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The State of Bombay (Now the State of Gujarat) Vs. Ishwarlal Nandlal Maula - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberA.F.O.D. No. 224 of 1963 and Civil Appln. No. 114 of 1964
Judge
Reported inAIR1965Guj173
ActsBombay Reorganisation Act, 1960 - Sections 60, 61 and 91; Bombay Civil Courts Act, 1869 - Sections 24, 25 and 32
AppellantThe State of Bombay (Now the State of Gujarat)
Respondentishwarlal Nandlal Maula
Appellant Advocate A.D. Desai, Asst. Govt. Pleader; A.N. Surti, Asst. Govt. Pleader
Respondent Advocate S.N. Patel, Adv.
Excerpt:
(i) constitution - liability - sections 60, 61 and 91 of bombay reorganization act, 1960 and sections 24, 25 and 32 of bombay civil courts act, 1869 - application filed to implead state of maharashtra as party to proceedings - having regard to original relief claimed by plaintiff, facts of case and provisions of law state of maharashtra found to be liable for original reliefs - state should have been substituted as party under section 91 - held, state of maharashtra be impleaded as necessary party. (ii) amendment applications - effect of service of notices of amendment applications - court to serve notice under two circumstances - where defendant did not appear though served with summons and amendment applied for is material one - where in absence of defendant court inclined to grant any.....vakil, j.(1)first appeal no. 224 of 1963 was filed the state of gujarat against the decree passed by the civil judge, senior division at broach in special civil suit no. 1 of 1962 on 5-11-1962. when this appeal was put on board final hearing, the appellant filed civil application no. 114 of 1964 on the 22nd of january stating for reasons mentioned therein the state of maharashtra was a necessary party to the proceeding and that, therefore, it be joined as a party and the state of gujarat be allowed to raise a question about the liability of the state of maharashtra in this first appeal no. 224 of 1963. having regard to the facts of the case which we shall presently state, it will be convenient to deal with and dispose of both these matters by a common object. the plaintiff-respondent.....
Judgment:

Vakil, J.

(1)First Appeal No. 224 of 1963 was filed the State of Gujarat against the decree passed by the Civil Judge, Senior Division at Broach in Special Civil Suit No. 1 of 1962 on 5-11-1962. When this appeal was put on board final hearing, the appellant filed Civil Application No. 114 of 1964 on the 22nd of January stating for reasons mentioned therein the State of Maharashtra was a necessary party to the proceeding and that, therefore, it be joined as a party and the State of Gujarat be allowed to raise a question about the liability of the State of Maharashtra in this First Appeal No. 224 of 1963. Having regard to the facts of the case which we shall presently state, it will be convenient to deal with and dispose of both these matters by a common object. The plaintiff-respondent joined service of the then Government of Bombay as a Clerk in the Revenue Department in the year 1926. Later on he was taken up as Aval Karkun. There is a dispute as to when he was confirmed, but that has no bearing on the questions that arise before us for decision. In 1948 he was promoted to the post of Mahalkari. In the same year on the 3rd of May 1948 he was appointed on the officiating Mamlatdar. On 7th September 1950 his lien on the Mahalkaris's post was suspended on the ground that he was not likely to be revert within three years of his appointment as the officiating Mamlatdar. Then on the 19th of March 1952 an order was received by the plaintiff reverting him as an Aval Karkun in the District establishement. The plaintiff thereupon on 26th March 1952 wrote to the Collector to let him know the reasons for his reversion. On 29th March 1952 the Collector replied saying that he did not know the cause. The plaintiff then sent an application to the Government in April 1952 in reply to that application the Collector sent a memo stating that with reference to his application to the Government, he is to be informed that under orders of Government on the basis of his unsatisfactory record Government considered that he was not fit for being continued as a Mamlatdar. Thereafter the plaintiff made representations to the Government and also applied to the Minister-in-charge. In August 1952,however, he received the reply that Government saw no reason to reconsider his case and revise the decision. In July the plaintiff wrote a latter to the Collector to communicate to him any adverse remarks that may have been made against him during his service. It may be noted that it was the case of the plaintiff that he had never been communicated any adverse remarks. On 17th September 1953 these remarks were sent to him which were of the years 1945, 1946, 1948 and 1950.in August the plaintiff requested the Collector to appoint him as a Mahalkari for which he was due in accordance with his seniority as a vacancy had covered. The Collector, however, replied that he could not be so appointed. The plaintiff then filed the suit on 16th June 1958 being Regular Civil Suit No., 116 of 1958 against the State of Bombay in the Court of the Civil Judge, Senior Division at Broach.

