Full Judgment Text
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PETITIONER:
AMAR NATH DOGRA
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT:
15/04/1962
BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
AIYYAR, T.L. VENKATARAMA
SINHA, BHUVNESHWAR P.(CJ)
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
CITATION:
1963 AIR 424 1963 SCR (1) 657
CITATOR INFO :
RF 1966 SC1068 (11)
R 1984 SC1004 (8)
ACT:
Suit against Government-Notice-Plaint not conforming to
Civil Procedure-Maintainability-- Punjab Excise Act (Punjab
Act 1 of 1914), S. 40-Code of Civil Procedure (Act v. of
1908), s. 80.
HEADNOTE:
The appellant who obtained a monoply vend-licence for the
retail sale of country-liquor, served during the subsistence
of the license a notice under S. 80 of the Civil Procedure
Code on the Government claiming damages for the alleged
breach of certain stipulations. Thereafter the Excise
Authorities
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suspended the license and themselves took over the
management of the vend shops and instituted proceedings for
the recovery of the monthly instalments due from the
appellant. The appellant filed a suit for a permanent
injunction against the State to restrain it from realising
the balance of the license fees. That suit was withdrawn
and the present suit was instituted claiming damages on
various counts including damages consequent upon the
suspension of the license. The Lower Court dismissed the
suit for want of a proper notice under s. 80 of the Civil
Procedure Code and also as barred by s. 40 of the Punjab
Excise Act. It also however, recorded its findings on the
merits. The High Court confirmed the dismissal of the suit
but reversed the finding on one of the items of the claim.
It was contended in this Court that the notice under s. 80
was proper and that the suit was maintainable.
Held, that if the first suit following the issue of a notice
under s. 80 against the Government was withdrawn and a
second suit tiled, if the notice satisfied the requirements
of law in respect of the second suit there was no necessity
for a further notice before filing the subsequent suit.
The notice should be construed not pedantically but in the
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light of common sense without being hypercritical about the
language but as the purpose of the notice is to convey
substantial information-relative to the claim on the basis
of which the recipient of the notice can consider the claim
of the would-be plaintiff with a view to avert the suit, if
possible, the notice in the present case did not serve that
purpose.
State of Madras v. C. P. Agencies, A. I. R. (1960) S.C. 1309
and Dhian Singh Sobha Singh v. Union of India, ( 1958)
S.C.R. 781, referred to.
Held, further, that the plaint was at variance with the
notice and claimed reliefs based on a cause of action
arising subsequent to the notice and so even on a literal
reading of s. 80 of the Civil Procedure Code, it could not
be said that there had been compliance with it.
Held, also, that as regards the claim for the refund of the
advance deposit, the suit did not lie as it was barred by s. 40
of the Punjab Excise Act, of 1914.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 417 of 1961.
Appeal by special leave from the judgment and
659
order dated December 31, 1958, of the Judicial Commissioner,
Himachal Pradesh at Simla in Regular Civil First Appeal No.
4 of 1958.
A. V. Viswanatha Sastri and Gopal Singh, for the
appellant.
V. D. Mahajan and P. D. Menon, for the respondent.
1962. April 10. The judgment of the Court was delivered by
AYYANGAR, J.-This appeal, by special leave, is directed
against the judgment of the Judicial Commissioner, Himachal
Pradesh affirming a decree of the Senior Sub-Judge, Mandi
dismissing the appellant’s suit.
The facts giving rise to this appeal are briefly as follows.
There was a public auction on February 25, 1952 at Mandi in
Himachal Pradesh for the grant of a monopoly vend-licence to
sell by retail country-liquor for the year April 1, 1952 to
March 3 1, 1953. The appellant was the highest bidder for
Rs. 1, 28, 600/-and his bid was accepted. In accordance
with the terms and conditions of the auction, 1/6 of the
amount of the bid bad to be deposited by him within a month.
This sum amounting to Rs. 21,460/- was so deposited. The
appellant who had started working his licence made payments
of the monthly instalments of Rs. 10,714/- each for the
months of April and May. Subsequently thereto there were
disputes raised by the appellant that the Excise authorities
had defaulted in performing certain of the obligations
undertaken by them, in the matter of the supply of liquor
etc. and there was correspondence relating to it. There
appear to have been attempts by the authorities to remedy
the situation but apparently the appellant Was not satisfied
with the steps taken, with the
660
result that he stopped his sales of liquor and thereafter
served a notice under s. 80 of the Civil Procedure Code
dated September 2, 1952 on Government making a claim for
damages for alleged breach of certain of the stipulations,
After receipt of this notice the Collector of Excise
directed the suspension of the appellant’s licence under s.
