# AMAR NATH DOGRA v. UNION OF INDIA

- **Citation:** [1963] 1 S.C.R. 657
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Civil Appeal No. 417 of 1961
- **Bench:** B. P. Sinha, P. B. Ga.Jendra.Gadkar, K. N. Wanohoo, N. Rajagop.Al.A. Ayyangar, T. L. Venkatarama. .A!Yar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/amar-nath-dogra-v-union-of-india-2624
- **Pages:** 18

## Headnote

Suit again•t Government-Notice-Plaint not conforming
to Civil Procedure-Maintainability-Punjab Excise Acl (Punjab
Ace I of 1914), S. 40-Code of Oivil p,.ocedure (Act v. of
1908), 8. 80.
The appellant who obtained a monoply vend-licence for
the retail sale of country-liquor, served during the subsistance
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
11162
Radhakri shnad4s
v.
Ealut .. m
Mudholkar J.
1962
.April 10,
196:!
Amar .Nath D,.gra
...
Union of Indio
658
SUPREME COURT REPORTS (HJ63)
suspen.ded the license and themselves took over the manage·
ment 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 ~gainst
the State to restrain it from realising the balance of the license
fees. That suit was withdrawn and the present suit was
inst.ituted 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. 30 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
dbmissal 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 mainta•
inable.
Held, that if the first suit following the issue of a notice
under s. UO against the Government was withdrawn and a
second suit bled, if the notice satisfied the r~quircmcn ts of law
in respect of the second suit there was no necessity for a fur•
ther notice before filing the subsequent suit.
The notice shou:d be construed not pedantically Lut in
the light of common sense without bein~ 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. 0. P. Agencies, A. I. R. (1960) S.C.
1309 and Dhian Sing k 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,
B~ld, also, that as regards the claim for the refund of
the advance deposit, the su.it did not lie as it was barred by
r;. 40 of the Punjab Excise Act, of 1914.

## Text

1 S.C.R.
SUPREME COURT REPORTS
657
such an interpretation on the provisions of cl. (a)
of s. 49( l) of the C. P. Tenancy Act. When it
says tha.t the transfer of cultivating rights in sir
land has to be made expressly all that it means is
that a transfer by implication will not be enough.
Finally Mr. Sinha's point is that the words 11a.ll the
rights and privileges" in the recital do not govern
the interests specified in the clause just preceding
these words but they govern following words '(sixteen anna in mauza Gondkhami and twelve anna in
rnauza Amaldihi to Seth Kaluram etc ... .'' Apart from
such a construction rendering the expression
meaningless it would be ungrammatical to read the
expression as applying to •'sixteen anna. in mauza
Gondkhami and twelve anna in rnauza Amaldihi
etc.''
Therefore, there is no substance in the appeal
and accordingly we dismiss it with costs.
Appeal dUm-is-Jed.
---
AMAR NATH DOGRA
v.
UNION OF INDIA
(B. P. SINHA, c. J., P. B. GA.JENDRA.GADKAR, K. N.
WANOHOO, N. RAJAGOP.AL.A. AYYANGAR and
T. L. VENKATARAMA. .A!YAR, JJ.)
Suit again•t Government-Notice-Plaint not conforming
to Civil Procedure-Maintainability-Punjab Excise Acl (Punjab
Ace I of 1914), S. 40-Code of Oivil p,.ocedure (Act v. of
1908), 8. 80.
The appellant who obtained a monoply vend-licence for
the retail sale of country-liquor, served during the subsistance
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
11162
Radhakri shnad4s
v.
Ealut .. m
Mudholkar J.
1962
.April 10,
196:!
Amar .Nath D,.gra
...
Union of Indio
658
SUPREME COURT REPORTS (HJ63)
suspen.ded the license and themselves took over the manage·
ment 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 ~gainst
the State to restrain it from realising the balance of the license
fees. That suit was withdrawn and the present suit was
inst.ituted 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. 30 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
dbmissal 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 mainta•
inable.
Held, that if the first suit following the issue of a notice
under s. UO against the Government was withdrawn and a
second suit bled, if the notice satisfied the r~quircmcn ts of law
in respect of the second suit there was no necessity for a fur•
ther notice before filing the subsequent suit.
The notice shou:d be construed not pedantically Lut in
the light of common sense without bein~ 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. 0. P. Agencies, A. I. R. (1960) S.C.
1309 and Dhian Sing k 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,
B~ld, also, that as regards the claim for the refund of
the advance deposit, the su.it did not lie as it was barred by
r;. 40 of the Punjab Excise Act, of 1914.
