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Report No. 100

2.6. Formal defects in the notice, or in its service-Madras and Kerala cases.-

Thus, in a Madras case1 the objection was raised by the Government that in a suit against the Central Government relating to railway, the notice should have been served personally on the officer concerned. The contention, of course, did not succeed, the court finding that it was enough to leave the notice at the office of the General Manager of the Railway in the,hands of a responsible senior officer. The defence put forth was hyper-technical, to put it at the lowest. A case from Kerala2 shows that State authorities still persist in raising in litigation, pleas which are purely technical. In fact, the plea of the State in the Kerala case was not only technical, but also totally misconceived. The plaintiff had sued the State of Kerala and its employee, the driver of a police jeep, for damages in tort, for injuries sustained by the plaintiff on account of the negligence of the employee in driving the jeep.

However, the plaintiff had not given to the employee the requisite statutory notice under section 80, Code of Civil Procedure, 1908. This failure of the plaintiff to comply with the mandatory requirement of the procedural law was relied upon a defence, not by the employee, but by the State, even though the notice to the State had been duly given. The State took the plea that the suit was not maintainable, because notice had not been given to the employee. Fortunately, the High Court rejected the plea. The facts of the case are not material, though it should be added that the plaintiff succeeded on the merits also. It is surprising that a defence of want of notice should have been raised by a party (the State), which itself had due notice of the suit and whose liability was, in any case, distinct from that of the other defendant.

That the plea of want of notice was ultimately rejected was a stroke of good fortune. But one is pained by the harshness caused by the restrictive provision in section 80, Code of Civil Procedure, 1908. This provision has, in practice, found to be productive of serious injustice. The provision has been adversely commented upon, more than once, by the courts.3 Its continued retention on the statute book in disregard of the strong and well-reasoned plea for its repeal made by the Law Commission of India in successive reports on the Code of Civil Procedure, 1908, not only causes injustice (as stated above), but is also responsible for considerable expenditure of judicial time and labour, thereby increasing delay in the disposal of civil cases.

1. Union of India v. T.N. Small Industries Corpn. Ltd., AIR 1981 Mad 316 (317): (1981) 2 MLI 189.

2. N.S. layanandan v. State, AIR 1983 Ker 40 (February).

1. See, for example State of Punjab v. Geetha Iron & Brass Works, AIR 1978 SC 1608: (1978) 1 SCC 66.

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