1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CIVIL APPLN. NO.663/2011 & CIVIL APPLN. NO.821/2010 IN FIRST APPEAL NO.697/2010 State of Maharashtra Thr. Collector ...Versus... Sou.Shobha Ashok Kukudkar and others --------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------- Mr. N. Sambre, G.P. / Mrs.M. H.Deshmukh, AGP for the appellant. Mr. S. D. Dharaskar, Adv. for respondent No.1. Mr.A. S. Kilor, Adv. for respondent No.2. CORAM:- A.B. CHAUDHARI, J. DATED :- 25.04.2011 This Civil Application (F) No.663/2011 is an application filed by the contesting respondent No.1 for permission to withdraw the amount deposited by the appellant-State of Maharashtra, the original defendant No.3 in the civil suit viz. Special Civil Suit No.3/2005 decided on 23/08/2007. The deposit was made pursuant to the order dated 16/07/2010 on Civil Application (F) No.821/2010 made by this Court which was ad interim order qua the respondent No.1 as respondent No.1 was not served till 03/03/2011. The said C.A.F. No.821/2010 is still pending for orders vide office note dated 10/02/2011. Hence, both C.A.F. No.821/2010 and No. 663/2011 are taken up together for hearing. 2 At the hearing of these applications, it was noticed by this Court that the claim of the plaintiff was that defendants No.1-Sarpanch and No.2–Gram Panchayat, Ankhoda, Taluka Chamorshi, District Gadchiroli had illegally cancelled the permission to start the construction of the rice mill on a particular piece of land by passing a resolution on 12/01/2002. It was the case of the respondent No.1-plaintiff that within a period of 12 days i.e. from 31/12/2002 till 12/01/2003 during the validity of the permission, plaintiff made construction worth Rs.6,50,000/- on the said piece of land. The Trial Court while recording the findings disbelieved this version that in 12 days plaintiff could make construction worth Rs.6,50,000/-. In this suit plaintiff arrayed State of Maharashtra through Collector, Gadchiroli as defendant No.3. Perusal of the pleadings and evidence of the plaintiff and of the other defendants show that the State Government has no connection whatsoever with the grievance or the reliefs or the averments made in the plaint. The entire allegations were against the Gram Panchayat and Sarpanch that they granted permission and then revoked the same thereby causing loss to the plaintiff. With the assistance of learned Government Pleader and other counsel, this Court has made attempts to find out from the judgment, evidence and the pleadings as to what role was played by the State Government- Defendant No.3, so that any decree could be slapped against the State Government. However, neither the counsel for the respondents, nor the counsel for the 3 appellant could point out a single sentence in the entire judgment as to why the State Government-Defendant No.3 has been saddled with the liability by the Trial Court. On the contrary, the Trial Court has recorded a finding that defendants No.1 and 2 i.e. Gram Panchayat and Sarpanch were fully responsible for causing loss to the plaintiff and, therefore, they were responsible for making the loss good. However, while passing the decree or the operative order in the judgment, the Trial Court passed a decree joint and several even against the State Government-Defendant No.3. This shocks the conscious of this Court. Judge carries with him a responsibility to be alert and cautious before indicting a litigant. Registrar (Judicial) is, therefore, directed to seek explanation from the said learned Judge as to how and under what circumstances, in the above factual background, such a decree, i.e. joint and several, was passed against the State Government. Let the explanation be tendered on or before 4th of May, 2011. Copy of the said judgment dated 23/08/2007 be sent to him. Prima face this Court finds in the above factual background that the appellant-State Government had nothing to do with the cause of action mentioned in the suit or the claim made by the plaintiff. The plaintiff could not have made State Government as a party-defendant. The District Government Pleader, who appeared for defendant No.3, should have applied for discharge from the suit. It appears that the plaintiff deliberately joined the State Government as a party-defendant No.3 with an 4 eye on the money belonging to the State Government, since the Gram Panchayat is always short of funds. The State Government for no reasons suffered a decree. It appears that the District Government Pleader as well as the Joint Secretary, Law & Judiciary, Nagpur without applying their mind that there was an error apparent on the face of record in passing the decree against the defendant No.3-State joint and several, instead of advising the State to file review before the Trial Court, advised filing of this first appeal. The Assistant Government Pleader Mr. T.R. Kankale, who is a very Senior Law Officer, also drafted the appeal mechanically and filed it without even thinking that ‘review’ was the most efficacious remedy in the fact-situation. Counsel for the respondent No.1-plaintiff was made aware at the earlier hearing on C.A.F. No.663/2011 that this Court wanted to impose exemplary cost on the plaintiff in the above background. Counsel for the respondent No.1- plaintiff is unable to justify why State was made party- defendant No.3 to the suit. To sum up, it is the plaintiff, who is thus responsible in dragging the State in the litigation. As a sequel, I make the following order. Civil Application (F) No.821/2010 is allowed. Amount of Rs.2,00,000/- deposited by appellant shall be repaid to appellant forthwith. Civil Application (F) No.663/2011 for permission to withdraw amount of Rs.2,00,000/- is consequently rejected with cost of Rs.20,000/- (Rs. Twenty Thousand Only), which covers Court fees and expenses for filing this first appeal, payable to appellant within eight weeks. 5 The respondent No.1-plaintiff is free to execute the decree in question against the Gram Panchayat and other defendants except the Defendant No.3-appellant. Mr. Sambre, A.G.P. states that henceforth the Law Officers for Government would remain vigilant. Statement accepted. Registry to send a copy of this order to Secretary, Law & Judiciary Department, Mumbai. JUDGE KHUNTE