The suit out of which this second appeal arises was instituted by the appellant against the South Indian Railway Company, Ltd., for damages for short delivery of goods consigned to him through the railway company on 18th September, 1943. The suit was instituted on 23rd March, 1944, after the issue of the requisite notice to the railway company. On 1st April, 1944, the Central Government took over the railway, and by a notification, dated 14th October. 1944, the General Manager and Deputy General Manager of the South Indian Railway were authorised to act for and on behalf of the Central Government as from 1st April, 1944, in all judicial proceedings in which the South Indian Railway administration might be concerned. On 19th June, 1944, the plaintiff filed I.A. No. 705 of 1944 for an amendment of the plaint by removing the name of the South Indian Railway Company, Ltd., through its Agent and General Manager, and substituting instead, the Governor-General-in-Council represented by the General Manager, South Indian Railway. This amendment was allowed on 19th June, 1944 and on the same day the General Manager of the South Indian Railway filed a written statement. Curiously enough, the first paragraph of the written statement stated that the South Indian Railway Company, Ltd., having ceased to exist on and from 1st April, 1944, the Governor-General in Council should be brought on record. The person who signed the written statement and verified it was not the Agent of the South Indian Railway Company, Ltd., but the General Manager of that railway system. The explanation for this discrepancy is in the fact that the written statement was signed on the 14th June, 1944, but filed into Court on 19th June, 1944, after the amendment of the plaint had been allowed and the Governor-General-in-Council represented by the General Manager, South Indian Railway, had been substituted as the defendant in the action. There was no plea in the written statement that the suit was bad for want of the statutory notice to the Governor-General-in-Council under section 80, Civil Procedure Code. The suit was tried on the merits by the District Munsif of Tenkasi and dismissed. On an appeal by the plaintiff, the Subordinate Judge of Tirunelveli reversed the decision of the Trial Court and remanded the suit for fresh trial and disposal. After the remand, the District Munsif decreed the suit in favour of the plaintiff. The suit was tried on the merits by the District Munsif of Tenkasi and dismissed. On an appeal by the plaintiff, the Subordinate Judge of Tirunelveli reversed the decision of the Trial Court and remanded the suit for fresh trial and disposal. After the remand, the District Munsif decreed the suit in favour of the plaintiff. An appeal was preferred from this revised decree by the Governor-General of India in Council and in the grounds of appeal, the point was taken that the suit was liable to be dismissed in limine by reason of the omission to issue the statutory notice under section 80, Civil Procedure Code. This objection had not been raised at the original trial or at the subsequent trial after remand and there was no issue on this point which was taken for the first time on appeal against the revised decree. The learned Subordinate Judge who heard the appeal on the second occasion upheld the objection of the Governor-General-in-Council and dismissed the suit on the ground of want of notice to the Central Government under section 80, Civil Procedure Code, without going into the merits. Hence this second appeal by the plaintiff. The points that emerge from the arguments of learned counsel on both sides may be shortly stated as follows: (1) Was the Governor-General in-Council properly made a defendant to the action by the order of the trial Court dated 19th June, 1944? (2) If the Governor-General-in-Council was properly made a party, was the omission to give the time required under Order 7, rule 5, Civil Procedure Code, for filing a written statement a mere irregularity not affecting the merits of the case or was it an illegal omission which vitiated the subsequent proceedings? (3) Is a notice to the Government under section 80, Civil Procedure Code essential, when it is made a party to a p nding suit by reason of a devolution of interest under Order 22, rule to, Civil Procedure Code. (4) Can there be a waiver of the ‘objection as to want of notice under section 80, Civil Procedure Code, and if so, has there been a waiver by the Government in the circumstances of this case? (4) Can there be a waiver of the ‘objection as to want of notice under section 80, Civil Procedure Code, and if so, has there been a waiver by the Government in the circumstances of this case? On the question whether when there is a devolution of interest on the Central Government, within the meaning of Order 22, rule 10, Civil Procedure Code, pending a suit, a notice under section 80, Civil Procedure Code, is necessary to be given to the Government before it is impleaded as a party to the suit, there is a decision of a single Judge of the Allahabad High Court in G.I.P. Railway v. Mahadeo1to the effect that notice is