Gauhati High Court
Diba Rani Das vs Kumari Kanti Singha And Ors on 10 January, 2017
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SAO No. 01 of 2004
Smti Diba Rani Das,
W/O- Late Sailendra Chandra Das,
Residing at Bani Madhab Singha Lane.
(Near Fire Brigade Station),
Karimganj Town, P.O, PS & Dist- Karimganj
- Appellant/Defendant No.4
Versus-
1. Sri Kumar Kanti Singha
Owner of Sree Durga Cinema Hall,
Station Road, Karimganj,
P.O, PS & Dist- Karimganj.
2. The Manager,
Sree Durga Cinema Hall,
Station Road, Karimganj Town,
P.O, PS & Dist- Karimganj.
-Respondents/Plaintiffs
3. The State of Assam.
4. The Certificate Officer(the Bakijai Officer),
Karimganj.
5. The Labour Officer & Controlling Authority
(under the payment of Gratuity Act, 1972),
Karimganj, P.O- Karimganj
- Performa Respondents/
Defendants No. 1, 2 and 3
BEFORE
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
Advocate for the appellant Mr. U Dutta
Advocate for the respondent Mr. S Bonik
Date of hearing & Judgment: 10th January, 2017
SAO 01 of 2004
Page No.2
JUDGMENT AND ORDER
(ORAL)
Heard Mr. U Dutta, the learned counsel appearing on behalf of the appellant. Also heard Mr. S Bonik, learned counsel appearing on behalf of respondent Nos.1 and 2 and Mr. S Das, learned counsel appearing on behalf of respondent Nos.3, 4 and 5.
2. This appeal has been preferred by one Smti Dibarani Das wife of Late Sailendra Ch. Das, who was the worker under the respondents/plaintiff. On the death of the husband of the present appellant, the Labour Officer, Karimganj as per prayer of the present appellant filed certificate against the plaintiff/respondent in the court of Certificate Officer, Karimganj for Rs. 11,760/- plus 15 per cent compound interest w.e.f. 03.03.1995 on account of gratuity of Late Sailendra Ch. Das, husband of the present appellant. The present respondents denied their liability but the Certificate Officer, Karimganj instituted Bakijai Case No. 760/1995-96 and issued notice of liability to the respondent Nos. 1 and 2. The respondent Nos. 1 and 2 denied their liability but the Certificate Officer, Karimganj by order dated 21.03.2001 and 25.05.2001 passed in the said Bakijai Case No. 760/1995-96 determined the objection of the respondents against them. Thereafter, the Certificate Officer as per the procedure after determining the objection of the respondent Nos. 1 and 2 issued attachment notice of the cinema hall under the respondent Nos. 1 and 2 to realize the said amount of Rs.11,760/- along with the interest w.e.f. 03.03.1995. Finding no alternative, the present respondent Nos. 1 and 2 as the plaintiff preferred Title Suit No. 121/2001 in the Court of Civil Judge Junior Division No.1 Karimganj with a prayer as reproduced herein below:
" The plaintiffs, therefore, pray decree against the Defendants:
(A) For declaration that the Defendant No.4, Mrs. Diba Rani Das is not entitled to get any gratuity money from the plaintiffs and that late Sailendra Chandra Das, husband of Mrs. Diba Rani Das, Defendant No.4 was not entitled to get any Gatuity money from the plaintiffs as per law.
(B) For having the Certificate of the Labour Officer, Karimganj for Rs.11,760/-
plus 15% compound interest with effect from 3-3-1995 on account of so SAO 01 of 2004 Page No.3 called gratuity of late Sailendra Chandra Das, to the Certificate Officer and Bakijai Office, Karimganj, cancelled.
(C) For awarding Permanent Injunction restraining the Defendants from taking any steps what soever from realizing the said amount of Rs.11,760/- (Rupees eleven thousand seven hundred sixty only) plus 15% compound interest with effect from 3.3.1995 from the plaintiffs.
(D) For awarding full costs of the suit.
(E) For such further and/or other reliefs as may be deemed fit and proper."
3. Amongst the various reliefs, the plaintiff respondent prayed for cancellation of the certificate of Labour Officer, Karimganj and for permanent injunction restraining the defendants therein and the respondent Nos. 3 to 5 in the present appeal. In the said suit the present respondent Nos 3 to 5 were impleaded as the defendant Nos. 1 to 3 and the present appellant as the defendant No.4.
