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2016 DIGILAW 553 (HP)

Dev Raj v. State of Himachal Pradesh

2016-04-25

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal is directed against the judgment and decree rendered by the learned Additional District Judge, Fast Track Court, Hamirpur, whereby the learned First Appellate Court dismissed the appeal preferred by the plaintiff/appellant thereby affirmed the judgment and decree rendered by the trial Court on 07.12.1995. 2. Brief facts of the case are that plaintiff had instituted the suit for permanent prohibitory injunction against the defendants. Plaintiff and defendant No.3 were proprietor of bus bearing No.HPM289 known as Shiv Shakti Bus Service and they were equally liable for assets and liabilities of the said bus. The passenger tax to the tune of Rs.57,016/- was due to be paid by them for the years 1988-89 and 1989-90. The plaintiff paid the passengers tax of his share but the defendant No.3 did not pay the tax of his share. Defendant No.4 had undertaken to pay the remaining amount of tax but the defendant No.4 also defaulted in making payment of the tax. The defendants No. 1 and 2 issued notice to the plaintiff for the recovery of remaining unpaid amount of tax and despite his repeated requests to recover the remaining amount of tax from defendants No. 3 and 4, they were adamant to recover this remaining unpaid amount of tax from the plaintiff by attachment and sale of his property. As such, the plaintiff filed the suit against the defendants. 3. The defendants contested the suit of the plaintiff by filing separate written statements. The defendants took preliminary objections firstly to the effect that the plaintiff has no cause of action, secondly that the plaintiff is estopped from filing the suit by his act and conduct, thirdly that the suit is bad for mis-joinder of necessary parties and lastly that the civil court has no jurisdiction to try the suit. Defendant No.3 although admitted that he and the plaintiff were co owners of the above stated bus but alleged that after March 15, 1988 defendant No.3 sold his share in the bus to the plaintiff. Defendant No.3 although admitted that he and the plaintiff were co owners of the above stated bus but alleged that after March 15, 1988 defendant No.3 sold his share in the bus to the plaintiff. As such he is not liable to pay the passenger tax to the defendants i.e. state of H.P. Whereas defendant No.4 alleged that plaintiff and defendant No.3 were joint owner of the bus and they requested the proprietor of the defendant No.4 M/s Parmar Bus Service Nadaun to deposit the passenger tax with the assurance that defendant No.4 can play their bus on the aforesaid route of the bus. As such Ashok Kumar partner of defendant No.4 has deposited a sum of Rs.20,000/- with the Excise Department, Hamirpur. It is also averred by defendant No.4 that the plaintiff expressed his inability before the Regional Transport Authority, Mandi to ply his bus on the aforesaid route permit and requested to regularize the same in favour of M/s Parmar bus service, Nadaun. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter se the parties at contest:- (i) Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP. (ii) Whether this Court has no jurisdiction to try the suit? OPD (iii) Whether the suit is not maintainable? OPD (iv) Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP (v) Whether the suit is bad for mis-joinder of necessary parties? OPD. (vi) Relief. 5. On an appraisal of evidence adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff. In an appeal preferred therefrom by the plaintiff/appellant before the learned first Appellate Court against the judgment and decree of the learned trial Court, the learned first Appellate Court also dismissed the appeal. 6. Now the plaintiff/appellant has instituted the instant Regular Second Appeal before this Court, assailing the findings, recorded by the learned first Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 11.08.2005 this Court admitted the appeal instituted by the plaintiff/appellant, against the judgment and decree, rendered by the learned first Appellate Court on the hereinafter extracted substantial questions of law:- 1. When the appeal came up for admission on 11.08.2005 this Court admitted the appeal instituted by the plaintiff/appellant, against the judgment and decree, rendered by the learned first Appellate Court on the hereinafter extracted substantial questions of law:- 1. Whether the trial Court and the first appellate Court did not consider the evidence which if considered, would have resulted in the opposite conclusion as reached by the trial Court and the first appellate Court? 2. Whether the first appellate Court erred in holding that document Ext.DA was a valid document? Substantial questions of Law No. 1 and 2. 