Civil Appeal No 82 of 1971
From Judgment and Decree dated 26265 of Allahabad High Court in first appeal No 457 of 1952
JP Goyal and SK Jain for the appellants
VC Mahajan and A Subhashini for the respondents
The Judgement of the Court was delivered by SEN J
This appeal on certificate brought from the judgment and decree of the Allahabad High Court dated February 26 1965 reversing the judgment and decree of the Civil Judge Agra dated August 25 1952 and dismissing the plaintiffs  suit for recovery of Rs 26000 raises a question of some importance upon s80 of the Code of Civil Procedure 1908
The facts giving rise to this appeal may be shortly stated
On November 12 1949 the plaintiffs Ghanshyam Dass and his two minor brothers Shree Ram and Mohan Lal brought the suit out of which this appeal arises in the Court of the Civil Judge Agra for recovery of a sum of Rs 26000 against the Dominion of India through the Defence Secretary New Delhi
It was pleaded that their late father Seth Lachman Dass Gupta entered into a contract with the Governor General in Council for the supply of charcoal to the Military Supply Depot at Agra during the period from April 1 1943 to March 31 1944
In pursuance thereof he made necessary supplies and received payments for the same at the contractual rates from time to time
It was pleaded that tho contract contained an escalation clause viz clause 8 to the effect that in case the price of charcoal increased by more than 10 of the stipulated rate during the subsistence of the contract the contractor would be entitled to the price at the higher rate
It was alleged that from 232 the date of the contract the rate of charcoal went up continuously to 448 in July August and September 1943 931 in October November and December 1943 and 827 in January February and March 1944
Accordingly Seth Lachman Dass made a demand for payment of price at the increased rate
The military authorities paid at the enhanced rate for part of the supplies while for the rest they refused to pay at more than the contractual rate
Seth Lachman Dass served a notice exhibit A 8 on the Dominion of India through the Defence Secretary under s80 of the Code of Civil Procedure 1908
lt appears that before his death
On or about September 15 1948 he received a letter from the military authorities rejecting his claim for payments at the enhanced rate but before he could institute any suit he died on October 28 1949
Thereafter on November 12 1949 the plaintiffs who ale his three sons brought the suit as his legal heirs and successors claiming the amount
The defendants contested the claim inter alia on the ground that the notice exhibit A 8 given by Seth Lachman Dass could not inure for the benefit of the plaintiffs and therefore the suit was bad for want of a notice under s80 of the Code
The learned Civil Judge however held that no further notice under s80 was necessary as the notice exhibit A 8 served by the plaintiffs  father Seth Lachman Dass must enure for their benefit
He found that the plaintiffs were entitled in terms of clause 8 of the contract to receive a sum of Rs 2071050 p being the difference between the enhanced rate and the contractual rate for the supplies paid for and accordingly decreed the plaintiffs claim to that extent
But on appeal the High Court his decision on the point was reversed upon the view that the notice exhibit A 8 given by the plaintiffs  father was insufficient and was nota valid notice under s80 of the Code of Civil Procedure insofar as the plaintiffs were concerned
The short question involved in this appeal is whether the notice exhibit A 8 given by the plaintiffs  father Seth Lachman Dass Gupta before his death under s80 of the Code of Civil Procedure 1908 would enure for the benefit of the plaintiffs
Section 80 of the Code as it stood on the date of the institution of the suit insofar as material is reproduced below 80
Notice No suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official 233 capacity until the expiration of two months next after notice in writing has been delivered to or left at the office of a in the case of suit against the Central Government    a Secretary to that Government     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
 In the celebrated case of Bhagchand Dagadusa  Ors
vs Secretary of State for India in Council  Ors the Judicial Committee of the Privy Council held that this section is express explicit an mandatory and it admits of no implications or exceptions
The words of Viscount Summer delivering the judgment of the Privy Council have become classical  Section 80 is express explicit and mandatory and it admits of implications or exceptions
A suit in which inter alia an injunction is prayed still a suit within the words of the section and to read any qualification into it is an encroachment on the function of legislation
Considering how long these and similar words have been read throughout most of the Courts in India in their literal sense it is reasonable to suppose that the section has not been found to work injustice but if this is not so it is a matter to be rectified by an amending Act
The Privy Council rejected the contention put forward before them that the section deals with mere procedure and held that the requirements of s80 are to be strictly complied with and are applicable to all forms of action and all kinds of relief
