as a whole in a      reasonable manner." 238      In the  ultimate analysis, the question as to whether a notice under  s.80 of the Code is valid or not is a question of judicial  construction. The  Privy Council and this Court have applied  the rule  of strict compliance in dealing with the question of identity of the person who issues the notice with the  person who brings the suit. This Court has however adopted the  rule of  substantial compliance in dealing with the requirement  that there  must be  identity  between  the cause of  action and  the reliefs  claimed in  the notice as well as in the plaint. As already stated, the Court has held that  notice  under  this  section  should  be  held  to  be sufficient  if   it  substantially  fulfils  its  object  of

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informing the parties concerned-of the nature of the suit to be filed.  on this  principle, it  has been held that though the terms  of the section have to be strictly complied with, that does  not mean that the notice should be scrutinized in a pedantic  manner divorced  from common sense. The point to be  considered   is  whether  the  notice  gives  sufficient information as  to the nature of the claim such as would the recipient to avert the litigation.      In the  present case,  in the  notice Ex. A-8 the name, description and  place of  residence of  the plaintiff  Seth Lachman Dass,  the father  of the  plaintiffs, was given but unfortunatory before  filing the Suit he died and thereafter within the  period of  limitation the suit was instituted by his sons on the basis of the said notice. The notice Ex. A-8 undoubtedly fulfils  the requirement  of s.80 insofar as the cause of action and the relief claimed are concerned as they are absolutely  the same as set out in the plaint. As stated in Dhian  Singh Sobha  Singh, the  notice must substantially fulfil  its   work  of   intimating  the  parties  concerned generally of the nature of the suit intended to be filed and if it  does so,  it would  be sufficient  compliance of  the section as to the requirement that it should state the name, description and  place of  residence of the plaintiff, there must be  identity of  the person  who issues the notice with the person who brings the suit      Now so far as the name and description of the plaintiff concerned the  notice gives  the name  as Seth  Lachman Dass Gupta.  The  notice  Ex.  A-8  duly  reached  the  concerned department and  they dealt  with the  notice. It is not that the Government  had no  opportunity to examine the nature of the claim  and decide  whether its  should accept or contest the claim  The military  authorities served  a reply on Seth Lachman Dass  before  his  death  that  his  claim  was  not acceptable. There  was no other alternative for Seth Lachman Dass but  to have  brought a suit for the enforcement of his claim. 239 If he  could not  file a suit due to his death, his right to file the suit A devolved upon his heirs i.e. the plaintiffs. If the  view taken  by the  High Court  is allowed to stand, great injustice would be done to the litigants in the matter of filing  suits against  the Government. If fresh notice is insisted upon  in such  cases, the  period of  limitation to file a  suit may expire in the meantime. Such a situation is not intended by the Code.      The authorities  relied upon  by the  High Court in non suiting the  plaintiffs are  of ancient  vintage. In Mahadev Dattattraya Rajarshi’s  case, supra,  the Bombay  High Court relying upon  the decision  of the  Allahabad High  Court in Buchan Singh, held that the language of s.424 of the Code of 1882, the  predecessor of s.80 of the present Code which was substantially  in   the  same   terms,  was  imperative  and absolutely debarred  the Courts  from  entertaining  a  suit without complying  with the  provisions of  the section.  In Buchan Singh’s  case, supra it was observed by the Allahabad High Court at p.191:           "If we  acceded to  this contention, it appears to      us that  we should  be adding words to s.424 which find      no place  in it. It would be necessary to add after the      words  "name  and  place  of  abode  of  the  intending      plaintiff" some  such words as "or of the party through      whom such intending plaintiff claims."      The Court  of first  instance here tried to distinguish the decision  in Buchan  Singh on  the ground  that the word "intending" appearing  in s.424  of the  1882 Code  had been

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omitted from  s.80 of  the present  Code, and  therefore the word "plaintiff’  j should  be construed in a generic sense. The High  Court however following the decision of the Bombay High Court  in Mahadev  Dattaraya  Rajarshi  held  that  the notice must  contain the  name of  the actual  plaintiff who could bring  the suit  adding that "the notice must be given by the person who becomes the plaintiff and by no other". We are afraid,  that is  taking too  technical a  view  of  the matter.      S.80 of  the Code  is but  a part of the Procedure Code passed to  provide the regulation and machinery, by means of which the  Courts may  do justice between the parties. It is therefore merely  a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and  advance the  cause of  justice rather  than to defeat it. In Sangram Singh v. Election Tribu- 240 nal, Kotah  & Anr.,  Vivian Bose,  J.  in  his  illuminating language dealing with the Code of Civil Procedure said:           "It is procedure, something designed to facilitate      justice and further its ends: not a penal enactment for      punishment and  penalties; not a thing designed to trip      people up.  Too technical  a construction  of  sections      that  leaves  no  room  for  reasonable  elasticity  of      interpretation  should  therefore  be  guarded  against      (provided always  that justice  is done  to both sides)      lest the  very means  designed for  the furtherance  of      justice be used to frustrate it.      Our laws  of procedure  are based on the principle that "as far  as possible, no proceeding in a court of law should be allowed  to be  defecated on  mere technicalities". Here, all the  requirements of  s.80 of  the Code  were fulfilled. Before the  suit was brought, the Dominion of India received a notice  of claim  from Seth Lachman Dass. The whole object of serving  a notice  under 5.80  is to  give the Government sufficient  warning  of  the  case  which  is  going  to  be instituted against  it was  that the  Government, if  it  so wished,  settle  the  claim  without  litigation  or  afford restitution  without  recourse  to  a  court  of  law.  That requirement of  s.80 was  clearly fulfilled in the facts and circumstances of the present case.      It is  a matter  of common  experience that  in a large majority of  cases the  Government  or  the  public  officer concerned make  no use  of the  opportunity afforded  by the section In  most cases  the notice  given under s 80 remains unanswered till the expiration of two months provided by the section. It  is also  clear that in a large number of cases. as here,  the Government  or the public officer utilised the section merely to raise technical defences contending either that no  notice had  been given  or that the notice actually given did  not comply  with the requirements of the section. It is  unfortunate that  the defendants  came forward with a technical plea  that the  suit was  not maintainable  at the instance of  the plaintiffs, the legal heirs of Seth Lachman Dass on  the ground  that no  fresh notice had been given by them. This  was obviously  a technical  plea  calculated  to defeat the  just claim. Unfortunately, the technical plea so raised prevailed  with the  High Court  with the result that the plain  tiffs have been deprived of their legitimate dues for the last 35 years, 241      The Law  Commission in  the Fourteenth Report, volume 1 on the  Code of  Civil  Procedure,  1908  at  p.475  made  a recommendation that  s.80 of  the Code should be deleted. It was stated as follows:

