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PETITIONER: SAWAI SINGHAI NIRMAL CHAND

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 24/09/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M.

CITATION:  1966 AIR 1068            1966 SCR  (1) 986  CITATOR INFO :  F          1977 SC 148  (7)  R          1984 SC1043  (5)

ACT: Code of Civil Procedure (Act 5 of 1908), s. 80 and O. 21, r. 63-Claim suit against Government--Notice, if necessary

HEADNOTE: In  execution  of an order to:- restitution  of  money,  the respondent Union of India-applied for attachment and sale of certain  immovable  ,properties as belonging to  the  person from  whom  the.  money was claimed.   The  properties  were ordered to be attached, and the appellant claiming ownership of  the properties, objected to the attachment under O.  21, r. 58 .of the Civil Procedure Code. 1908. The objection  was over-ruled and his application was dismissed.  Therefore, he filed ;I Suit tinder O. 21, r. 63 and before filing the suit gave notice to the respondentt 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  time but  if s. 80 did not apply and the period of  notice  could not be taken into account, the suit would be barred by time. -Die  trial  court  and High ,Court  answered  the  question against the appellant and dismissed the suit .its barred  by time. In appeal to this Court. HELD  :  The  view that suits tinder O. 21, r.  63  did  not attract  the  provisions of s. 80 is inconsistent  with  the plain, categorical .1nd unambiguous words used by it.  [1993 F] The  material words used in s, 80 are wide and  unambiguous; they .,ire "express, explicit and mandatory" and it would be difficult  to  except front their operation  any  proceeding which can be regarded as a suit against the government.  The proceedings  which the aggrieved party ,commences by  virtue of  O.  21,  r.  63 are intended to be  a  suit.   They  are commenced by the presentation of a plaint as required by  s. 26  of the Code, and art.  11 of the Limitition  Act,  1908, under  which  the  plea  of limitation  was  raised  in  the

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present, case, shows that the proceeding was a suit.  Such a proceeding under O. 21, r. 63 cannot he regarded as either a continuation of the objection proceedings under r. 58, or as a  form  of  ,in appeal against the order  passed  in  them, because  the 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 O. 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  a party  wants to make against it.  ’But that does not  affect the  interpretation of the plain words of s. 80 [989  E,  G; 991 C, E, 992 D] Phul  Kumari v. Ghanshyam Mishra (1907) I.L.R. 35  Cal.  202 (P.C.)  and  Amar Nath Dogra v. Union  of  India,  [1963]  1 S.C.R. 657, explained. Bhagchand  Dagadusa  v.  Secretary of  State  for  India  in Council and others. 54 I.A. 338, applied.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 928 of 1963. 987 Appeal from the judgment and decree dated March 14, 1961  of the Madhya Pradesh High Court in First Appeal No. 57 of 959. Bishan  Narain, S. N. Prasad and f. B.  Dadachanji, for  the apellant. 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 law which  arises in this appeal is whether a suit filed in pursuance of O. 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  a  suit against the respondent, the Union of India, in the Court  of the Second Additional District Judge, Jabalpur, and obtained a decree on 25-4-1951 for Rs. 24,234-14-0 and  proportionate costs  with  interest  @  4%  per  annum.   The   respondent challenged  the said decree by preferring an appeal  in  the High  Court.  Pending the appeal, the  respondent  deposited the decretal 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 respondent’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 Additional  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 properties of Phool Chand, mentioned in the application.  These properties were accordingly  ordered to be attached.  But, meanwhile, they had been sold by Phool Chand to the appellant by a registered sale deed executed on January 9, 1953.  That is why the appellant objected to  the said  attachment  under  O.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 16,  1957. It is this order which has led to the present suit under  0.