CIVIL APPELLATE JuRISDICTION: Civil Appeal
No. 417 of 1961.
Appeal by special leave from the judgment and
I 'S.C.R.
SUPREME COURT REPORTS
659
order dated December 31, 1958, of the Judicial
Commissioner, Himachal Pradesh at Simla in RP.gular Civil First Appeal No. 4 of J 958.
A. V. Viswanatha SaBtri and Gopal S.inyh, for
the appellant.
V. D. J!Iahajan and P. D. Menon, for the
respondent.
I ~62. April 10.
The judgment of the Court
was delivered by
AYYANGAR, J.-This appeal, l'Y special leave, is
directed against the judgment of the Judicial Commissioner, Himachal Pradesh affirming a decree
of the Senior Sub-Judge, l\iandi dismissing the
appellant's suit.
The facts giving rise to this appeal are briefJy
as follows. There was a public auction on :F'ebrua.ry 25, I ~52 at Mandi in Himachal Pradesh for tho
grant of a monopoly vend-licence to sell by retail
country-liquor for the year April!, 1952 to March 31,
· 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 had 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 anthorities to
remedy the situatlon but apparently the appellant
waa not satisfied with the steps taken, with the
1Y62
Ama1 Nath /Jugro
v.
Union oj India
Ayyangar J.
1962
.dma N Dth Dogra
v.
Union of Tndi:~
Ayya>zgor J.
660
SUPREME COURT REPORTS (1963]
result that he stopped his sales of liquor and thereafter servf>d a nDtice under s. 80 of the Civil
Procedure Code dated September 2, 1952 on Govern·
ment making a claim for damages for alleged
breach of certain of the stipulations. Aft~r receipt
of this notice the Collector of Excise directed the
BUSpPDBion o{ the appellant's licence under 8. 36 of
the Punjab Excise Act, 1914 and thereafter proceeded under s. 39 of tha,t Act to take over the
management of the venq-shops which theretofore
were under the management of tho appellant. As
the appellant did not pay the monthly instalmE>nt~
due from a.nd after June, 1952 the Collector also
to0k steps for the recovery of these instalments.
The appPI1ant then filed a suit No. 345 of 1952 on
t.he file of the Sub-Judge of Mandi on November 26,
1952 (alongwith rertain others in whose names one
other liquor licence had been taken and who were
' evidently simi1ar1y situated) for a. permanent in·
junction r<:'stra.ining the State of Himachal Prade~h
from re11.lising the balance of the licence-fees due
from him. Several technical objections wE>re raised
to the maintainabibty of that suit and thereafter the
suit was withdrawn on !fay 12, 1953, with liberty
granted under 0. 23 r. I. 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 a.s of a technical Jlature., the latter
being mainly two: (l) 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 weH as under the Punjab
Excise Act, 1914 and the Rules made thereunder.
The .learned District Judge upheld the technical
1 S.C.R.
SUPREAlE COURT R.EPORTS
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 P.radesh who substantially agreed with
every one of the findings of th9 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 fut·ther rever:sed the finding on
one of the items of the claim which the trial-Judge
had found in appellant's fa.vout'.
The appeal was
accordingly dismissed.
The appellant thereafter
applied tor a certificate of fitiness under AL"t. 133
( l}(b) for preferring an appeal to this C->urt but
the same having been rejected, he applied for and
obtained special leave from thi'i Cl)urt and that is
how the appeal is now befort: 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 considera.
tion 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 non-compliance of the
terms of s. 80 of the Civil Frocedure Code, we did
not hear learned Coun~el 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
1962
Nnar Nath Dogr«
"·
Union of lncli'J
Ayyangar J.
A mar .NatiJ Dot,f'tJ
v.
U nior. of India
---
662
SUPREME COURT REPOR'fS (1963]
such public offic~r in his official capac.:ity,
until the expiration of two months ne.xt after
notice in writing has been delivered to, or
Jeft at the office of-
( a) in the case of a bUit al!ainst the
Central Government except where it
relates to a railway, a Secretary to
that Government;
(b) .................................................... .
(o) ...................................................... .
attdJ in the case of a public officerJ delivered
to bim or left at his office, stating the cause
of action, the name, description and p1ace 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 Jast
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 Proced·
ure 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 ~lay 13, 1953
per Challan No. 17 of
1953. Copy of the order is attached
herewith".
1 S.C.U. SUPREME COURT REPORTS
663
.
.
.
The Union of India in the written statement filed
by it plc~dcd that this notice did not comply with
the requirements of s. 80 and the·.·. objection was
formula. red thna: .
