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1976 DIGILAW 422 (ALL)

Ram Singh v. Piyare Khan

1976-06-29

H.N.AGARWAL

body1976
JUDGMENT H.N. Agarwal, Member. - This is a revision against the order dated 1.7.70 passed by the judicial Officer, Amethi, district Sultanpur in Suit no. 22 under Section 229-B/209, U.P.Z.A. and L.R. Act. 2. I have the learned counsel for the parties and have gone through the record. 3. The opposite parties, Piyare Khan and Paigamber Khan, sons of Suleman had field a suit under sections 229B/209, U.P.Z.A. and L.R. Act against Sri Ram Singh, Raja Ram Singh, Jai Ram Singh, Gaon Sabha Madhuban and the State of U.P.During the pendency of the suit, defendants no. 3 Jai Ram Singh died and an application for substitution of heirs was moved on 3.2.1970. The defendant Sri ram Singh moved and application in the trail court on 5.1.1970 for abatement of the suit as no steps had been taken by the plaintiffs for substitution of heirs of Jai Ram Singh who had died on 2.8.69. Thereafter he again filed an objection on 11.3.70 to the proposed substitution of heirs by stating that the plaintiffs were fully aware of the death of Jai Ram Singh on 2.8.69 as he died in the village and all the residents of the same village took part in the funeral ceremonies, and that the plaintiffs who were residents of the same village used to come to the door of the defendants nearly every day. Sri Ram Singh prayed that he application for substitution may be reject as being time-barred. The trial courts passed the following order on 1-7-70: "Nobody is present in site of registered summons and no objection has been filed. The substitution is allowed. The plaint may be amended." The learned counsel for the revisionist has challenged the above order on a number of grounds. The first is that it is a mis-statement that nobody was present before the trial court. The order sheet of 1.7.70 signed by the presiding Officer itself states that "both parties are present". The trial court has also made material mis-statement to the effect that no objection has been field, whereas the objection of Sri Ram Singh to be substitution applications had in fact been filed before the presiding Office himself on 11.3.70. The learned counsel for the revisionist has also contended that the trial cour allowed the substitution application under a misconception and without considering the objection of the revisionists. The contention is borne out from the record. 4. The learned counsel for the revisionist has also contended that the trial cour allowed the substitution application under a misconception and without considering the objection of the revisionists. The contention is borne out from the record. 4. The learned Additional Commissioner who heard the revision has recommended that the revision may be dismissed. It, however, appears that the learned Additional Commissioner has taken an erroneous view of law in holding that the revision was defective on two grounds ; firstly that Paigamber Khan plaintiff no.2, had not been impleaded, and secondly that U.P. State was also not property impleaded. As regard the first observation of the learned Additional Commissioner, the record would show that Piyare Khan, Paigamber Khan, the Gaon Sabha Madhuban and U.P. State were impleaded as opposite parties in the revision. Now, Piyare Khan and Paigamber Khan are both brothers. The suit was filed by Piyare Khan don his behalf as well as on behalf of Paigamber Kahn, minor, as his guardian. Thus, as both Piyare Kkan and Paigamber Khan have been impleaded in the revision, it cannot be said that Paigamber Khan has not been impleaded because is guardian has not been impleaded. Since Piyare Khan is guardian of Paigamber Khan, the fact that Piyare Khan has been impleaded shows that the objection that the revision suffers from an incurable defect is quite frivolous. In providing that a minor should be sued only through his guardian, the intervention of the law is to protect the interest of the minor by providing full opportunity to the guardian to look after the interest of the minor. In the present case, this opportunity has been fully provided to guardian Piare Khan as he himself has been impleaded. The fact that Paigamber Khan has also been impleaded in the case show that Piyare Khan has to look after the interests both of himself and of Paigamber Khan. Had the guardian of Paigamber Khan been some person other than Piyare Khan, the objection could have some substance. As regard of observations of the learned Additional Commissioner that U.P. State has not been properly impleaded because the words though the Collector had been omitted, it would appear that the learned Additional Commissioner failed to look into the provisions of Section 79, code of Civil Procedure, which reads as follows: "79. As regard of observations of the learned Additional Commissioner that U.P. State has not been properly impleaded because the words though the Collector had been omitted, it would appear that the learned Additional Commissioner failed to look into the provisions of Section 79, code of Civil Procedure, which reads as follows: "79. Since by or against the Government-In a suit or against the Government, the authority to be named as plaintiff or defendant,as the case may be, shall be- (a) in the case of a suit by or against the Central Government, the Union of India; and (b) in the case of a suit by or against a State Government, the State." The U.P. Government is a body corporate capable of suing and being sued. Section 79 of Cod of Civil Procedure specifically provides that where the Central or a State Government is party is a suit, it shall be named simply as the Union of India or the State, as the case may be. Thus, where only the central Government or the State Government has been named, compliance of section 79, C.P.C. has been done and it cannot be said that the Central Government or the State Government, as the case may be, has not been properly impleaded. The learned Additional Commissioner has also failed to consider the provisions of Rules 3 Order XXVII, which reads as follows: "3 Plaints in suit by or against the Government-In suit by or against the government instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be sufficient to insert the appropriate name as provided in Section 79." Whether the State Government is to be served through the Collector or through some other agency e.g., the Secretary to the Government or the Head of the Department, is only a procedural matter to be considered by the Court at state or sending summons. The procedure, however, does not become defective on the ground that the State Government and not State Government through the Collector has been impleaded. The learned Additional commissioner has not even considered the fatal mistakes in the order of the trial court while considering the revision. 5. I would, therefore, hold that the trial court has committed illegality and material irregularity in exercise of its jurisdiction is passing the impugned order. The learned Additional commissioner has not even considered the fatal mistakes in the order of the trial court while considering the revision. 5. I would, therefore, hold that the trial court has committed illegality and material irregularity in exercise of its jurisdiction is passing the impugned order. I hereby allow the revision set, aside the order of the trial court and direct that the trial shall consider the objection of the revisionist and thereafter pass suitable orders on the substitution application is accordance with law.