Punjab-Haryana High Court
State Of Punjab And Another vs Som Nath And Another on 15 January, 2014
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
RSA No. 1604 of 1987 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No. 1604 of 1987 (O&M)
Date of Decision 15.01.2014
State of Punjab and another
....Appellants
Versus
Som Nath and another
....Respondents
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. L.C.Aggarwal,AAG, Punjab
for the appellant.
Mr. Ritesh Kumar, Advocate
for the respondents.
***
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
*** RAMESHWAR SINGH MALIK J.
Defendants-State authorities have filed the present regular second appeal against the concurrent findings recorded by the learned courts below in a suit for declaration.
Brief facts of the case are that plaintiff-respondent No.1 filed suit for declaration taking averments that recovery notices dated 8.1.1980 and 9.4.1980 issued by the Assistant Collector 1st Grade- cum-Excise and Taxation Officer, Sales Tax Patiala, were illegal, null Kumar Amit 2014.01.31 16:10 I attest to the accuracy and integrity of this document RSA No. 1604 of 1987 (O&M) 2 and void. The plaintiff pleaded that he was cloth merchant at Patialia and was never a partner of the firm M/s Subhash Chand Som Nath. Recovery notices were issued describing him as partner of the said firm. Recovery of the alleged arrears of L-2 licence of the said firm was sought to be effected for the years 1969-70, 1970-71. The amount sought to be recovered was `9061/- and he was not liable to pay the same, because he had nothing to do with the abovesaid firm.
Having been served in the suit, defendants-appellants appeared and filed written statement. Many preliminary objections were taken including about the jurisdiction of the court to entertain the suit in view of the provisions of Section 158 of the Punjab Land Revenue Act, 1887 ('Act of 1887' for short) read with Section 19 of the Punjab General Sales Tax Act 1948 ('Act of 1948' for short). The amount which was sought to be recovered was arrears of land revenue and the suit was not maintainable.
On completion of pleadings of the parties, the learned trial court framed the following issues:-
"1. Whether the suit is properly valued for the pruposes of Court-fee and Jurisdiction? OPP
2. Whether the suit is bad on account of mis-joinder of parties?OPD
3. What is the effect of not serving notice under Section 80 CPC? OPD
4. Whether this Court has the jurisdiction to try this suit? OPP
5. Whether the impugned notice is wrong, illegal Kumar Amit 2014.01.31 16:10 I attest to the accuracy and integrity of this document RSA No. 1604 of 1987 (O&M) 3 etc. as alleged?OPP
6. Relief."
Both the parties led their documentary as well as oral evidence, so as to prove their respective stands taken. After hearing both the parties and going through the evidence brought on record, the learned trial court came to the conclusion that plaintiff was entitled for declaration sought. Accordingly, the suit was decreed setting aside the recovery notices. Appeal was filed by the defendants, but the same also came to be dismissed by the learned Additional District Judge, Patiala, vide impugned judgment dated 26.11.1986. Hence this appeal.
Learned counsel for the appellants submits that both the learned courts below have misdirected themselves while rendering the impugned judgments. He further submits that pleadings of the parties as well as evidence brought on record were not properly appreciated by the learned courts, because of which the impugned judgments were liable to be set aside. He also submits that jurisdiction of the learned civil courts was clearly barred under Section 158 of the Act of 1887, read with Section 19 of the Act of 1948. Since both the learned courts below have not adverted to this material question of law, the impugned judgments have resulted into miscarriage of justice and the same were not sustainable in law. He prays for setting aside the impugned judgments.
Per contra, learned counsel for the respondent No.1-plaintiff contended that since both the courts below have recorded concurrent Kumar Amit findings of facts, there was no scope for this Court to interfere. He 2014.01.31 16:10 I attest to the accuracy and integrity of this document RSA No. 1604 of 1987 (O&M) 4 next contended that learned courts below have recorded cogent findings before passing their respective judgments and the same deserve to be upheld. He prays for dismissal of the appeal.
Having heard the learned counsel for the parties, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the case, instant appeal deserves to be allowed for the following more than one reasons.
