Madras High Court
State Of Tamil Nadu vs P.V.Krishnan : 1St on 31 January, 1995
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 14.11.2018
Date of Judgment 17.12.2018
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
SA No.286 of 1999
1.State of Tamil Nadu,
rep by its Collector,
Ramanathapuram District.
2.Revenue Divisional Excise
Officer, Paramakudi. : Appellants/Respondents/
Defendants 1 and 3
Vs.
1.P.V.Krishnan : 1st respondent/Appellant/
Plaintiff
2.Pathinettampadiyan : 2nd respondent/2nd respondent/
2nd defendant
Prayer: This Second Appeal has been filed under Section 100 of
Civil Procedure Code against the judgment and decree, dated 31.01.1995
made in A.S No.64 of 1993 on the file of the District Court,
Ramanathapuram, reversing the judgment and decree, dated 20.02.1992
made in O.S No.67 of 1989 on the file of the Sub Court,
Ramanathapuram.
For Appellants : Mr.R.Murugan, AGP
For 1st Respondent : No appearance
For 2nd Respondent : Dismissed, vide order of this Court,
dated 18.08.2016.
http://www.judis.nic.in
2
JUDGMENT
The judgment and decree, dated 31.01.1995, made in A.S No.64 of 1993 on the file of the District Judge, Ramanathapuram, reversing the judgment and decree, dated 20.02.1992, made in O.S No.67 of 1989 on the file of the District Munsif, Tirumangalam, are under challenge in this memorandum of second appeal.
2.The first respondent herein is the plaintiff in the suit O.S.No.67 of 1989, whereas the appellants are the defendants 1 and 2 and the 2nd respondent is the 3rd defendant.
3.For easy reference and for the sake of convenience, the parties are referred as per rank in the trial court wherever the context so require.
4.The case of the plaintiff is that the suit property is situated at Mudukulathoor, Ramand District and the 2nd defendant was a successful bidder and license was granted to him for carrying on a toddy shop situated at Mudukulathoor during year 1981-1982 and the 1st defendant has granted licence to the 2nd defendant to carry on business during the year 1981-1982 and the 2nd defendant has been in default of payment of kist and tax for the said business during the year 1981-1982 and in the meantime, the plaintiff has received an order, dated 20.07.1987 sent by http://www.judis.nic.in 3 the 3rd defendant directing him to pay a sum of Rs.40,656/- as the 1st defendant has offered the same for the default of the plaintiff to pay the said amount towards kist for his alleged running of toddy shop. The plaintiff made several representations, however, again the 3rd defendant sent a summon, dated 11.02.1988 directing the plaintiff to appear before him for enquiry and in-spite of his presence, the 3rd defendant has sent a registered notice. Thereafter, the suit shop was auctioned and license was granted to the 2nd defendant. Hence, the suit declaring the order of the 1st defendant, dated 04.10.1983 and the order of the 3rd defendant, dated 20.07.1987 as null and void and for consequential permanent injunction.
5.The contention of the defendants 1 and 3 found in the written statement is that the 2nd defendant has manicured to take up the business on auction and receive the licence to carry on business with the collusion of the 2nd defendant are false and no licence was granted in favour of the 2nd defendant in respect of the suit toddy shop and there is no privity of contract between the Government and the 2nd defendant and only the plaintiff was the licensee and he alone is liable to pay Rs.40,656/- with subsequent interest and the Government is entitled to receive the amount from the plaintiff and prayed for dismissal of the suit.
6.The 2nd defendant filed a written statement contending that he was http://www.judis.nic.in not a successful bidder and no licence was granted to him for 4 carrying on toddy shop at Mudukulathur and since the plaintiff had default in payment of kist, the toddy shop was leased to one Muthu Thevar, who is the brother of the 2nd defendant and he was the successful bidder and the plaintiff has falsely implicated the 2nd defendant in the suit and prayed for dismissal of the suit.
7.The trial Court had originally dismissed the suit on 20.02.1992. On appeal preferred by the plaintiff, the first appellate court had reversed the judgment and decree of the trial court on 31.01.1995 after allowing the appeal. Aggrieved by the Judgment and decree of the first appellate court, the defendants 1 and 3 are before this court.
