The State Of M.P. & Ors. vs Ashuna Shiksha Evan Vikas Samity
2023 Latest Caselaw 5560 MP

                                1


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                       BEFORE
    HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 05th OF APRIL, 2023
                   FIRST APPEAL No. 517 of 1999

BETWEEN:-

   1. THE STATE OF M.P. THROUGH THE
      SECRETARY, SOCIAL WELFARE, DEPTT.
      BHOPAL
   2. COMMISSIONER/DIRECTOR, PANCHAYAT
      AND SOCIAL WELFARE, DEPTT. BHOPAL
      (MADHYA PRADESH)
                                                        .....APPELLANTS
(BY SHRI ROHIT JAIN - GOVERNMENT ADVOCATE )

AND

ASHUNA SHIKSHA EVAN VIKAS SAMITY,
THROUGH ITS SECRETARY, G-I, 302, 1100
QUARTERS,  ARERA SHAHPURA,   BHOPAL
(MADHYA PRADESH)
                                                      .....RESPONDENTS
(NONE FOR THE RESPONDENTS )

"Reserved on : 29.03.2023"
"Pronounced on : 05.04.2023".
      This appeal having been heard and reserved for judgment, coming
on for pronouncement this day, the court passed the following:
                             JUDGMENT

1. This First Appeal under Section 96 of CPC has been filed against the Judgment and Decree dated 28-4-1999 passed by 1st Additional District Judge, Bhopal in Civil Suit No.27-A/1998.

2. The plaintiff filed a civil suit for declaration that the plaintiff Institution is a registered society whose Secretary General is Smt. Saroj Rani Saxena. One old age home was established by the plaintiff for the benefit of poor and destitute persons which remained operative till 1992. It was for the State to bear 90% operational expenses which were payable through Collector. It was the duty of Director/Commissioner, Social Welfare, Madhya Pradesh to carry out the audit of the institution. On 28-2-1993, the audit was done by the Social Welfare Department and it was recommended that an amount of Rs. 3,54,763/- is payable to the plaintiff institution, which was approved by the Collector on 12-8-1994. The defendant no.1 informed the plaintiff that the outstanding amount shall be paid by the Collector. However, the amount was not paid by the Collector, Bhopal. Accordingly, the plaintiff filed a writ petition before the High Court which was disposed of with a direction that upon production of proof, the Collector, Bhopal shall decide the same within 6 months. Thereafter the defendant no.1 by his letter dated 16-8-1998 raised several queries. Accordingly, the suit was filed for declaration that the plaintiff is entitled for an amount mentioned in letter dated 12-8-1994 and a Court Fee of Rs. 50 was paid.

3. The defendants filed their written statement and alleged that serious irregularities were committed by the plaintiff in running the old age home. The old age home was directed to be closed by order dated 28- 1-1994 after an enquiry was conducted in compliance of order passed by the High Court. Accordingly, it was prayed that the suit be dismissed.

4. The Trial Court after framing issues and recording evidence, decreed the suit and passed a decree thereby declaring that the responsibility to bear the operational expenses was on the Collector. However, no specific declaration was made that the plaintiff is entitled for Rs. 3,54,763/-.

5. Challenging the Judgment and Decree passed by the Court below, it is submitted that the plaintiff had committed various irregularities and accordingly the permission to run the old age home was cancelled. No amount was sanctioned and outstanding. Further, the suit for declaration was not maintainable.

6. None appears for the respondent though served.

7. Heard the learned Counsel for the Appellants.

8. The suit was filed for declaration that the Respondent/Plaintiff was entitled for payment of amount mentioned in letter dated 12-8-1994 along with interest. Thus, in fact the plaintiff had filed the suit for recovery of Rs. 3,74,763/- but by jugglery of words, he claimed enforcement of letter dated 12-8-1994. In fact the suit in question was a money suit. Thus, according to Section 7(i) of Court Fee Act, the plaintiff was required to pay Court Fee on the amount mentioned in letter dated 22-8-1994 i.e., Rs. 3,74,763/-. However, a fixed court fee of Rs.50/- was paid. Thus, the suit was not properly valued and proper Court Fee was not paid.

9. Further in letter dated 12-8-1994, Ex. P.11, the Collector, Bhopal had merely mentioned that payment of amount of Rs. 3,74,763/- is under proposal. There was no admission of liability by the Collector.

10. Dr. D.B. Saxena (P.W.1) appeared as Plaintiff's witness. He has not clarified that under what capacity, he appeared as a witness. He has not clarified that whether he is the office bearer of the plaintiff institution or not? He has not deposed in detail that how the plaintiff was entitled for the amount. He has also not produced any resolution passed by the Society to institute the suit.

11. Thus, this Court is of the considered opinion, that the plaintiff has failed to prove that it was entitled to receive Rs. 3,74,763/-.

12. Ex-consequenti, the Judgment and Decree dated 28-4-1999 passed by 1st Additional District Judge, Bhopal in Civil Suit No.27-A/1998 is hereby set aside.

13. The appeal succeeds and is hereby Allowed.

14. Decree be drawn accordingly.

(G.S. AHLUWALIA) JUDGE HEMANT SARAF 2023.04.05 17:52:55 +05'30' HS