Judgment : The plaintiff’s suit for declaration that he is not liable to pay Motor Vehicle Tax which is demanded by the Regional Transport Officer, Dharmapuri second defendant, and for injunction restraining the three defendants from collecting tax, has been dismissed. Hence the appeal by the plaintiff. 2. One Natesan was having a road permit to run a bus service from Hosur to Anchetty and on this permit he was plying the bus MDS 5974. The case of the plaintiff is that the bus met with an accident on 1. 1975 and was badly damaged, and it could not be put on road even by repairing. The Motor Vehicles Inspector on inspection found the vehicle unfit to be put on the road. Natesan had no other vehicle to put on the road under that permit. Since the plaintiff had facility to purchase a bus to run, Natesan and the plaintiff made a joint application for transfer of the said permit in the name of the plaintiff. An order was passed transferring that permit to the plaintiff. Sometime later Natesan purchased a bus MDF 4704 and got it registered in his name. Natesan then transferred the registration of that vehicle to the plaintiff and the plaintiff became the owner of that vehicle from 18. 1975. The accident of the vehicle MDS 5974 happened on 1. 1975 and the quarterly tax till 33. 1975 was not paid. If any tax was to be paid it must be only by the then owner of the vehicle viz., Natesan. The plaintiff was never the owner of the vehicle nor he was in possession or control of it. Therefore he is in no way liable to pay tax for that vehicle. But the second defendant is demanding tax for the said quarter from the plaintiff and is trying to collect it by coercive steps. Therefore the suit. 3. As against this the defendants contended inter alia that it was only after Natesan and the plaintiff gave a written undertaking that they would pay the taxes due a permit covering the vehicle MDS 5974 was transferred in the name of the plaintiff. The plaintiff filed a writ petition in the High Court for a writ restraining the second defendant from demanding and collecting the tax and that was dismissed. The plaintiff filed a writ petition in the High Court for a writ restraining the second defendant from demanding and collecting the tax and that was dismissed. It is false to say that the plaintiff is not the owner of the vehicle MDS 5974, and his contention that he is not liable to pay tax is not correct. Since the plaintiff failed to pay the arrears of tax and therefore he is a defaulter the second defendant has no other alternative but to take coercive proceedings for collecting the arrears of tax and also penalty including the cost awarded by the High Court in the writ petition filed by him. It is also contended that the suit is barred by res judicata by reason of the decision of the High Court in the writ petition. 4. Various issues were framed by the trial court, and on the main issues it held that the plaintiff was not the owner of the vehicle MDS 5974 but the plaintiff has, along with Natesan, agreed and undertaken to pay the arrears of tax demanded, and only upon that undertaking the permit was transferred to him and this being the case the plaintiff is liable to pay the tax. The trial court further held that the suit is not barred by the principle of res judicata. Ultimately the trial court dismissed the suit. 5. Now in the appeal, it is contended that the plaintiff was never the owner of the vehicle MDS 5974 nor was he in possession or control of it, and this being the case in law he is not liable to pay tax for the vehicle, and therefore only on account of his undertaking to pay tax he cannot be made liable. The plaintiff has not given any reason as to why he has given such an undertaking to pay tax, but however, unless if he is liable to pay tax in law, only because of such an undertaking the tax cannot be collected from him. 6. The records in the case would reveal that the plaintiff was not the owner of the vehicle and also it may be that he was not in possession of the vehicle, but he was at least in control of the vehicle. 6. The records in the case would reveal that the plaintiff was not the owner of the vehicle and also it may be that he was not in possession of the vehicle, but he was at least in control of the vehicle. The plaintiff has filed an affidavit in W.P.No.1814 of 1975 as a Power of Attorney Agent of the company of Natesan known as Vijaya Transports, and in that affidavit he has stated that by the Power of Attorney executed by Natesan he is running his (Natesan’s) bus service and he was running the bus MDS 5974 from Hosur to Anchetty. Certainly this is an admission of the plaintiff himself that the bus was in his control. Therefore as a person in control of the bus he is liable to pay tax under Sec.4 of the Tamil Nadu Motor Vehicles Taxation Act, 1974. For easy reference the Sec.4(1) can be extracted here. “4(1) The tax levied under this Act shall subject to the provisions of Sub-sec(1-A), be paid in the manner prescribed by the Registered owner or by any other person having possession or control of the motor vehicle, at his choice, either quarterly, half yearly or annually, on a licence to be taken out by him for that quarter, half-year or year, as the case may be.” Therefore irrespective of the question whether the plaintiff is liable to pay tax only on the basis of his undertaking to pay tax or not, he being the person who was in control of the vehicle, he is liable to pay the tax. 7. Then on the question of resjudicata also it is not open to the plaintiff in this suit to contend that he is not liable to pay tax. The plaintiff himself has filed a W.P.No.4379 of 1978 for a writ of mandamus forebearing the second defendant herein and others from collecting tax or penalty from him, and that petition was dismissed. Against that the plaintiff filed an appeal in W.A.No.558 of 1978 but that was also dismissed as withdrawn. Thus the plaintiffs claim that he is not liable to pay tax or penalty has been already rejected in the writ. Therefore the plaintiff cannot once again by way of a suit make the same claim. Against that the plaintiff filed an appeal in W.A.No.558 of 1978 but that was also dismissed as withdrawn. Thus the plaintiffs claim that he is not liable to pay tax or penalty has been already rejected in the writ. Therefore the plaintiff cannot once again by way of a suit make the same claim. The trial Court has found that in the affidavit filed by the plaintiff for withdrawal of the writ appeal he has prayed for liberty to’ file a suit and therefore the suit is not barred by res judicata. But in the order of the court in the writ appeal no such liberty was given. Mere request by the plaintiff for liberty to file a suit without the court granting it cannot give him such liberty. Therefore the finding of the trial court on this point is obviously wrong. Thus the plaintiff’s claim in this suit is barred by the principle of res judicata also. 8. Mr.T.Chengalvarayan, learned counsel for the appellant-plaintiff even at the outset of the argument stated that he is not questioning the liability of the appellant plaintiff to pay tax since in the order in the writ petition is against him, but he is only questioning the claim of penalty from him because the plaintiff cannot be said to be a defaulter in payment of tax. But the order passed in W.A.No.558 of 1978 (a certified copy of which is on record) shows that the petitioner filed the writ petition both in respect of the tax as well as penalty and therefore as regards the liability of penalty also the order passed in the writ appeal operates as res judicata. Further as stated above, as a person who was in control of the vehicle, the plaintiff was liable to pay the tax and since he has not paid the tax and therefore he defaulted, he is liable to pay the penalty. 9. Thus, I find no merit in this appeal. Accordingly the appeal is dismissed with costs.