(2) In the suit as originally filed the plaintiff had mainly asked for two reliefs: (1) declaration that the order of the Government dated 19th March 1952 reverting him was illegal, without jurisdiction and null and void and that he had continued on the post of the officiating in the same way as before: (ii) a decree for Rs. 4120/- as the difference in pay for the three years preceding the date of the suit. The main contentions that were raised by him in the suit were that:

(a) The order dated 19th March 1952 reverting him to the District establishment amounted to reduction in rank.

(b) He having acted as officiating Mamlatdar for more three years he had acquired a right to hold that post.

(c) He was not given any notice to show cause before passing the impugned order and, therefore the said order offended against the provisions of Article 311(2) of the Constitution and as such was void and ineffective. He was, therefore, continuing to be Mamlatdar and was entitled to recover the difference in pay.

(d) He also alleged that the order reverting him was made by way of punishment and, therefore, also it amounted to reduction in rank.

(3) The Government of the State of Bombay as the defendant in the said suit had put in its written statement and contended inter alia that the plaintiff's version form the post of the Mamlatdar to the District establishment did not amount to reduction in rank because he was serving as a Mamlatdar only on an officiating basis. It was, therefore, not necessary to give to the plaintiff any show cause notice or hold an inquiry before passing the said order. I was denied that the order was made byway of penalty or punishment. It was the Government's case that the said order even did not affect his future chances of promotion and, therefore, the order is not void or illegal. It further contended that the suit of the plaintiff is time-barred.

(4) Before the suit came up for hearing, many important things happened. The plaintiff gave various applications for amendment of the plaint. The first was Ex. 21 govern on the 22nd July 1959. The second was Ex. 24 which was dated 24th July 1959. Then on the 1st of May 1960 the States of Maharashtra and Gujarat came into existence and the Bombay

Reorganisation Act, 1960 came on the Statute Book. On 16th June 1960 by Ex. 40 the plaintiff again gave an application to consolidate and make some clarification in applications Exs.21 and 24. The Court ordered that a notice of that application was served on the defendant. On 21st June 1960 the said notice was issued and served on the Collector of Broach. It may, however, be noticed that in the notice in the heading the State of Bombay was continued to be shown as the defendant. On 27th July 1960 the plaintiff gave another amendment application Ex. 45 whereby he sought to add para 6-A to his plaint which contained a plea of discrimination and bar of Article 16 of the Constitution. The Court passed an order that a notice of the said amendment application should be served on the defendant and the same procedure was followed. It appears that reply to Ex. 45 was filed on 7-10-60 by Ex 55. Thereafter the suit was adjourned from time to time for the hearing of Exs. 21, 24, 40 and 45.but again on26th November 1960 by Ex. 61 the plaintiff gave a consolidated application for all the amendments that he had sought in the plaint by his various applications. The Court passed the same order for serving the notice on the defendant and again it was served on the Collector of Broach. The reply to this Ex. 61 was filed by Ex.63. There after the said application Ex.61 was heard on the 9th of January 1961 and the Court allowed the application. One of the amendments allowed was to increase the amount in the relief for the claim of difference in pay, from Rs. 4120/- to Rs. 10,003/- and odd naye Paise. We find that when the said amendment was allowed the following endorsement was made on the plaint by the Court:

'In view of the order passed below Exn.61 and the plaintiff has paid the Court-fees stamp of Rs. 491-25 nP. the suit as regular one should be treated as disposed of and the plaint should be re-registered as in a suit of special Jurisdiction. Thereafter the suit should be proceeded with as one of Special Jurisdiction'.

