S.Gokulakrishan v. The Divisional Excise Officer, Cuddalore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:18.03.2009]Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.179 of 2009 andM.P.No.1 of 20091. S.Gokulakrishan2. S.Jaisankar.. Appellants/Plaintiffsvs.1. The Divisional Excise Officer, Cuddalore.2. The Collector, Cuddalore District, Cuddalore... Respondents/DefendantsThis second appeal is filed against the decree and judgment passed inA.S.No.36 of 2006 dated 09.09.2008 on the file of learned SecondAdditional Subordinate Judge's Court at Cuddalore, confirming thedecree and judgment passed in O.S.No.955 of 2004, dated 18.01.2006 onthe file of the learned Principal District Munsif Court at Cuddalore.For Appellants : No appearanceFor Respondents: No appearanceJ U D G M E N TThis second appeal is focussed by the original plaintiffs,animadverting upon the judgement and decree dated 09.09.2008 passedin A.S.No.36 of 2006 by the Second Additional Subordinate Judge'sCourt at Cuddalore, confirming the judgment of the trial Court,namely, Principal District Munsif Court at Cuddalore, in O.S.No.955of 2004. For convenience sake, the parties are referred to hereunderaccording to their litigative status before the trial Court.2. Pithily and precisely, tersely and briefly, avoidingdiscursive delineation of facts in view of the case of both sideshaving been set out in detail in the judgments of both the Courtsbelow, I would like to set out the germane facts thus:The plaintiffs/second appellants herein filed the suitO.S.No.955 of 2004 seeking the following reliefs: https://hcservices.ecourts.gov.in/hcservices/ "1. Declaring that the notice sent by the respondentson 02.11.2004 in Na.Ka.P.Tha.Ka. No.24/72-73 is illegal andultra vires;2. restraining the respondents and their men andservants from taking any drastic action by way of recoveryproceedings against the plaintiffs by an order of permanentinjunction; and3. directing the respondent to pay plaintiffs the costof the suit and grant all other just and necessaryreliefs."The defendants entered appearance and filed the written statementresisting the suit.3. During trial, on the side of the plaintiffs, the secondplaintiff, S.Jayashankar was examined as P.W.1 and Exs.A1 to A9 weremarked. On the side of the defendants, C.S.Natarajan was examined asD.W.1 and no exhibit was marked.4. Ultimately, the trial Court dismissed the suit, as againstwhich the first appeal was filed, for nothing but to be dismissed bythe First Appellate Court, confirming the judgment of the trialCourt. Being disconcerted and aggrieved by the judgment of both theCourts below, this Second Appeal has been filed on various groundsset out in the memorandum of appeal and also suggesting the followingproposed substantial questions of law:"(a) In the absence of failure to follow the Rules 5and 21 of the Tamil Nadu Toddy and Arrack Shops (Disposalin auction) Rules 1981, whether therespondents/defendants' claim is maintainable under law?(b) Have the courts below erred in having found thatthe claim made by the respondents/defendants against theappellants is not barred by limitation?(c) When the first demand as against the appellantswas made only on 06.08.2003 can there be any liabilityagainst them for the payment of interest prior to the saiddate and particularly when the appellants have paid theprincipal amount as demanded by the respondents/defendants?(d) The present suit in O.S.No.955 of 2004 on thefile of the Principal District Munsif Court at Cuddaloreis barred by res judicata?"5. Despite printing the names concerned, none appeared.6. A plain perusal of and poring over, the typed set of papersincluding the certified copies of judgments of both the Courts belowwould display and demonstrate, exemplify and evince that theplaintiffs suppressing the material facts filed the suit as thoughthe earlier suit O.S.No.499 of 1999 filed by the plaintiffs' motherHemamalini in the District Munsif Court, Cuddalore was decreed in her https://hcservices.ecourts.gov.in/hcservices/ favour, restraining the officials from proceedings against therecovery of arrears due payable by deceased Selvaraj, in view of thefact that Selvaraj sold away his property during his life time.7. A reading of the judgment of the trial Court would leave nodoubt in the mind of the Court that the judgment in the said suitO.S.No.499 of 1999 was to the effect that the defendants' GovernmentOfficials could proceed as against the property of the Selvaraj, asthe said Selvaraj died leaving behind his immovable property to beinherited by his legal heirs and obviously the plaintiffs are thesons of deceased Selvaraj. As such, absolutely there is no iota orshred, shard or molecular, miniscule or scintilla of evidence tohighlight and spotlight the fact that the plaintiffs have notinherited the properties of Selvaraj. In fact, in the previous suitthe direction of the Court was to the effect that the officialsshould issue notice to the plaintiffs herein, so as to recover thedues and accordingly, the defendants have resorted to such a measure.Both the Courts below understood the real purport of the dispute andheld that the plaintiffs' contentions are untenable. 