(Appeal under Section 96 of C.P.C., Against the judgment and decree dated 31/08/1998 in OS No.41 of 1995 on the file of the court of the III Additional district Judge, Visakhapatnam.)
Defendants are in appeal questioning the correctness of the judgment and decree of the III Additional District Judge, Visakhapatnam in decreeing the suit of the plaintiff O.S.No.41 of 1995 declaring the order of the 2nd defendant as arbitrary and illegal and restraining the defendants by way of permanent injunction from recovering or causing to recover the amount due under the order in R.C.No.127/83 (B) E.C.C. dated 05-11-1983.
The facts which are not in dispute and relevant for disposal of the appeal briefly stated as under:
Plaintiff was appointed as commission agent for supply of essential commodities like rice and wheat to the Fair Price Shops in Narsipatnam for a period of one year from 01-12-1981 and entered into an agreement with the defendants on 21-05-1981, whereunder defendants agreed to pay commission at Rs.2.25 ps. per quintal to the plaintiff. Even after expiry of the period he continued as such without there being any agreement. The 1st defendant obtained a bank guarantee of Rs.20,000/- besides cash deposit of Rs.15,769/- for supply of rice and wheat and further security deposit of Rs.25,000/- as cash deposit towards supply of palmolin oil from the plaintiff.
The plaintiff alleges that on 09-05-1983 Vigilance Cell made surprise inspection and seized all the records and break open the locks of godown on 10-05-1983 calling his nephew- D. Kameswara Rao aged about 18 years and forced him to make some entries in the stock book with regard to 14 lorry loads during 03-05-1983 and 08-05-1983 which stock was never received by him. Further, Vigilance people stated to Kameswara Rao to pay an amount of Rs.1,60,000/- under the threat of prosecution. Subsequently an order dated 05-11-1983 signed by joint Collector in his capacity as Executive director (2nd respondent) under Ex.A1 was served on him demanding payment of Rs.6,09,956.75 ps. Questioning the correctness of the same plaintiff filed W.P.No.5259 of 1985 and subsequently withdrawn the said writ petition. Meanwhile he filed the above suit. In paragraph-7 of the plaint it is specifically stated that plaintiff learnt Government issued a notification under Section 52-A of the Revenue Recovery Act for recovery of the amount due under the said notification under Ex.A7 for enabling the defendant-Corporation to recover the said amount of Rs.6,09,956.75 ps. from the plaintiff in the manner of arrears of land revenue. On issuance of notification the Mandal Revenue Inspector issued notice Ex.A8 demanding payment of the amount threatening with distraint and without referring the dispute to arbitration in terms of the agreement the liability was fixed unilaterally without hearing him and without ascertaining the actual amount due. Therefore, the amount cannot be recovered and the claim, if any, of the 1st defendant is barred by limitation when computed from 05-11-1983. Section 52-A of the Revenue Recovery Act has no application to the facts of the case on hand. Therefore, he prayed (i) for a declaration that the order in R.C.No.127/83(B) E.C.C. dated 05-11-1983 is not only arbitrary, illegal and invalid but also void and therefore unenforceable; (ii) for a consequential relief of permanent injunction restringing the defendants from recovering or causing it to be recovered the amount in any manner whatsoever.
Defendants resisted the claim of the plaintiff and filed a written statement contending that the plaintiff misappropriated rice and wheat worth Rs.9,54,229.27 ps., which was detected by the authorities of Vigilance Cell. They also detected shortage in rice and palmolin oil in the stocks allotted to the plaintiff. After deducting the commission payable to the plaintiff and deposits made by the plaintiff statement of account was prepared. According to which a sum of Rs.6,09,956.75 ps. was found due towards shortage of value of the stocks and copy of the said statement was furnished to the plaintiff along with a memo dated 05-11-1983 directing him to pay the amount. All the concerned registers were made available to the plaintiff at his request for verification regarding the correctness of the particulars made in the said statement to give an opportunity to the plaintiff. It is contended that Executive Director is the competent authority to fix the liability on the plaintiff and the plaintiff never approached the defendants for arbitration nor claimed at any time for referring the matter to the arbitration. The writ petition filed by the plaintiff was dismissed on 23-08-1988, therefore, he is not entitled to the relief of declaration or permanent injunction and accordingly prayed for dismissal of the suit with costs.
On the above pleadings the lower court framed the following issues:
1. Whether the plaintiff is entitled for declaration as prayed for?
2. Whether the plaintiff is entitled for injunction as prayed for?
3. To what relief?
In order to prove the claim of the plaintiff he himself was examined as P.W.1 and his nephew who was present on the date of vigilance cell authorities conducted raid was examined as P.W.2 apart from marking Exs.A1 to A9. On behalf of the defendants Assistant Grade-I attached to the office of the 1st defendant Corporation was examined as D.W.1 and got marked Exs.B1 to B12 apart from marking Exs.C1 to C3.
