Alfred Henry Lionel Leach, C.J.
1. The petitioner in this case is the Governor-General of India in Council. On the 6th June, 1944 the respondent instituted in the Court of the District Munsiff of Mangalore a suit for damages for short delivery of goods consigned to him from Calicut by the South Indian Railway Company Ltd. On the 1st April, 1944 the Government of India took over the South Indian Railway and relief could then only be granted against the Governor-General of India in Council. The respondent applied for leave to amend his plaint by adding the Governor-General of India in Council as the second defendant, and his application was granted; but he gave no notice under Section 80 of the Civil Procedure Code. Having been added as a party, the Governor-General of India in Council contended that the suit did not lie because the requisite notice had not been given. This objection was overruled by the District Munsiff who on the authority of the judgment of Devadoss, J., in Great Indian Peninsular Railway Co. v. Sreeramulu : AIR1928Mad599 held that notice was not necessary in the circumstances.
2. The present suit is a small cause action and the petition now before us has been filed under Section 25 of the Provincial Small Cause Courts Act. In the first place the petition came before Happell, J., who doubted the correctness of the judgment in the Great Indian Peninsular Railway Co. v. Sreeramulu : AIR1928Mad599 . Consequently he referred the petition to a Bench for decision.
3. We agree with the learned Judge that the decision in Great Indian Peninsular Railway Co. v. Sreeramulu : AIR1928Mad599 is erroneous. The suit could not be maintained without notice being served upon the petitioner under Section 80 of the Code of Civil Procedure. The judgment of this Court in Governor-General in Council v. Krishnaswami Pillai Appeal No. 558 of 1944 governs this case and the decision in Great Indian Peninsular Railwar Railway Co. v. Sreeramulu : AIR1928Mad599 must be overruled.
4. The learned advocate for the respondent has suggested that instead of this Court dismissing the suit, it should direct that the plaint be rejected under Order VII, Rule 11(d) and in this connection he has referred to observations made in Jagadischandra Deo Dhabal Deb v. Debendraprasad Bagchi I.L.R.(1930)Cal. 850. The facts there were entirely different from the facts in the present case and that judgment has no application. We are not able to adopt the course suggested on behalf of the respondent because the plaint was in proper order when it was presented. Order VII, Rule 11(d) applies to a case where the suit appears from the statements in the plaint to be barred by law, which is not the position here.
5. In these circumstances, the only order which the Court can pass is an order dismissing the suit with costs plus the costs of the present petition and this is the order which we make.