not necessary. There is a decision of this Court in Governor-General-in-Council v. Raghunadan Shenoy2to the contrary. The decisions in Appalanarasimha v. Commissioner, Municipal Council, Vizagapatam3and Chidambaram Chettiar v. Municipal Council, Karaikudi4are to the effect that the notice required by section 80, Civil Procedure Code, is a necessary condition to the maintainability of the suit against Government even though the Government happens to be impleaded as a party during the course of the suit, but in these cases there was no devolution of interest pending a suit. Having regard to the observations in the recent decision of the Judicial Committee in Vellayan Chettiar v. Government of the Province of Madras5that an objection on the ground of want of notice under section 80, Civil Procedure Code, can be waived by the Government, it is difficult to regard the decisions of this Court in Apparao v. Secretary of State for India in Council6 , Marina Ammayi v. Secretary of State for India in Council7and The Government of the Province of Madras v. Vellayan Chettiar8as laying down the law correctly. As the decision in this case is likely to affect a large number of suits and appeals of the same type, I consider it desirable that this second appeal should be heard and authoritatively decided by a Bench of this Court. The papers will be placed before His Lordship the Chief Justice for directions in this behalf. Pursuant to the above Order of Reference, this appeal coming on for hearing, the following Judgment was delivered by. The papers will be placed before His Lordship the Chief Justice for directions in this behalf. Pursuant to the above Order of Reference, this appeal coming on for hearing, the following Judgment was delivered by. The Chief Justice.-This second appeal came up in the first instance before Viswanatha Sastri, J., who considered it desirable that it should be heard by a Bench as the decision in the case was likely to affect a number of suits and appeals of the same type. The suit out of which this second appeal arises was instituted by the appellant originally against the South Indian Railway represented by the General Manager having his office at Trichinopoly for damages for short delivery of goods consigned to him through the railway company on 18th September, 1943. The suit was. instituted on 23rd March, 1944, after the issue of the notice required under section 77 of the Indian Railways Act. On 1st April, 1944, the South Indian Railway was taken over by the Government of India and by a notification dated 14th October, 1944, the General Manager was authorised to act for and on behalf of the Central Government as from 1st April, 1944 in all judicial proceedings in which the South Indian Railway administration might be concerned. On 19th June, 1944, on an application by the plaintiff-appellant, the plaint was amended by removing the name of the South Indian Railway, Co., Ltd., through its Agent and General Manager and by substituting instead, the Governor-General-in-Council represented by the General Manager, South Indian Railway. On the same day, the General Manager of the South Indian Railway filed a written statement. It is not clear whether this written statement was filed as the General Manager representing the South Indian Railway before it was taken oyer or it was filed by the General Manager as representing the Governor-General-in-Council, because the first paragraph of the written statement is as follows: “The suit is unsustainable in law, the South Indian Railway Co., Ltd., having ceased to exist: on and from rst April, 1944, the Governor-General-in-Council should be brought on record.” Evidently this written statement was filed, at any rate prepared to be filed, before the plaint was actually ordered to be amended. On 24th November, 1944, the District Munsif, Tenkasi, who tried the suit dismissed it. On 24th November, 1944, the District Munsif, Tenkasi, who tried the suit dismissed it. There was an appeal by the plaintiff (A.S. No. 66 of 1945) in the Court of the Subordinate Judge of Tinnevelly. The appeal was allowed and the suit was remanded for fresh disposal on 27th September, 1945, and eventually a decree was passed in favour of the plaintiff on 15th April, 1946. Against this decree the Governor-General-in-Council represented by its General Manager, South Indian Railway, filed an appeal A.S.. No. 93 of 1946. In the Memorandum of appeal for the first time the point was taken that the suit was liable to be dismissed because of the failure on the part of the plaintiff to give the notice under section 80, Civil Procedure Code, to the Government. The learned Subordinate Judge took up this point as a preliminary point and held that a notice under section 80, Civil Procedure Code, was necessary in the case and as no such notice had been given, the suit should be dismissed in limine. In the result, the appeal was allowed and the suit dismissed. The plaintiff has filed the present: second appeal against the decree and judgment of the Subordinate Judge. Several points appear to have been argued by learned counsel before Viswanatha Sastri, J., but, in