# Raj Kishore Vaish v. State of U.P

- **Citation:** (2011) 3 ILRA 1051
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-22
- **Bench:** Devi Prasad Singh, Dr. Satish Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kishore-vaish-v-state-of-u-p-42035
- **Pages:** 6

## Text

3 All] Raj Kishore Vaish V. State of U.P.
1051
not to recover property tax of Rs.6760/-
and a further some of Rs.4,246.07/- on the
ground that the plaintiffs are already
paying property tax in respect of the
property in question to some other local
authority i.e. Zila Panchayat.

3. The suit was dismissed vide
judgment and order dated 18.1.08.

4. Aggrieved plaintiffs filed Civil
Appeal No.30 of 2008. The appeal has
been allowed vide judgment and order
dated 19.7.11. The judgment and order of
the court of first instance has been set
aside and the suit has been decreed.

5. It is against the decree of the
lower appellate court that the defendant
has filed this Second Appeal under
Section 100 C.P.C.

6. The valuation of the suit as well
as the appeal is Rs.11006.07. The
aforesaid valuation has been disclosed by
taking the total of the two amounts sought
to be recovered from the plaintiffs.

7. In substance the subject matter of
the original suit happens to be concerning
recovery of money not exceeding 25,000/-
rupees, though the relief claimed may
have been cough in a different way by
asking for a decree for permanent
prohibitory injunction.

8. Section 102 C.P.C. specifically
provides that no second appeal shall lie
from any decree, when the subject matter
of the original suit for recovery of money
does not exceed twenty-five thousand
rupees. The purpose of barring second
appeals in matters arising from suit for
recovery of money not exceeding twentyfive thousand rupees is to minimize
litigation on trivial matters.

9. The suit for recovery of money or
for not recovering it are both in the nature
of recovery of money.

10.

The
suit
for
permanent
injunction restraining the defendant from
realizing a particular amount may be in
the nature of injunction but nonetheless it
is a suit relating to recovery of money.

11. Accordingly, I am of the opinion
that the present second appeal arises out
of a suit concerning recovery of money of
value less than Rs.25,000/- and as such it
is barred by Section 102 C.P.C.

12. In view of above, this appeal is
dismissed as barred by Section 102 C.P.C.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.09.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE DR. SATISH CHANDRA,J.

First Appeal From Order No. - 801 of 2011

Raj Kishore Vaish

 ...Appellant
Versus
The State Of U.P. Through Its Chief Secy.,
Vidhan Bhwan Lucknow ...Respondent

Code of Civil Procedure-Order 33 rule-2exemption
from-court
fee-suit
for
damage of Rs. 2537 lakhs filed-on
ground-against wrong exclusion of Sale
tax under Section 4-A-writ petitiondismissed-review
rejected
by
High
Court-SLP
also
rejected-serious
allegation against High Court as well as
Supreme
Court
made-amounts
to
Criminal
Contempt-petitioner
running
factory possessing more than 1000/-
1052 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
worth property can not be treated
indigent
person-trail
Court
rightly
rejected the application.

Held: Para 15 and 16

Order 33 Rule 1A empowers the Court to
hold an enquiry. It appears that since the
plaintiff-appellant
had
not
filed
a
schedule
of
movable
or
immovable
property belonging to him, with the
estimated value thereof, the trial court
opined that application is not in required
format, hence not maintainable. The
finding recorded by the trial court does
not seem to suffer from any illegality and
impropriety.

The trial court further observed that no
cause of action is made out for issuance
of notice to the defendants. The finding
recorded by the trial court again seems
to be correct keeping in view of the fact
that no suit or petition lies against the
President of India for any action of the
State or Central Government. The suit
may be filed against the authority
concerned.
The
suit
against
the
President of India or Governor of the
State is not maintainable.

(Delivered by Hon'ble Devi Prasad Singh,J.)

1. Appellant appeared in person.

2. This is an appeal under Order 43
Rule 1 of the Code of Civil Procedure (for
short "C.P.C.") against the impugned
order dated 30.05.2011, passed by Civil
Judge (Senior Division), Sitapur whereby
application under Order 33 Rule 2 of
C.P.C. moved by the appellant in a
pending suit has been rejected.