A similar endorsement was to be found in the rojnama, which is as follows:

'In view of the order passed below Ex. 61 and the plaintiff has paid the Court-fees stamp, Court passed order below Ex. 1 that the suit as regular one should be treated as disposed of and the plaint should be re-registered as in a suit of Special Jurisdiction. Thereafter, the suit should be proceeded with as one of special jurisdiction'.

There on6-4-62 by Ex. 68 a written statement to the amended plaint was filed by the State of Gujarat. All these proceedings we have stated at length because they will have an effect on the decision of the questions that are canvassed at the bar before us and we shall discuss their import at their proper places.

(5) The suit was then heard and the learned trial Judge decided that the impugned order of the Government of Bombay offended against the provisions of Article 31(2) as well as Article 16 of the Constitution and, therefore, was ultra-vires and inoperative and that, therefore, the plaintiff was entitled to recover the difference in pay, but he further held that he claim for the amount in respect thereof beyond three years from the date of the suit was time-barred. The Court passed the decree against the State of Gujarat for Rs. 6460/- with 4 percent running interest and proportionate costs. The State of Gujarat then filed the present appeal. The respondent filed the cross-objections regarding part of the money claim rejected. However, before the hearing commenced, the respondent's advocate Mr. Patel withdrew the cross-objections. As regards the costs thereof, we shall pass the order at the proper place.

(6) As observed aforesaid, the applicant-the State of Gujarat has filed a Civil Application No. 114 of 1964 in this appeal whereby it sought to make the State of Maharashtra a party to the proceedings. A notice was issued to the State of Maharashtra and the learned advocate Mr. A.N.Surti appeared on behalf of the State of Maharashtra in the said civil application. Mr.A.D.Desai, the learned Assistant Government Pleader on behalf of the appellant, is challenging before us the decree passed by the trial Court on the following grounds:

(i) The trial Judge's findings that the impugned order of the Government of Bombay offended against Articles 311 and 16 of the Constitution is erroneous.

(ii) The suit was wholly time-barred.

(iii) The State of Gujarat was not liable for the plaintiff's decree but the liability is of the State of Maharashtra.

In order to enable to raise the last mentioned contention the appellant urged that the State of Maharashtra be brought on the record of this appeal. Having regard to the facts and contentions raised in the case we are first going to consider whether the submission of the applicant that the State of Maharashtra is a necessary party and it should be made a party to these proceedings can be accepted, and if it is accepted, what is the effect on the appeal and the rights of the respective parties.

(7) Mr. Desai in support of this submission relied upon section 91 and Sections 60 and 61 of the Bombay Reorganisation Act, 1960.Section 91 reads as follows:

'Where immediately before the appointed day, the state of Bombay, is a party to any legal proceeding with respect to any property, rights or liabilities subject to apportionment between the States of Maharashtra and Gujarat under the Act, the State of Maharashtra or Gujarat which succeeds to, or acquire a hare in, that property or those rights or liabilities by virtue of any provision of this Act shall be deemed to be substituted for the state of Bombay, as a party to those proceedings and the proceedings and that the proceedings may continue accordingly'.

The effect of this section is that if the proceeding was pending on the appointed day, i.e., 1st May 1960 whereunder the liability accrued to the State of Bombay, then the State of Maharashtra or the State of Gujarat will be deemed to have been substituted, whose liability would be, in accordance with the provisions of the said Act. It is clear, therefore, that on the 1st of May 1960 in place of the State of Bombay, by virtue of this provision one of he two states is deemed to have been substituted as a defendant. Which out of the two is to be so deemed to have become the defendant, will depend upon the fact as to which of them would be liable for the reliefs claimed by the plaintiff in case of his success. It may be that under certain set of facts both may become so liable and both may, therefore, be deemed to have been substituted. For determining this question we have to turn to Sections 60 and 61.