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21 r. 63 of the code. Before the appellant filed the present suit on June  23,1958 in  the  Court  of  the  First  Additional  District  Judge, Jabalpur, he gave 988 notice  to the respondent under s. 80 of the Code on  April, 12,  1958.  In the said suit, he claimed a 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 a valid sale deed executed in his favour  by  Phool  Chand.  The  appellant  also  claimed  an injunction  restraining  the respondent from  attaching  and selling the said properties. In defence, the respondent raised a plea of limitation.   It is  common ground that the period of  limitation  prescribed for a suit under O. 21 r. 63 by Article 11 of the Limitation Act  is one year from the date of the order under O. 21.  r. 58.   The  respondent urged that s. 80 of the Code  did  not apply to the present suit; and so, the period covered by the notice  served by the appellant on the respondent could  not be excluded for the purpose of calculating limitation in the present  case.  It is not disputed that if s. 80 applies  to the present suit and the period covered by the notice can be taken into account, the suit is within time.  It is also not disputed  that if s. 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  Madhya  Pradesh,  Jabalpur,  have  answered  this question against the appellant, and the suit has, therefore, been  dismissed  as  barred by time.   It  is  against  this decision  that the appellant has come to this Court  with  a certificate granted by the said High Court.  ’Mat is how the only  point  which  calls for our decision  in  the  present appeal  is  whether  s. 80 of the Code  applies  to  a  suit instituted in pursuance of the provisions of O. 21 r. 63. Let us begin by referring to the provisions of O. 21 rr.  58 and  63. O. 21 r. 58 deals with the investigation of  claims to,  and objections to attachment of,  attached  properties. It  is  under  this rule that a  person  whose  property  is wrongfully attached in execution of a decree passed  against another,  is entitled to object to the said attachment.   On such  an application being made, a summary  enquiry  follows and the attachment is either raised or is 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 on-- way or the other  as  a  result  of  the  investigation  made  in  such proceedings,  r. 63 comes into operation.  It provides  that where  a  claim  or an objection  is  preferred,  the  party against whom an order is made may institute a suit to 989 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 conclusive.  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  a party aggrieved by such order may  ,institute;  and that  means that if a party is aggrieved by an order  passed in  these proceedings, he can have the said order set  aside or  reversed by bringing a suit as provided by r. 63  itself and  such  a suit has to be filed within one year  from  the

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date of the impugned order.  That is the nature of the  suit which the appellant has brought in the present case. In  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 expiration 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 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. 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  proceeding which can be regarded as  a  suit against   the   Government.    While   dealing   with    the applicability of s. 80, the question to ask is: is it a 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 O. 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  a  suit  which  the  aggrieved  party   may institute.   So, there can be no doubt that the  proceedings which  the aggrieved party commences by virtue of  the  pro- visions of O. 21 r. 63, are intended to be a suit.  In fact, the   present   proceedings   have   commenced   with   the- presentation  of a plaint as required by s. 26 of the  Code; and  the very article under which the plea of limitation  is raised  against  the  appellant shows that  it  is  plea  in respect  of the institution of a suit beyond the  period  of limitation.  It is thus plain that what we are dealing  with is a suit and that it is a suit against the Union of  India. Therefore,  on a fair and reasonable construction of s.  80. we  do not see how it is possible to hold that a suit  filed under  O. 21 r. 63 can be taken out of the provisions of  s. 80 of 990 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 it-self, and that plainly is not permissible. It  is, however, said that the suit under O. 21 r. 63  is  a continuation  of attachment proceedings and as such,  cannot be  regarded as a suit proper which is included  within  the purview of s. 80.  In support of the assumption that a  suit filed  under  O. 21 r. 63 is a  continuation  of  attachment proceedings, reliance is placed on the decision of the Privy Council in Phul Kumari v. Ghanshyam Misra(1).  In that case, the  Privy  Council  was dealing with the  question  of  the proper court-fees to be paid for a suit under s. 283 of  the Code which was then in force, and which corresponds to 0. 21 r.  63 of the present Code.  Article 17 of Sch.  It  of  the Court  Fees  Act  (No.  VII of 1870) with  which  the  Privy Council  was dealing was expressly made to apply to  "Plaint or  Memorandum of Appeal in each of the folllowing suits:  1 To alter or set aside a summary decision or order of any  of the  Civil Courts not established by Letters Patent,  or  of any Revenue Court"; and the Privy Council had to examine the question  as  to whether a suit filed under s. 283  for  the purpose of the relevant article prescribing the,  court-fees to be paid on the plaint was, or was not, a suit to alter or

