Madhya Pradesh High Court
Jaideep vs The State Of Madhya Pradesh on 20 August, 2019
Equivalent citations: AIRONLINE 2019 MP 1033
Author: Vivek Rusia
Bench: Vivek Rusia
1
R.P. Nos. 1002/2018 & 1903/2018
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)
R.P. No.1002 of 2018
Jaideep S/o. Late Shri Govindas Kabra. ... Petitioner.
Vs.
State of M.P. & others. ... Respondent.
R.P. No.1903 of 2018
Girdhar S/o. Late Shri Narayandas Kabra ... Petitioners.
& others. .
Vs.
State of M.P. & others. ... Respondent.
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Shri P.M. Choudhary, Sr. Adv. with Shri J.B. Mehta, Adv for petitioner in R.P.
No.1002/2018.
Shri Sunil Jain, Sr. Adv. with Shri Kushagra jain, Adv. for petitioners
in R.P. No.1903/2018.
Shri Mayank Purohit, Govt. Adv. for respondents/State in both the R.Ps'.
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ORDER
(Passed on 20th August, 2019) By this common order, R.P. Nos. 1002/2018 and 1903/2018 are being disposed of as both the review petitions have been filed seeking review / recalling of judgment and decree dated 18.6.2018 passed by this Court in F.A. No. 305/2001.
2. The petitioners have filed the present review petitions seeking review of judgment and decree dated 18.6.2018 passed in First Appeal No.305/2001 (State of M.P. & others V/s. Geetabai, deceased through L.Rs. Girdhar Kabra & others), by which, the first appeal filed by the State has been allowed and 2 R.P. Nos. 1002/2018 & 1903/2018 the judgment and decree dated 28.2.2001 passed by 10th Addl. District Judge, Indore in Civil Suit no.63-A/1999 has been set aside.
3. Facts necessary for disposal of present review petitions are as under :
(i) The original plaintiff - Smt. Geetabai W/o. Late Narayandas Kabra filed the suit for the relief of declaration against the defendants that House No.241 (old No.198), Jawahar Marg, Indore (hereinafter, for short, "the suit house") is her personal property and the same cannot be subjected to attachment for recovery of sales-tax dues and the penalty over the firm namely M/s. Kitchen Aid (hereinafter for short, "the firm") by way of attachment and auction sale. The firm was a partnership firm engaged in the business of sale of edible oil, processing and re-packing, etc. The son of Geetabai ,Shri Shyamsunder Kabra was one of the partners in the firm.
According to the plaintiff, she had become exclusive owner of the suit house by way of declaration given by judgment and decree dated 9.3.1984 passed in Civil Suit No.3/79A. The suit house was initially owned by her husband, who sold the same by way of registered sale-deed to Smt. Savitridevi, Smt. Krishna and Govind. Thereafter, all the three purchasers filed the suit for eviction, arrears of rent and mesne profit, in which, a compromise was arrived at between the plaintiff and defendants, whereby they relinquished their right over the suit house and admitted the ownership of Smt. Geetabai.
(ii) The State Government assessed the sales-tax and penalty of Rs.37,50,180/- for the period 1.2.1979 to 31.3.1980 against 3 R.P. Nos. 1002/2018 & 1903/2018 the firm. In order to recover the said amount, proclamation dated 11.2.1993 was issued u/s. 147(A) of M.P. Land Revenue Code (MPLRC). The aforesaid proclamation gave cause of action to Smt. Geetabai to file the present suit. Vide judgment and decree dated 28.2.2001, the suit had been decreed in favour of Smt. Geetabai by giving finding that she is exclusive owner of the suit house by virtue of judgment and decree dated 9.3.1984, hence the amount of dues and penalty cannot be recovered from the suit house.