7. A demand of passenger tax pertaining to years 1988-89 and 1989-90 comprised in a sum of Rs.57,016/- was qua bus bearing No. HPM-289 made by defendants No. 1 and 2 upon the plaintiff arising from the factum of his being its exclusive owner. Despite the plaintiff requesting the defendants No. 1 and 2 to relent from their concert to recover the aforesaid unpaid passenger tax from him, the unrelenting attitude of defendants No. 1 and 2 coerced the plaintiff to institute the suit before the learned trial Court. He canvassed therein of his alongwith defendant No.3 jointly operating the bus hence both standing jointly liable towards sharing its profits and liabilities inclusive of the tax liability incurred by it on its standing plied. He canvassed of his defraying to defendants No. 1 and 2 his share qua the tax liability incurred by the plying of the bus aforesaid whereas the defendant No.3 though being its joint owner omitting to defray his share of tax liability as incurred by the plying of the bus aforesaid to defendants No. 1 and 2 rather rendered the latter to from defendant No.3 demand passenger tax constituted in the sum aforesaid as incurred by the plying of the bus aforesaid, it falling to his share of passenger tax liability as reared by defendants No. 1 and 2. The defendant No.2 besides canvassed in the plaint of defendant No.4 undertaking to also pay passenger tax liability comprised in the sum aforesaid hence the plaintiff asserted of defendant No.4 being liable to defray the sum aforesaid as claimed by defendants No. 1 and 2 from the plaintiff as passenger tax liability as incurred by the plying of the bus aforesaid. The defendant No. 3 assayed to exculpate his liability to defray passenger tax to defendants No. 1 and 2 incurred by the operationalisation of the bus aforesaid on the score of an affidavit comprised in Ext.DA sworn by him, reflective of his alienating his share in bus No. HPM-289 in favour of the plaintiff thereby rendering the latter solitarily liable to defray passenger tax in the sum aforesaid to defendants No. 1 and 2 latters whereof had rather made a demand upon the plaintiff for its defrayment to them. No probative vigour can stand fastened by this Court to Ex.DA on the score of it standing executed on non judicial stamp paper issued on 27.09.1988 whereas it stood executed on 15.3.1988 hence when obviously its execution palpably occurred on a date prior to its issuance renders it to be a fictitious document. In sequel, it cannot stand capitalized by defendant No. 3 for escaping his liability qua defraying to defendants No. 1 and 2 his share in the liability towards passenger tax raised by defendants No. 1 and 2 as stood by the joint operationalisation of the bus aforesaid incurred thereon. Even otherwise a perusal of agreement Ext.PX executed on 13.3.1989 whereon the signatures of defendant No. 3 when stand undenied by him does display of the probative vigour of Ext.DA on anvil whereof he concerts to escape his liability to defray to defendants No. 1 and 2 his share in the demand of passenger tax raised qua the bus by the latter hence standing denuded. The reason for holding the aforesaid inference stands spurred by the factum of Ext.PX standing executed in a year subsequent to the purported execution of Ext.DA. Consequently, with Ex.PX reflective of defendant No. 3 jointly holding ownership of bus No. HPM-289 with the plaintiff rendered him to defray his share in the liability towards passenger tax incurred by the bus aforesaid. Consequently, with Ex.PX reflective of defendant No. 3 jointly holding ownership of bus No. HPM-289 with the plaintiff rendered him to defray his share in the liability towards passenger tax incurred by the bus aforesaid. Be that as it may, the import of Ext.PA executed subsequent to the execution of Ext.PX inasmuch as on 23.4.1991 besides inter se the proprietor of defendant No.4 and the plaintiff cannot stand belittled, as the prime factum of its execution inter se the proprietor of defendant No. 4 and the plaintiff, is a palpable display of only on execution of Ext.PX the plaintiff acquiescing to hold exclusive ownership of bus aforesaid and not previous to it, in sequel his acquiescence as portrayed in Ext.PX of his holding on the date of its execution alone exclusive proprietorship and ownership qua the bus aforesaid renders nugatory any espousal by him of his thereat qua it holding proprietorship or ownership jointly alongwith defendant 3 for hence rendering defendant No.3 to subsequent to the execution of Ext.PX amenable to jointly alongwith him defray his share in the demand of passenger tax raised qua vehicle No. HPM-289 by defendants No. 1 and 2. The conclusion aforesaid of the plaintiff holding exclusive proprietorship qua bus No HPM-289 from the date subsequent to the