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Report No. 56

26. Judicial criticism.-

No doubt, some of the points have been settled by judicial decisions or by statutory amendments. But the very fact that such controversies arose show the difficulties created by the section. Unfortunately, there have been occasions where the courts had to criticise the conduct of the Railway authorities in raising the defence of want of notice. In one of the Calcutta1 cases, for example, Henderson J., made weighty though caustic observations as to the plea taken by the railway. In a Patna case2, in a very well considered judgment by Courtney Torrell C.J. and Fazl Ali J., it was pointed out that one of the defences taken by the railway company was the familiar, though somewhat disingenuous contention that a claim in writing had not been preferred.

1. Srinthidar Mandol v. Governor-General-in-Council, AIR 1954 Cal 412: 49 CWN 240.

2. D.N. Railway v. Maharaja Kameshwar Singh, ILR 12 Pat 67 (71): AIR 1933 Pat 45.

27. In another Calcutta case1, the High Court was constrained to make the following observations:

"Every step taken by the railway officials was as improper and as illegal as it could be. But, far from being apologetic for their irregular and high handed behaviour they have sought to escape from their just liabilities by raising the plea that they have not received the notice of claim, required by section 77, Railways Act and this plea has been accepted by a Judge, and a Full Bench of the Small Cause Court."

1. Shamsul Haq v. Secretary of State, AIR 1931 Cal 332 (334) (Lord Williams J.).

28. In a Patna case1, the Full Bench, after referring to a few cases, observed-

"In other words, the railway, in order to defeat the claims of the claimant, does not hesitate to take up unattractive disingenuous, if not uncommendable and contradictory, defences."

1. Governor-General-in-Council v. G.S. Mills, AIR 1949 Pat 347 (351) (FB).

29. Even some of the more recent cases make interesting reading. In a Madhya Pradesh case1, for example, while sending notice under section 77, counsel had, by mistake, sent his office copy which was unsigned. The Railway challenged the validity of the notice. Fortunately, the High Court held that this mistake did not affect its validity.

1. Union of India v. Hotnal Chand, 1966 MPLJ (Notes) 150, cited in the Yearly Digest (1966), Col. 2295.

30. A recent Kerala1 case illustrates the difficulty that exists in relation to interpretation of the words "for carriage by railway", and the word "preferred", in section 78B.

1. Union of India v. Lakshmi Textiles, AIR 1968 Ker 23.

31. Even in 1969, an objection was put-forth that notice of claim served on the Refunds Officer was not valid under section 78B1, even though the Ministry of Railways had issued a pamphlet stating that the Refunds Officer may receive such notices.

1. Brooke Bond India (Private) Ltd. v. Union of India, AIR 1969 Cal 39.

Statutory Provision as to Notice of Suit other than Section 80 of the Civil Procedure Code Back

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