Judgment : Per S. TAMILVANAN, J. 1. A.S. No. 277 of 1996 has been preferred against the O.S. No. 752 of 1988, A.S. No. 279 of 1996 has been preferred against O.S. No. 918 of 1988, A.S. No. 179 of 1996 has been preferred against O.S. No. 920 of 1988 and A.S. No. 45 of 1996 has been preferred against O.S. No. 1112 of 1988 and all the appeals are arising out of the common judgment, dated 19.9.1994, on the file of the Subordinate Judge, Coimbatore. 2. The appellants herein were the defendants in the suit filed by the respondents herein, before the Trail Court. Considering the nature of the suits filed by the respondents and the issues involved therein, the Trial Court tried the suits jointly and delivered the common judgment. 3. Mr. V. Ravi, learned Special Government Pleader (AS) appearing for the appellants submitted that the Court below has erroneously taken a view that the arrack shops run by. the respondents were ordered to be closed, under Rule 4(3) of the Tamil Nadu Arrack (retail shops) Rules, 1981, though the shops were closed by the Commissioner of Prohibition and Excise, under Rule 4(2) of the said Rules. 4. The respondents in A.S. No. 277 of 1996 was the licensee of arrack shop Nos. 6, 14, 29, 39, 49, 74 and 117 of Coimbatore for the excise year from 16.7.1984 to 15.7.1985. According to the respondents, the licence was extended for a further period of three months from 16.7.1985 to 15.10.1985, pending decision regarding taking over the business by the Tamil Nadu State Marketing Corporation Ltd.The monthly kist paid for the above shops was Rs. 81,000/-, Rs. 1,00,000/-, Rs. 17,500/-, Rs. 56,100/-, Rs. 29,050/- Rs. 30,000/- and Rs. 27,000/- respectively. 5. The respondents, in A.S. No. 279 of 1996 was licensee for arrack shop Nos.3,5,6 and 7 of Mettupalayam Taluk, Coimbatore District for the Excise Year from 16.7.1984 to 15.7.1985. The licence was extended for a further period of three months from 16.7.1985 to 15.10.1985, pending decision regarding taking over the business by the Tamil Nadu State Marketing Corporation Ltd. The monthly kist was Rs. 25,555/-for shop No. 3, Rs. 35,200/-for shop No. 5, Rs. 30,600/-for shop No. 6 and Rs. 60,300/-for shop No. 7. 6. The licence was extended for a further period of three months from 16.7.1985 to 15.10.1985, pending decision regarding taking over the business by the Tamil Nadu State Marketing Corporation Ltd. The monthly kist was Rs. 25,555/-for shop No. 3, Rs. 35,200/-for shop No. 5, Rs. 30,600/-for shop No. 6 and Rs. 60,300/-for shop No. 7. 6. The respondent in A.S. No. 179 of 1996 was the licensee for Arrack shop No. 2 of Mettupalayam Taluk for the Excise Year from 16.7.1984 to 15.7.1985. The licence was extended for a further period of three months from 16.7.1985 to 15.10.1985, pending decision regarding taking over the business by the Tamil Nadu State Marketing Corporation Ltd. The monthly kist for the shop was Rs. 72,000/-. 7. The appellant in A.S. No. 45 of 1996 was the licensee of Arrack Shop No. 2 of Avinashi taluk for the Excise Year from 16.7.1984 to 15.7.1985. The licence was extended for a further period of three months from 16.7.1985 to 15.10.1985, pending decision regarding taking over the business by the Tamil Nadu State Marketing Corporation Ltd. The monthly kist for the shop was Rs. 37,011/-. 8. According to the respondents in all the appeals during the period from 16.7.1984 to 15.10.1985 they were directed by the authorities to close the shops on the following dates: On account of General Bundh sponsored by all political a) 25.8.1994 parties On account of sad demise of our 3.11.1984 beloved and b) 2.11.1984 respected Prime Minister Srimathi Indira Gandhi. 3.11.1984 c) 22.12.1984 Being Prepoll day, Poll day 23.12.1984 One day after the Poll day 24.12.1984 Pre-counting day and counting day 29.12.1984 On account of General d) e) 3.4.1984 30.8.1985 On account of Mahavir Jayanthi On account of General Bundh Accordingly, the respondents had closed their shops on account of the direction of the Government, for the total period of ten days, during the period of licence and on account of the same, they suffered loss of business and profit. However, they have to pay kist periodically. 9. According to the respondent in A.S. No. 277 of 1996, he paid the kist amount for the respective arrack shops and also stated the proportionate kist per month for the period of closure which is stated as follows: Arrack Shop Kist per month Minus Proportionate kist for the period No. of closure Rs. P.factors Rs. 9. According to the respondent in A.S. No. 277 of 1996, he paid the kist amount for the respective arrack shops and also stated the proportionate kist per month for the period of closure which is stated as follows: Arrack Shop Kist per month Minus Proportionate kist for the period No. of closure Rs. P.factors Rs. P. 6 81,100.00 26,422,01 14 1,00,000.00 32,580.65 29 17,500.00 5,137.10 37 56,100.00 18,277.75 49 29,050.00 1,905.43 74 30,000.00 9,744.19 117 27,000.00 8,796.79 Total 1,02,894.81 10. The respondent in A.S. No. 279 of 1996 has stated that he paid the kist per month for the arrack shops and also the proportionate kist for the period of closure as follows: Arrack Shop Kist per month Rs. P. Proportionate kist for the period No. of closure Rs. P. 3 25,555.00 8,003.00 5 35,200.00 11,468.00 6 30,600.00 9,970.00 7 60,300.00 19,646.00 Total 49,087.00 11. According to the respondents they had closed their shops, on account of the direction of the Government for a total period of ten days during the period of licence and on account of the same, they suffered loss of business and profit and they have to pay the kist periodically. 