execution of agreement Ext.PA is lent pronounced vigour by Ext.PB executed inter se the plaintiff and the proprietor of defendant No.4 in quick succession thereto to the execution of Ext.PA. However, a perusal of Ext.PA and Ext.PB is of both being reticent qua transfer of ownership rights by the plaintiff in favour of the owner of defendant No.4. There occurs therein recital qua the owner of defendant No.4 acquiescing therein of his holding a bus permit to ply his bus from Ghina to Deyot Sidh and back, Deyot Sidh to Joulsappar and back, Joulsapper to Deyot Sidh whereas the plaintiff holding a right to ply his bus from Ghina to Deyosidh and back which right also stands preserved therein. Consequently with their occurring no alienation of title qua bus No. HPM 289 by the plaintiff in favour of the owner of defendant No.4 besides with both Ext.PA and Ext.PB remaining silent qua the liability towards payment of passenger tax incurred by the plying of bus No. HPM-289 which for reasons aforesaid stands exclusively owned by the plaintiff standing fastened upon the owner of defendant No.4 would not obviously render defendant No.4 to defray to defendants No.1 and 2 liability towards passenger tax pertaining to the years 1988-89, and 1989-90 as stood incurred by the plying of bus No. HPM-289. Tritely put with the demand of passenger tax qua bus No. HPM-289 by the defendants No. 1 and 2 upon the plaintiff pertaining to the years 1989-89 and 1989-90 whereat given the apposite portrayals in Ext.PX of defendant No.3 thereat holding joint ownership of bus No.HPM-289, with the plaintiff rendered him to be amenable to jointly share with the plaintiff the demand qua passenger tax qua the bus aforesaid as stood raised by defendants No. 1 and 2. In sequel, it appears hence with both defendant No. 3 and the plaintiff thereat collectively holding proprietorship of bus bearing No. HPM-289 they were jointly liable to defray to defendants No. 1 and 2 the demand of passenger tax as stood raised thereupon by them. Accordingly, substantial questions of law stand answered in favour of the plaintiff and against the defendants. 8. Even while having rendered a conclusion aforesaid the effect besides the import of Section 20 of the H.P. Passengers and Goods Taxation Act, 1955 whose provision stands extracted hereinafter:- “Exclusion of jurisdiction of Civil Courts-No Civil Court shall have jurisdiction in any matter, which the State Government or any prescribed authority is empowered by this Act or the rules made thereunder to dispose of or take cognizance of and regarding the manner in which the State Government or any prescribed authority exercise any powers vested in it or him by or under this Act or the rules made under.” Barring besides excluding the civil court to exercise jurisdiction upon matters falling within the ambit of the Act aforesaid, enacted to assess, levy and enforce demands of passenger tax incurred by a passenger vehicle in category whereof bus No. HPM-289 uncontrovertedly falls cannot be overlooked. It stood aptly concluded by both the Courts below of the aforesaid statutory provisions operating as a tenable legal deterrent for non suiting the plaintiff. Given the exclusion of jurisdiction of a civil court encompassing subject matters devolving upon assessment, levy and enforcement of demands of passenger tax raised by defendants No. 1 and 2 who comprises the contemplated statutory machinery in the Act aforereferred to levy, assess besides enforce passenger tax upon a passenger vehicle which undisputedly the bus No. HPM 289 is, necessarily rendered the authorities constituted therein to hence stand solitarily empowered to consider the pleas of the nature agitated by the plaintiff in the suit for exculpating his sole liability towards passenger tax incurred by the bus aforesaid pertaining to years 1988-89 and 1989-90 liability whereof stood fastened upon him by defendants No. 1 and 2. In sequel with the ouster of jurisdiction of a civil court to adjudicate upon an issue impinging upon assessment, levy and enforcement of demand of passenger tax as stood raised by defendants No. 1 and 2 qua bus No. HPM-289 for its standing borne exclusively by the plaintiff/appellant on the anvil of his being its sole proprietor, baulks this Court to despite rendering an answer in favour of the plaintiff on substantial questions of law to allow this appeal besides thwarts this Court to decree the suit of the plaintiff. 9. The result of the above discussion is that the appeal preferred by the plaintiff/appellant is dismissed and the judgments and decrees rendered by the learned Courts below, are affirmed and maintained. Decree sheet be prepared accordingly. However, the parties are left to bear their own costs. All pending applications shall also stand dismissed. Records be sent back forthwith.