It further held that s80 imposes a statutory and unqualified obligation upon the Court and in the absence of compliance with s80 the suit was not maintainable either as to the declaration sought or injunction prayed for
234 Earlier in some cases a liberal construction was put upon the section and it was held that a notice is sufficient if it substantially fulfils its objection in informing the parties concerned of the nature of the suit to be filed and that a notice is not invalid merely because it is given by two out of three plaintiffs But since the Privy Council judgment in Bhagchand s case supra strict compliance with the terms of s80 has been enforced and a notice given by one of two plaintiffs has been held to be insufficient
Again in a case where the plain tiffs  father gave notice and then plaintiffs filed a suit after the father s death the notice given by the father in respect of the same cause of action was held insufficient  Mahadev Dattatraya Rajarshi vs Secretary of State for India following Buchan Singh vs Secretary of State
It is plain from the terms of s80 that the notice must fulfil the requirements set out therein
It is essential that the notice must state the names descriptions and places of residence of all the plaintiffs
A notice must be such as to enable the addressee or the recipient to indentify the claimant
In Vallayan Chettiar  ors
vs The Government of the Province of Madras  Anr
Lord Sumner delivering the judgment of the Privy Council referred to the observations of Lord Sumner in Bhagchand s case that s80 is explicit and mandatory and admits of no implications or exemptions and observed that There should be identity of the person who issues the notice and who brings the suit
To hold otherwise would be to admit an implication or exception for which there is no justification  
There the question was whether a suit brought by two plaintiffs was competent when notice under s80 was given by only one of them
The Privy Council having regard to the mandatory requirements of s80 of the Code held that there was no valid notice and accordingly upheld the judgment of the High Court dismissing the plaintiff s suit
So also in Government of the Province Bombay vs Pestonji Ardeshir Wadia  Ors the Privy Council reiterated the same principles where no notice had been served under s80 specify 235 ing the names and addresses of all the trustees and therefore the provisions of the section had not been complied with and it was accordingly held that the suit was incompetent
As to the requirement that the notice must state the cause of action and the reliefs claimed there is a large body of decisions laying down that a notice under the section should be held to be sufficient if it substantially fulfils its object in informing the parties concerned of the nature of the suit to be filed
In consonance with this view this Court in Dhian Singh Sobha Singh  Anr
vs Union of India Union of India vs Jeewan Ram State of Madras vs CP Agencies and Amar Nath vs Union of India has held that though the terms of the section have to be strictly complied with that does not mean that the notice should be scrutinized in a pedantic manner or in a manner divorced from common sense
On this principle it has been held that notice which states the cause of action and the reliefs described in the annexed copy of the plaint which forms part of the notice though defective in form complies substantially with the section
The point to be considered is whether the notice gives sufficient information as to the nature of the claim such as would enable the recipient to avert the litigation
The relevant passage from the judgment in Dhian Singh Sobha Singh s case supra is set out below We are constrained to observe that the approach of the High Court to this question was not well founded
The Privy Council no doubt laid down in Bhugchand Dagadusa vs Secretary of State that the terms of this section should be strictly complied with
That does not however mean that the terms of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from common sense
As was stated by Pollock CB in Jones vs Nicholls  We must import a little common sense into notices of this kind   Beaumont CJ also observed in Chandu Lal Vadilal vs Government of Bombay ILR one must construe section 80 with some regard to common sense and to the object with which it appears to have been passed 236 The question as to whether notice under s80 was invalid for want of identity of the plaintiffs directly arose in the case of SN Dutt vs Union of India
There a notice was served by the appellant who was the sole proprietor of a business styled SN Dutt  Co in the name of SN Dutt  Co and thereafter he filed a suit against the Union of India describing the plaintiff as Surendra Nath Dutt sole proprietor of a business carried on under the name and style of SN Dutt  Co
This Court upheld the decision of the Calcutta High Court dismissing the plaintiff s suit holding that the person who issued the notice was not the same as the person who filed the suit
The contention that the appellant was carrying on business under an assumed name and therefore the notice was valid as SN Dutt  Co was merely the name and style of the business which he was carrying on was rejected