12. The respondent in A.S. No. 179 of 1996 has stated that for the arrack shop No. 2 he has paid the kist, at Rs. 72,000/-per month and the proportionate kist for the period of closure is Rs. 23,458/-. The respondent in A.S. No. 45 of 1996 has stated that for the arrack shop No. 2, Avinashi Taluk the monthly kist payable by him was Rs. 37,011/-and the proportionate kist for the period of closure is Rs. 12,058/-. 13. Mr. V.Ravi, learned Special Government Pleader (AS) appearing for the appellants submitted that the suit itself was not maintainable, since there is statutory bar under Section 56 (b) of the Tamil Nadu Prohibition Act. It-is seen from the grounds of appeal that no such defence was raised by the appellants. However, as contended by the learned counsel for the appellant, a question of law can be raised even without specific pleadings. 14. Ms. A.Sathya Baba, learned counsel appearing for the respondents submitted that there is no statutory bar in maintaining the suit, since the relief sought for in the suit is only common law remedy. However, as contended by the learned counsel for the appellant, a question of law can be raised even without specific pleadings. 14. Ms. A.Sathya Baba, learned counsel appearing for the respondents submitted that there is no statutory bar in maintaining the suit, since the relief sought for in the suit is only common law remedy. In support of her contention, the learned counsel cited the decision, H. M. Sulaiman v. The Commissioner, Prohibition and Excise Department, Chepauk, Madras-5 and Others H. M. Sulaiman v. The Commissioner, Prohibition and Excise Department, Chepauk, Madras-5 and Others H. M. Sulaiman v. The Commissioner, Prohibition and Excise Department, Chepauk, Madras-5 and Others 1993(2) L.W. 269 , wherein it is stated as follows: “Any other tortious claim or claim for damages outside the provisions contained in R.21 of the said Rules have to be and could be agitated even by the State or authorities representing the State, only under the common law of the land before ordinary Civil Courts of the land and the respondents could not arrogate to themselves the authority or jurisdiction to decide such claims and hold the citizen liable for any such claim. 15. In the instant case, the respondents have filed the suit only as a common law remedy in the Civil Court and further, in the grounds of appeal, the appellants have not raised any defence stating that the suits were expressly or impliedly barred by law as per Section 9 C.P.C. Considering the facts and circumstances, this Court is of the view that there is no error or infirmity on the part of the Trial Court in holding that the Civil Court has got jurisdiction with reference to the suits relating to the appellants herein. 16. It is not in dispute that as per- the Tamil Nadu Arrack (Retail Shops) Rules, 1981, (hereinafter referred as the Rules) sub rule (4), of Rule 4 as amended in G.O. Ms. No. 118, Prohibition and Excise-II, Department, dated 31.1.1984, that the licencees are entitled to compensation for the closure of the shop by the District Collector and the amended sub rule 4 reads as follows: “If the shop is ordered to be closed under sub-rule (3) above, the licensees shall be entitled to compensation by way of proportionate remission of rental for the shop for the number of days of closure of the shop. No compensation shall be granted for curtailment of the hours of sale.” 17. According to the learned counsel for the respondents, the arrack shops were ordered to be closed by the authorities on the aforesaid dates and therefore the respondents are entitled to claim compensation in view of the above said amended rule. However, sub-rule (4) of Rule 4 of the Tamil Nadu Prohibition and Excise Rules, 1985 reads as follows: “The licensee shall not be entitled to any compensation for the closure of the shop of the curtailment of the hours of sale.” However, sub-rule 3 of Rule 4 reads thus; “The District Collector may, within his jurisdiction, in the public interest, by order require the licensee to either close down the shop for any period specified in the order or curtail the hours of sale and the licensee shall comply with the orders of the District Collector.” As per the amendment to sub rule 4 of Rule 4, it is clear that the licensees are entitled to compensation by way of proportionate remission of rental amount for the shops, for the number of days of closure of the shops by the direction of the District Collector. 