3. While assailing the impugned
order, the appellant, in person, submits
that the Civil Judge (Senior Division) had
rejected the application on unfounded
ground. It could not have been rejected
under Order 33 Rule 2 C.P.C.

4. It shall be appropriate to give
brief facts, pleaded before the trial court
as borne out from the record.

5. The plaintiff-appellant claims to
have established an industry in the name
of M/s. Laxmi Rubber and Chemical
Industries, Sitapur and registered with the
Sales Tax Department controlled by the
defendant No. 1 i.e. State of U.P.
According to the appellant, registration
was
done
from
06.02.1986
having
registration certificate No. S.T.0053971.
However, the appellant could not do the
business due to alleged high handedness
on the part of the Sales Tax Department.
The different applications submitted by
the appellant claiming exemption under
Section 4A of the Sales Tax Act could not
fetch
favour
from
the
Sales
Tax
Department. It has been stated that on
account of inaction on the part of the
Sales Tax Department, the appellant
suffered loss of more than Rs. 69 lacs
within a period of 23 years. The
submission of the appellant is that the
machinery of the State Government
dealing with the sales tax and other
related matters is highly corrupt hence
they have not discharged their statutory
obligation to grant exemption under
Section 4A of the Sales Tax Act. It has
been pleaded that due to corruption at the
level of the defendant no.1 i.e., State of
U.P., the appellant could not run the
business and accordingly failed to serve
their children and parents. In sum and
substance, the argument advanced by the
appellant is that because of the rampart
corruption in the state machinery, the
appellant could not run the business and
3 All] Raj Kishore Vaish V. State of U.P.
1053
has suffered loss of social status, mental
pain and agony.

6. The appellant further states that
against the order passed by the Sales Tax
Department, he filed a Writ Petition
No.3055 (M/B) of 1989, which was
dismissed by this Court on 14.08.1997.
According to the pleadings on record as
contained in paras-12, 13 and 14 of the
plaint, the dismissal of the writ petition,
filed by the appellant, in this Court is
incident of arbitrary exercise of power.
Review petition filed against the said
order too was dismissed by the High
court. It has further been stated that
another writ petition, bearing No.2255
(M/B) of 1994 was filed in this Court,
which was also dismissed by the order
dated 04.08.1994, against which a Review
Petition No.109 (w) of 1994 was
preferred, which is allegedly pending.

7. The appellant has used derogatory
words in the plaint raising allegation
against the functioning of High Court and
also stated that because of corruption, the
writ petition was dismissed.

8. In Para-14 of the plaint, it has
been stated that the appellant has suffered
estimated loss of Rs. 2537 lacs. The
appellant further pleaded in the plaint that
he approached the Hon'ble Supreme Court
where his prayer for contempt was
rejected. He submits that against the order
passed by this Court, he approached
before
the
Hon'ble
Supreme
Court
levelling serious allegation against the
authorities concerned.

9. A perusal of the record shows that
one Pankaj Kalra,Advocate appeared
before the Hon'ble Supreme Court on
behalf of the appellant Raj Kishore Vaish
and Hon'ble Supreme Court while passing
an order on 27.03.1995 in Contempt
Petition No. 1200 of 1995, observed that
the petitioner was not properly advised.
Sri Pankaj Kalra had assured the Hon'ble
Supreme Court to tender proper advice
and record further shows that latter on, the
matter was dismissed by the Hon'ble
Supreme court to approach appropriate
forum.

10. It appears that thereafter the
appellant filed a suit for damages along
with an application under Order 33, Rule
2 C.P.C. A perusal of the pleadings of the
suit clearly shows that serious allegations
were raised against the system right from
the Government to higher judiciary.
However, total compensation claimed by
the appellant in terms of Para 24 in the
suit seems to be Rs. 11042 lacs with
interest @ 15%.