(iii) Being aggrieved by the aforesaid judgment and decree, the State filed the first appeal before this Court. During pendency of first appeal before this Court, Geetabai expired and her legal representatives including Shyamsunder Kabra (one of the partners in the firm) were brought on record. Notices of application filed under Order 22 Rule 4 of C.P.C. were issued to all the proposed legal heirs and as per report, all were served, but only one - Jaideep S/o. Govind Kabra engaged Shri J.B. Mehta, Advocate to defend the appeal.
(iv) By order dated 23.6.2016, application filed under Order 22 Rule 4 of C.P.C. was allowed and all the legal heirs of Geetabai were brought on record and thereafter the first appeal was heard finally on 3.5.2018 and reserved for judgment. By judgment dated 18.6.2018, the first appeal has been allowed by this Court by holding that the recovery of sales-tax dues and penalty against the firm now can be made from the property of the one of the partners viz Shyamsunder Kabra, who is now the co- owner of the suit house. Thus, the judgment and decree dated 28.2.2001 passed by the 10th Additional District Judge has been 4 R.P. Nos. 1002/2018 & 1903/2018 set aside.
4. Now, the legal heirs viz. Girdhar; Smt. Shyama; Smt. Kaushalya; Smt. Manorama, (since dead, represented through Madhusudan Sodani) filed the present Review Petition No.1903/2018.
Shri Sunil Jain, learned senior counsel appearing for the petitioners in R.P. No.1903/2018, submitted that though the legal heirs of Smt. Geetabai were served with the notice on application filed under O.22-R-3 of CPC , but after bringing them on record, no notice of appeal was issued and served upon them. One of the legal heirs - Smt. Manorama died on 3.12.2016 and her legal heirs were not brought on record, therefore, on this ground alone, this Court has committed an error apparent on the face of record and the judgment and decree passed by this Court is a nullity and the review petition is liable to be allowed. In support of his contention, he has placed reliance over the judgment of apex Court in the case of Kishun @ Ram Kishun V/s. Bihari : 2005 (4) MPLJ 1[SC]; and judgment of this Court passed in in the case of Zenabai V/s. Kubrabai : 1980-II Weekly Notes 40.
5. Another legal heir of Geetabai viz Jaideep has also filed Review Petition No.1002/2018.
Shri P.M. Choudhary, learned senior counsel appearing for the petitioner - Jaideep, argued that on the basis of judgment and decree passed by this Court, the Sales Tax Department is going to attach the entire house, in which, Shyam Sunder Kabra is having a limited share. The Sales Tax Department cannot recover the sales-tax dues and the penalty 5 R.P. Nos. 1002/2018 & 1903/2018 from the entire property, therefore, the judgment and decree be modified to that extent that the sales-tax dues and the penalty can be recovered from the suit house to the extent of Shyam Sunder Kabra. He further submitted that the judgment passed in the case of Janki Vashdeo Bhojwani V/s. Indusind Bank Ltd. :
(2005) 2 SCC 217 was not cited by the learned counsel for the State in the First Appeal, hence the judgment and decree is liable to be reviewed. In support of his contention, he has also placed reliance over the judgments passed by the apex Court in the case of Kishun @ Ram Kishun (supra); Jaladi Suguna V/s. Satya Sai Central Trust : (2008) 8 SCC 521; judgment of this Court in the case of Zenabai (supra); judgment of High Court of Andhra Pradesh in the case of Income-tax Officer V/s. Tippala China APPA Rao : [2011] 331 ITR 248 (Andhra Pradesh), etc.
6. Per contra, Shri Mayank Purohit, learned Govt. Advocate appearing for respondents/State, argued in support of the judgment and decree passed by this Court and submitted that the review petitions are nothing but an abuse of process of law. The grounds raised in the review petitions are not tenable. The petitioners have no locus to seek review of the judgment and decree. The review petitions are beyond the scope of Order 41 Rule 21 of the C.P.C. In view of the law laid down by the apex Court in the case of Janki Vashdeo Bhojwani (supra), u/s. 34(4)
(b) of General Sales Tax Act, every person who is partner of such firm, shall be liable severally and jointly for payment of the tax assessed and payable by the firm. Admittedly, Shyamsunder Kabra who is partner in the firm, is co-owner of the suit house, therefore, the dues of tax can be recovered from the suit house.
