Patna High Court
The State Of Bihar vs Smt. Daulat Kumari And Ors. on 3 August, 1967
Equivalent citations: AIR 1969 PATNA 25
JUDGMENT Choudhary, J.
1. Plaintiff-respondent No. 1 instituted a suit for recovery of royalty from respondents 2 to 4. During the pendency of the suit, the State of Bihar (the appellant here) was made party in the suit. Ultimately, the suit was decreed in part against respondents 2 to 4. It was, however, held in the suit that, since after the vesting of the estate of the plaintiff in the State of Bihar on the 26th January, 1955, the State of Bihar was entitled to realise the royalty. The decree that was passed in the suit for recovery of arrears of royalty was, therefore, passed for the period prior to the 26th January, 1955. The plaintiff preferred an appeal in the lower appellate court against the portion of the decree dismissing her claim for royalty for the period subsequent to the 26th January, 1955. The State of Bihar was made respondent no. 4. The notice of the appeal was served on the Government Pleader; but the State of Bihar did not choose to appear in the appeal. Prior to the date fixed for the hearing of the appeal, it was transferred to the court of the Subordinate Judge, but no notice of the transfer of the appeal to that court was given either to the Government Pleader or to the State of Bihar. Ultimately on the 13th March. 1961, the appeal was heard and allowed ex parte so far as the State of Bihar is concerned. The State of Bihar, therefore, filed an application under Order 41. Rule 21, of the Code of Civil Procedure for a rehearing of the appeal. This application was, however, dismissed by the Court below, and hence this appeal has been preferred by the State of Bihar in this Court.
2. Learned Additional Government Pleader raised three points in support of the appeal, namely:--
(i) that no notice of the transfer of the appeal from one court to another having been given to the State of Bihar or to the Government Pleader, there was sufficient cause for the State of Bihar not to appear at the time of the hearing of the appeal before the transferee court within the meaning of Order 41, Rule 21, of the Code of Civil Procedure;
(ii) that service of notice of the appeal on the Government Pleader was not a valid service on the State of Bihar; and
(iii) that it was a fit case in which the discretion of the court should have been exercised in favour of the State of Bihar.
In my opinion, there is no substance in any of these contentions.
3. I will first take up the second point about the validity of the service of notice on the State of Bihar. The notice was served on the Government Pleader on the 28th September, 1960; but the State of Bihar did not choose to appear. Order 27, Rule 4, of the Code of Civil Procedure states that the Government Pleader in any court shall be the agent of the Government for the purpose of receiving processes against the Government issued by the Court. Therefore, under the above provision, the service of notice of the appeal on the Government Pleader was a valid service of notice on the State of Bihar Itself.
Learned Additional Government Pleader, however, has referred to Rule 5 of that order, which lays down that the Courts, in fixing the day for the Government to answer to the plaint, shall allow a reasonable time for the necessary communication with the Government through the proper channel, and for the issue of instructions to the Government Pleaded to appear and answer on behalf of the Government, and may extend the time at its discretion. True it is that, in the present case, after the service of the notice on the Government Pleader, a short time of about two weeks was given to the State of Bihar to appear in the appeal but actually the appeal was taken up for hearing on the 13th March. 1961, more than five months after the service of the, notice on the Government Pleader. There was thus sufficient time for the Government to issue instructions to the Government Pleader to appear and answer on behalf of the Government in the appeal. There is thus no merit in this contention.
4. With respect to the first point namely, that notice of the transfer of the appeal from one court to another ought to have been given to the State of Bihar or to the Government Pleader; learned Additional Government Pleader has relied on a Special Bench decision of this court in Ram Sukul Pathak v. Kesho Pd. Singh, AIR 1918 Pat 341; and it has been contended that the omission to give notice of the transfer must be taken to be a sufficient cause for the non-appearance of the State of Bihar in the lower appellate court. In that case, the respondent had already appeared and had been present in the Court from which his case had been transferred to the other court on a date prior to the date fixed for the hearing of the case. In those circumstances, it was held that notice of the transfer was essential and the omission to give notice of the transfer was a sufficient cause for his non-appearance at the time when the case was called out for hearing, In the present case, the State of Bihar, in spite of the service of the notice of the appeal on the Government Pleader, did not choose to appear, and, as such, no notice of the transfer of the case could be given to it or to the Government Pleader. The principle of the decision in the Special Bench case referred to above does not, therefore, apply to the facts of the present case. This view gains support from a Single Judge decision of the Madras High Court in Natesa Ayyar v. Venka Lakshmi Ammal, AIR 1940 Mad 53, wherein it has been held that where an applicant is served with a notice in the appeal and he omits to put in an appearance and chooses to let the appeal be decided ex parte and the appeal is transferred to the subordinate Judge from the District Judge, it cannot be said that by the Subordinate Judge's omission to Rive notice to him of the transfer of the appeal from the District Court, he was prevented by sufficient cause from appearing. There is thus no merit in this point also.
4A. Lastly, it was submitted that the Court should have exercised its discretion in favour of the State of Bihar in the circumstances of the case. The court below has considered the facts and the circumstances of the case and has not chosen to exercise its discretion in favour of the State of Bihar. This court, therefore, cannot interfere with the exercise of the discretion by the court below, which cannot to be said to be a perverse exercise of discretion.
5. There is thus no merit in this appeal, which is, accordingly, dismissed with costs.