11. Application moved under Order
33 Rule 2 of the C.P.C. has been rejected
by the trial court. The trial Court observed
that the application moved by the
plaintiff-appellant is not in accordance
with Order 32 Rule 2 C.P.C. and further
the trial court held that according to the
pleadings on record, no cause of action
has been shown by the plaintiff while
preferring the suit.

12. Order 33 Rule 1 provides that a
suit may be instituted by the 'indigent
person'. 'Indigent' has been defined under
Explanation I. For convenience, Order 33
Rule 1 is reproduced as under:-

"Order 33 Rule 1 Suit may be
instituted in forma pauperis.-Subject to
the following provisions, any suit may be
instituted by an [indigent person].
1054 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

Explanation I. A person is an
indigent person-

(a) If he is not possessed of sufficient
means (other than property exempt from
attachment in execution of a decree and
the subject-matter of the suit) to enable
him to pay the fee prescribed by law for
the plaint in such suit, or

(b) where no such fee is prescribed,
if he is not entitled to property worth one
thousand rupees other than the property
exempt from attachment in execution of a
decree, and the subject-matter of the suit.

Explanation II.-Any property which
is acquired by a person after the
presentation
of
his
application
for
permission to sue as an indigent person,
and before the decision of the application,
shall be taken into account in considering
the question whether or not the applicant
is an indigent person.

Explanation III.-Where the plaintiff
sues in a representative capacity, the
question whether he is an indigent person
shall be determined with reference to the
means
possessed
by
him
in
such
capacity."

13. The definition shows that a
person shall be indigent who does not
possess sufficient means other than
property exempt from attachment in
execution of a decree and the subjectmatter of the suit to enable him to pay the
fee prescribed by law; while where no
such fee is prescribed if he is not entitled
to property worth one thousand rupees
other than the property exempt from
attachment in execution of a decree.

Order 33 Rule 2 C.P.C. is reproduced
as under :-

"Order 33 Rule 2. Contents of
application.-Every
application
for
permission to sue as [an indigent person]
shall contain the particulars required in
regard to plaints in suits; a schedule of
any movable or immovable property
belonging to the applicant, with the
estimated value thereof, shall be annexed
thereto; and it shall be signed and
verified in the manner prescribed for the
signing and verification of pleadings.

14. The above provision shows that
any application for permission to sue as
an indigent person shall contain the
particulars required in regard to plaint in
suits;
a
schedule
of
movable
or
immovable property belonging to the
applicant, with the estimated value
thereof, shall be annexed thereto; and it
shall be signed and verified in the manner
prescribed for the signing and verification
of pleadings.

15. Order 33 Rule 1A empowers the
Court to hold an enquiry. It appears that
since the plaintiff-appellant had not filed a
schedule of movable or immovable
property belonging to him, with the
estimated value thereof, the trial court
opined that application is not in required
format, hence not maintainable. The
finding recorded by the trial court does
not seem to suffer from any illegality and
impropriety.

16. The trial court further observed
that no cause of action is made out for
issuance of notice to the defendants. The
finding recorded by the trial court again
seems to be correct keeping in view of the
fact that no suit or petition lies against the
3 All] Raj Kishore Vaish V. State of U.P.
1055
President of India for any action of the
State or Central Government. The suit
may be filed against the authority
concerned. The suit against the President
of India or Governor of the State is not
maintainable.

17. Apart from above, the appellant,
who appeared in person, has raised
serious allegations against the alleged
corruption
not
only
against
the
Government but also against the highest
Court of this country. Dismissal of the
petition by this Court or by the Hon'ble
Supreme Court does not give liberty to
the appellant to raise frivolous allegation.
In case his counsel has not properly
advised or not argued the case in proper
manner or not assisted the Court properly,
remedy shall be available to the appellant
to approach the State Bar Council against
the conduct of the counsel but this does
not make out a case of levelling frivolous
charge against the higher judiciary where
the matter is decided or adjudicated on
merit.

