AI Structured Summary
Not yet generated for this judgment
Judgment
Varma, J.—These analogous appeals arise out of various suits for contribution brought by the maliks towards the costs of construction of a bandh in Morhar for the years 1333, 1334 and 1335 Fasli. Appeals Nos. 1658, 1659 and 1660 of 1931 are by Rai Bahadur Kashi Nath Sinha who is concerned with the village Sowal; the other appeals Nos. 173, 174 and 175 of 1932 are by the Secretary of State for India in Council. There is a pyne called Dasain or Lao pyne connected with the river Morhar at Bajidpur. Each village has got a pyne connected with it for its irrigation according to the parabandi.
At the time of scarcity of rain a bandh is constructed in the river Morhar at Bajipur at the expense of the proprietors and possessors of the aforesaid villages through the help and supervision of the proprietors of the village Lao for the purpose of irrigating the lands of all the villages and thereby the level of the water in the river is raised and it proceeds through the Dasain or Lao pyne to villages in question and irrigates the lands appertaining to each village according to its parabandi.
There is a proposition laid down for the contribution of the costs by each village; but if any proprietor of a village does not take water for irrigation he has not to pay for the construction of the bandh and in that case his share is distributed among the proprietors of the remaining villages. The proprietors of village Lao have got to bear the largest share of the expenses, four out of twelve. The maliks of Lao have been raising the bandh on the river Morhar in order to divert water into the Dasain or Lao pyne. A suit for contribution had to be brought by them for recovery of costs for the year 1931. The suit was dismissed on full satisfaction against some of the defendants and decreed ex parte against the rest (Exs. 9 and 10). The Secretary of State for India was defendant 2 in that suit and entered into a compromise with the plaintiff (Ex. G) by which the claim was dismissed as against him on full satisfaction.
The case for the plaintiffs is that they constructed the bandh in the river Morhar in order to bring water into the pyne in the years 1333, 1334 and 1335 and the villages were irrigated and benefited by it. The plaintiffs further alleged that the defendant Rai Bahadur Kashi Nath Singh, proprietor of village Sowal, paid Rs. 50 in 1334 and another sum of Rs. 70 in 1335. The suit was contested by the Secretary of State for India in Council, Rai Bahadur Kashi Nath Singh and several others. The erection of the bandh was not disputed by Rai Bahadur Kashi Nath Singh who pleaded that he took water in 1333 and paid his quota, Rs. 62, towards costs and he further states that he never took any water in 1334 and 1335.
The Secretary of State pleads that the notice u/s 80, Civil P. C, is invalid in law and that the terms of the agreement (Ex. G) were not complied with. The position taken up by him will be clear from para. 8, of the written statement which is as follows:
During the irrigation season the water in the river Morhar is ordinarily very low and the stream tiny, and for this reason the construction of the bandh in its bed from bank to bank is necessary for raising the level of the water and thus making it flow through the pyne to the lands to be irrigated. This defendant has been informed and believes that the people of Lao wrongly (?) and maliciously diverted the water of the river into another pyne known as Muhamanna pyne and went on selling the water to various people through the pyne aforesaid and in the result very little water was left in the river to feed the Lao Dasain pyne and to serve the villages named in Para. 6 of the plaint and thus no water reached the villages of Gauharpore and Panchmahalla during any of the years in suit.
The trial Court dismissed the suit against the Secretary of State for India in Council on the ground that the provisions of Section 80, Civil P.C., were not complied with and also the conditions contemplated by Ex. G were not complied with. He held that Rai Bahadur Kashi Nath Singh received water in the year 1333 and be paid his full share of Rs. 60. He did not receive water in any other year. He further found that villages Panchmahala and Gauharpore did use the water of Lao or Dasain; and finally he dismissed the suit of the plaintiffs with costs. On appeal, the lower appellate Court found that Rai Bahadur Kashi Nath Singh paid only a sum of Rs. 50 in 1934 for the year 1333 F.S. and a further sum of Rs. 70 in the year 1335 towards the costs of construction. He also found that the notice served on the Secretary of State u/s 80, Civil P.C., was valid in law and that the suit was maintainable in spite of the failure to give a week''s notice to him as contemplated in the petition of compromise in the previous suit.
On behalf of Rai Bahadur Kashi Nath Singh it has been urged by Mr. B.N. Mitter that the lower appellate Court ought not to have relied on the ex-parte decree (Ex. 9) in coming to the conclusion that the sums mentioned therein were correct. Evidently this argument was based on the assumption that the decree was not inter partes, but later on it appeared that it was such a decree and therefore the objection raised is not tenable. It was then contended by Mr. B.N. Mitter that the document Ex. H, which is a notice u/s 144, Criminal P.C., should not have been relied upon because the petition on which the order to issue notice was passed has not been produced. There is no substance in this argument, for when on the notice itself certain facts can be gathered it cannot be held that it was necessary to produce all the connected papers before the notice was issued. Moreover, this was a document filed on behalf of the defence, and I see no error in the lower appellate Court referring to this notice and using it for the purpose of coming to certain conclusions.
All the other points urged on behalf of the appellant Rai Bahadur Kashi Nath Singh are points of fact. In my opinion therefore Appeals Nos, 1658, 1659 and 1660 of 1931 must be dismissed with costs.