The lower Court on appreciation of oral and documentary evidence adduced by the parties answered all the issues in favour of the plaintiff holding that under Ex.A1 defendant authorities quantified the amount without giving any opportunity to the plaintiff, therefore, plaintiff is entitled to declaration and consequently defendants should be restrained by way of permanent injunction not to recover the amount in pursuance of Ex.A1 without following the provisions for appointment of arbitrator. Hence the Corporation is in appeal.
Heard the learned counsel for the appellants as well as learned counsel for the respondent.
Sri D. Linga Rao, learned counsel for the appellants/defendants contends that under Ex.A1 a detailed statement was prepared quantifying the amount for the shortage of rice and palmolin oil and copy of which was furnished to the plaintiff along with memo dated 05-12-1983; later plaintiff requested time under Ex.A3 for verification of the records and account books etc. accordingly he was permitted to inspect the records, and afterwards Ex.A5 letter was addressed by the plaintiff through his counsel which was suitably replied by the corporation under Ex.A6 intimating that plaintiff has to remit the amount by 31-12-1983 and no further time will be granted. As the plaintiff failed to pay the amount in time notification under Ex.A7 was issued which was published in the A.P. Gazette for enabling the Corporation to recover the amount due under Revenue Recovery Act. Without questioning the notification and consequential notice issued by the M.R.I., plaintiff cannot question the statement of account. Plaintiff having filed the writ petition which was dismissed as withdrawn without there being any permission to proceed with the case cannot maintain the suit which was filed by the time writ petition was dismissed on 23-08-1988. He placed reliance on the following judgments:
1. V. Narasimha Rao v. Suptd. of Excise (AIR 1974 AP 157)
2. B.C. Mulajkar v. State (AIR 1971 AP 169)
On the other hand, Sri M.S. Ramchandra Rao, learned counsel for the respondent/plaintiff would contend that Ex.A1 order was passed without giving an opportunity, therefore, amount cannot be enforced against the plaintiff. For demanding any amount there should be a determination preceded. For the said proposition he relied on the following judgments:
1. Govindu Rama Rao v. R.D.O., Srikakulam (1975 (2) An.W.R. 428)
2. M. Nagasurya Ranga Rao v. Excise Suptd (1997 (2) ALD 352).
He also contends that Ex.A1 order was passed on 05-11-1983 and three years time expires on 05-11-1986; the M.R.O. issued notice under Exs.A8 on 08-05-1987 i.e. after three years, which is barred by limitation and the amount cannot be recovered under Revenue Recovery Act. If the Corporation had any claim it can invoke arbitration clause provided in the agreement. Without resorting to arbitration clause, they cannot be a judge of their own case and unilaterally recover the amount. The cause of action accrued to file the suit is on issuance of notice under Ex.A8 dated 8/9-05-1987 and the suit as such is filed within time. Even in the absence of specific prayer in the plaint to challenge Ex.A8 notice, it does not affect the plaintiff’s claim as its validity depends on the validity of Ex.A1, which is specifically impugned in the suit. For the said proposition he relied on the following judgments:
1. Rangiah v. Peddireddi (AIR 1957 A.P. 330)
2. M. Saraswathi v K. Rama Krishna (1981 (2) APLJ 412)
3. Pornima Enterprises v. Nagarjuna Finance ltd. (1997 (4) ALD 539)
4. V. Haritha v. Kapil Chit Funds Private Limited (2004 (2) ALD 817)
Further, even in the prayer if it is not asked for quashing the notice, the court has ample power to grant relief for which he placed reliance on Corpn. of Bangalore City v. M. Papaiah (AIR 1989 SC 1809). The initiation of proceedings under Revenue Recovery Act itself is illegal since the suit claim is barred by limitation and time barred claim cannot be recovered by resorting to provisions of Revenue Recovery Act. For the said proposition he placed reliance on State of Kerala v. Kalliyanakutty ((1999) 3 SCC 657). Once Ex.A1 is in violation of principles of natural justice entire proceedings are null and void and plaintiff is entitled to relief of declaration.
In view of the above submissions, the only question that arises for consideration in this appeal is without questioning the notification issued under Section 52-A of the Revenue Recovery Act enabling the Corporation to recover the amount whether the plaintiff is entitled for declaration sought by him.
The answer to the above question has to be considered in the light of the limitation to question the action proposed under the Revenue Recovery Act and in the light of relief claimed by the plaintiff.