The Court held that since no suit could be filed by SN Dutt  Co in that name as it was not a partnership firm it could not give a valid and legal notice in that name and a valid notice could only be given in the name of SN Dutt
The decision merely reiterates the rule laid down by this Court in Bhagchand that section 80 according to its plain meaning requires that there should be identity of the person who gives the notice with the person who brings the suit
The Court distinguished the decisions in Dhian Singh Sobha Singh and CP Agencies on the ground that the Court was dealing with defect in describing the cause of action and the relief claimed and where it Concerns the relief and the cause of action it may be necessary to use common sense to find out whether s80 of the Code has been complied with and stated But where it is a question o f the name of the plaintiff there is in our opinion little scope for the use of common sense for either the name of the person suing is there in the notice or it is not
No amount of common sense will put the name of the plaintiff there if it is not there In the case of Raghunath Dass
v Union of India  Anr
the same question arose but the Court struck a discordant note there
There the notice emanated from Ms Raghunath Dass Mulkhraj and in the body of the notice at several places the expression we was used
Further the plaintiff had purported to sign for Ms Raghunath Dass Mulkhraj but at the same time he signed the notice as proprietor of Ms Raghunath Dass Mulkhraj
The Court held 237 that was a clear indication of the fact that Ms Raghunath Dass Mulkhraj was a proprietary concern and the plaintiffs was its proprietor
In repelling the contention that there was no identity of the person who gave the notice with the person who filed the suit the Court observed Whatever doubts that might have been possibly created in the mind of the recipient of the notice after going through the body of the notice as to the identity of the would be plaintiff the same would have been resolved after going through the notice as a whole
 There the plaintiff had averred in the plaint that he was carrying on his business under an assumed name and style of Ms Raghunath Dass Mulkhraj meaning thereby that the concern was a proprietary concern and that the name given to it was only a trade name
Me had also stated in the plaint that he had given a notice under s80 of the Civil Procedure Code
In the written statement filed on behalf of the Dominion of India the validity of the notice issued was not challenged
Regarding the notice in question there was only an averment in the written statement that suit was barred by s80 of the Code as no notice under that section appears to have been served on the Administration
In repelling the contention That the suit was bad for want of notice under s 80 of the Code the Court said The object of the notice contemplated by that section is to give to the concerned Governments and public officers opportunity to reconsider the legal position and to make amends or settle the claim if so advised without litigation
The legislative intention behind that section in our opinion is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations
The purpose of law is advancement of justice
The provisions in s80 Civil Procedure Code are not intended to be used as bootstraps against ignorant and illiterate persons
In this case we are concerned with a narrow question
Has the person mentioned in the notice as plaintiff brought the present suit or is he someone else  This question has to be decided by reading the notice as a whole in a reasonable manner
 238 In the ultimate analysis the question as to whether a notice under s80 of the Code is valid or not is a question of judicial construction
The Privy Council and this Court have applied the rule of strict compliance in dealing with the question of identity of the person who issues the notice with the person who brings the suit
This Court has however adopted the rule of substantial compliance in dealing with the requirement that there must be identity between the cause of action and the reliefs claimed in the notice as well as in the plaint
As already stated the Court has held that notice under this section should be held to be sufficient if it substantially fulfils its object of informing the parties concerned of the nature of the suit to be filed
on this principle it has been held that though the terms of the section have to be strictly complied with that does not mean that the notice should be scrutinized in a pedantic manner divorced from common sense
The point to be considered is whether the notice gives sufficient information as to the nature of the claim such as would the recipient to avert the litigation
In the present case in the notice exhibit A 8 the name description and place of residence of the plaintiff Seth Lachman Dass the father of the plaintiffs was given but unfortunatory before filing the Suit he died and thereafter within the period of limitation the suit was instituted by his sons on the basis of the said notice
The notice exhibit A 8 undoubtedly fulfils the requirement of s80 insofar as the cause of action and the relief claimed are concerned as they are absolutely the same as set out in the plaint
