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2008 DIGILAW 2305 (ALL)

BAL KISHAN BANSAL v. STATE OF U. P.

2008-11-20

TARUN AGARWALA

body2008
JUDGMENT Hon’ble Tarun Agarwala, J.—Heard the learned counsel for the petitioner, Sri K.K. Arora, assisted by Sri R.K. Garg learned counsel for the caveator and the learned Standing Counsel for contesting respondents No. 1 and 3. 2. The petitioner and Devki Nandan Bansal were partners of a firm and consequently on an application moved by the partners of the firm, the registration of the firm was amended by the assessing authority and the name of the petitioner was removed from the partnership of the firm. This order of the assessing authority was appealable and an appeal was filed by the petitioner before the appellate authority which was rejected. Thereafter, a Second Appeal was preferred by the petitioner before the Trade Tax Tribunal, which was also dismissed and consequently a Trade Tax Revision was filed under Section 11 of the U.P. Trade Tax Act before High Court, where the matter is presently pending. 3. Notwithstanding, the aforesaid recourse taken by the petitioner, a suit was filed before Civil Court for a declaration praying that the order of the assessing authority amending the certificate of the registration was a void order. It transpires that the suit proceeded ex parte against the Trade Tax Authorities and eventually, it was decreed ex parte. Upon coming to know of the ex parte decree, the Trade Tax Authorities filed an application under Order IX Rule 13 of the Code of Civil Procedure (hereinafter referred to as C.P.C.) praying that the ex parte decree may be set aside. The petitioner filed his objections and, eventually the Trial Court, after considering the matter, rejected the application under Order IX, Rule 13 of the C.P.C. The Trade Tax Authorities being aggrieved, filed an appeal, which was allowed by an order dated 18.8.2008. The petitioner, who is plaintiff, being aggrieved by the said order, has filed the present writ petition. 4. Learned counsel for the petitioner submitted that the order of the appellate Court allowing the application under Order IX, Rule 13 is patently misconceived since the Trade Tax Authority had knowledge of the suit and deliberately chose not to appear and, therefore, the order of the appellate Court allowing the appeal is wholly illegal and that the application under Order IX, Rule 13 of the C.P.C. was liable to be rejected. 5. 5. Upon a perusal of the impugned order and the record of the writ petition, I find that the case was transferred from the trial Court to another Court and the transfer of the case was not intimated to the Trade Tax Authorities and on this ground the lower appellate Court found that the Trade Tax Authorities had no knowledge of the transfer of the case from one Court to another and on this short ground allowed the application under Order IX, Rule 13 of the C.P.C. and had also set aside the ex parte decree. 6. In my view, this order does not suffer from any error of law. The lower appellate Court was perfectly justified in allowing the application and setting aside the ex parte decree. 7. Quite apart from the aforesaid order, I find that the suit was not maintainable at the instance of the plaintiff and that the plaintiff could not have filed a suit for declaration. The petitioner had challenged the order of the assessing authority amending the registration certificate before the appellate Court and the second appellate Court had quashed the said order, which is under challenge in revision under Section 11 of the U.P. Trade Tax Act. 8. In my view, Section 17 of the U.P. Trade Tax Act, debars the petitioner from filing a suit. Section 17 of the Act which reads as under : “17. Bar to certain proceedings.—No assessment made and no order passed under this Act or the Rules made thereunder by any authority shall be called in question in any Court, and, save as is provided in this Act, no appeal or application for revision or review shall be against any such assessment or order.” 9. In view of the aforesaid, this Court in exercise of its powers under Articles 226 and 227 of the Constitution of India, finds that the suit being barred by the provision of Section 17 of the U.P. Trade Tax Act was not maintainable and consequently quashes the suit itself as not maintainable. The writ petition is dismissed and the suit filed by the plaintiff-petitioner is also quashed. 10. The Registry is directed to remit a certified copy of this order to the trial Court for consequential order to be passed on the memo of plaint within two weeks from today. ———