· ~ · ·
''A fresh notice w~ . necessary
for the
institution of this suit • . The plaintiff has failerl to serve such & notice under s. 80, Civil
· Procedure Code. The notice
montioneci in
paragraph 20 of the plaint was
not valid; it
· was defective a.ncl not ae<.·ording to Jaw. The
· prosent suit, · more-over is a.t
variance with
the notice. The suit shall therefore be dcemeu
to b.e without notice and n.ot ma.intaina.blc." '
This plea. raised for consideration three matt.
era: (1) that "·here after a. notice under s. 80 Civil
Procedure Code a suit is instituted but that suit is
withdrawn with liberty to file a freJ;h
~nit, it~ the
requirement of s. 80, Ch•il ProcedurE> Co<.le that
ther(\ shoulJ be a fresh notice before the
st•cond
suit is in~t.ituted . .
(2) that the allegat.ions in the
plaint and the reJit'fs clnimed in it were at varian·
ce with the cause of n.ction and · 1 elit-fo stated in
the notice issued
under s. SO, a.nd. ( 3) that the
notice it.qe}f was defective a~
not complying with
the requirements of a. 80. ·
\Yt· do n ut .conAiller that
there ·is much su')-
stnnce .in tho firot ohje(•tiou we havt' RE>t out abov~.
If tho }'W.ii.t wLi<·h i~ being considerf.d by the Conrt
ha~J bevn prc>C·edNl hv a notice whi~h a:1tisfics the
requireml-~nttJ •~f zt. SO, Civil
Procedur~ Codo. then
th~· fact tJu.t bcf·)re the pl~.int then un(ler rnnsid<'r·
ati·.Jtl,
th~;re h~Hl bc~n another t•!aint wLil"·h I1:Lti
been filed and withdrawn oanuot, 011 a.ny prinoiJJl~.
be held to have exhausted or ~xt.ingnishod the
vitality o( the notice iRatwd. .
·
We considt•r it n c.:cut:Jsa.ry to concentrate mainly
upon tll., ~t,conrl of tho objections r1t.ised, \'iZ. th11t
th3ro wu.s tJuhsta.nt.ial diaconformity
bctwe~n the
'
J.mn }(4/h D~grd
. .. ..
Uni.olt of ltu!itJ
.dmar }lath. Dogra
"·
Unl"on of India
664
SUPREME COURT REPORTS (1963]
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 respon ..
dent. has been made out. We shall begin with the
plaint. After reciting the auction dated February
25. Ifl52 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 werP- set out in
paragraphs 3 to 20. The first
head of claim was
in relation to loss of profits
stated to have arisen
on account of inadequate ~upply of liquor. This was
stated in
paragraph 3 where tho
allegation wa8
made that
there ha.d been a
deficient supply of
632 gallons during the months of
May and June,
1952 on
account of which
the plaintiff lost
Rs. 5,112/8/· in the profits that he would ha.l"e derived
if the supp1y
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 complain('d that there
had been a supply of kerosenio and unwholesome
liquor whirh had been declared
unfit for human
consumption by th~ order of the authorities. The
damages claimed on this
account W('r.., computed
in paragraph 18 of the plaint at Rs. 4;22:2/-, being
the sum paid into the Treasury by way of exciseduty in respect of liquor which bad been declar-ed
unfit for human consumption. A claim was made
in tho later paragraph for the refund of this sum.
In paragraph 6 an allegation
waR made that, the
plaintiff had bid at the figure of over one lakh and
twenty thousands rupees because of the condition
1 s.c.R.
SUPREME COURT REPORTS
665
inserted in the terms of the auction that liquor
would be snpplied 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 toRs. 26, 400/- on the total number of
bottles that would have been supplied to him if the
oontra.ot had gone on for the full year. In addition,
under the sa.me head there was a further c]a.im in
paragraph 8 for Rs. 1,047 flO/-, 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 ofR8. 5,008/11/
stated to be the price of deficient quantity
of liquor supplied because of the supply in. under·
sized bottles. P~ra.graph 9 contained a complaint
that
it was a
terms of the
contract that
empty bottles would be bought baok but that this
h,ad not beAn done, as a result of which the plA-in·
tiff ha.d lost Rs. 931/8/-. Paragraph 10 complainPd
that the Government had not t~ken steps to suppr·
ese iJJicit distillation which had caused loss, though
the loss was neither quantified nor any claim made
under that head, wbile paragraphs II to 13 challenged the legality of the artion taken by the Excise
a.nthorities in ~uspending the licence and in taking
over the vend-shops under their management. In
paragraph 16 the
pJaint.iff c]aimed
a refund of
Rs. 21,460/ .. which had bt-·en deposited into the
Treasury at the time t.he licenr.e was granted to
the appellant. nnd rinalJy in paragraph 19 the p]aint
made a claim that by reason of government having
broken the contract the plaintiff had lost a. profit
every month of Its. 5. 052/ for the unworked r.eriod
of the year of thP licence, i. e. from July 1, 1952
to March 31, 1953 which totalled R~. 45,471/6/-.