(8) Section 60 deals with the rights and liabilities accruing under contracts made before the appointed day. Section 61 deals with liabilities in respect off actionable wrong. In the proceedings before us, a sstat3d aforesaid, the plaintiff has asked for two reliefs (1) a declaration that the impugned order contravened the provisions of Arts. 311 and 16 of the Constitution and was, therefore illegal and void and (ii) claiming Rs. 10,000-16 nP. as the difference in pay on the ground that he, in the eye of law, continued to be the officiating Mamlatdar, despite the order of reversion. Ordinarily therefore, it would become necessary to determine as to whether the two reliefs will be governed by Section 60 respective or whether the relief for the claim of difference in pay should be treated as merely a consequential relief and both the reliefs be governed by the provisions of Section 61 only. Such a finding may become necessary as the factors that may fasten the liability on one or the other State under one or the other of the two sections would differ. But in the instant case such a discussion would become only academic and such a specific finding is not necessary because in our judgment, as we shall presently point out whether the two of reliefs are governed by the two sections 60 and 61 respectively or both governed by Section 61, in either case the liability is of the State of Maharashtra.

(9) Section 60 as is relevant for our purposes is as under:

'60. (1) Where, before the appointed day, the State of Bombay has made any contract in the exercise of executive power for any purposes of the State, that contract shall be deemed to have been made in the exercise of the executive power:

(a) If such purposes are, as from that day, exclusively purposes of either the State of Maharashtra or the State of Gujarat of that State; and

(b) in any other case of the state of Maharashtra;

and all rights and liabilities which have accrued or may accrue, under any such contract shall, to the extent to which they would have been rights or liabilities of the State of Maharashtra or the State of Gujarat, as the case may be:

Provided that in any such case as is referred to in clause (b), the initial allocation of rights and liabilities made by this section shall be subject to such financial adjustment as may be agreed upon between the State of Maharashtra and the State of Gujarat or, in default of such agreement, as the Central Government may by order direct'.

The effect of this provision therefore, is that if the contract was made for the purposes of the State and from the appointed day the contract can be said to have been made exclusively for one or the other State, then the liability will be of that particular State. But if that cannot be fixed, that is to say, if it cannot be fixed that the purposes of employing the plaintiff was exclusively for the State of Gujarat, then under clause (b) the liability will be of he larger State of Maharashtra subject of course, of it being adjusted later under the proviso to that section. In the case before us, the plaintiff was employed by the State of Bombay, Prima facie it cannot said that he was employed for the purposes of only that part of the territory of the State of Bombay which after the appointed day became the territory of the State of Gujarat. Not only that, but there is some evidence to show that the plaintiff was not employed for the purposes only of that part of the territory which has come to the State of Gujarat but that he was employed for the purpose of service also in the territory which has formed part of the territory of Maharashtra. Ex. 61, the amendment application mentions as follows in paragraph 6-A which he wanted to add in his plaint and which was ultimately allowed to be included in his plaint: --

I, the plaintiff, further submit that I, the plaintiff have continuously served for, in all, more than three years a officiating Mamlatdar in the permanent vacant post of Mamlatdar in Dedipada and Nancoda (Rajpipla) talukas of Broach District. And the name of me. the plaintiff was at number 90 in the list of officiating Mamlatdars of Northern Division of the ten Bombay State that is in the list published by the Honourable Government in the year 1951 before I, the plaintiff, was reverted..............'.

The said list is Ex. 90. The heading of this list shows that it was the list of the Mamlatdars in Northern Division. It further shows that Thana was a part of the Northern Division. It is a fact that the major part of the Thana District now forms part of Maharashtra. From this evidence on the record itself it is clear that his services were meant for purposes also of the territory which has gone to the State of Maharashtra. Under these circumstances, apart from any other consideration it is obvious that it cannot be said that he was employed exclusively for the purposes only of the State of Gujarat. Therefore, if the second relief of the claim for the difference in pay falls within the purview of section 60, it will be clause (b) thereof that will govern the facts of the present case and the liability is of the State of Maharashtra.

(10) Section 61 reads as follows: --

'Where, immediately before the appointed day, the State of Bombay is subject to any liability in respect of any actionable wrong other than breach of contract, that liability shall -

(a)if the cause of action arose wholly within the territories which, as from that day are the territories of the State of Maharashtra or the State of Gujarat, be a liability of that State; and

(b) in any other case, be initially a liability of the State of Maharashtra, but subject to such financial adjustment as may be agreed upon between the States of Maharashtra and Gujarat or, in default of such agreement, as the Central Government may by order direct'.