8. The proposed substantial question of law (a) is based onRules 5 and 21 of the Tamil Nadu Toddy and Arrack Shops (Disposal inauction) Rules 1981. I am at a loss to understand as to how all in asudden, for the first time in the Second Appeal such a plea beraised. A bare perusal of Rules 5 and 21 of the said Rules wouldreveal that they are having no application in the facts andcircumstances of this case and they are extracted here under forready reference:"5. Notice of auction.- Where it is proposed to grantthe privilege of retail sale of liquor, a notice of theauction to be conducted shall be published by the Collectorten days in advance of the date of auction in the DistrictGazette and in such other manner as the Collector may deemfit.21. Resale of shop.- (1) On the failure of any personto make a deposit of apply for a licence or to comply withany requisition or to execute any bond, deed of agreementunder these rules the shop my be resold under the orders ofthe Collector or, on a report from the AssistantCommissioner, the Sale Officer, the Collector may otherwisedispose of the shop. Resales under this rule shall be atthe risk of the defaulting bidder, who shall forfeit allgain, if any, that may secure by the resale and in theevent of a loss by resale, the defaulting bidder shall berequired to make good the deficiency between the totalamount payable for the whole period under the terms of theoriginal sale and by the total amount payable by thesuccessful bidder at the resale. In the latter case, the https://hcservices.ecourts.gov.in/hcservices/ deposits already made by defaulting bidder, excluding theamount of earnest money deposit, if any, forfeited to theState Government under rule 15 shall be forfeited anddeducted from the loss arising from the resale, and thebalance of the loss, if any, shall be recoverable in thesame manner as if it were an arrear of land revenue.Should, however, the deposits be greater than the loss byresale, only such part of the deposits as is necessary tocover loss by resale shall be forfeited and the balancerefunded to the defaulter. The defaulting bidder shall besimilarly liable if the shop is disposed of otherwise thanby resale and such disposal results in loss to the StateGovernment as compared with the original sale. ..."9. In para No.2 of the plaint, the plaintiffs categoricallystated that their father Selvaraj was the successful bidder in theauction sale proceedings relating to the Toddy shop concerned for theperiod 1972 - 1973 and he could not pay the dues because of heavyloss incurred in running the Toddy shop. Quite antithetical to sucha version found in the said paragraph 2 of the plaint, in thesubstantial question of law No.2 the plaintiffs have chosen to averunder para No.5 some other facts. The licencee is bound to pay thedues regularly. When such is the obvious and axiomatic legalposition, any plea to the contrary in the memorandum of groundssecond appeal is untenable and consequently, the attempt to invokeRules 5 and 21 of the said Rules is out of context and baseless. Assuch the proposed substantial question of law (a) is a misconceivedone.10. The proposed substantial question of law (b) is relating tolimitation. The trial Court as well as the First Appellate Courtcorrectly adverting to the provisions of law held that there is nolimitation for the Excise authority to recover the dues in the wayknown to law. Absolutely no provision of law has been quoted by theplaintiffs as to how the claim of the plaintiffs is barred bylimitation. As such, the proposed substantial question of law (b) isa misconceived one.11. The proposed substantial question of law (c) is once again amisconceived one as there is no limitation for recovering the dues.The interest also could be recovered. I could see no rhyme or reasonon the part of the second appellants in contending that inasmuch asthey paid the principal amount as demanded by the respondents, theyare not liable to pay interest. Such a plea is nothing butlegerdemain, hovering near sophistry and casuistry, in addition to itbeing fraught with gobbledegook, recondite, esoteric and abstrusestatements and utterances, and as such, it cannot be taken as asubstantial question of law. https://hcservices.ecourts.gov.in/hcservices/