As stated in Dhian Singh Sobha Singh the notice must substantially fulfil its work of intimating the parties concerned generally of the nature of the suit intended to be filed and if it does so it would be sufficient compliance of the section as to the requirement that it should state the name description and place of residence of the plaintiff there must be identity of the person who issues the notice with the person who brings the suit Now so far as the name and description of the plaintiff concerned the notice gives the name as Seth Lachman Dass Gupta
The notice exhibit A 8 duly reached the concerned department and they dealt with the notice
It is not that the Government had no opportunity to examine the nature of the claim and decide whether its should accept or contest the claim The military authorities served a reply on Seth Lachman Dass before his death that his claim was not acceptable
There was no other alternative for Seth Lachman Dass but to have brought a suit for the enforcement of his claim
239 If he could not file a suit due to his death his right to file the suit A devolved upon his heirs ie the plaintiffs
If the view taken by the High Court is allowed to stand great injustice would be done to the litigants in the matter of filing suits against the Government
If fresh notice is insisted upon in such cases the period of limitation to file a suit may expire in the meantime
Such a situation is not intended by the Code
The authorities relied upon by the High Court in non suiting the plaintiffs are of ancient vintage
In Mahadev Dattattraya Rajarshi s case supra the Bombay High Court relying upon the decision of the Allahabad High Court in Buchan Singh held that the language of s424 of the Code of 1882 the predecessor of s80 of the present Code which was substantially in the same terms was imperative and absolutely debarred the Courts from entertaining a suit without complying with the provisions of the section
In Buchan Singh s case supra it was observed by the Allahabad High Court at p191 If we acceded to this contention it appears to us that we should be adding words to s424 which find no place in it
It would be necessary to add after the words name and place of abode of the intending plaintiff some such words as or of the party through whom such intending plaintiff claims
 The Court of first instance here tried to distinguish the decision in Buchan Singh on the ground that the word intending appearing in s424 of the 1882 Code had been omitted from s80 of the present Code and therefore the word plaintiff  j should be construed in a generic sense
The High Court however following the decision of the Bombay High Court in Mahadev Dattaraya Rajarshi held that the notice must contain the name of the actual plaintiff who could bring the suit adding that the notice must be given by the person who becomes the plaintiff and by no other
We are afraid that is taking too technical a view of the matter
S80 of the Code is but a part of the Procedure Code passed to provide the regulation and machinery by means of which the Courts may do justice between the parties
It is therefore merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it
In Sangram Singh vs Election Tribu 240 nal Kotah  Anr Vivian Bose J in his illuminating language dealing with the Code of Civil Procedure said It is procedure something designed to facilitate justice and further its ends not a penal enactment for punishment and penalties not a thing designed to trip people up
Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against provided always that justice is done to both sides lest the very means designed for the furtherance of justice be used to frustrate it
Our laws of procedure are based on the principle that as far as possible no proceeding in a court of law should be allowed to be defecated on mere technicalities
Here all the requirements of s80 of the Code were fulfilled
Before the suit was brought the Dominion of India received a notice of claim from Seth Lachman Dass
The whole object of serving a notice under 580 is to give the Government sufficient warning of the case which is going to be instituted against it was that the Government if it so wished settle the claim without litigation or afford restitution without recourse to a court of law
That requirement of s80 was clearly fulfilled in the facts and circumstances of the present case
It is a matter of common experience that in a large majority of cases the Government or the public officer concerned make no use of the opportunity afforded by the section In most cases the notice given under s 80 remains unanswered till the expiration of two months provided by the section
It is also clear that in a large number of cases
as here the Government or the public officer utilised the section merely to raise technical defences contending either that no notice had been given or that the notice actually given did not comply with the requirements of the section
It is unfortunate that the defendants came forward with a technical plea that the suit was not maintainable at the instance of the plaintiffs the legal heirs of Seth Lachman Dass on the ground that no fresh notice had been given by them