In order to substantiate the claim of the plaintiff he himself was examined as P.W.1. In his evidence he categorically admitted on issuance of statement of account quantifying the amount under Ex.A1, he addressed a letter Ex.A3 dated 24-11-1983 and later Ex.A5 notice was issued through an advocate, pursuant to same only account books were permitted to be inspected, and through Ex.A6 defendants replied that intimation was already given under Ex.A1 quantifying the amount. He categorically admitted in cross-examination that on 11-09-1986 an order was passed by the Government in G.O.Ms.No.1108 to recover the amount under Revenue Recovery Act and a notification under Ex.A7 was also issued permitting the Corporation to recover the amount as arrears of land revenue, pursuant to the same his landed property and house property, which are situated at Kothakota, were attached. He also admitted that it is possible to know from time to time as what was the stock received and what was the stock released towards the value of the stocks received from the dealer by way of payment with drafts. After the vigilance authorities seized the accounts he received a notice seeking to account for the amount towards the value of the goods lifted and not account for. He admitted that Ex.B1 letter is of him. After verifying the books with the vigilance authorities he filed annexure indicating the stocks received and stocks disbursed by him. He cannot say whether he mentioned in the letter that he has to pay Rs.38,656.87 ps. He did not deliver the stocks to the value of Rs.38,656.87 ps. mentioned by him in the letter Ex.B1. He also admitted under Ex.B2 he mentioned that shortage stocks to be valued at Rs.200/- instead of Rs.400/- which is claimed by the authorities.
Ex.A1 is the statement containing particulars of rice and palmoline oil lifted by the plaintiff and value of the amount to be recovered for the shortages was detailed in the same. On receipt of the same plaintiff under Ex.A3 dated 24-11-1983 requested the authorities one month time to verify the correctness of the same. Under Ex.A4 the second defendant advised the plaintiff to approach the Deputy Superintendent of Police for verification of the records and remittance of the amount within two weeks for which plaintiff got issued legal notice under Ex.A5 for fixing the date for verification of the records. Under Ex.A6 the 2nd respondent informed the plaintiff that the shortages worked out has already been submitted under Ex.A1 and no further details should be furnished by granting time upto 31-12-1983 for remittance of the amount. Later a notification was issued in G.O.Ms.No.1108 dated 11-09-1986 under Ex.A7 followed by demand notice dt.08-05-1987 which fact has been admitted by the plaintiff, as referred to above. If the plaintiff is aggrieved by such determination or the notification issued for recovering the amount under Section 52-A of the Revenue Recovery Act, suit as such has to be filed within the prescribed time as per Section 59 of the Revenue Recovery Act, which reads as under:
“59. Suits by persons aggrieved by proceeding – Limitation: Nothing contained in this Act shall be held to prevent parties deeming themselves aggrieved by any proceedings under this Act, except as hereinbefore proved, from applying to the Civil Courts for redress; provided that Civil Courts shall not take cognizance of any suit instituted by such parties for any such cause of action, unless such suit shall be instituted within six months from the time at which the cause of action arose.”
It is also admitted by the plaintiff that he filed W.P.No.5259 of 1985 questioning the notification issued by the Managing Director dated 03-05-1985, informing that his request cannot be accepted and demanding him to remit the amount. Plaintiff failed to obtain stay of recovery of Rs.6,01,156.75 ps. sought to be recovered and filed the above suit on issuance of notice by the M.R.I. under Ex.A8 dated 08-05-1987 questioning the amount furnished in the statement of accounts under E.A1.
In para-4 of the plaint he admitted that while pending writ petition notification under Section 52-A of the Revenue Recovery Act was issued for enabling the Corporation to recover the amount as arrears of land revenue and on issuance of such notification a notice under Ex.A8 was issued by the M.R.I. In spite of having knowledge he has not chosen to question the notification. The suit, if any, has to be filed within a period of six months from the date of cause of action arose. The notification also refers to various correspondent made by the Corporation right from 01-06-1984 to 29-04-1985 for issuance of notification by the State Government under Section 52-A of the Revenue Recovery Act for recovering the amount due to the Corporation. Section 52-A authorizes the State Government by notification in the official Gazette for recovery of the amount due to the Corporation by or under the State Act as an arrear of land revenue, provided notification to that effect is issued by the Corporation in the manner contemplated under Section 52-A.
Section 59 of the Revenue Recovery Act unequivocally bars the jurisdiction of the civil court from taking cognizance which is not brought within the period of six months from the date of cause of action arose.
In the present case, plaintiff’s right to question the said notification and consequential action for recovery of the amount, if any, is any within six months from the date of notification issued and published in the Gazette i.e. on 11-9-1986. The suit admittedly was filed on 02-06-1987 i.e. beyond the period of six months from the date of such notification issued.