On behalf of the Secy. of State for India in Council two points have been raised: firstly, whether the provisions of Section 80, Civil P.C., were complied with; and secondly, whether the conditions referred to in the petition of compromise (Ex. G) were satisfied and if not, whether the Secy. of State for India in Council was liable for any share of the contribution. The real objection taken u/s 80, Civil P.C., was that although the notice was served in time it was not a proper notice inasmuch as it was a joint notice given by all the plaintiffs of the different suits mentioning the total amount payable by the Secretary of State which was not contemplated under the section. It appears that after giving the notice separate suits were filed by the various plaintiffs; but the sum total of their demand did not exceed the amount mentioned in the notice. Section 80 of the Code provides as follows:
No suit shall be instituted against the Secy. of State for India in Council, or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been in the case of the Secy. of State in Council, delivered to, or left at the office of a Secretary to the local Government or the Collector of the district, 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.
Now, in this case there is no doubt that the notice was given on 7th June 1928 on behalf of all the plaintiffs and the suits were filed on 16th November 1928. Clearly therefore the notice was given more than two months before the suits were actually filed. The cause of action was also mentioned therein that the plaintiffs claimed contribution towards the expenses of the construction of the bandh and that the Secretary of State for India in Council was liable to pay his share. There is no particular form of notice prescribed anywhere for such cases; and so long as the notice served satisfies the conditions provided in Section 80 of the Code, the mere splitting. up of the notified claim into different suits, does not, to my mind, render the suits nonmaintainable for want of notice. As was pointed out in Jehangir M. Cursetji v. Secy. of State (1903) 27 Bom 189, the authorises show very clearly that the object of such notices as that required by Section 80, Civil P.C., is to inform Government, or the public officers concerned, generally of the nature of the suit which is intended to be filed against them, that these notices must not be too strictly or too narrowly construed; that they must not be construed as if they were pleadings and that they need not set out all the details and facts of the case which the plaintiff intends to prove; and that the notice must be considered sufficient if it substantially fulfils its object in informing the parties concerned generally of the nature of the suit intended to be filed.
That was a case for defamation in which the actual matters were not given out in the notice required u/s 424 of the old Code of 1882 (Act 14 of 1882), but the plaint of the suit following the notice contained the actual matters on which the defamation was alleged, and it was in those circumstances that the question was considered whether the notice as given in that case did or did not affect the maintainability of the suit. As I have already pointed out, the notice was held to be sufficient and did not affect the maintainability of the suit. The same view was taken by the Madras High Court in Venkatakrishnier v. Secy. of State AIR 1926 Mad 408. In Kessoram Poddar and Co. Vs. Secretary of State, , Chotzner, J., in considering the provisions of Section 80, Civil P. C, relying on the decision in the case of Secy. of State v. Perumal Pillai (1901) 24 Mad 279 held that the cause of action should not be taken in a narrow sense, the object of the section being merely to inform the defendant substantially of the ground for complaint; and his Lordship went on to observe that the section requires the cause of action to be stated with some precision; but as it was found in that case that as no cause of action had arisen at the date of the notice the notice was invalid.
Taking these decisions and the circumstances of the case into consideration, I am of opinion that the provisions of Section 80, Civil P. C, were complied with in the present case and therefore the contention raised by the learned Government Pleader must fail. Coming to the next point, as to whether the conditions of the petition of compromise (Ex. G) were fulfilled, the relevant portion of the compromise runs as follows:
That it has been agreed upon between the plaintiffs and defendants 27 and 29 aforesaid on one side and defendant 2 on the other that in future the said plaintiffs and defendants 27 and 29 will serve a notice of the intended construction of the bandh at Lao to the Collector of the District of Gaya at least a week before starting the work and in case of their failure to do so, the Secy. of State for India in Council shall not in any way be liable to contribute his own share of the costs or any part thereof for the construction of the said bandh for that year and that this will be always strictly observed in future.
The case put forward on behalf of the Secretary of State for India in Council was that, although the notices were issued a week ahead, they were served less than a week before the starting of the work, viz., 4 or 5 days previously, and therefore the Secretary of State was not liable to contribute towards the expenses of the bandh. No doubt the condition referred to in Ex. G, that the notice should be served at least a week before the construction of the bandh is taken up, has not been complied with; but other considerations arise inasmuch as the villages Gauharpore and Panchmahal utilized water from the pyne on the construction of the bandh and u/s 70, Contract Act, the question is whether or not contribution towards the construction is payable on account of the villages. Section 70, Contract Act, provides:
Where a person lawfully does anything for another person or delivers anything to him, not intending to do so gratuitously, and such other persons enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.
In my opinion, if the water has been utilised by the two villages they are liable to pay for it. The lower appellate Court has further held that although this compromise was filed in the previous suit it does not seem to have been made part of the decree Ex. G. The judgment of that suit (Ex. 10) merely states that the suit is decreed ex-parte against the defendants who had not paid their quota of expenses and the claim dismissed against defendants 1 to 4 and 25 on full satisfaction. The Secretary of State was defendant 2 in that suit. The agreement therefore does not appear to have any binding effect. Reference was made to the decision in Secy. of State v. G.T. Sarin AIR 1930 Lab. 364.
That was a case in which a contract was entered into by an officer attached to a regiment not authorized to enter into a contract. The Court found that although the contract was ultra vires the Secretary of State was liable for the price of the grain supplied by the plaintiff. In that case reference was made to various other decisions in illustration of the provisions of Section 70, Contract Act. Both the points having failed, Appeals Nos. 173, 174 and 175 must also be dismissed with costs.