12. By way of worsening the very Second Appeal, theplaintiffs/second appellants have gone to the extent of suggestingsubstantial question of (d) as though their own suit is barred of resjudicata. I am at a loss to understand as to how the plaintiffsthemselves who filed the subsequent suit could say that their suit isbarred by res judicata and that demonstrates and bespeaks as to howin a most cavalier fashion without attaching importance to the SecondAppeal, the same has been filed. 13. At this juncture, my mind is redolent and reminiscent of thefollowing decision of the Hon'ble Apex Court reported in (2006) 5Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL, certainexcerpts from it would run thus:(i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH(MINOR) VS. SESHAMMAL, certain excerpts from its would runthus:-"17. After the amendment a second appeal can be filedonly if a substantial question of law is involved in thecase. The memorandum of appeal must precisely state thesubstantial question of law involved and the High Court isobliged to satisfy itself regarding the existence of such aquestion. If satisfied, the High Court has to formulatethe substantial question of law involved in the case. . . .. . . ."18. . . . . . It has to be kept in mind that theright of appeal is neither a natural nor an inherenth rightattached to the litigation. Being a substantive statutoryright, it has to be regulated in accordance with law inforce at the relevant time. The conditions mentioned inthe section must be strictly fulfilled before a secondappeal can be maintained and no court has the power to addor to enlarge those grounds. The second appeal cannot bedecided on merely equitable grounds. The concurrentfindings of facts will not be disturbed by the High Courtin exercise of the powers under this section. Further, asubstantial question of law has to be distinguished from asubstantial question of fact. . . . . . 21. . . . . However, it is clear that the legislaturehas chosen not to qualify the scope of "substantialquestion of law" by sufficing the words "of generalimportance" as has been done in many other provisions suchas Section 109 of the Code or Article 133(1)(a) of theConstitution. The substantial question of law on which asecond appeal shall be heard need not necessarily be asubstantial question of law of general importance. InGuran Ditta v. Ram Ditta the phrase "substantial questionof law' as it was employed in the last clause of the thenexisting Section 100 CPC (since omitted by the Amendment https://hcservices.ecourts.gov.in/hcservices/ Act, 1973) came up for consideration and their Lordshipsheld that it did not mean a substantial question of generalimportance but a substantial question of law which wasinvolved in the case. In Sir Chunilal case theConstitution Bench expressed agreement with the followingview taken by a Full Bench of the Madras High Court inRimmalapudi Subba Rao v. Noony Veeraju(Sir Chunilal case,SCR p.557)"When a question of law is fairly arguable, wherethere is room for difference of opinion on it or where theCourt thought it necessary to deal with that question atsome length and discuss alternative views, then thequestion would be a substantial question of law. On theother hand if the question was practically covered by thedecision of the highest court or if the general principlesto be applied in determining the question are well settledand the only question was of applying those principles tothe particular fact of the case it would not be asubstantial question of law."This Court laid down the following test as proper test, fordetermining whether a question of law raised in the case issubstantial:(Sir Chunilal case, SCR pp.557-58)"The proper test for determining whether a question oflaw raised in the case is substantial would, in ouropinion, be whether it is of general public importance orwhether it directly and substantially affects the rights ofthe parties and if so whether it is either an open questionin the sense that it is not finally settled by this Courtor by the Privy Council or by the Federal Court or is notfree from difficulty or call for discussion of alternativeviews. If the question is settled by the highest court orthe general principles to be applied in determining thequestion are well settled and there is a mere question ofapplying those principles or that the plea raised ispalpably absurd the question would not be a substantialquestion of law."23. To be "substantial" a question of law must bedebatable, not previously settled by law of the land or abinding precedent, and must have a material bearing on thedecision