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Judgment
The unsuccessful plaintiff in the suit O.S.SR.No.20260 of 1988 on the file of the learned 2nd Assistant Judge, City Civil Court, Madras, and the
appellant in A.S.No.461 of 1988, on the file of the learned 11th Additional Judge, City Civil Court, Madras, is the appellant in the above second
appeal.
The petitioner in the above revision and the appellant in the above second appeal are one and the same.
The above revision and second appeal arise on a common cause of action under the following facts and circumstances:
Admittedly, there was an arrears of sales tax to the tune of Rs.50,000 by one Mr. Anbu, from whom the revision petitioner herein/the appellant in
the second appeal had purchased the suit property, which was sought to be brought for auction under revenue recovery proceedings initiated
against the revision petitioner/appellant herein, for the recovery of the arrears of the said sales tax of his predecessor in title of the said property. Of
course, the respondent herein initiated similar revenue recovery proceedings by a notification dated 3.12.87, aggrieved by which, the revision
petitioner/appellant in the S.A. challenged the said revenue recovery proceedings in W.P.No.274 of 1988, which got dismissed by this Court at
the admission stage, by an order dated 27.1.88, which reads as follows:
The petitioner cannot unilaterally assert that his predecessor-in-title was not subject to the liability under the Sales Tax Act and therefore, the
property in question cannot be proceeded against. In this case not even proper averments have been made in the affidavit so as to avoid the
liability of the purchaser. However, the petitioner is granted time till 30th of March, 1988 to file a civil suit to establish the factual position as to
when the arrears of sales tax liability of his predecessor arose, and as a result of which the anterior sales are not liable for tax.
Subject to the above direction, the writ petition is dismissed. Till 30.4.1988 the Revenue shall not proceed against the petitioner.
Of course, in view of the order of this Court dated 27.1.1988 in W.P.No.274 of 1988, the revision petitioner/appellant filed a suit bearing
O.S.SR.No. 20260 of 1988 before the learned 2nd Assistant Judge, City Civil Court, Madras, challenging the notification under the revenue
recovery proceedings, dated 3.12.87 which was impugned in the said writ petition in W.P.No.278 of 1988, filed on 19.4.1988 which is admittedly
after 30.3.1988, as permitted by this Court in the order dated 27.1.1988 made in W.P.No.274 of 1988.
At this juncture, I make it clear that there is no dispute as to the fact that the revision petitioner/appellant herein as challenged the notification
dated 3.12.1987 in the said suit as the writ petition filed by the revision petitioner/appellant namely W.P. No.274 of 1988 was dismissed by this
Court in limini on the ground of alternative remedy available u/s 50 of the Tamil Nadu General Sales Tax Act, 1959, and u/s 59 of the Tamil Nadu
Revenue Recovery Act.
But, however the trial Court refused to number the suit, taking note of the fact that the revision petitioner/appellant failed to file the suit before
30.3.1988, as permitted by the order dated 27.1.1988 in W.P.No.274 of 1988, and rejected the plaint, by order dated 14.6.1988, which reads
as follows:
The plaintiffs had filed the suit against the State of Tamil Nadu rep. by the Deputy Commercial for Commercial Taxes, Taxation Circle 1
Perambur, Madras-11 for the reliefs of declaration that the Madras District Gazette notification No.7, dated 3.12.87 is illegal and void
consequently restraining the defendant from taking any proceedings in pursuance of the said Notification and for costs.
The plaintiff claims that he is the owner of the property bearing No.37E (New No.32) E.S.I. Hospital Road, Ramaiah Colony, Madras-82. He
further claims that he had purchased the property on 22.8.85 from Selvi alias Kalaiselvi who had purchased it from Anbu on 30.12.82. A notice of
attachment of the property and the sale of the property was published in the District Gazette dated 3.12.87 by the defendant. It appears that the
contents of the notice are that the said Anbu predecessor in interest of the property is liable to pay a sum of Rs.53,063.00 by way of sales tax to
the Government and that under the provisions of the Sales Tax Act, the said property is attached and that it will be brought to sale by public
auction on 19.1.1988 if the amount is not paid. In order to quash the proceedings the plaintiff had filed a writ of Certiorari before the High Court in
W.P.No.274 of 1988 against the defendant. Our High Court had dismissed the writ on 27.1.88 with a direction to the plaintiff to file a civil suit to
establish the factual position as to when the arrears of tax actually arose and it had granted time till 30.3.88. The office of the City Civil Court had
returned plaint as the suit was filed after 30.3.1988 and as the plaintiff had not obtained any permission from the High court to file the suit after
30.3.1988.
The learned counsel for the plaintiff was heard. He represented that the time granted by the High Court is not ultimate time granted and there is no
question of any limitation. Admittedly, the plaint is filed on 19.4.1988. From the order of the High Court, it is clear that the plaintiff is granted time
till 30.3.1988 to file a civil suit. As the present suit is filed after the time granted by the High Court, this Court cannot entertain this suit. In other
words, this Court is rejecting the plaint as the suit is not maintainable beyond the period fixed by the High Court in W.P. No..274 of 88
The said order dated 14.6.88 was, on appeal, confirmed by an order dated 19.2.1989 in A.S.No.461 of 1988, again, taking note of the fact
that the suit was not filed within the time namely, 30.3.1988, as prescribed, in the order dated 27.4.88, Hence, the above second appeal.