It is well settled that bar of limitation has to be considered even if such plea is not specifically raised. If the claim is barred by limitation and such plea is raised, specifically court cannot straightaway dismiss the plea simply on the scope said plea is ignorable. (See Binod Bihari Singh v. Union of India (1993) 1 SCC 572).
In a declaratory relief if the suit is barred by limitation no declaration as such can be granted restraining the defendants from interfering the order. (See Punjab State Coop. Supply & Marketing Federation Ltd. v. B.S. Aulakh (1997 4 SCC 756).
Ex.A1 is only a copy of the statement of account working out the amount due to the amount due to the Corporation furnishing the particulars to the plaintive along with memo dated 05-12-1983 directing the plaintiff to pay the amount as per the statement of account. After considering the request of the plaintiff to verify the records Corporation has intimated that the amounts mentioned in the statement of account are correct and the same should be remitted within 31-12-1983 failing which necessary steps will be taken. Plaintiff has not chosen to question the notification but only chosen to question the statement of account which is preceding the notification.
The defendants specifically pleaded that suit as such filed is not maintainable and plaintiff questioned the correctness of the statement of account furnished along with demand notice under Ex.A1 restraining the Corporation from recovering the amount consequent to the notice under Ex.A7 can be done if the suit is filed within six months from the date of issuance of notification. Once the civil court will not have jurisdiction to entertain the suit, whether due procedure has been followed in ascertaining the amount due from the plaintiff or not need not be gone into.
Clause (g) of Rule (1) Order VII CPC requires the plaintiff has to claim relief in the plaint. Order VII Rule 7 requires the plaintiff to state expressly the relief which he claims either simple or in the alternative, Order II Rule 2 CPC enacts that if the plaintiff is entitled to more than one relief in respect of the same cause of action and he omits to sue for any such reliefs, he cannot afterwards sue for the relief so omitted. But it is equally well settled that if there is a foundation in the pleading of the plaintiff for a particular relief and the defendant has not been taken by surprise and plaintiff is otherwise entitled to such relief it cannot be denied merely because a prayer clause of the plaintiff does not specifically contain that prayer. (See Bhagwati Prasad v. Chandramaul (AIR 1966 SC 735) and Sidramappa v. Rajashetty (AIR 1970 SC 1059). But the power of the Court to grant other reliefs not claimed is not absolute, uncontrolled or unqualified. The test in all such cases is to see whether the defendant will be taken by surprise or will be embarrassed or will be prejudiced. If the answer is in the affirmative, relief, which is not claimed, cannot be granted to the plaintiff.
Whether the Corporation is entitled to claim benefit under Section 15(9) of the Limitation Act to exclude the time taken for obtaining the necessary orders from the competent authority to recover the amounts due by issuing notification is a matter to be decided only if the notification issued under Section 52-A is questioned and there is pleading by the plaintiff to the said ef
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fect. Unless the notification is declared invalid, plaintiff is not entitled to injunction restraining the Corporation from recovering the amounts due under the notification, provided the suit is filed within the period of limitation questioning the correctness of the notification and the consequential proceeding, if any, under the Revenue Recovery Act. In the present case, plaintiff vaguely contended that Revenue Recovery Act cannot be resorted to a suit claim, which is barred by limitation. Had the plaintiff questioned the notification issued under Section 52-A of the Revenue Recovery Act, which is admittedly issued within three years from the date of statement of account under Ex.A1, defendants will have an opportunity to meet the said plea including for exclusion of the time taken for in issuing the notification. The right to question the said notification, if any, is barred by limitation under Section 59 of the Revenue Recovery Act and the Civil Court will not have jurisdiction to entertain the said suit. The statement of account and demand made will be culminated into a decree, which can be enforceable on issuance of notification. Once the notification is issued the same can be recoverable under Revenue Recovery Act. Without questioning the notification suit as such filed is bared by limitation. A right is accrued to the defendants to recover the amount in pursuance of notification in the manner prescribed under the Revenue Recovery Act. The Court cannot take away such right by granting relief though the plaint does not contain the specific prayer to the said effect. Vigilanti Et Non-Dormientibus Jura Subveniunt, which means law helps to the vigilant but not sleepy. As the plaintiff cannot maintain the suit due to express bar contained under Section 59 of the Revenue Recovery Act, entertaining the suit and decreeing the same by the lower Court is without jurisdiction. Therefore, the judgment and decree of the lower court suffers from want of jurisdiction, the same cannot be sustainable and it is accordingly set aside. Consequently the appeal is allowed and the suit of the plaintiff is dismissed. Parties shall bear their own costs.