36 of the Punjab Excise Act, 1914 and thereafter proceeded
under s. 39 of that Act to take over the management of the
vend-shops which theretofore were under the management of
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the appellant. As the appellant did not pay the monthly
instalments due from and after June, 1952 the Collector also
took steps for the recovery of these instalments. The
appellant then filed a suit No. 345 of 1952 on the file of
the Sub-Judge of Mandi on November 26, 1952 (alongwith
certain others in whose names one other liquor licence had
been taken and who were evidently similarly situated) for a
permanent injunction restraining the State of Himachal
Pradesh from realising the balance of the licence-fees due
from him. Several technical objections were raised to the
maintainability of that suit and thereafter the suit was
withdrawn on May 12, 1953, with liberty granted under O 23
r. 1. Civil Procedure Code to file a fresh suit. In
pursuance of this liberty the suit out of which the appeal
before us arises, was instituted in the Court of the
District Judge, Mandi on May 5, 1953, which was
substantially one for damages for breach of contract.
The Union of India against whom the suit was brought, raised
several defences both on the merits as well as of a
technical nature, the latter being mainly two: (1) that the
suit was bade for want of a proper notice under s. 80 of the
Civil Procedure Code, and (2) that the suit was barred under
the Punjab Land Revenue Act as applied to Himachal Pradesh
as well as under the Punjab Excise Act, 1914 and the Rules
made thereunder. The learned District Judge upheld the
technical
661
objections raised but also recorded his findings on the
merits and the findings on most of the items of claim were
against the appellant. The appellant’s suit was dismissed.
An appeal was thereupon taken by the appellant to the
Judicial Commissioner, Himachal Pradesh who substantially
agreed with every one of the findings of the learned
District Judge both on the technical objections to the suit
as well as on the merits in so far as they were against the
appellant. He further reversed the finding on one of the
items of the claim which the trial-Judge had found in
appellant’s favour. The appeal was accordingly dismissed.
The appellant thereafter applied for a certificate of
fitness under Art. 133 (1)(b) for preferring an appeal to
this Court but the same having been rejected, he applied for
and obtained special leave from this Court and that is how
the appeal is now before us.
It would be seen from the above narration that what may be
termed the merits of the appellant’s; claim for damages
could arise for consideration only if the suit was
maintainable. As we were clearly of the opinion that the
appeal must fail principally on the point that the suit was
not maintainable because of the noncompliance of the terms
of 8. 80 of the Civil procedure Code, we did not hear
learned Counsel about the merits of the appellant’s
complaint regarding breach of contract on the part of the
State and the relief to which the appellant would be
entitled on that basis.
We shall therefore confine ourselves to the statement of the
facts necessary for deciding the point regarding the suit
not being maintainable because of non-compliance with the
requisites of s. 80 of the Civil Procedure Code. The
section runs:
"80. No suit shall be instituted against the
Government or against a public officer in
respect of any act purporting to be done by
662
such public officer in his official capacity,
until the expiration of two months next after
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notice in writing has been delivered to, or
left at the office of-
(a) in the case of a suit against the
Central Government except where it relates to
a railway, a Secretary to that Government;
(b)...................................................
(c).....................................
and, in the case of a public officer,
delivered to him or left at his office,
stating the cause of action, the name,
description and place of residence of the
plaintiff and the relief which he claims; and
the plaint shall contain a statement that such
notice has been so delivered or left."
That to the suits to which s. 80 applies
compliance with it is mandatory and that a
suit which does not satisfy its terms is
liable to be dismissed is not in dispute. The
submission which learned Counsel pressed for
our acceptance was that there had been a
substantial compliance with its terms and it
is to this point that we shall address
ourselves.
As required by the last portion of s. 80
reading "the plaint shall contain a statement
that such notice has been so delivered or
left", the appellant stated in paragraph 20 of
his plaint: "The plaintiff delivered a notice
under s. 80, Civil Procedure Code containing
the requisite particulars to the defendant
through the Collector. Mandi on September 4,
1952 and through the Chief Secretary on
September 3, 1952. A previous suit for
injunction was withdrawn on May 12, 1953 with
permission to bring a fresh suit on payment of
costs which was deposited on May 13, 1953 per
Challan No. 17 of 1953. Copy of the order is
attached herewith".