6R.P. Nos. 1002/2018 & 1903/2018 Hence, no case for review is made out.
7. I have heard the learned counsel appearing for the parties and perused the record.
8. R.P. No.1002/2018 has been filed by Jaideep only on the ground that the entire suit house cannot be put to auction- sale for recovery of the aforesaid amount. The Sales Tax Department be restrained to attach and auction the entire suit house.
Late Geetabai filed the suit for declaration and permanent injunction that she is exclusive owner of the suit house and the same cannot be subjected to attachment and auction sale for recovery of the sales tax dues and the penalty. Vide judgment and decree dated 9.3.1984, the suit was decreed by holding that Geetabai is an exclusive owner of the suit house and she has nothing to do with the firm. But in Para 11 of the judgment and decree dated 28.2.2001, learned trial Court has held that if there is any recovery against Shyamsunder Kabra, the same can be recovered from the property of Shyamsunder Kabra. Para 11 of the judgment dated 28.2.2001 is reproduced below :
"11/- mDr fo'ys"k.k ds vkyksd esa ge bl fu"d"kZ ij igqaprs gSa fd vij ftyk U;k;k/kh'k egw dsai bankSj }kjk muds U;k;ky; fnokuh iz0dz0 3@79, esa ikfjr fu.kZ; fnukad 09@03@84 ds vuqlkj okfnuh xhrkckbZ fooknxzLr edku dh ,dek= Lokfeuh ? kksf"kr dh tk pqdh gSA orZeku izdj.k esa izfroknhx.k fdpu ,M QeZ dh nsunkjh ds :i esa ';ke laqanj dkcjk ls ;fn dksbZ /kujkf'k olwy djuk pkgrs gSa rks os ';kelqanj dkcjk dh lEifRr ls gh olwy dj ldrs gSaA pwafd fooknxzLr edku dh ,dek= Lokfeuh xhrkckbZ ekU; dh tk pqdh gS rFkk ';ke lanqj dkcjk dk mDr edku esa dksbZ LoRo vof'k"V ugha jg x;k gSA ,slh fLFkfr esa iz0ok0x.k ';kelqanj dkcjk esa mij vof'k"V fdpu ,M QeZ dh fdlh Hkh nsunkjh ;k VSDl vkfn dh olwyh fooknxzLr edku dks dqdZ djds ;k fodz; ugha dj ldrs gSaA rnuqlkj iz'u dzekad&1 ,oa 2 fujkd`r fd;s tkrs gSaA"7
R.P. Nos. 1002/2018 & 1903/2018
9. Being aggrieved the aforesaid judgment and decree dated 28.2.2001, the State preferred the first appeal before this Court. During pendency of the first appeal, Geetabai expired and her legal heirs were brought on record. Shyam Sunder Kabra being the legal heir of Late Geetabai was also brought on record. After the death of Geetabai, he became co-owner of the suit house and the said finding recorded in Para 11 has not been assailed by Shyam Sunder Kabra by way of cross-appeal or by a separate appeal. Therefore, the said finding has attained finality that the sales-tax dues and the penalty can be recovered from the property of Shyamsunder Kabra. By the judgment and decree dated 18.6.2018 passed in the first appeal, this Court has only held that as Shyamsunder Kabra who was partner of the firm, being the legal heir of Geetabai has now become co-owner of the suit house,, therefore, the recovery can be made from the suit house , hence there is error apparent on face of the judgment hence liable to be dismissed.
10. Shri P.M. Choudhary, learned senior counsel appearing for the petitioner - Jaideep, submitted that under the provisions of Sales Tax Act, the property can be attached and auction to the extent of share of partner, therefore, the judgment and decree be modified to that extent.