18. It is not in dispute that as per Exhibit A-23, on account of usual bundh on 30.8.1995, the District Collector, Coimbatore had ordered for closure of the arrack shops and hence, in view of the sub rule 3 of Rule 4, the respondents were entitled to get compensation. So far the other dates are concerned, learned Special Government Pleader, appearing for the appellants strenuously raised his objection that the respondents in all the appeals are not entitled to any compensation, since the Commissioner, Prohibition and Excise Department had issued direction to close the arrack shops as per sub rule (2) of Rule (4) which reads as follows: “Every shop shall remain closed on the second day of October every year and on such occasions and in such areas as, the Commissioner may, in respect of the whole of the State or any part thereof specify by a notice of not less than seven days in Tamil Nadu Government Gazette and also in any local newspaper specified by the Commissioner.” 19. Learned counsel for the respondents relying on Exhibit A-23 and the supporting oral evidence, submitted that on 17.12.1984, the Excise Tahsildar, Coimbatore had sent the notice to close the arrack shops on 22.12.1984 to 24.12.1984, 28.12.1984 and 29.12.1984, on account of pre-poll day after the pole day and counting day, under Rule 4(3) of Tamil Nadu Arrack Shops (Retail Shop) Rules, 1981. Learned Special Government Pleader contended that the Special Tahsildar had issued the notice only as per the direction of the Commissioner, Prohibition and Excise Department, however, the Rule 4(3) of the Rules, 1981, had been wrongly quoted and therefore, according to the learned counsel, Exhibit A-23 would come only under the purview of sub rule 2 to Rule 4 of the aforesaid Rules. As per Exhibit A-23, notice and the oral evidence, it is clear that the Special Tahsildar, Prohibition and Excise, Coimbatore had issued the notice under sub-rule (3) of Rule (4) of the Tamil Nadu Arrack (Retail Shops) Rules, 1981 and therefore, it cannot be said that the notice was issued as per the order of the Commissioner, Prohibition and Excise. It is clear that under Exhibit A23, the notice was issued subsequent to the amendment, under Rule 4(3) of the Tamil Nadu Arrack (Retail Shop) Rules, 1981. 20. So far as the closure of the shops on 25.8.1995, on account of general bundh sponsored by all political parties and the closure of arrack shops on 2.11.1984, on account of the sad demise of our former Prime Minister Ms. Indira Gandhi and on 3.4.1985, on account of Mahaveer Jayanthi, according to the learned Special Government Pleader, the same would come under sub rule 2 of Rule 4 of the aforesaid rules and therefore, the respondents/plaintiffs are not entitled to claim any compensation by invoking sub rule 3 of Rule 4 of the aforesaid rule. 21. As contended by the learned counsel appearing for the appellants, the burden of proof lies on the respondents, being the plaintiffs seeking the relief sought for. Admittedly there is no evidence to show that on the aforesaid dates, there was any direction by the District Collector to close the arrack shops. 21. As contended by the learned counsel appearing for the appellants, the burden of proof lies on the respondents, being the plaintiffs seeking the relief sought for. Admittedly there is no evidence to show that on the aforesaid dates, there was any direction by the District Collector to close the arrack shops. As per sub rule 3 of Rule 4, the District Collector may within his jurisdiction in the public interest, by order direct the licensees to close down the shops for any period, specified in the order or curtail the sale for certain hours and the licensee shall comply with the order of the District Collector. 22. It is clear that under sub rule 2 of Rule 4, the Commissioner, Prohibition and Excise Department may in respect of the whole of the State or any part thereof, specify by a notice of not less than seven days in Tamil Nadu Government Gazette and also in any local newspapers, order for closure of the arrack shops. The respondent has stated that there was no such notice published by the, Commissioner in a Government Gazattee or in any local newspaper and further, the Court cannot comes to the conclusion, holding that on 25.8.1994, 2.11.1984 and 3.4.1985 the arrack shops run by the respondents were closed as per the order of the District Collector, so as to attract sub rule 3 of, the Rule 4 of the Rules. 23. On the other hand, as contended by the learned Special Government Pleader, it is not in dispute that the arrack shops in the whole of the State were ordered to be closed by the Commissioner, Prohibition and Excise Department, Government of Tamil Nadu, for which there is no contra evidence on the side of the respondent and therefore, considering the evidence available on record and the arguments advanced by both the learned counsel, I am of the view that the respondents are entitled to claim compensation for 22.12.1984, 24.12.1984, 28.12.1984 and 29.12.1984 on account of pre-poll and counting days due to general election and on 30.8.1995 as per the direction of the District Collector, Coimbatore on account of the general bundh since the same would come under sub-rule 3 of Rule 4 of the Rules and for the other days of closure, the respondents have not established their case for seeking compensation from the appellants. 24. 24. In the result, this Court is of the view that each respondent is entitled to claim compensation only for six days as discussed above, since the same would come under sub-rule 3 of Rule 4 of the Tamil Nadu (Retail Shop) Rules 1981 and not for the other days of closure of the shops. 25. The appeals are partly fallowed with the above finding. Both the parties are directed to bear their own costs in the appeal.