663
The Union of India in the written statement
filed by it pleaded that this notice did not
comply with the requirements of s. 80 and the
objection was formulated thus-
"A fresh notice was necessary for the
institution of this suit. The plaintiff has
failed to serve such a notice under s. 80,
Civil Procedure Code. The notice mentioned in
paragraph 20 of the plaint was- not valid; it
was defective and not according to law. The
present suit, more-over is at variance with
the notice. The suit shall therefore be
deemed to be without notice and not
maintainable."
This plea raised for consideration three matters: (1) that
where after a notice under s. 80 Civil Procedure Code ,suit
is instituted but that suit is withdrawn with liberty to
file a fresh suit, it is the requirement of s. 80, Civil
Procedure Code that there should be a fresh notice before
the second suit is instituted., (2) that the allegations in
the plaint and the reliefs claimed in it were at variance
with the cause of action andreliefs stated in the notice
issued under s. 80,and (3) that the notice itself was
defective asnot complying with the requirements of s.
80.
We, do not consider thatthere is much substance in the
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first objection we have set out above. If the plaint which
is being considered by the Court has been preceded by a
notice which satisfies the requirements of H. 80, Civil
Procedure Code, then the fact that before the plaint then
under consideration, there had been another plaint which had
been filed and withdrawn cannot, on any principle, be held
to have exhausted or extinguished the vitality of the notice
issued.
We consider it necessary to concentrate mainly upon the
second of the objections raised, viz. that there was
substantial disconformity between the
664
plaint filed by the appellant and the notice under s. 80
which was relied on in paragraph 20 of the plaint. It is
necessary for this purpose to analyse somewhat closely the
allegations and reliefs in the plaint, as well as in the
notice to see how far the disconformity and variance pleaded
by the respondent has been made out. We shall begin with
the plaint. After reciting the auction dated February 25,
1952 under which the vend-licence was leased to the
appellant for the year 1952-53 and the material terms and
conditions of the auction, the plaint alleged in paragraph 2
that the defendant had broken the contract which entitled
the plaintiff to file a suit for damages. The several heads
of claim which went to make up the total of the damages for
which a decree was prayed were set out in paragraphs 3 to
20. The firsthead of claim was in relation to loss of
profitsstated to have arisen on account of inadequate
supplyof liquor. This was stated in paragraph 3 where
the allegation was made that there had been a deficient
supply of 632 gallonsduring the months of May and
June,1952 on account of which the plaintiff lost Rs.
5,11218/- in the profits that he would have derived if the
supply had been properly made. While paragraph 4 dealt with
the non supply of certain special varieties of liquor during
the months of April, May and June, paragraph 5 complained
that there had been a supply of kerosenic and unwholesome
liquor which had been declared unfit for human consumption
by the order of the authorities. The damages claimed on
this account were computed in paragraph 18 of the plaint at
Rs. 4,222/-, being the sum paid into the Treasury by way of
exciseduty in respect of liquor which bad been declared
unfit for human consumption. A claim was made in the later
paragraph for the refund of this sum. In paragraph 6 an
allegation was made that the plaintiff had bid at the figure
of over one lakh and twenty thousands rupees because of the
condition
665
inserted in the terms of the auction that liquor would be
supplied in pilfer-proof bottles with metal covers and
because of the non-fulfilment of this condition he had lost
Rs.-/8/- per bottle which totalled up to Rs. 26, 400/- on
the total number of bottles that would have been supplied to
him if the contract had gone on for the full year. In
addition, under the same head there was a further claim in
paragraph 8 for Rs. 1,047/10/-, stated to be the loss caused
by the government charging a price based on the supply in
pilfer-proof bottles though the supplies were made in
ordinary containers. Paragraph 7 made a claim for a sum of
Rs. 5,008/11 stated to be the price of deficient quantity of
liquor supplied because of the supply in undersized bottles.
Paragraph 9 contained a complaint that it was a terms of the
contract that empty bottles would be bought back but that
this had not been done, as a result of which the plaintiff
had lost Rs. 931/8/-. Paragraph 10 complained that the
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Government had not taken steps to suppress illicit
distillation which had caused loss, though ,the loss was
neither quantified nor any claim made under that head, while
paragraphs II to 13 challenged the legality of the action
taken by the Excise authorities in suspending the licence
and in taking over the vend-shops under their management.