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         "The evidence  disclosed that  in a large majority      of cases,  the Government or the public officer made no      use of the opportunity afforded by the section. In most      cases  the  notice  given  under  section  80  remained      unanswered till  the expiry of the period of two months      provided by  the section.  It was  also clear that in a      large number  of cases, Governments and public officers      utilized the section merely to raise technical defences      contending either that no notice had been given or that      the notice  actually given  did  not  comply  with  the      requirements of  the section.  These technical defences      appeared  to  have  succeeded  in  a  number  of  cases      defeating the just claims of the citizens."      The Law  Commission in the Twenty-Seventh Report on the Code at  pp.21-22 reiterated  its earlier recommendation for deletion of  s.80 and  in the  Fifty-Fourth Report  at  p.56 fully concurred  with the  recommendation made  earlier.  In conformity with  the recommendation  of the  Law Commission, s.80 has  undergone substantial changes. By s.27 of the Code of Civil  Procedure (Amendment)  Act, 1976 which was brought into effect  from February  1, 1977,  the existing  s.80 has been re-numbered as s.80(1) and sub-ss.(2) and (3) have been inserted. Sub-s.(2).  as inserted  has been designed to give an urgent and immediate relief against the Government or the public officer  with the  leave of  the Court. But the Court shall not  grant relief  in the  suit,  whether  interim  or otherwise, except  after giving  to the Government or public officer, as  the case  may be,  a reasonable  opportunity of showing cause  in respect  of the  relief prayed  for in the suit. Proviso  to sub-s.(2) enjoins that the Court shall, if it is satisfied, after hearing the parties that no urgent or immediate relief  need be  granted in  the suit,  return the plaint for  presentation to  it  after  complying  with  the requirements of sub-s.(1).      Sub-s.(3) as  inserted by  s.27 of  the Code  of  Civil Procedure (Amendment) Act. 1976 reads as follows :           "80(3). No  suit instituted against the Government      or against  a public  officer in  respect  of  any  act      purporting to  be done  by such  public officer  in his      official capacity shall be 242      dismissed merely  by reason  of any  error or defect in      the notice  referred to  in sub-section  (1) if in such      notice-                (a) the  name, description  and the residence           of the  plaintiff had  been so  given as to enable           the appropriate authority or the public officer to           identify the  person serving  the notice  and such           notice had been delivered or left at the office of           the appropriate authority specified in sub section           (1), and                (b)  the  cause  of  action  and  the  relief           claimed by  the plaintiff  had been  substantially           indicated,"      By sub.s.(3),  Parliament has  brought in  the rule  of substantial compliance.  The present  suit would be directly covered by  sub-s.(3) of  s.80 so introduced if the suit had been brought  after February  1, 1977. Unfortunately for the plaintiffs, s.97  of the  Amendment Act  provides  that  the amendment shall  not apply  to pending  suit and  the  suits pending on  February 1,  1977 have  to be  dealt as  if such amendment had  not been  made. Nevertheless  the Courts must have due  regard to  the change in law brought about by sub- s.(3) of  s.80 of  the Code  introduced by the Amendment Act w.e.f. February  1, 1977.  Such a  change has  a legislative

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acceptance of  the rule  of substantial compliance laid down by this Court in Dhian Singh Sobha Singh and Raghunath Dass. As observed  in Dhian  Singh Sobha  Singh’s case, supra, one must construe  s.80 with  some regard to common sense and to the object  with which  it appears to have been enacted. The decision in  S.N. Dutt v. Union of India’s case, supra, does not accord  with the  view expressed  by us and is therefore overruled .      Before parting  with the  case we consider it necessary to refer  to one  more aspect. It has frequently come to our notice that  the strict  construction placed  by  the  Privy Council in  Bhagchand’s case,  supra, which  was  repeatedly reiterated in  subsequent  cases,  has  led  to  a  peculiar practice in  some Courts.  Where urgent  relief is necessary the practice  adopted is to file a suit without notice under s.80 and  obtain interim  relief and  thereafter to  serve a notice, withdraw  the suit and institute a second suit after expiry of  the period  of the notice. We have to express our strong condemnation  of this  highly objectionable practice. We expect  that the High Courts will take necessary steps to put a stop to such practice. 243      The result therefore is that the appeal succeeds and is allowed. The  judgment and  decree passed  by the  Allahabad High Court  dated February  26, 1965 are set aside and those of the  learned Civil  Judge, Agra dated August 25, 1952 are restored with  costs throughout.  The  plaintiffs  shall  be entitled to  further interest  on the  decretal amount at 6% per annum  from August  25, 1952,  the date  of  the  decree passed by the Civil Judge, Agra, till realization. S.R  Appeal allowed. 244