Santosh Jain (Smt.) and Another vs B.K. Nayak

N.K. Agarwal, J.

The present revision from the order dated 15-11-2002, passed by the Ist Civil Judge, Class I Jagdalpur, in civil suit No. 3-B/01, whereby and whereunder the preliminary issue No. 5 has been decided in favour of the plaintiff and as against the applicant herein.

The brief facts of the case are that, the plaintiff instituted a recovery suit claiming Rs.32,593/- on account of arrears of telephone bill against the applicants/defendants. On the basis of objection raised by the applicants/ defendants in their written statement, following preliminary issue has been framed-

The trial court, by recording a finding that the District Manager (Telephone) has authorized the plaintiff to file a suit, decided the issue in favour of plaintiff and as against the defendants/applicants.

Shri Prafull Bharat, Learned counsel appearing for the applicants would submit that the department of District Manager (Telephone) is an authority under the Central Government and on behalf of Telephone Department suit can only be instituted by the Union of India as provided u/s 79 of CPC, but the suit has been filed by an individual person Shri B.K. Nayak which is not maintainable and plaint ought to have been rejected by the trial court. He would further submit that even otherwise at the time of filing of the suit the telephone department was under separate corporation incorporated for this purpose named as Bharat SancharNigam Limited (for short ''BSNL''), and suit has also not been filed by the said corporation.

Shri RM Solapurkar, learned counsel appearing for the respondent does not controvert the above legal position.

Section 79 of CPC reads as under:

[Suits by or against Government - In a suit by or against the government, the authority to be named as plaintiff or defendant, as the case may be, shall be-

(a) in the case of a suit by or against the Central Government, (the Union of India), and,

(b) in the case of a suit by or against a State Government, the State].

By applying the aforesaid provision in the facts of the present case, it is crystal clear that the union of India can only be named as a plaintiff in the suit. It is also clear that the suit has neither been filed by the Union of India as provided u/s 79 of CPC nor by the aforesaid corporation i.e. BSNL. Upon authorization, a plaint can certainly be signed by the person who has been authorized as provided Order 27 of CPC, but he cannot be named as plaintiff in the suit.

In view of the above, in the considered opinion of this court. The order passed by the trial court is without jurisdiction and the same is hereby set aside.

The revision is allowed. However, the plaintiff is at liberty to file fresh suit in view of Order 7 Rule 13 of CPC on the same cause of action in accordance with law.

Interim relief granted earlier stands vacated.