In paragraph 16 the plaintiff claimed a refund of Rs. 21,460
/- which bad been deposited into the Treasury at the time
the licence was granted to the appellant and finally in
paragraph 19 the plaint made a claim that by reason of
government having broken the contract the plaintiff had lost
a profit every month of Rs. 5. 052/ for the unworked period
of the year of the licence, i. e. from July 1, 1952 to March
31, 1953 which totalled Rs. 45,471/6/-. These several beads
added up to Rs. 1,09,653/11/and the plaint went on to state:
"The plaintiff is thus entitled to a total
refund and compensation of Rs. 1,09,653/1 1/-
666
the details of which are given in Schedule B’
(which set out the details of the computation
by which the figures which we have stated
above were arrived at). The plaintiff
confines his claim for damages and refund of
the amounts paid by and due to him to the
extent of Rs. 74,935/8/3 out of the items as
may be found due to him."
Finally, after making a claim for a decree for
this sum the plaint prayed in paragraph 22:
"In addition to the grant of the ancillary
relief of the dependent being permanently
restrained from recovering any license fee or
any other dues from the plaintiff."
We shall now turn to the notice of suit which was relied on
by the appellant as complying with s. 80, Civil Procedure
Code. The notice was by a lawyer who had been instructed to
serve the Collector of Mandi and the Chief Secretary,
Himachal Pradesh with the notice under s. 80, Civil Pro-
cedure Code. After stating that the appellant had been the
successful bidder at the auction and reciting certain of the
terms of the contract, it stated:
"Whereas my client has all along, beginning
from April 1, 1952 onwards, been complying
with the obligations under the agreement
regarding auction of the said licenses., the
Government of Himachal Pradesh has miserably
failed in honoring and implementing the
conditions thereunder".
This was followed by an enumeration of the contravention and
these were : (1) that standard sized bottles were not
maintained by ware-house contractors, (2) Liquor was being
supplied in bottles with paper capsules instead of in
pilfer-proof bottles
667
with metal lids, (3) that month after month in respect of
urgent demands the quantity liquor required was either
inadequately supplied or not supplied at all. These
complaints were followed by an exhortation to government to
be alive to its obligations and liabilities and the notice
proceeded, and this is the important paragraph:
"I am hereunder detailing the items and the
details which have mounted the damages in the
above respects as at present accrued and would
request the Himachal Government to arrange for
immediate payment thereof. The loss accrued
to L. Amar Nath Dogra in respect of quota
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unsupplied or when supplied though
inadequately in under sized bottles, regarding
miscellaneous Excise VIII charged on supplies
in ordinary bottles and for not maintaining
and enforcing Buy Back system of empty bottles
; together with the return of two months of
advance deposits and deposit regarding Duty
and Misc. Excise VIII credited in the
treasury at Sunder Nagar amounts to Rs.
74,935/8/3.
I hereby make demand of the said amounts
payable to my client which may either be paid
direct to him or to me without delay".
The question now for consideration is how far and to what
extent there is a variance between the plaint and the
notice. At the outset it might be pointed out that as at a
very early stage of the suit the appellant withdrew the
relief for a permanent injunction, which was not claimed in
the notice and the question of this extra relief need not
therefore be considered.
It would have been noticed that the plaint claim was reduced
to Rs.74,935/8/3 obviously because that was the figure that
was claimed in the
668
notice of suit. In the notice however how the total of Rs.
74,935/8/3 was arrived at, in what manner the several items
claimed were to be related to this figure were not set out.
Nor can those details be inferred or gathered from the
detailed statements which accompanied the plaint on the
basis of which the several items claimed in the plaint were
derived. There is one other matter which requires mention
in this connection. There were two items of loss claimed in
the plaint which had and could have absolutely no place in
the notice because they arose only after the Government
suspended the licence and later cancelled it and took over
the vend-shops under Government’s own management. These
items were : (1) loss on the yearly quota of liquor worked
out at Rs. 26,400/-, and (2) the loss of profit for the
unworked period i. e., from July 1, 1952 onwards which was
worked out to Rs. 45,471/6/-, If these two items are deduct-
ed from the total Rs. 1,09,653111/-, there would be a
balance of only Hs. 37,782/5/-, whereas with reference to
the same items of complaint a sum of Rs. 74, 935/8/3 was
claimed in the notice. Besides, there is one item which
figures both in the notice as well as in the plaint
regarding which the amount is certain and that is in
relation to the claim for the refund of Rs;. 21,460/- being
the amount of initial deposit of 1/6th of the bid amount
which had been paid into the Treasury by the appellant in
March, 1952. If this were deducted from Rs. 37,782/5/it
would leave a sum of Rs. 16,322/5/- as against. Rs.
