Authored By : Francis Maclean, O Kinealy, Trevelyan, Hill,Francis Maclean

Francis Maclean, C.J.

1. It is unfortunate that in this case we have not had theadvantage of the plaintiff being represented by Counsel, so that we might haveheard from him the arguments by which he sought to maintain the judgment of thelearned Judge in the Court below. The point which we have to decide is a veryshort one, nor does it strike me as one of any real difficulty.

2. The suit was instituted by the plaintiff against theSecretary of State for India and another gentleman, who is the purchaser undera certificate of sale following a decree under which certain property was putup for sale, and sold to meet the claim of the Government in respect of certainmoneys due from the plaintiff, to set aside that sale.

3. An objection is taken by the Secretary of State inCouncil that he has not been served with the necessary notice under Section 424of the Code of Civil Procedure to which he submits he is entitled before anaction can be instituted. The question to my mind depends upon what is the trueconstruction and effect of that section of the Code. The section runs asfollows:

4. "No suit shall be instituted against the Secretaryof State in Council, or against a public officer in respect of an actpurporting to be done by him in his official capacity, until the expiration oftwo months next after notice in writing has been, in the case of the Secretaryof State in Council, delivered to, or left at the office of, a Secretary to theLocal Government or the Collector of the District, and in the case of a publicofficer, delivered to him or left at his office, stating the cause ofaction," and so forth.

5. It is admitted that no such notice was given. In hisdefence the Secretary of State raised the point that such notice ought to havebeen given, and that in the absence of such a notice the action is notmaintainable.

6. It was contended before the Court below, and it iscontended here, that upon the true construction of Section 424 the words"in respect of an act purporting to be done by him in his officialcapacity" do not apply to the case of the Secretary of State in Council.Looking, if one may look, at the punctuation of the section and at the sectiongrammatically, I incline to take the view so submitted as the correctconstruction, but it is not really material for the purpose of this decision,for it is clear that what was done in this case by the Secretary of State inCouncil was done and must be regarded as having been done by him in hisofficial capacity. Therefore, whether the view suggested that those words donot apply to the Secretary of State in Council, but only to public officers, besound or not, becomes immaterial.

7. Now, the language of that section, read according to itsordinary and natural meaning, is precise and clear. It is a section dealingwith procedure. We are asked to cut down the ordinary meaning of the words, andto hold that they mean something quite different from that which in theirordinary acceptation they do. The section says: "No suit shall beinstituted." We are told we ought to confine the words to a particularclass of suits, that is, to suits founded on tort, and claiming damages. I amunable to see why the section should be cut down as suggested.

8. A variety of cases were cited in the Courtbelow,---English cases based upon English Acts of Parliament in which thelanguage and the subject-matter is different. Upon this it is not out of placeto refer to what has been said by Lord MACNAGHTEN in delivering the judgment ofthe Judicial Committee in a very recent case, Narendra Nath Sircar v.Kamalbasini Dasi (1896) I.L.R. 23 Cal. 563: L. R. 23 I. A. 26. It is true thatin that case the Judicial Committee was dealing with the question of theconstruction of a will having regard to a particular section of the IndianSuccession Act.

9. The judgment runs: "The learned Judges of the HighCourt have taken the line which was approved in the House of Lords. TheSubordinate Judge followed exactly the opposite course. His judgment, with muchdisplay of learning and research, is a good example of the practice which LordHerschell condemns, and the mischief which the Indian Succession Act, 1865,seems designed to prevent. To construe one will by reference to expressions ofmore or less doubtful import to be found in other wills is for the most part anunprofitable exercise. Happily that method of interpretation has gone out offashion in this country. To search and sift the heaps of cases on wills whichcumber our English law reports, in order to understand and interpret wills ofpeople speaking a different tongue, trained in different habits of thought andbrought up under different conditions of life, seems almost absurd."

10. It seems that substituting "English Acts ofParliament" for "wills" the observations of the Privy Councilmay be usefully applied to this case. In lieu of reading Section 424 by thelight of the decisions of the English Courts in cases under various EnglishActs of Parliament, where the language and in most cases the objects of theActs are different, I prefer to read the section itself and try to arrive at aconclusion from the language used as to what the Legislature actually meant.But even if the true principle be that the statutory notice is only requisitein cases of tort, as I understand is the principle of Mr. Justice Ameer Alisjudgment, the plaintiffs suit in this case is based upon an alleged tort onthe part of the Secretary of State, namely, in wrongfully selling the property,and asking for costs against him on the footing of such wrongful act.

11. If the object of such a Section as 424 be that thenotice is given so that, before an action is brought, the Secretary of Statemay have breathing time so as to enable him to determine whether reparationought not to be made,---if that, I say, be the object, I fail to see why theprinciple does not apply to the present case; if so, the notice was requisite.There is a short reference in the judgment to a decision of the late Master of theBolls (Sir George Jessel) in Flower v. Local Board of Low Leyton (1877) L.R. 5Ch. D. 347 to the effect that notice cannot be necessary where the object ofthe action is to restrain an immediate and irreparable injury. The materialsbefore us do not enable us to say how far the present case comes within theprinciple laid down in the decision of Sir George Jessel, though I notice thatno injunction is asked for against the Secretary of State. It would appear,therefore, that he, at any rate, could not be described, and was not regardedby the plaintiff, as doing any immediate or irreparable injury, whichnecessitated, as against him, an immediate interlocutory order for aninjunction. For these reasons it appears to me that upon the preliminary pointthe judgment of the Court below is erroneous, and I think the appeal mustsucceed with costs.

O Kinealy, J.

12. I agree in the judgment just delivered by the learnedChief Justice, because reading Section 424 of the Procedure Code, I find thatit declares that no suit can be instituted against the Secretary of State"until the expiration of two months next after notice in writing has beendelivered to or left at the office of a Secretary to the localGovernment," and I can find no indication that any limitation has been putupon the word "suit."

Trevelyan, J.

13. I think it quite clear that the Secretary of State wasentitled to notice of this suit for the reasons given by the learned ChiefJustice.

Hill, JJ.

14. The purchaser is entitled to his costs against somebody,and in the view of this Court the Secretary of State certainly ought not tohave been made a party. [Maclean, C.J.---Do you ask to have the suit dismissedas against the purchaser] Yes: for, although he is only the respondent, he isentitled to take a ground common to all the defendants. The question of noticeis common ground. Notice must be given in order that the suit may lie againstthe Secretary of State; and as the suit has been dismissed as against him, itshould be dismissed as against the other defendant also. By the dismissal ofthe suit, the sale certificate is allowed to remain, and the purchasers titleis complete. If the suit is not to be dismissed as against the purchaser, theCourt would be bound to direct the Secretary of State to refund. But it cannotdo that, because, by the present decision of the Court, there is no suitagainst the Secretary of State. [Maclean, C.J.---Is that a ground of defencecommon to you both within Section 544 of the Code ] Yes, because it goes tothe entire suit of the plaintiff.

Francis Maclean, C.J.

15. The result of the judgment of the Court is that the suitis dismissed, not only against the Secretary of State for India in Council, butalso against the defendant Radharomon Shaw with costs both in the Court belowand in this Court.

16. We make no order as to the costs of the Appeal No. 23 of1896.

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Rajlucki Debi and Ors. vs. The Secretary of State for Indiain Council (07.01.1897 - CALHC)