RAM GOPAL Vs. MUNSIFF MAGISTRATE

JUDGEMENT

(1.) THIS is application under Articles 226 and 227 of the Constitution by the petitioner Shri Ram Gopal -plaintiff praying to set aside the order of the Munsiff Gangapur, dated 9/1/68. By this order, the Munisif Gangapur allowed the revision application filed by the defendant Surajmal and his minor son Rata and set aside the decree passed by the Nyaya Panchayat, Nimbehera and dismissed the plaintiff petitioners suit.

(2.) THE petitioner Shri Ram Gopal filed a suit for the recovery of Rs. 241/ - in the Nyay Panchayat. Nimbahera Jatan, on 26/8/66. The plaintiff's case was that there were dealings in cash and kind between the petitioner and the non -petitioner 'Shri Surajmal and that the non -petitioner Surajmal executed a khata in favour of the petitioner on Jeth bud 10 Samvat 2010 for an amount of Rs. 124/ - -. The plaintiff further claimed an amount of Rs 72/ -from the non petitioner on account of the price of ghee. Adding an amount of Rs. 71/ - on account of interest and giving credit for an amount of Rs. 26/ - the plaintiff claimed an amount of Rs. 241/ - from Shri Surajmal. Rata is the son of Shri Surajmal and alleging that he had been living with the defendant Shri Surajmal, the plaintiff treated him also liable for the amount due from Shri Surajmal. The suit was thus filed by the plaintiff against both the defendants for the recovery of Rs. 241/ -. Shri Surajmal appeared in the Nyay Panchayat and alleged repayment. Rata did not appear at all The Nyay Panchayat by its judgment and decree dated 5/12/66 passed a decree for Rs. 220/ - in favour of the petitioner Shri Ram Gopal, The Panchayat Court thought it proper to reduce the amount of interest by Rs. 21/ -, Shri Surajmal filed a revision in the court of Munsif Gangapur on behalf of himself and his minor son challenging the decree of the Nyaya Panchayat. During of the revision application, it was alleged that the defendant Rata was minor. A medical certificate in support of the allegation about the minority of Rata was also produced. The Munsif Gangapur holding that the defendant Rata was minor, accepted the revision and set aside the decree of the Nyaya Panchayat. Nimbahera and dismissed the plaintiff's suit. The plaintiff has filed the present writ application.

(3.) THE counsel for Shri Surajmal, however, supports the order of the Munsif on the basis of the provisions of Section 39 clause (a) of the Rajasthan Panchayat Act, 1953. The proviso relevant for our purposes reads as follows: Provided that no Nyaya Panchayat shall take congnizance of any suit - - (a) by or against a minor or a person of unsound mind. The part of the proviso relied upon by the non -petitioner no -doubt clearly lays down that the Nyaya Panchayat cannot take cognizance of a suit by or against a minor or a person of unsound mind. The cognizance as to a suit by Nyaya Panchayat against minor Rata was. therefore, against law and wholly ineffective. Consequently, the decree against minor was not valid and it was rightly setaside by the Munsif Gangapur.