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Balli v. Smt Shanti - CIVIL REVISION No. 1065 of 1990 [2007] RD-AH 7353 (23 April 2007)


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Judgment Reserved on 22.1.2007

Judgment Delivered on 23.4.2007


Civil Revision No. 1065 of 1990

Ballu and others Versus Smt Shanti Devi and another.

Hon'ble S.U.Khan J

Revision is withdrawn/ treated to be withdrawn to this court under section 24 CPC .

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.1000/- and requisite court fees was paid thereupon. Thereafter on the objection of the defendants applicants valuation was enhanced to Rs.26000/-. 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.26000/-. 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 4.9.89 to the effect that court had no jurisdiction in view of enhanced valuation and inspite 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 along with affidavit. Thereafter plaint was filed before Civil Judge, Azamgarh along with 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 23 Rule 6 CPC, 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 & others Vs. Mahadevamma and others AIR 1955 Hyderabad 160 and A. Prabhakaran Nair Vs. A.P. Neelakantan Pillai AIR 1988 Kerala 267 wherein it has been held that plea of want of notice to Government Counsel can not 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.




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