The effect of the provisions of this section is that if a liability of the State of Bombay accrued in respect of an actionable wrong done before the appointed day, the cause of action for such wrong can be held to have arisen wholly within the territory off the two States specifically, then the liability will be of that particular State. But if that cannot be done, then initially the liability will be of the State of Maharashtra. Having regard to the facts of the case it is obvious that it cannot be held that the cause of action for the relief NO. 1 in respect of the impugned order arose wholly in the State of Gujarat. There is no dispute raised about this. As a result of the above-stated discussion, it is clear that the liability that may arise for the claims of the plaintiff. It is of the State of Maharashtra alone and under section 91 it is the State of Maharashtra which is deemed to have been substituted for the State of Bombay on 1st May 1960 as the defendant.

(11) Mr. Surti, the learned advocate for the State of Maharashtra, however, has strongly objected to it being made a party at this stage. He argued that the State of Gujarat having taken upon itself to appear in the suit and fight out the litigation, if now cannot say, that it is not liable; not only that but they actually appealed against the decree and till the appeal came up for hearing, it did not raise this contention; therefore, the Court should not add the State of Maharashtra as the party to these proceedings. He further contended that the State of Maharashtra will be greatly prejudiced if it is added at this stage as it did not have the opportunity to fight their own battle in the trial Court. He also urged that the plaintiff who had filed the suit has not asked the state of Maharashtra to be added as a party and the appellant had no locus stand to seek such a prayer in this appeal. Mr. Desai, however, pointed out that under O. 41, R. 20 Civil Procedure Code, the Court had ample authority to add a person, who was a party to the suit but was not added as a party in appeal, as a party in the appeal if that party appears to the Court to be interested in the result of the appeal. We have already come to the conclusion that it was the State of Maharasshtra, who according to law, got substituted in place of the State of Bombay and was therefore the proper party. There is aslso no doubt that the State of Maharashtra is vitally interested in the result of the proceedings. The question that remains only is whether we should, under the facts of the case, exercise the discretion vested in us to make the State of Maharashtra the party or not.

(12) But before we go to examine that case on facts, we will consider another objection which Mr.Surti raised against the State of Maharashtra being made a party, on the construction of section 91. He argued that section 91 would come into operation and either of the States would get substituted only if it can be shown that there was a legal proceeding pending on 1st May 1960. According to him it cannot be said that there was any pending proceeding at the appointed day which would require he substitution of either of the States as a party. He urged that this appeal arises out of Special Jurisdiction Suit no. 1 of 1962 and not out of the original suit that was filed in 1958. He relied upon the aforesaid order passed by the learned Judge at the time of amendment application was allowed. It was his argument that the original suit which was as regular civil suit filed in 1958 was disposed of and, therefore, the proceeding which was actually pending on the appointed day had come to a conclusion and the Special Jurisdiction Suit No. 1 of 1962 which came into existence much after the appointed day cannot attract the application of section 91. As an extension of this argument Mr. Surti submitted that by Ex. 45, the application for amendment and the plaintiff had brought about a change in the original suit, in the cause of section, the quantum of the amount claimed which changed the nature of the suit from the property jurisdiction to the special jurisdiction suit and it also changed the forum of appeal because if it were an ordinary jurisdiction suit, an appeal would lie to the District Court while this First Appeal has come directly to the High Court from the decision of the Civil Judge. Under all these circumstances, submitted Mr.Surti, it cannot be said that the same proceeding that existed on the appointed day contained out of which this appeal has come to this Court. no, in the first instance we find that under law this Suit No. 1of 1962 would not be a special jurisdiction suit,. For the purpose we may examine sections 24, 25 and 32 of the Bombay Civil Courts Act, 1869. Section 24 is as follows: --

'The Civil Judges shall be of two classes. The jurisdiction of a Civil judge (Senior Division) extends to all original suits and proceedings of a civil nature.