18. The appellant may have suffered
because of alleged corruption in the State
of U.P. or due to non-exemption under
Section 4A of the Sales Tax Act but that
is different aspect of the matter and for
that the appellant earlier approached this
Court as well as Hon'ble Supreme Court
but he failed to get any relief. After
failing from the highest Court of the land,
no allegation should have been raised by
the appellant for damages on account of
dismissal of writ petition by this Court or
special leave petition by the Hon'ble
Supreme Court. The allegation and
averments made in the present appeal or
in the plaint prima facie makes out a case
of "criminal contempt" as it amounts to
interference in the administration of
justice. The trial court has rightly rejected
the application holding that no cause of
action arose to interfere in the suit in
question. The serious allegation raised by
the appellant-plaintiff against the highest
court of land is enough for dismissal of
the present appeal.

19. Law is very well settled that no
suit for damages can be filed against the
High Court or Hon'ble Supreme Court or
the President of India who discharges its
obligation in accordance to law to hold a
citizen's right under the Constitution of
India and statutory provisions. Judgment
and order may be correct or incorrect, but
it does not permit to claim damages from
the count. Mere permitting the appellant
to approach the proper forum while
declining to interfere with the matter does
not mean that whatever the appellant
wants, he may plead i.e. frivolous
allegation while filing the suit.

20. In view of above, it is a fit case
to proceed against the appellant for the
criminal contempt which, prima-facie,
seems to be made out under Section 2(C)
of the Contempt of Courts Act, but
keeping in view the plight with which the
appellant suffered with regard to tax
exemption to run the industry at the
behest of state machinery, we merely
warn the appellant not to raise such
frivolous and serious allegation against
the higher judiciary.

21. In view of above, the appeal is
dismissed. Record of the trial court be
sent
back
to
the
court
concerned
forthwith.

No cost
---------
1056 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.09.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Service Single No. - 1516 of 2000

Chhatthu Narain Vishwakarma

 ...Petitioner
Versus
State of U.P. Through Secy. Revenue
Dept. and another
 ...Respondents

Counsel for the Petitioner:
Sri A.K. Dixit

Counsel for the Respondents:
C.S.C.

Constitution
of
India
article
226
Fundamental
Rule-56(II)-retirement
age-consolidation Lekhpal-challenge the
retirement notice at the age of 58 yearson ground belongs to inferior serviceprior to 1965 inferior service are those
who getting salary of Rs. 22.27, 27.32
and 32.37-does not mean all class 4th
employee shall retire at the age of 60
years-statutory
Rule
can
not
be
amended by exercising rule framing
power-no interference called for-petition
dismissed.

Held: Para 15

Fundamental Rule 56 only talks of the
age of retirement at 60 years of an
"inferior service" and not Group 'D'
employee. The petitioner nowhere claim
that he was a member of "inferior
service".
Therefore,
he
was
rightly
retired on attaining the age of 58 years.
Case law discussed:
2005 (1) UPLBEC 474; AIR 2004 SC 2317;
2006 (3) AWC 2243; Civil Misc. Writ Petition
No. 47754 of 2005 (M/s J.K. Construction
Engineers and others Vs. Union of India and
others) decided on 28.02.2006; 2006 (2) ESC
1017; 2006 (5) AWC 5306
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard learned counsel for the
petitioner and perused the record.

2. The petitioner filed this writ
petition challenging notice dated 14th
October, 1999 whereby he was informed
of his retirement w.e.f. 31st January, 2000
on attaining the age of 58 years under
fundamental rule 56.

3. The contention of the petitioner
was that he is Consolidation Lekhpal,
which is a Group 'D' post. In view of
Government Order dated 28th July, 1987
he is liable to retire on attaining the age of
60 years.

4. However, I find no force in the
submission. Fundamental Rule 56(a) and
(b) as substituted w.e.f. 1st April, 1975
reads as under:

"(a) Except as otherwise provided in
this Rule, every Government servant other
than a Government servant in inferior
service shall retire from service on the
afternoon of the last day of the month in
which he attains the age of fifty eight
years. He may be retained in service after
the date of compulsory retirement with the
sanction of the Government on public
grounds which must be recorded in
writing, but he must not be retained after
the age of 60 years except in very special
circumstances.

(b) A Government servant in inferior
service shall retire from service on the
after of the last day of the month in which
he attains the age of sixty years. He must
not be retained in service after that date,