These several heads added up to Rs. 1,09,653/llfand the plaint went on to state:
''The plaintiff is thus entitlt:d to a total
refund and compensation of Rs.
l,09,653fll/-
196!
-
.lmar N al h Dozr•
v.
Un on of lndi1
<I4Jyangar J.
196!
0r Nath Dotra
v.
Union of India
.A.yyongor J.
666
SUPREME COURT REPORTS (1963]
t.he 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."
Fina1ly, a.fter making a claim for a decree for
this sum the plaint prayed in paragraph 22:
''In addition to the grant of the ancillary
re1ief of the
defendent being permanently
restrained from recovering any ]icenee fee or
any othf"r duPs 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 Procedure Code. After stating t.hat the appellant had
been the snccessfuJ bidder at the auction and
recitin~ certain of th~ terms of the contract, it
stated:
"Whereas my client has all along, beginning from April 1, l95:J. onwards, been complying with the obligations under the agreement
regarding auction of the said licenses, the
I
Government of Himachal Pradesh has miser-
~·
ably failed in honouring and implementing
the conditions thereunder''.
This was followed by an enumeration of the contraventions and these were : (1) that standard sized
bottels were not maintained by ware-house contractors, (2) Liquor was being l:lUpplied in bottles with
paper capsules instead of in pilfer-proof bottleP
"-
1 s.c.R.
SUPREME OOURT REPORTS
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:
HI 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 N ath Dogra in
respect of quota 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 enf arcing Buy Back system of
empty bottles; together with the return of
two months of advance deposits and deposit
regarding Uuty and Misc. Excise VIII credit.
ed 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 varianre 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/a
obviously
because that was the figure that was claimed in the
196!l
Amar Nath D()gf'•
"·
Union of lndi11
--
AJ!YDngar J.
1961
.rt4mtJr N aeh Dogra
y,
Union of lrJdia.
.AyyanQ41P J.
668
SUPREME COURT REPORTS fl963]
notice of suit.
In the notice however how the
total of B.s. 74,935/8/3 was arrived at, in what
manner the Revera.l items claimed were to he relat·
ed to this figure \Vere not s~t out. Nor cc..n tboAe
details be inferred or gathered from lhe detailed statements whieh accompanied thn plaint on the
basis of which the several items claimed in the
plaint were derived.
There is one other matt~r
which requires mention in this connection.
There
were two items of loss claimed in the plaint which
had and could have absolute1y no place in the
notice because they arose only after the Government
suspended the licence and later cancelled it and
touk over the vend-shops under Go·;ernment's own
management. These items were : ( 1) Joss on the
yearly quota of liquor worked out at Rs. 26,400f·,
and(~) the losR of profit for the unwork~d peri<Jd
i.e., from July 1, 1952 onwards which was worked
out to Hs. 45,471/6/-. If these two items are deducted from the total Rs. 1,09,653/11/·, there would be
a balance of only ks. 37_, 782/fi/-, 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 tho amount
is certain and that is in re]ation to the claim for the
refund of Rs. 21,460/- being the amount of initial
deposit of l/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
Hs. 53,4 75/8/3 which could be the sum which was
the subject of c1aim by the appellant in his notice
in respect of his three items of complaint, viz., t.he
failure to supply standard sized bottles, failure to
observe the buy·hack system and non·supply of
Jiquor in pilfer-proof bottles. It would therefore
be apparent from these oaloulations that there is a
complete variance between the claim made in the
notice and the claim in the plaint.
We desire to
(
1 S.C.R.
SUPREME COURT REPORTS
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 bet.
ween the claim made in the suit and that in the
notice which precedes it. On the notice the claim
under one head, might for all one knows, be for an
infin.itemally small sum while the otl:ler was exag·
gerlted beyond what is found \n 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 a. 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 a. 80 is not a pleading and need
not be a. <-opy of the plaint and that no particular or
technical form is prescribed for such a notice, sti11
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 stating 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 tho IJotice before UH
there is substantial information conveyed on tho
basis of which the recipient of the uotico could
consider the claim of tho would-be plaintiff and
avert the suit. For the reasons all'ea.dy Hta.ted this
question can only be answered in the negative.
1962
Amar. N ath D gra
v.
Union of lndi!Z
A.Jyangar J.