8.While admitting the second appeal, this court has framed the following substantial questions of law for consideration:-
(1)Whether the plaintiff is entitled for the relief sought for in the suit? and (2)Whether the lower appellate court is correct in declaring that the order passed in G.O.1/6517/92, dated 04.10.1983 and in G.O.No.3/81-82, dated 20.07.1987 is illegal?
http://www.judis.nic.in 5
9.The learned counsel for the appellants/defendants 1 and 3 argued that in respect of toddy shop No.53, auction was taken place and in the auction, the plaintiff took part and agreed to pay Rs.7,052/- per month as kist and he deposed Rs.1,000/- as advance and he paid Rs.3,512.50/- as half of the money as kist on 27.05.1981 and toddy shop No.3 was allotted to the plaintiff as per the auction and licence was also granted to the plaintiff to run the toddy shop No.3 and from 16.07.1981, the plaintiff run the toddy shop No.3 and from October 1981, he failed to pay the monthly rent to the Government. Hence, the 3rd defendant sent notice calling upon him to pay the monthly rent, but the plaintiff failed to pay the monthly licence fee to the Government and hence, the licence in respect of toddy shop No.3 was cancelled and fresh auction was conducted in respect of toddy shop No.3 and one Muthu Thevar took part in the auction and he agreed to pay the licence fee of Rs.1,900/- per month and only due to the action of the plaintiff, it is necessary to conduct fresh auction and hence, the licence fee was reduced to lesser amount and due to failure on the part of the plaintiff, there is a loss of Rs.40,656/- to the Government and the plaintiff is liable to pay the above amount and the 3rd defendant served notice to the plaintiff calling upon him to pay the amount, but after receiving the above notice, the plaintiff failed to pay the amount and hence, the order passed on 04.10.1983 and 20.07.1987 by the 3rd defendant is valid in law and prays that the plaintiff is not entitled any relief.
http://www.judis.nic.in 6
10.It is the case of the 1st respondent/plaintiff that the plaintiff has not participated in the auction in respect of toddy shop and no power deed was executed in favour of the 2nd defendant to participate in the auction and only the 2nd defendant was given licence to conduct toddy shop No.3 and the default of the amount was only by the 2nd defendant and there was no connection between auction of the toddy shop No.3 and the plaintiff. But the 3rd defendant sent a notice calling upon the plaintiff to pay the auction amount as if he was given licence to conduct toddy shop No.3 and hence, the notices issued by the defendants 1 and 3 are null and void and that the plaintiff is entitled to the relief as prayed for and the second appeal may be dismissed.
11.Heard the learned counsel appearing for the appellants and perused the materials available on record. No representation for the respondent, inspite of giving opportunity to argue the case.
12.In this case, the plaintiff was examined as PW1. PW1 deposed that he has not participated in the auction respect of the toddy shop situated at Muthukulathur and he has not authorised the 2nd defendant to participate in the above auction on behalf of him and he came to understand that the 2nd defendant was given licence to conduct toddy shop No.3 and 2nd defendant only failed to pay the amount to the Government, but instead of sending notice to the 2nd defendant, the defendants 1 and 3 sent notices on 04.10.1983 and 26.07.1987 respectively calling upon him to pay the arrears and hence, he filed the suit http://www.judis.nic.in declaring that the above notices are not valid. 7
13.It is seen that on the side of the defendants to prove that the toddy shop No.3 was given to the plaintiff, on the basis of the Power Deed alleged to be executed by the plaintiff in favour of the 2 nd defendant, the certified copy of the power deed was produced and it was marked as Ex.B2 and the Xerox copy of Ex.B2 was marked as Ex.B3.
14.Ex.B2 is a registered document. On perusal of Ex.B2, the shop was in the name of the plaintiff on the basis of Ex.B1. But the plaintiff denied his signature found in Ex.B2. The plaintiff has not taken any steps to send Ex.B2 for handwriting expert to prove that the signature found in Ex.B2 was not his signature. Further, at the time of cross examination, the signature of the plaintiff was obtained.
15.In this case, to prove that the auction was conducted and it was confirmed in favour of the plaintiff, Exs.B4 to B9 were marked. Exss.B4 to B9 were denied by the plaintiff. Further, PW1 during his cross examination admitted that there was no enmity between him and the defendants 1 to 3. To prove that the plaintiff was given toddy shop No.3, DW1 and DW2 were examined. DW2 deposed that the plaintiff was given licence to conduct toddy shop. On perusal of Ex.B2, it is seen that the 2nd defendant was given power to the effect that he was directed to participate in the auction on behalf of the plaintiff. http://www.judis.nic.in 8
16.On perusal of Ex.B4, the auction in respect of toddy shop No.3 was given in the name of the plaintiff and it is stated that the above licence is valid from 16.07.1981 to 15.07.1982. Ex.B11 is the counter- part agreement executed by the plaintiff. Ex.B8 is the report given in favour of the plaintiff, who paid Rs.1,000/- and as per Ex.B9, the last pay of Rs.1,000/- for 2/-12 months paid by the plaintiff. Further, a letter was sent to the 3rd defendant to grant him licence to conduct toddy shop No.3.