53,475/813 which could be the sum which was the subject of
claim by the appellant in his notice in respect of his three
items of complaint, viz., the failure to supply standard
sized bottles, failure to observe the buy-back system and
non-supply of liquor in pilfer-proof bottles. It would
therefore be apparent from these calculations that there is
a complete variance between the claim made in the notice and
the claim in the plaint. We desire to
669
make it clear that what we have here is not a case where a
claim for a definite sum in the notice is later reduced in
the plaint, but one where there is no possibility of
establishing any relationship between the claim made in the
suit and that in the notice which precedes it. On the
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notice the claim under one head, might for all one knows, be
for an infinitemally small sum while the other was exag-
gerated beyond what is found in the plaint, and hence there
is no means of identifying the claim for any particular sum
in the plaint with that for which a claim was being made in
the notice.
There is one other aspect from which the same matter could
be viewed. In the notice served by the appellant there were
several heads of claim, though they all arose out of a
single contract and we consider that on a reasonable and
proper construction of s. 80, Civil Procedure Code the
authority on whom the notice is served has a right to be
informed what the claim of the party is in respect of each
of the several heads. It is, no doubt, true that a notice
under s. 80 is not a pleading and need not be a copy of the
plaint and that no particular or technical form is
prescribed for such a notice, still having regard to the
object for which s. 80 has been enacted we consider that the
details which it contains should be sufficient to inform the
party on whom it is served of the nature and basis of the
claim and the relief sought, and in so statiug the position
we are merely reproducing the terms of the section. No
doubt, a notice has to be interpreted not pedantically but
in the light of commonsense without one being hypercritical
about the language but the question is whether in the notice
before us there is substantial information conveyed on the
basis of which the recipient of the notice could consider
the claim of the would-be plaintiff and avert the suit. For
the reasons already stated this question can only be
answered in the negative.
670
Mr. Sastri invited our attention to the decision of this
Court in State of Madras v. C. P. Agencies (1) in which Das,
C. J., speaking for the Court, said:
"The object of s. 80 is manifestly to give the
Government or the public officer sufficient
notice for the case which is proposed to be
brought against it or him so that it or he may
consider the position and decide for itself or
himself whether the claim of the plaintiff
should be accepted or resisted. In order to
enable the Government or the public officer to
arrive at a decision it is necessary that it
or he should be informed of the nature of the
suit proposed to be filed against it ow him
and the facts on which the claim is founded
and the precise reliefs asked for."
Reliance was also placed on a later passage where the
learned Chief Justice extracted a passage from the judgment
of this Court reported as Dhian Singh Sobha Singh v. Union
of India (2) which read :
"The Privy Council no doubt laid down in 54
Ind. App. 338 : (Air 1927 PC 176) that the
terms of this section should be strictly
complied with. That does not however mean
that the terms of the notice should be scruti-
nized in a pedantic manner or in a manner
completely divorced from commonsense."
On this line of reasoning this Court held that the notice
before them sufficiently complied with the terms of s. 80.
It must, however, be pointed out that this conclusion was
reached on the notice which gave the details of the several
heads of claim which were there made. With reference to the
notice then before the Court the learned Justice observed,
after setting out the several paragraphs of the notice in
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which the details were set out
(1) A. 1. R. 1960 S. C. 1309,
(2) [1958] S.C.R. 781.
671
"Therefore, on a fair reading of the notice it
may be said that the fact of the contract for
the payment of the godown rent, the quantity
of goods stared the rate at which and the
period for which the claim was made and the
failure of the first defendant to pay the same
are sufficiently stated so as to enable the
first defendent, which is the appellant before
us, to know that the plaintiff’s claim was
about and whether the claim should be conceded
or resisted".
It is precisely these details that are lacking in the
present case. No doubt, there is a general complaint that
Government have not conformed to the contract, but these are
itemised in the paragraphs of the notice which we set out.
If the notice had gone on to state the amount claimed under
each of the several heads of items claimed it would have
been possible for the Government to have considered whether
it was worth their while to settle with the plaintiff by
agreeing to pay the sum demanded. This they had never an
opportunity by reason of form of the notice, and the manner
in which the relief claimed was stated.