4. After filing of the said Title Suit No. 121/2001 the learned Court of Civil Judge (Junior Division) No.1 took the maintainability issue. Accordingly, the learned Trial Court came to the finding that on perusal of the order of the Certificate Officer, Karimganj in connection with the aforesaid Bakijai Case it revealed that the plaintiffs/ respondent Nos. 1 and 2 filed petition denying liability. It was also concluded by the trial Court that the zerox copy of notice dated 03.03.1999 addressed to the plaintiff/respondent issued by the respondent No.4, that the plaintiff/respondent Nos. 1 and 2 were asked to make the payment of the said amount together with interest w.e.f. 30.03.1999. The plaintiff/respondent Nos. 1 and 2 received the copy of notice on 17.04.1999. Accordingly, the learned trial Court came to the conclusion presuming that the plaintiff/respondent Nos. 1 and 2 could come to know on 17.04.1999 that the petition denying liability was determined before 23.03.1999. The learned trial Court disbelieved the averment made by the respondent Nos. 1 and 2 in their petition denying liability that the same was determined on 21.03.2001 by the present respondent No.4. However, based on the presumption accordingly, the learned trial Court came to the conclusion that the Title Suit No. 121/2001 was failed to be filed within six months under the provision of 34(2) of Bengal Public Demands Recovery Act, 1913. As the said Title Suit was SAO 01 of 2004 Page No.4 filed on 08.06.2001 accordingly, the learned trial Court came to the conclusion that the same was barred by Section 34(2) of the Bengal Public Demands Recovery Act. So the suit was dismissed on the point of limitation. Being aggrieved by the said order dated 19.04.2003 passed by the learned Civil Judge, Junior Division No.1 in Title Suit No. 121/2001, the present respondent Nos. 1 and 2 preferred Title Appeal No. 47/2003 in the Court of Civil Judge (Senior Division), Karimganj. The learned First Appellate Court vide judgment dated 05.11.2003 allowed the appeal and the same was remanded back to the trial Court with a direction to frame regular issues and dispose of the suit afresh in its regular course.
5. Being aggrieved by the said order dated 05.11.2003, the appellant/defendant No.4 has preferred this Second Appeal against the order of remand. At the time of admission of the said appeal no substantial question of law was formulated. However, after hearing the learned counsels and as urged by Mr. U Dutta, the following substantial question of law is framed:
"1. Whether the order passed by the learned First Appellate Court is correct more so when there were materials on record to decide the same by the First Appellate Court itself ?"
6. Mr. Dutta submits that the learned First Appellate Court ought to have considered the zerox copy which was on record on the basis of which the learned trial Court come to the conclusion that the suit was filled beyond the period prescribed under Section 34(2) of the Bengal Public Demands Recovery Act, 1913. Mr. Dutta further submits that the learned First Appellate Court having disbelieved the said zerox copy had come to a wrong finding that the learned trial Court decided the point of maintainability without any basis. Under such circumstances, the order of remand is liable to be set aside and accordingly this appeal is liable to be allowed.
7. Mr. S Das, the learned counsel appearing on behalf of the respondent Nos. 3 to 5 supports the order passed by the First Appellate Court. Similarly Mr. S Banik learned counsel SAO 01 of 2004 Page No.5 appearing on behalf of the respondent Nos. 1 and 2 submits that the First Appellate Court has done no wrong in remanding the matter moreso the issue of limitation involves both the question of law and facts. So Mr. Banik submits that the appeal is liable to be dismissed.