The jurisdiction of a Civil Judge (Junior Division) extends to all original suits and proceedings of a civil nature wherein the subject-mater does not exceeds in amount or value ten thousand rupees'.

With the rest of the section we are not concerned. This section, therefore, enacts by the first para that a Civil Judge (Senior Division) shall have jurisdiction to decide all original suits and proceedings of a civil nature irrespective of the fact that its value may exceed ten thousand rupees. By para 2 the pecuniary jurisdiction of the Civil Judge (Junior Division) in respect of all original suits and all proceedings of a civil nature is limited to ten thousand rupees. Therefore, the Civil Judge (Senior Division) holds ordinary jurisdiction in respect of all matters which are of a civil nature within his local jurisdiction. There is no limit to his pecuniary jurisdiction. Then we pass on to section 25 which is as follows: --

'A Civil Judge (Senior Division) in addition to his ordinary jurisdiction, shall exercise a special jurisdiction in respect of such suits and proceedings of a civil nature as may arise within the local jurisdiction of the Courts in the district presided over by Civil Judges (Junior Division) and wherein the subject-matter exceeds the pecuniary jurisdiction of the Civil Judge (Junior Division) as defined by section 24.'

With the rest of the section we are not concerned. This section makes it amply clear that the Civil Judge (Senior Division) is vested with special jurisdiction under this section and it contemplates only one kind of special jurisdiction to be vested in the Civil Judge (Senior Division) and that is, that where within the local jurisdiction of the Courts in the District presided over by Civil Judge (Junior Division) a suit or a civil proceeding is to be filed and the subject-matter thereof exceeds pecuniary jurisdiction of such Civil Judge (Junior Division), then the Civil Judge (Senior Division) shall have the special jurisdiction to entertain and try such suit or civil proceeding though beyond his local jurisdiction and which was beyond the pecuniary jurisdiction of the Civil Judges (Junior Division). It is clear from this that a suit can be a special jurisdiction suit only if it is of the nature as would fall within the scope of section 25. In all the suits which fall within his territorial jurisdiction and which are of a civil nature, the Civil Judge (Senior Division) exercise his ordinary jurisdiction. But we have also to take into consideration section 32. Section 32 lays down as under: ---

'32. (1) No subordinate court other than the court of a Civil Judge (Senior Division) and no court of small causes shall receive or register any suit in which the Government or any officer of the Government in his official capacity is a party.

(2) In every such case the plaintiff shall be referred to the Court of the Civil Judge (Senior Division) and such suit shall be instituted only in the court of the Civil Judge (Senior Division) and shall be heard by such Civil Judge, subject to the provisions of section 24 of the Code of Civil Procedure, 1908.'

With the rest of the section we are not concerned. The effect of this provision is that if a suit has to be filed in which the Government or any officer of the Government in his official capacity is to be a party, then though it may ordinarily be a suit which would be entertainable by a Court of the Civil Judge (Junior Division), by virtue of the fact that it is a suit which the Government or the officer of the Government is concerned it will have to be filed in the Court of Civil Judge (Senior Division). Now reading sections 24 and 32 together, the effect of these two divisions is that the Civil Court, Junior Division, is deprived of its ordinary jurisdiction by virtue of section 32 in respect of suits where is the Government is concerned. Section 32 also, therefore, provides that it shall be the ordinary jurisdiction of the Civil Judge (Senior Division) to try such suits. Under the Act therefore the special jurisdiction contemplated is only to be found in section 25. Now, in this case the suit was filed against the Government of Bombay and, therefore though the plaintiff was employed at Rajpipla and there was no Civil Court of Senior Division he had the filed the suit in the Court of Civil Judge (Senior Division) at Broach under the provisions of section 32. As the claim was for less than ten thousand rupees, it was registered as a regular suit. It was only when the amendment was allowed and the claim asked for by the plaintiff was allowed tot augmented over ten thousand rupees, that it appears the trial Court thought it became a suit of a nature within its special jurisdiction. It easy for that administrative purposes it was necessary for the Court to register the suit the claim whereof exceeded ten thousand rupees in the register kept for special jurisdiction suits. But looking at the provisions of the Bombay Civil Courts Act, under law it was not as a matter of fact a special jurisdiction suit for obviously it did not fall within the ambit of section 25. Under these circumstances the mere fact that it was re-registered and it was given a new number as a Special jurisdiction Case will not make it a new proceedings and it cannot said that it was not a continuation of the original proceeding that was started by the plaintiff by filling the suit in 1958.it is important to note that on the appointed day under the conclusions that we have reached, it was the liability of the State of Maharashtra that had arisen as regards the relierfs sought by the plaintiff and that under the operation of law it was the State of Maharashtra that should be deemed to have been substituted for the State of Bombay. The application for amendment which necessitated the subsequent amendment of the plaint was after the appointed day and we are not in agreement with the submission made by Mr. Surti that because for administration purposes this suit was given a new number or that it was registered in a new Register, it became a fresh proceeding altogether. It is also important to note that when the Court passed the order using the words 'suit disposed of' possibly it meant Totoku if off from the Register of regular suits. It is also important to note that in this case the plaint was not returned for being present to any other Court. The Court which was seized of the first suit also tried the suit that was re-numbered as No. 1 of 1962. Under all these circumstances, it cannot be said that on the construction of section 91 this suit No. 1 cannot be considered at a pending proceeding on the appointed day.