11. There cannot be dispute about this provisions of law. R.P. No.1002/2018 is filed based on the subsequent development and the interpretation given by the Taxing authorities . Any judgment or order cannot be review on the basis of subsequent development or on the basis of interpretation given by the parties. This Court vide judgment and decree dated 18.6.2018 8 R.P. Nos. 1002/2018 & 1903/2018 has allowed the first appeal by holding that as now Shyam Sunder Kabra is one of the co-owners of the suit house and the tax and penalty can be recovered from the suit house. If the Sales Tax Department is taking any action after decision in first appeal and according to the review petitioners, the same is wrong, then the judgment cannot be reviewed . If the review petitioners are aggrieved by any subsequent action of the Sales Tax Department, they are free to challenge the same in accordance with law.
12. So far as R.P. No.1903/2018 is concerned, learned Shri Sunil Jain senior counsel appearing for the petitioners urged that during pendency of appeal, Smt. Manorama, one of the legal heirs of Geetabai, expired and her legal heirs were not brought on record, hence one of the legal heir of Manorama has filed the present review petition seeking review of the impugned judgment.
13. Notice on an application filed under Order 22 Rule 3 of C.P.C. was sent to Smt. Manorama and she herself received the notice on 11.12.2015, but did she not file any Vakalatnama. Thereafter, one of the legal heir viz. Jaideep who was contesting the appeal, did not inform this Court about the death of Smt. Manorama. Under Order 22 Rule 10 of the C.P.C., it is the duty of the co-defendants or their counsel to inform the appellant and Court about the death of any respondent/defendant. Therefore, the appellant had no knowledge about the death of Smt. Manorama on 3.12.2016. Her name had already been brought on record on 26.3.2016, hence it was the duty of the counsel appearing on behalf of other legal heirs to inform this Court 9 R.P. Nos. 1002/2018 & 1903/2018 about the death of Smt. Manorama , hence he cannot seek the review of the impugned judgment.
14. So far as issuance of notice of appeal to legal heirs of plaintiff/Lt.Geeta bai is concerned, there is no provision in the C.P.C. for issuance of fresh notice of appeal to the legal heirs of deceased respondent. They have been served on an application for bringing legal heirs on record. After service of notice of the application, the application was allowed and they were brought on record. Therefore, they had a knowledge of pendency of appeal before this Court. Shri J.B. Mehta, learned counsel appearing for one of the legal heirs, had argued on merits of the first appeal . He did not raise any objection that notice of appeal has not been served. Once he argued and invited the judgment and decree, now he is estopped from raising such an objection that no notice was served to the legal heirs of deceased respondent.
15. In view of the aforesaid discussion and the fact that this Court has only held that the sales tax and other liabilities can be recovered from the suit house because one of the partners of the firm i.e. Shyamsunder Kabra is the co-owner of the suit house. Same finding had also been recorded by the learned trial Court, which has not been assailed by Shyam Sunder Kabra. Any subsequent development and interpretation given by the parties cannot be a ground for review of the impugned judgment and decree.
The Supreme Court of India in case of Subramanian Swamy v. State of T.N., (2014) 5 SCC 75 : has held as under :
"52. The issue can be examined from another angle. The 10 R.P. Nos. 1002/2018 & 1903/2018 Explanation to Order 47 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") provides that if the decision on a question of law on which the judgment of the court is based, is reversed or modified by the subsequent decision of a superior court in any other case, it shall not be a ground for the review of such judgment. Thus, even an erroneous decision cannot be a ground for the court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/order cannot be disturbed."
16. In view of the foregoing discussion, both the review petitions fail and are hereby dismissed.
No order as to costs.
( VIVEK RUSIA ) JUDGE Alok/-
Digitally signed by Alok GargavDate: 2019.08.20 18:03:26 +05'30'