This was obviously a technical plea calculated to defeat the just claim
Unfortunately the technical plea so raised prevailed with the High Court with the result that the plain tiffs have been deprived of their legitimate dues for the last 35 years 241 The Law Commission in the Fourteenth Report volume 1 on the Code of Civil Procedure 1908 at p475 made a recommendation that s80 of the Code should be deleted
It was stated as follows The evidence disclosed that in a large majority of cases the Government or the public officer made no use of the opportunity afforded by the section
In most cases the notice given under section 80 remained unanswered till the expiry of the period of two months provided by the section
It was also clear that in a large number of cases Governments and public officers utilized the section merely to raise technical defences contending either that no notice had been given or that the notice actually given did not comply with the requirements of the section
These technical defences appeared to have succeeded in a number of cases defeating the just claims of the citizens
 The Law Commission in the Twenty Seventh Report on the Code at pp21 22 reiterated its earlier recommendation for deletion of s80 and in the Fifty Fourth Report at p56 fully concurred with the recommendation made earlier
In conformity with the recommendation of the Law Commission s80 has undergone substantial changes
By s27 of the Code of Civil Procedure Amendment Act 1976 which was brought into effect from February 1 1977 the existing s80 has been re numbered as s801 and sub ss2 and 3 have been inserted
Sub s2
as inserted has been designed to give an urgent and immediate relief against the Government or the public officer with the leave of the Court
But the Court shall not grant relief in the suit whether interim or otherwise except after giving to the Government or public officer as the case may be a reasonable opportunity of showing cause in respect of the relief prayed for in the suit
Proviso to sub s2 enjoins that the Court shall if it is satisfied after hearing the parties that no urgent or immediate relief need be granted in the suit return the plaint for presentation to it after complying with the requirements of sub s1
Sub s3 as inserted by s27 of the Code of Civil Procedure Amendment Act
1976 reads as follows  803
No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be 242 dismissed merely by reason of any error or defect in the notice referred to in sub section 1 if in such notice a the name description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub section 1 and b the cause of action and the relief claimed by the plaintiff had been substantially indicated By subs3 Parliament has brought in the rule of substantial compliance
The present suit would be directly covered by sub s3 of s80 so introduced if the suit had been brought after February 1 1977
Unfortunately for the plaintiffs s97 of the Amendment Act provides that the amendment shall not apply to pending suit and the suits pending on February 1 1977 have to be dealt as if such amendment had not been made
Nevertheless the Courts must have due regard to the change in law brought about by sub s3 of s80 of the Code introduced by the Amendment Act wef February 1 1977
Such a change has a legislative acceptance of the rule of substantial compliance laid down by this Court in Dhian Singh Sobha Singh and Raghunath Dass
As observed in Dhian Singh Sobha Singh s case supra one must construe s80 with some regard to common sense and to the object with which it appears to have been enacted
The decision in SN Dutt vs Union of India s case supra does not accord with the view expressed by us and is therefore overruled 
Before parting with the case we consider it necessary to refer to one more aspect
It has frequently come to our notice that the strict construction placed by the Privy Council in Bhagchand s case supra which was repeatedly reiterated in subsequent cases has led to a peculiar practice in some Courts
Where urgent relief is necessary the practice adopted is to file a suit without notice under s80 and obtain interim relief and thereafter to serve a notice withdraw the suit and institute a second suit after expiry of the period of the notice
We have to express our strong condemnation of this highly objectionable practice
We expect that the High Courts will take necessary steps to put a stop to such practice
243 The result therefore is that the appeal succeeds and is allowed
The judgment and decree passed by the Allahabad High Court dated February 26 1965 are set aside and those of the learned Civil Judge Agra dated August 25 1952 are restored with costs throughout
The plaintiffs shall be entitled to further interest on the decretal amount at 6 per annum from August 25 1952 the date of the decree passed by the Civil Judge Agra till realization
SR Appeal allowed


Summary:
The plaintiff s father Seth Lachhman Dass Gupta entered into a contract with the Governor General in Council for the supply of charcoal to the Military Supply Depot Agra and received payments for the same at the contractual rate from time to time
The contract contained an escalation clause viz cl8 to the effect that in case the price of charcoal was increased by more than 10 of the stipulated rate during the subsistence of the contract the contractor would be entitled to the price at the higher rate