196t
Ama'1' Nath Dogra
v.
Uni~'i Qj India
Ay_van!liJT J ·
670
SlJPREME COURT REPORTS [1963]
Mr. Sastri invited our attention to the decision
of this Court in State of Madras v. 0. 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 i.s proposed to be
brought against it or him so that it or he may
I
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 or 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 Ca) which read:
~
uThe Privy Council no doubt laid down i
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 scrutinized 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 which the details were set out:
(1) A. I. R. 1960 S.c. 1309.
(2) [1958] S.C.R. 781.
1 s.c.R.
SUPREME COURT REPORTS
671
uTherefore, on a fair reading of the notice
it may be said that the fact of the contract
for the payment of the go down rent, the
quantity of goods stared the rate at which and the
period for which the cll71im was made and the
failure of the first defendant to pay thn sam~
are sufficient]v stated so as to enable the first
defendant, wh.ich is the appellant before us,
to know that the plaintiff's claitl" was about
and whether t.he claim should he 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 head8 of items claimed it would have
been possible for the government to have considered
whether it was worth their w bile 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
re1ief claimed was stated.
The only item regarding which it could be said
that there is a quantification in the notice v.~ould
be that relating to the claim for -the refund of
Rs. 21.,460/- being the amount of advanee deposit
made before the licence was g:·anted., hut the plaintiff's c]aim in this regard is barred und<>r the t(>rms
of s. 40 of Punjab .Excise .Act which runs:
"40. When a license, permit or pass is
cancelled or suspended under clause (a), (b),
(c), (d) or (e) of section 36 or unrler section 37,
the holder shall not Le entitled to any compensation for itfl canceUation or suepension
nor to the refund of any fee paid or deposit
~ade in respect thereof."
1961
Amar Nath Dogn.
v.
Union of lnrlia
A'Vyor~gar J,
1961
Amar N4th Do1ro.
v.
Union of India
Ayycngar J.
672
SUPREME OOURT REPORTS [1963)
The result thP-refore 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 snbmisRion of Mr. Sa.stri to
which it is neuessary to ad vert. He urged that
whatever other defects there might be in the notice
dated September 2, 1952, there was a literal compliance with requirements of R. 80 and that in consequance 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 shonld state the course of action and
the relief which was claimed. His argument was
that the contr!:tct was single and entire and as the
notice had stated that t.here 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 eause of action should be
stated had been complied with. Next was the requirement that the relief claimed should be stated and
this also satisfied as the notice claimed damages by
way of compensation and had set out the amount so
claimed. He pointed out that in regard to the
cla.im for da.ma.ges the plaint had totalled up the
jtetns to reach the figure of Its. 1 ,091653/ll/- but had
confined the c1aim to Rs. 74,935/8/3 which had
been the figure at which damages had been computed in the notice and the ar~ument therefore
was tha,t t.he Court would have jurisdiction to
ga·ant 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 sug~ested. It would be uoticed that
when the notice dated September 2,
1952 was
issued the Collector had not suspended or cancelled
~· I
t I
~ t
I'
~
~
i
!
'
i
t
~
J
1 S.C.R.
SUPREME OOURT REPORTS
6V3
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 paragrar.hs 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
1naking good tu them by you the damages
and losses that have resulted hereto before
on account of the Government not fulfilliug
the
material conditions. It is therefore
requested that no untoward action be proposod by the Government in that behalf, for
it would. otherwise be unwarranted, illt>gal
and unjustified.
The licence, my client has been and would
be willing to carry out his part as relate8 to
auction conditions if the Government. gives
immedu~tc redress in the terms abovenoted,
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 Govern.
ment will
be liable in addition to t.he damages; to costs and expenses that ma.y
accrue for the stated st~ps.''
When one comes to the plaint however, the ·entire
basis or rather the canst> of action is changed. By
that da.te 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
wa3, thertfore 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 tbA
two documents a.nd the reliefs claimed in each.
1961
-·--
Arnar Natlr DogrtJ
v.
Un .. on of India
A'tyangnr ,J,
1962
Am41t N o.th Dogra
v.
U11i1Jn of India
Ayyangar J.
674
SUPREME COURT REPORTS [1963]
In summary, the notice W8S 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 aa damages.
In the plaint, however, the c~_use of action was
different. By that date the alle~ation was that
tho 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 v~ew of
s. 80 there was no complianc3 with its terms.
The result therefore is that the entire claim
in the suit must fail for the reasons we have in ..
dicated earlier. The appeal, therefore, fails and
is dismissed. In the circumstances of this caee
we considered that the parties should bear their
own costs in this appeal.
AppPnl dismil18ed.
--