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set  aside a summary decision or order of any  civil  court. In  answering(, this question in the affirmative, the  Privy Council observed 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 verbal.   In  the plaint, the plaintiff  had  "categorically asked from the Court the several decrees which she had asked from the Subordinate Judge, and which the Subordinate  Judge had refused." In other words, the plaint did not, in  terms, ask for the setting aside of the said decrees, or  reversing them.   The Privy Council did not attach any  importance  to this  verbal  difference  and held that  in  substance,  the plaint  was one filed with the object of getting  a  summary decision  of the court set aside as contemplated by s.  283. It  is  in that connection that the Privy Council  made  the observation on which reliance has been placed by the  courts below.   Says the Privy Council, "Misted by the form of  the action  directed  by s. 283, both parties have  treated  the action as if it were not simply a form of appeal, but as  if it  were  unrelated  to  any decree  forming  the  cause  of action." In other words, the effect of the (1) I.L.R. 35 Cal. 202 991 observations  made  by the Privy Council is just  this  that when  a suit is brought under s. 283, it is no more  than  a suit to set aside a 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  extend  the  said observations   to  the  Present  case  and  treat  them   as enunciating  a proposition of law that for all  purposes,  a suit  brought under O. 21 r. 63 is either a continuation  of the objection proceedings, or is a 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 a broad proposition.   Therefore, the argument that the present suit is outside the purview of s.  80  of  the Code because it is  a  continuation  of  the attachment proceedings, must be rejected. In this connection, we ought to bear in mind that the  scope of  the  enquiry under O. 21 r. 58 is very limited,  and  is confined  to  questions of possession as  therein  indicated while suit brought under O. 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  O.  21 r. 58.  In fact. it is the order made  in  the said  investigation that is the cause of action of the  suit under  O. 21 r. 63.  Therefore, it would be,  impossible  to hold that such a suit is outside the purview of s. 90 of the Code. It  is  next  contended that no notice can  be  said  to  be required for suits under O. 21 r. 63, because the  principal object  for  encting  s. 80 is absent in the  case  of  such suits.  The argument is  that  the  requirement  about   the statutory notice prescribed by s.  80 proceeds on the  basis that it is desirable lo give such notice  to afford      the Government an opportunity to consider whether the claim 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  avoid unnecessary litigation by  accepting  the

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claims if it is satisfied that the claims are  well-founded. In the case of i suit under O. 21 r. 63, there is hardly any need  to  give  Such a notice, because  the  Government  was already  a  party in the investigation  proceedings  and  it knows what the appellants, case 992 was  in regard to the attachment sought to be levied at  its instance.  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 a notice  should  be given  to the respondent before a suit can be filed  by  the appellant under O. 21 r. 6 3. In  support of this argument, Mr. Karkhanis has relied on  a -decision  of  this  Court in Amar Nath Dogra  v.  Union  of India(1).   In  that, case, one of the questions  which  the Court  had  to consider was whether, if a suit  against  the Government  is  withdrawn  and a subsequent  suit  is  filed substantially (in the same cause of action, the notice given by  the  plaintiff prior the institution of the  first  suit could be said to satisfy the requirements of s.80 ofthe Code in respect ofthe second suit; and this question was answered in   the  affirmative.  while  upholding   the   appealant’s ,contention  that the first notice should serve to meet  the requirements  of s. 80, this Court, no doubt, observed  that the  main  purpose of giving the notice isto  give  previous intimation to the ’Government about the nature of the  claim which  a party wants to make against it.  But we do not  see how the purpose, 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 Nath Dogra(1) was  that the  notice given before the institution of the  first  suit can  be said to be a 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 a large majority of  cases,  tbhe plea that the Government raises is that notice is  necessary and  it  is  generally  contended  that  the  notice   being defective  in  one  particular or another,  makes  the  suit incompetent; and in dealing with such pleas, the courts have naturally sought to interpret the notices somewhat liberally and   have  sometimes  observed  that  in,   enforcing   the provisions  of  s. 80, commonsense and  sense  of  propriety ,should  determine  the issue.  It is very unusual  for  the Government to contend that in a suit brought against it,  no notice  is required tinder -s. 80.  It is plain that such  a plea has been raised by the respondent in the present  case, because  it helps the respondent to defeat  the  appellant’s claim  on  the  ground  of  limitation.   In  any  case  the contention based on the object or purpose of the notice  can hardly assist us in interpreting the plain words of s. 80. (1) [1963] 1 S.C.R. 657.                             993 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  a  sharp difference  of opinion among the Indian High Courts  on  the question  as  to  whether  s.  80  applied  to  suits  where injunction  was claimed.  The Privy Council held that s.  80 applied  "to  all  forms of suit  and  whatever  the  relief sought,,  including  a suit for an injunction."  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

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practical objects with which it was framed".  They also pro- ceeded  on the basis that s. 80 was a 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 a  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 a suit in which  an injunction  is prayed, is still a suit within the  words  of the  section,  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 a 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   a divergence  of  judicial  opinion in  India.   But,  in  our opinion,  the  view  that suits under O. 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. (1) 54 I.A. 338, L8Sp.  C. 1./65-20 994