STATE OF BIHAR Vs. DAULAT KUMARI

JUDGEMENT

(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.