(13) It is a fact, therefore, the State of Gujarat appeared after the amendment application was allowed and the notice of the amendment were served on the Collector of Broach. The State of Gujarat thereafter came in appeal to this Court against the decree passed and also deposited the decretal amount in order to obtain a stay of execution in appeal which amount we are told the respondent has already withdrawn. In our opinion, therefore, injustice would be done to the appellant if the State of Maharashtra is not add as a party as under law it is its liability and not of the State of Gujarat. There is one aspect which we are may consider here which is also necessary for us to keep in mind. The point that arises for our consideration is what the effect of the service of notices of the amendment applications allowed by the trial Court on the Collector of Broach. Order 6 Rule 17 as amended by the High Court of Bombay is as follows: --

'Where however, an application for amendment is made by the plaintiff in a suit in which the defendant has not appeared though served with a summons, and where in the opinion of the Court the amendment applied for is a material one, the Court shall give the notice of the application to the defendant before allowing the amendment; and where in the absence of the defendant the Court grants any amendment in a form materially different from that applied for, a copy of the amended plaint shall served on the defendant'.

This provision, therefore, requires the Court to serve a notice under two circumstances, where an application for amendment is given. One is where the defendant has not appeared though served with a summons, and in the opinion of the Court the amendment applied for is a material one and the second is where in the absence of the defendant the Court is inclined to grant any amendment in a from materially different than applied for, then also a notice has to be served on the defendant. In compliance with this Rule the trial Court made orders on all the three amendment application which we have referred to above, that a notice be served to the defendant about the amendment application. As already pointed out all these were served on the Collector of Broach. This aspect of the service of the notice on the Collector of Broach has also some importance in this scase. Order 48 Rule 2 provides that all orders, and other documents required by the Code to be served on any person shall be served in the same manner as provided for the service of summons and Rule 2 thereof prescribes the forms thereof. Order 27 deals with matters wherein Government is a party. The material Rule is Rule 4. It provides 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 such Court. Therefore, under the notice as regards the amendment applications should have been served not on the Collector of Broach but on the Government Pleader. It is possible, as was pointed out to us, that this service was made by the Court on the Collector of Broach because of an original endorsement in the plaint when it was filed that the service of the summons of the suit may be made on the Collector of Broach. Now, the importance of this discussion arises for considering the question as to what can be the effect of this service and the subsequent appearance of the Government of Gujarat as a party-defendant and also its effects on the decision while considering the question of the State of Maharashtra being a necessary party and being added as such in the proceeding. One thing is certain that the Collector of Broach after the appointed day could never be held to be the officer of the State of Maharashtra. He was obviously the officer of the State of Gujarat and though the notice was not legally served as required by law through the Government Pleader on the Government of Gujarat, it did come to the notice of that Government through their officer and they chose to appear as defendants in the said suit. This shows that at least the State of Maharashtra ..... never had any notice of these amendment applications, as the notices were served on the Collector of Broach.