our opinion, the appeal can be disposed of on our decision on one of these points. This point may be stated in the language of Viswanatha Sastri, J., thus: “Is a notice to the Government under section 80, Civil Procedure Code, essential, when it is made a party to a pending suit by reason of a devolution of interest under Order 22, rule 10, Civil Procedure Code.” There appears to be very little of case law on this question, but we have felt no difficulty whatever in coming to a conclusion on this point. Apart from the decided cases to which we shall presently refer, the language of section 80, Civil Procedure Code, does not appear to us to give much room for doubt. It says that no suit shall be instituted against the Government until the expiration of the two months next after notice in writing has been delivered to or left at the office of the official specified. It says that no suit shall be instituted against the Government until the expiration of the two months next after notice in writing has been delivered to or left at the office of the official specified. The section can obviously have no application to the continuation of a suit properly instituted when at the time of the institution the Government was not a necessary party. If the Government was a necessary party against whom. the plaintiff sought relief or must be deemed to have sought relief, then, the fact that the Government was not made at the inception a party, but was subsequently added as a party would not make any difference in principle. In such cases the suit must be deemed to have been instituted against the Government only when the Government is made a party, and obviously section 80 would apply to such a case and the Government would be entitled to the two months notice. But in a case where on the date of the institution of the suit, the plaintiff could not have claimed, and did not claim, any relief against the Government and therefore no notice under section 80, Civil Procedure Code was necessary, but if it transpires during the pendency of the suit that the interest of the defendant has devolved on the Government, either by voluntary act of the Government or by operation of law, there is no fresh institution of the suit as against the Government. The Government only steps into the shoes of the party whose interest has devolved on it. Because in such a case there is no institution of a suit as against the Government at the time when it is brought on record in the pending suit and section 80 cannot have any application. In G.I.P. Railway v. Mahadeo1an identical question arose for decision. The suit was instituted against the G.I.P. Railway while it was a private company. During the pendency of the suit the line was taken up by the Government and the Secretary of State for India in Council was substituted as defendant. An objection was taken that notice should have been given to the Secretary of State under section 80 and the objection was overruled by Daniels, J. The learned Judged observed: “Here there was no question of instituting the suit. An objection was taken that notice should have been given to the Secretary of State under section 80 and the objection was overruled by Daniels, J. The learned Judged observed: “Here there was no question of instituting the suit. The suit was already instituted.” The learned Judge pointed out that in the case of a devolution governed by Order 22, rule 10 of the Code, the suit is by the leave of the Court continued by or against the person to or upon whom such interest has come or devolved Clarke, J., followed this decision in C.S. No. 39 of 1944 the judgment in which is unreported. With great respect we are in entire agreement with the reasoning in G.I.P. Railway v. Mahadeo1. In fact we think no other view can reasonably be taken. The learned counsel for the respondent sought to rely on certain decisions of this Court in which the Government happened to be impleaded as a party during the course of the suit and it was held that section 80 of the Code applied to such cases. As we pointed out already, that would be so in cases where the Government was a necessary party even at the time of the institution of the suit, but for some reason or other the plaintiff had not joined the Government as a party at the time of the Institution. In such cases, there is no devolution of interest and the suit as against the Government must be deemed to have been instituted only at the time when they happened to be impleaded as party. We do not doubt the correctness of these decisions-Appala Narasimha v. Municipal Council, Vizagapatam2, Chidambaram Chettiar v. Municipal Council, Karaikudi3-but the principle underlying these decisions have no application whatever to the case before us. In the view we have taken, the appeal must be allowed and the appeal (A.S. No. 93 of 1946) must be remanded to the Court of the Subordinate Judge of Tinnevelly, to be decided on the merits. The appellant will be entitled to the costs of this appeal. The appellant will also be entitled to a refund of the stamp duty paid on the Memorandum of Second Appeal. V.S. ----- Appeal allowed. Case remanded.