8. Perused the order passed by the learned First Appellate Court and also taken into consideration of the submission of the learned counsels. It cannot be denied that the preliminary issue under Order 14(2) Sub- Rule 2 of the CPC is to be framed only after filing of the written statement by the defendants. However, the preliminary issue normally includes the pure question of law which can be culled out from the pleadings more specifically the pleadings made in the plaint and the documents relied thereon by the plaintiff. However, in framing that particular preliminary issue a duty is cast upon the defendants to point out such grounds of maintainability of a suit which is apparent from the pleadings in the plaint to the Court. The learned trial Court is not bound to the submissions made by the defendants to frame a preliminary issue which involves both question of law and facts. But on perusal of the order passed by the trial court which was assailed in the appeal before the First Appellate Court it is apparent that issue of maintainability had wrongly been framed as the preliminary issue that too on a point which involves both questions of law and facts. Section 34 of the Bengal Public Demands Recovery Act, 1913 is reproduced herein below:-
"34. Suit in Civil Court to have certificate cancelled or m odified.--The Certificate debtor may, at any time within six months--
(1) from the service upon him of the notice required by section 7, or (2) if he files, in accordance with section 9, a petition denying liability -- from the date of the determination of the petition, or (3) if he appeals, in accordance with section 51, from an order passed under section 10 -- from the date of the decision of such appeal, bring a suit in the Civil Court to have the certificate cancelled or modified, and for any further consequential relief to which he may be entitled:
Provided that no such suit shall be entertained--
(a) in any case, if the certificate-debtor has omitted to file, in accordance with section 9, a petition denying liability, or to state in his petition denying liability the ground upon which he claims to have the certificate cancelled or modified, and cannot satisfy the Court that there was good reason for the omission, or SAO 01 of 2004 Page No.6
(b) in the case of a certificate for a demand mentioned in Article 1 or Article 2 of Schedule I, if the certificate-debtor has not paid the amount due under the certificate to the Certificate Officer--
(i) within thirty days from the service of the notice required by section 7, or
(ii) if he has filed, in accordance with section 9, a petition denying liability - then within thirty days from the date of the determination of the petition, or
(iii) if he has appealed in accordance with section 51 -- then within thirty days from the decision of the appeal:
Provided also that no sale in execution of a certificate shall be set aside in such a suit unless the purchaser has been made a party to the suit and until a direction is made for the refund of the amount of the purchase-money, with such interest (if any) as the Court may allow."
9. By way of Section 34 any dispute or undisputed claim made by the Certificate Officer in any Bakijai proceeding, the person aggrieved has been given the liberty to refer the dispute/disputed claim for proper adjudication by a civil court. However, for reference to the said civil Court a specific time period has been stipulated which is within six months from service of notice required by Section 7 upon the aggrieved present or if the said person aggrieved in accordance with Section 9 of the said Act of petition denying liability then from the date of the determination of the petition. From the pleadings of the respondent Nos. 1 and 2 it is apparent that they have stated a date in order to show that the Title Suit No.121/2001 is well within the limitation period as prescribed by Section 34 referred hereinabove and that too from the date of determination of their petition denying the liability. However, to that effect the plaintiff/respondent Nos. 1 and 2 had annexed one zerox copy of the order of notice of liability dated 23.03.1999. On the other hand, the plaintiffs/ respondents Nos. 1 and 2 had pleaded in the plaint that their petition denying the liability was determined on 21.03.2001 by the Certificate Officer (respondent No.4). The learned trial Court relying the date mentioned in the zerox copy of notice which is 23.03.1999 presumed that the plaintiff/respondent ought to have filed the instant suit within six months from 22.03.1999 as required by Section 34(2) of the Bengal Public Demands Recovery Act, 1913. This finding is purely a wrong finding because if the present aggrieved petitioners filed a SAO 01 of 2004 Page No.7 petition denying the liability on the last day of the 6th month then the said petition may not be disposed of on the said date itself, rather as seen from the practice it takes years together to dispose of the said petition by the Certificate Officer. Under such circumstances, the learned trial Court has misinterpreted the said period of six months inasmuch as the running of the prescribed period of six months is a question of fact and that issue is to be decided only after giving a chance to both the parties to adduce evidence in order to show that the suit so filed is well within the period prescribed under Section 34 or not. The learned First Appellate Court had passed a reasoned order and the learned First Appellate Court had no materials to decide the same inasmuch as the trial of Title Suit No. 121/2001 had not yet started at that relevant point of time. Having left with no other alternative, the learned First Appellate Court had remanded the matter by setting aside the order passed by the trial Court and which as aforesaid is well within the ambit and scope of order 41 Rule 23. Accordingly, this appeal is devoid of merit and the substantial question of law so formulated is decided in the negative. Needless to mention here that considering the time consumed in the present appeal and the stay order so passed at the time of admission of this appeal, as the certificate reflects interest on the liability amount, so far the respondent Nos. 1 and 2 who are the plaintiffs in Title Suit No. 121/2001 shall have the liberty to amend their plaint. Accordingly this appeal is disposed of.
10. On the prayer of both the learned counsels let the record be send back to the learned court of Civil Judge, Senior Division, Karimganj at the earliest. On the receipt of the said case record the learned Court shall notify a date for appearance of the parties to the suit. Considering the nature of the dispute, the trial court shall make an endeavor to dispose of the Title Suit within a period of six months from the receipt of the LCR.
JUDGE Rakhi SAO 01 of 2004 Page No.8 SAO 01 of 2004