Balli and Others vs Smt. Shanti Devi and Another

S.U. Khan, J.—Revision is withdrawn /treated to be withdrawn to this Court u/s 24, C.P.C.

Heard learned Counsel for the applicants.

Smt. Shanti Devi and another opposite parties filed O.S. No. 681 of 1986 against the applicants before Munsif, Azamgarh. Valuation of the suit as shown in the plaint was Rs. 1,000 and requisite court fees was paid thereupon. Thereafter, on the objection of the defendants applicants valuation was enhanced to Rs. 26,000. Thereafter, plaintiffs filed application before Munsif for return of plaint for filing before it appropriate court as Munsif had no Jurisdiction to try the suits of valuation of Rs. 26,000. Application was rejected on 17.1.1989. On the same date another application had been given by the plaintiffs for permission to sue an indigent persons. Application was rejected as not maintainable by the same order dated 17.1.1989. Nothing was said on merit of the said application. Thereafter Munsif, Azamgarh, passed another order on 4.9.1989 to the effect that Court had no jurisdiction in view of enhanced valuation and in spite of opportunity granted to the plaintiffs, court fees had not been paid. Ultimately it was directed that "plaint be returned for presentation before proper Court". The above order has been annexed alongwith affidavit. Thereafter plaint was filed before Civil Judge, Azamgarh alongwith application for permission to sue as an indigent person. The case was registered as Pauper Case No. 170 of 1989. Civil Judge, Azamgarh on 11.9.1990, allowed the application for permission to sue as an indigent person. The said order has been challenged through this revision. In the said order, it is mentioned that plaintiff Ram Avtar stated that he was a labourer and had no other property except the disputed property (Plaintiff No. 1 Shanti Devi is wife of plaintiff No. 2 Ram Avtar).

The only argument raised by the learned Counsel for the defendants applicants is that notice was not issued to the Government counsel, hence, impugned order is illegal.

It is correct that by virtue of Order XXIII, Rule 6, C.P.C., notice shall be given to Government pleader before allowing application to sue as an indigent person. However, plea of want of notice may be taken only by the party to whom notice was required to be given, i.e. Government counsel in the matter like the one in question. The Collector or Government counsel never raised the plea. It was raised only by the defendants. In this regard, reference may be made to Siddappa and Ors. v. Mahadevamma and Ors. AIR 1955 Hyd 160 and A. Prabhakaran Nair Vs. K.P. Neelakantan Pillai, , wherein it has been held that plea of want of notice to Government counsel cannot be raised by the defendant. I fully agree with the view taken by the above High Courts.

Accordingly, there is no merit in the revision hence it is dismissed.