The only item regarding which it could be said that there is
a quantification in the notice would be that relating to the
claim for the refund of Rs. 21,460/- being the amount of
advance deposit made before the licence was granted, but the
plaintiff’s claim in this regard is barred under the terms
of a. 40 of Punjab Excise Act which runs:
"40. When a license, permit or pass is
cancelled or suspended under clause (a), (b),
(o), (d) or (e) of section 36 or under section
37, the holder shall not be entitled to any
compensation for its cancellation or
suspension nor to the refund of any fee paid
or deposit made in respect thereof."
672
The result therefore would be that the entire
claim in the suit must fail reason of the
combined effect of s. 80, Civil Procedure Code
and s. 40 of the Punjab Excise Act.
With reference to s. 80, Civil Procedure Code
there is one further submission of Mr. Sastri
to which it is necessary to advert. He urged
that whatever other defects there might be in
the notice dated September 2, 1952, there was
a literal compliance with requirements of s.
80 and that in consequence the Court was bound
to treat it as valid. In this connection he
pointed out that the only requirements of s.
80 relevant to the present context were that
the notice should state the course of actio
n
and the relief which was claimed. His
argument was that the contract was single and
entire and as the notice had stated that there
had been a breach thereof, and had gone on to
enumerate the several stipulations which were
claimed to have been broken, the requirement
that the cause of action should be stated had
been complied with. Next was the requirement
that the relief claimed should be stated and
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this also satisfied as the notice claimed
damages by way of compensation and had set out
the amount so claimed. Ho pointed out that in
regard to the claim for damages the plaint had
totalled up the items to reach the figure of
Rs. 1,09,653/11/- but had confined the claim
to Rs. 74,93518/3 which had been the figure at
which damages had been computed in the notice
and the argument therefore was that the Court
would have jurisdiction to grant the relief at
least in respect of those items of the claim
which were common to the notice and the
plaint. We consider that the validity of the
notice now impugned cannot be sustained on the
basis suggested. It would be noticed that
when the notice dated September 2, 1952 was
issued the Collector had not suspended or
cancelled
673
the licence and that the claim set out in the
notice was on the basis of seeking relief for
branches of stipulations in a subsisting
contract. This was made clear by the
paragraphs that follow that which we have
extracted earlier. These run:
"Under the conditions and circumstances
disclosed, my client could not be forced to
pay in the fees etc. as accrued without first
making good to them by you the damages and
losses that have resulted hereto before on
account of the Government not fulfilling the
material conditions. It is therefore
requested that no untoward action be proposed
by the Government in that behalf, for it would
otherwise be unwarranted, illegal and
unjustified.
The licence, my client has been and would be
willing to carry out his part as relates to
auction conditions if the Government gives
immediate redress in the terms aboveboard, and
arrange supplied in pilfer-proof bottles.
Otherwise, treating the contract determined he
will be forced to take the matter to law
courts in which event the Himachal Government
will be liable in addition to the damages; to
costs and expenses that may accrue for the
stated steps."
When one comes to the plaint however, the entire basis or
rather the cause of action is changed. By that date the
contract had been terminated, the licence having been
suspended and afterwards the Collector had taken over the
management of the shops under s.39 of the Punjab Excise Act.
There was, therefore a radical difference between the state
of circumstances when the impugned notice was issued and
when the plaint was filed which is reflected in the
allegations made in the two documents and the reliefs
claimed in each.
674
In summary, the notice was based on the breach of
stipulations in a contract which had not been broken and was
still subsisting. In that sense, it would be the items
claimed in respect of each breach that would constitute a
cause of action in the technical sense and it was on their
account that the sum of Rs.74,935/8/3 was claimed as
damages. In the plaint, however, the cause of action was
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different. By that date the allegation was that the
contract had been broken by the government repudiating it
and taking over the shops after cancelling the licence. The
cause of action then was the breach of the entire contract
and the items set out in the plaint were the heads of claim
under which the damages were computed. In view of these
circumstances we have no hesitation in holding that even on
a very narrow and strict view of s. 80 there was no
compliance with its terms.
The result therefore is that the entire claim in the suit
must fail for the reasons we have indicated earlier. The
appeal, therefore, fails and is dismissed. In the
circumstances of this case we considered that the parties
should bear their own costs in this appeal.
Appeal dismissed.
675