17.On perusal of Exs.B2 to B9, the signature of the plaintiff found in Exs.B2 to B9 were tallied with the signature found in the signature taken in the court. The plaintiff has stated that all the documents in respect of the auction of the shop No.3 were forged one and he has not signed it. But he has not taken any civil or criminal proceedings as against the 2nd defendant.
18.At this juncture, it is necessary to refer the cross examination of PW1. PW1 in his cross examination stated as follows:-
“gjpbdl;lhk;goahd; vd; bgahpy; Vyk;
vLj;jpUg;gjhf btspapy; brhy;ypf; bfhz;lhh;fs.; g$hhpy; ngrpf; bfhz;lhh;fs.; ngrpath;fs; ahh; vd;gJ Fwpg;ghf bjhpahJ. gjpbdl;lhk; goahd;
vd; rhh;ghf Vyk; vLj;Js;shh; vd;w
hpf;fhh;Lfis ehd; ngha; ghh;f;ftpy;iy. vd;
http://www.judis.nic.in
ifbaGj;ij gjpbdl;lhd; goahd; nkhroahf
9
nghl;lhuh vd;gJ vdf;Fj; bjhpahJ. vd; bgahpy;
gjpbdl;lhk;goahd; fs;Sf;fil Vyk; vLj;jhh;
vd;W Chpy; ngrpf; bfhz;lhh;fs.; ehd; ngha;
mtiu nfl;ftpy;iy. 2k; vjph;thjp kPJ fphpkpdy;
eltof;if vLf;f ntz;Lbkd;W vdf;Fj;
njhd;wtpy;iy.”
19.It is well settled law that an ordinary prudent man can take action against a person, when any mischief was taken as against him by some person. But PW1 simply deposed that even though, he knew the mischief by the 2nd defendant, he has not taken any action as against the 2nd defendant. Hence, it creates doubt as against the plaintiff.
20.It is to be noted here that the trial court compared the admitted signature with the disputed signatures and found that the disputed signatures of the plaintiff were tallied with the admitted signature of the plaintiff. Further, the plaintiff has not taken any steps to cancel the power deed, since only on the basis of Ex.B2 power deed, the 2nd defendant participated in the auction on behalf of the plaintiff and the toddy shop No.3 was allotted to the plaintiff and the plaintiff paid licence fee to the 3rd defendant. Further, he failed to pay the arrear and then only the defendants 1 and 3 sent notices calling upon him to pay the arrears. But the plaintiff failed to pay the arrears.
http://www.judis.nic.in 10
21.On careful perusal of the records filed on the side of the plaintiff as well as the defendants, it reveals that on the basis of the power deed, the 2nd defendant participated in the auction and the auction was confirmed on behalf of the plaintiff and the plaintiff failed to pay the monthly licence fee to the Government and the 3rd defendant sent notice calling upon the plaintiff to pay the arrears. Hence, it is held that the notices sent by the defendants 1 and 3 are valid and the plaintiff is entitled to pay the arrears. Therefore, it is held that the plaintiff is not entitled to any relief sought for in the suit and it is not correct that in declaring that the order passed in G.O.1/6517/92, dated 04.10.1983 and in G.O.No.3/81-82, dated 20.07.1987 is illegal and it is held that the orders passed in G.O.1/6517/92, dated 04.10.1983 and in G.O.No.3/81-82, dated 20.07.1987 are valid.
22.In view of foregoing discussion, the substantial questions of law are answered in favour of the appellants/defendants 1 and 3.
23.In the result, this second appeal is allowed. The judgment and decree, dated 31.01.1995 made in A.S.No.64 of 1993 on the file of the District Court, Ramanathapuram, is set aside. The judgment and decree passed in O.S.No.67 of 1989 by the Sub Court, Ramanathapuram, is restored. No costs.
17.12.2018 Index : Yes/No Internet: Yes/No er http://www.judis.nic.in 11 To,
1.The District Court, Ramanathapuram.
2.The Sub Court, Ramanathapuram.
http://www.judis.nic.in 12 T.KRISHNAVALLI,J er S.A.No.286 of 1999 17.12.2018 http://www.judis.nic.in