of the case, if answered either way, insofar asthe rights of the parties before it are concerned. To be aquestion of law "involving in the case" there must be firsta foundation for it laid in the pleadings and the questionshould emerge from the sustainable findings of fact arrivedat by court of facts and it must be necessary to decidethat question of law for a just and proper decision of thecase. An entirely new point raised for the first timebefore the High Court is not a question involved in thecase unless it goes to the root of the matter. It will,therefore, depend on the facts and circumstance of each https://hcservices.ecourts.gov.in/hcservices/ case whether a question of law his a substantial one andinvolved in the case or not, the paramount overallconsideration being the need for striking a judiciousbalance between the indispensable obligation to do justiceat all stages and impelling necessity of avoidingprolongation in the life of any lis.(See Santosh Hazari v.Purushottam Tiwari).24. . . . (iii) The general rule is that High Court will not interferewith the concurrent findings of the Courts below. But it is not anabsolute rule. Some of the well-recognised exceptions are where (i)the Courts below have ignored material evidence or acted on noevidence; (ii) the courts have drawn wrong inferences from provedfacts by applying the law erroneously; or (iii) the courts havewrongly cast the burden of proof. When we refer to "decision basedon no evidence", it not only refers to cases where there is a totaldearth of evidence, but also refers to any case, where the evidence,taken as a whole, is not reasonably capable of supporting thefinding."(ii) One other decision of the Hon'ble Apex Court could also be citedas under:2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH ANDANOTHER, an excerpt from it would run thus:- 9. It has been noted time and again that withoutinsisting for the statement of such a substantial questionof law in the memorandum of appeal and formulating the sameat the time of admission, the High Courts have been issuingnotices and generally deciding the second appeals withoutadhering to the procedure prescribed under Section 100 ofthe Code. It has further been found in a number of casesthat no efforts are made to distinguish between a questionof law and a substantial question of law. In exercise ofthe powers under this Section in several cases, thefindings of fact of the first appellate Court are found tohave been disturbed. It has to be kept in mind that theright of appeal is neither a natural nor an inherent rightattached to the litigation. Being a substantive statutoryright, it has to be regulated in accordance with law inforce at the relevant time. The conditions mentioned inthe section must be strictly fulfilled before a secondappeal can be maintained and no court has the power to addor to enlarge those grounds. The second appeal cannot bedecided on merely equitable grounds. The concurrentfindings of facts will not be disturbed by the High Courtin exercise of the powers under this Section. Further, asubstantial question of law has to be distinguished from asubstantial question of fact. This Court in Sir Chunilalv. Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd.(AIR 1962SC 1314) held that: https://hcservices.ecourts.gov.in/hcservices/ "The proper test for determining whether a question oflaw raised in the case is substantial would, in ouropinion, be whether it is of general public importance orwhether it directly and substantially affects the rights ofthe parties and if so whether it is either an open questionin the sense that it is not finally settled by this Courtor by the Privy Council or by the Federal Court or is notfree from difficulty or calls for discussion of alternativeviews. If the question is settled by the highest court orthe general principles to be applied in determining thequestion are well settled and there is a mere question ofapplying those principles or that the plea raised ispalpably absurd the question would not be a substantialquestion of law." It is therefore crystal clear that there should be substantialquestion of law for entertaining the second appeal. Here, mydiscussion supra would evince and spotlight that absolutely there isno question of law, much less substantial question of law is involvedin this matter. Accordingly, the Second Appeal is dismissed. Nocosts. Consequently, connected miscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrargmsTo1. The Second Additional Subordinate Judge's Court at Cuddalore2. The Principal District Munsif Court at Cuddalore.3. The Section Officer, V.R.Section, High Court, MadrasS.A.No.179 of 2009 SSR(CO)SRA(18/4/2009)