(14) We have already come to the conclusion that under sections 60 and 61 of the Bombay Reorganisation Act, 1960, the State of Maharashtra would be liable for the reliefs claimed by the Plaintiff. Under section 91 of that Act, therefore, the State of Maharashtra is deemed to have been substituted. But partially because of the fact that the notices of the amendment applications were issued to the Collector of Broach who could, as said aforesaid, only represent the State of Gujarat and not the State of Maharashtra and possibly partly due to a mistake of law as regards the question as to which State would be liable for the reliefs sought, the State of Gujarat seems to have appeared and fought out the litigation and also filed the appeal. But as a matter of fact, under law it is the State of Maharashtra who should have appeared and defended the suit. The responsibility devolved on it under the statutory provisions, which had been ignored by it. Looked at from this point of view, it cannot be said with any justification that the State of Maharashtra did not make any the least contribution to the creation of the situation in which we find these proceedings before us. In our judgment, having regard to all the facts of this case and the provisions of law, to meet the ends of justice the State of Maharashtra is a necessary party and should be added as a party to the proceedings. In our view, the plaintiff cannot complain about any prejudice being done to him because at least to a certain extent it was his responsibility also to see that the process of the Court were served on proper parties. But at the same time the whole of the responsibility of that wrong service and the consequences thereof cannot be fastened on the plaintiff.

(15) When we came to the conclusion that this State of Maharashtra should be joined as a party we asked Mr.Surti if the State wanted to argue the appeal on its merits or would insist on an opportunity being given to defend the suit and Mr.Surti chose the latter course for the State and pressed upon us to give the opportunity to defend the suit. We find some strength in the submission of Mr.Surti that it has had no opportunity to fight the litigation in the trial Court. One thing is certain that the State of Gujarat is not the proper party. It is the State of Maharashtra that was the proper party which under law got substituted for the State of Bombay. But due to circumstances for which it cannot wholly be held responsible, it could not defend the suit. It would be quite equitable and just, therefore, that it would be given that opportunity. We that, therefore order that the State of Maharashtra be added as a party defendant in this proceeding and it be given the opportunity to defend the suit. Implicit, in this order of ours is that the State of Maharashtra must get an opportunity to properly defend the suit and as the State of Gujarat is not liable for the claim of the plaintiff, the decree shall have to be set aside and the proceedings remanded back to the trial Court. In the light of the conclusion that we have reached, no question arises for deciding the appeal on merits. In order to give the State of Maharashtra a fair opportunity to meet the case of the plaintiff, we feel that it must have also the opportunity to contest the amendment applications given by the plaintiff whereby the material change was brought about in his suit. We shall, therefore, also order accordingly. The plaintiff will certainly have the eight to press his applications for amendment as they stood before the order was passed. We therefore, pass the following order: --

(16) Civil Application No. 114 of 1964 is allowed and the State of Maharashtra is added as a party to the proceedings and it will have the right to defend the suit. As regards the costs of this application, were order that the State of Maharashtra and the plaintiff-respondent shall bear their own costs. The State of Gujarat has not pressed for its costs.

(17) The decree of the trial Court is set aside and the proceedings are remanded back to the trial Court to be heard again with a direction that the suit be taken on file under its original number as Regular Civil No. 116 of 1958 and it shall proceed to hear the said suit from the stage of the amendment application.

(18) The State of Gujarat shall be deleted as a party.

(19) The orders on the amendment applications Exs. 21,24, 45 and 61 are set aside and these applications shall be heard again.

(20) As regards the costs of the appeal, the State of Gujarat shall pay the costs of the aplaintiff respondnet. The State of Gujarat and the State of Maharashtra shall bear their respective costs of appeal.

(21) Cross-objections having been withdrawn before the started, each party shall bear its own costs and the due certificate for refund of Court-fees as admissible in law may be given the respondent.

(22) This litigation has been pending for a very long time. It is, therefore directed that the Court shall take on hand this suit and decide it as early as possible.

(23) Order accordingly.


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