During the period of the contract the rate of charcoal went up continuously
The military authorities paid at the enhanced rate for the part of supplies while for the rest they refused to pay more than the contractual rate
He accordingly served a notice to the Government under section 80 of the Code of Civil Procedure 1908 making a claim for payment of a sum of Rs 2071050 p in terms of clause 8 of the contract being the difference between the enhanced rate and the contractual rate for the supplies paid for
But before he could bring the suit against the Government he died
Thereupon the respondents brought a suit as his legal heirs and successors claiming the amount
The defendants contested the claim inter alia on the ground that the notice given by Seth Lachhman Dass could not ensure for the benefit of the plaintiff s and therefore the suit was bad for want of notice under section 80 of the Code
The Court of first instance held that no further notice under section 80 was necessary as the notice served by the plaintiff s father Seth Lachhman Dass must inure to their benefit
on appeal the High Court reversed his decision on the point and held that the notice given by the plaintiff s father was insufficient and was not a valid notice under section 80 of the Code insofar as the plaintiff s were concerned
Against the judgment the plaintiff s preferred an appeal by special leave
Allowing the appeal the Court 230  HELD 1
The question as to whether a notice under section 80 is valid or not is a question of judicial construction
section 80 of the Code is but a part of the 
Procedure Code passed to provide the regulation and machinery by means of which the courts may do justice between the parties
It is therefore merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it
As far as possible no proceedings in a court of law should be allowed to be defeated on mere technicalities
This is the principle on which ours laws of procedure are based
238A 239G H 240A C 2
The whole object of serving a notice under section 80 is to give the Government sufficient warning of the case which is going to be instituted against it and that the Government if it so wished can settle the claim without litigation or afford restitution without recourse to a court of law
Though the terms of section 80 have to be strictly complied with that does not mean that the notice should be scrutinised in a pedantic manner divorced from common sense
The point to be considered is whether the notice gives sufficient information as to the nature of the claim such as would enable the recipient to avert the litigation
If the notice substantially fulfills its work of intimating the parties concerned generally of the nature of the suit intended to be filed it would be sufficient compliance of the section
While interpreting the pre amended section the courts must have due regard to the change in law brought about by sub section
3 of section 80 which shows legislative acceptance of the rule of substantial compliance instead of strict compliance
240D E 242C E Sangram Singh vs Election Tribunal Kotah relied on
In the present case the requirement of section 80 that there must be identity between the cause of action and the relief claimed in the notice as well as in the plaint 15 fulfilled
As regards the requirement of identity of the person who issues the notice with the person who brings the suit in this case the notice contained the name of the original claimant ie the father of the plaintiffs
The  notice reached the concerned department of the Government where the Government had opportunity to  examine the nature of the claim and decide whether it should accept or contest the claim
The concerned Government authorities served a reply on the plaintiff s father that his claim was not acceptable
There after he died and his right to file the suit for enforcement of the claim having devolved upon his heirs ie the plaintiff s the plaintiffs filed the suit for enforcement of the same claim
In the circumstances if section 80 is held to have not been complied with as done by the High Court great injustice would be done to the plaintiffs in the matter of filing suits to the Government inasmuch as in case of insistence on fresh notice the period of limitation to file the suit would expire in the meantime
Such a situation is not intended by the Code
Thus the requirement of section 80 was clearly fulfilled in this case but the High Court having allowed the technical plea of the defendants the plaintiffs have been deprived of their legitimate claim for at least 35 years
238D H 239A C 240G H SN Dutt vs Union of India 19621 SCR 560 Mahadev Dattatraya Rajshri vs Secretary of States for India  and Bachchu Singh vs Secretary of State for India in Council  overruled
231 Raghunath Dass vs Union of India   Union of India vs A Jeewan Ram AIR 1958 SC 905 State of Madras vs CP Agencies AIR 1960 SC 1309 and Amar Nath Gogra vs Union of India19641 SCR 651 affirmed
Bhagchand Dagadusa vs Secretary of State of India in Council 1927 IA 338 Vallayan Chettiar vs Government of the Province of Madras 1947 IA 74 and Government of the Province of Bombay vs Pestonji Ardeshir Wadia 1949 76 IA 57 referred to