In the meanwhile, the respondent again proceeded to recover the said arrears of sales tax by invoking the provisions of the Tamil Nadu Revenue
Recovery Act, 1864, and brought the said property for sale by a notification dated 3.2.1989, which necessitated the revision petitioner/appellant
to file another suit in O.S.No.1814 of 1989 before the VII Assistant Judge, City Civil Court, Madras who thereafter filed I.A.No.11513 of 1992,
seeking stay of further proceedings of O.S.No.1814 of 1989 till the disposal of S.A.No.1173 of 1991, pending before this Court. However, the
VII Assistant Judge, City Civil Court, Madras by order dated 10.11.1993, refused to stay the proceedings in O.S.No.1814 of 1989, as,
admittedly, the revision petitioner/appellant failed to comply with the condition imposed by this Court, while granting the stay of the revenue
recovery proceedings, which is the subject matter of O.S.SR.No.20260 of 1988, pending consideration of the above second appeal, namely
imposing a condition in the order, dated 21.2.1992 on the revision petitioner to pay 50% of the arrears of sales tax, namely, Rs.25,000 within 12
weeks from the said date, namely, 21.2.1992. It is against the said order dated 10.11.93 the revision petitioner/appellant has filed the above
revision in CRP No. 3692 of 93. Hence, both the above second appeal and the civil revision petition are heard together.
As already mentioned above, the substantial question of law that arise for my consideration in the above second appeal is that whether the trial
Court is right in rejecting the very plaint by an order dated 14.6.1988 in O.S.R.No.20260 of 1988, as confirmed by a decree and judgment dated
19.12.1989 in A.S.No.461 of 1988. The time prescribed by this Court to the petitioner while dismissing the W.P.No.274 of 1988 by order dated
27.1.1988 namely till 30.3.1998 to file a civil suit, would override or abrogate the time limit prescribed u/s 50 of the Tamil Nadu General Sales
Tax Act, 1959 or u/s 49 of the Tamil Nadu Revenue Act, 1864, which read as follows:
Section 50 of the Tamil Nadu General Sales Tax Act:
Limitation for certain suits and prosecutions: No suit shall be instituted against the Government and no suit, prosecution or other proceeding shall
be instituted against any officer or servant of the Government in respect of any act done or purporting to be done under this Act, unless the suit,
prosecution or other proceeding is instituted within six months from the date of the Act complained of.
Section 59 of the Tamil nadu Revenue Recovery Act, 1864:
Suits by persons aggrieved by proceedings--Limitation.---Nothing contained in this Act shall be held to prevent parties deeming themselves
aggrieved by any proceedings under this Act except as herein before provided, from applying to the civil Courts for redress: provided that Civil
Court shall not take cognizance of any suit instituted by such parties for any such cause of action unless such suit shall be instituted within six
months from the time at which the cause of action arose.
As already pointed out, there is no dispute that the respondent has sought to recover the arrears of sales tax by invoking the principles of the
revenue recovery proceedings only by a notification dated 3.2.1987, and therefore, the revision petitioner and the respondent are admittedly
entitled to challenge the same in a City Civil Court either u/s 50 of the Tamil Nadu General Sales Tax Act, 1959, or u/s 59 of the Tamil Nadu
Revenue Recovery Act, 1864, within six months time prescribed therein, which, admittedly, falls only on 2.5.1987, and therefore, such statutory
rights conferred upon the revision petitioner/appellant cannot be restricted merely by an observation of this Court while dismissing his writ petition,
challenging the very same notification in W.P.No.274 of 1988 on the ground that alternative remedy is available u/s 50 of the Tamil Nadu General
Tax Act, 1959, and u/s 59 of the Tamil Nadu Revenue Recovery Act, 1864.
At the best, the time so prescribed under the order dated 21.2.1992 would only be construed to enable the revision petitioner to resort to the
alternative remedy for approaching the City Civil Court, challenging the action initiated by the respondent herein as provided under the respective
statute and refrain the authorities from taking action against the revision petitioner/appellant as an interim relief, but would not, in any way take
away the right of the revision petitioner/appellant to resort to statutory remedy under respective provisions of the Act.
Therefore, I reject the orders of the Courts below as they are, in my considered opinion, totally erroneous and contrary to Section 50 of the
Tamil Nadu General Sales Tax Act, 1959, and Section 59 of the Tamil Nadu Revenue Recovery Act, and therefore, requires my interference in
the above second appeal setting aside the order of the Court below and remit the matter to the learned 11th Additional Judge, City Civil Court
with a direction to number the suit and try the same and pass final decree and judgment within six months from the date of receipt of this order.
At this juncture, I am also obliged to observe that the revision petitioner/appellant herein is permitted to move the Courts below for a joint
appeal in O.S.No.1814 of 1989 and O.S.SR.No.20260 of 1988 together, as both the suits arises under a common cause of action. I further
direct the parties that such sum deposited by the revision petitioner/appellant in pursuance of my order dated. 12.8.98 in the above ERP, shall be
disposed of as per the decree and the judgment in the above suit.
The Second Appeal is allowed and the above revision is ordered accordingly. No costs. Consequently, C.M.P.Nos.10142 of 1991 and
27548 of 1993 are dismissed