Following substantial questions of law arise in the present case:-
i) Whether in view of the provisions of Section 158 of the Act of 1887 read with Section 19 of the Act of 1948, jurisdiction of the civil court was barred.
ii) Whether after giving highest bid for L-2 liquor vend in the auction proceedings, on behalf of partnership firm namely M/s Subhash Chand Som Nath, plaintiff Som Nath was entitled to say that he was not partner of the firm."
Taking the first question first, the issue of jurisdiction touches the very root of the cause. A bare reading of the provisions of Section 158 of the Act of 1887 read with Section 19 of the Act of 1948 would show that since the amount was sought to be recovered from the plaintiff as arrears of land revenue, jurisdiction of the learned civil court was barred and the suit was not maintainable.
The learned trial court misdirected itself while passing the Kumar Amit 2014.01.31 16:10 I attest to the accuracy and integrity of this document RSA No. 1604 of 1987 (O&M) 5 impugned judgment decreeing the suit in favour of the plaintiff- respondent without adverting to the above said provisions of law contained in Section 158 of the Act of 1887 read with Section 19 of the Act of 1948. Similarly, the learned lower appellate court fell into serious error of law, while passing the impugned judgment without recording its own issue wise findings, despite being final court on facts. Having said that, this Court feels no hesitation to conclude that jurisdiction of the learned civil court was barred and the suit was not maintainable. In view of the discussion hereinabove, answer to the first question posed above is and has to be in favour of appellants and against the respondent-plaintiff.
Since the learned courts below failed to consider and appreciate this important aspect of the matter, the impugned judgments cannot be sustained. Plaintiff appeared as PW1 and made his self serving statement but could not deny this fact that he gave the highest bid on behalf of the abovesaid partnership firm while participating in the auction proceedings. On the basis of the pleadings of the parties and evidence brought on record, the learned Additional District Judge, before dismissing the appeal of the State, contradicted himself observing as under:-
"However, the claim of the plaintiff about being not partner of the said firm and being not associated with it when it got licence L-2 for the year 1970-71 is falsified by his own admission in the witness box that he had given the bid and had signed the bid sheet on 10.4.1970. His liability as partner of that Kumar Amit 2014.01.31 16:10 I attest to the accuracy and integrity of this document RSA No. 1604 of 1987 (O&M) 6 firm in respect of the tax due from the firm for the year 1970-71 cannot be questioned."
However, in spite of the abovesaid observations made against the plaintiff, learned lower appellate court proceeded on a patently illegal approach while dismissing the first appeal filed by the State.
Once the plaintiff represented the firm as its partner in the auction proceedings giving highest bid for L-2 licence and thereafter, signed the bid sheet on 10.4.1970, it was not permissible in law for the plaintiff to take a complete somersault and deny his financial liability. Even if there was a dispute between him and other partner of the firm, he will not be absolved from his liability to pay the due tax to the State. Admission of the plaintiff was best evidence against him. In this view of the matter, second substantial question of law is also answered against the plaintiff-respondent and in favour of the appellant-State.
During the course of hearing, learned counsel for the respondent-plaintiff failed to put into service any substantive argument to support the impugned judgments on both the abovesaid substantial question of law. He could not point out anything on record so as to show that how the suit was maintainable. He also failed to convince this Court on the issue of bar of jurisdiction of the learned civil courts under the abovesaid provisions of law. Thus, the impugned judgments and decrees cannot be sustained for this reason also.
Kumar Amit
No other argument was raised.
2014.01.31 16:10I attest to the accuracy and integrity of this document RSA No. 1604 of 1987 (O&M) 7 Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that since the impugned judgments passed by the learned courts below are based on a patently illegal approach and conjucters and surmises, the same cannot be sustained and are hereby set aside. The suit of the plaintiff- respondent is dismissed.
Resultantly, the instant regular second appeal stands allowed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE AK Sharma 15.01.2014 Kumar Amit 2014.01.31 16:10 I attest to the accuracy and integrity of this document