STATE OF RAJASTHAN Vs. NAGAR PALIKA

JUDGEMENT

(1.) THESE two first appeals arise out of two suits instituted by the Nagar Palika, Jhalawar, against the State of Rajasthan and Ganganagar Sugar Mills, for the recovery of octroi duly on the liquor brought within the municipal limits of Jhalawar for purposes of sale. As common questions of law and fact are involved in these appeals, they are being disposed of together by this single judgment. It may also be observed here that in the trial court it was agreed that there shall be common evidence in both the cases.

(2.) THE Nagar Palika, Jhalawar, alleged that the State of Rajasthan through its Excise Department brought and sold country liquor within the municipal limits of Jhalawar between 1 -4 -64 and 31 -3 -65 and between 1 -4 -63 and 31 -3 -64 to the tune of Rs. 1,42,972 41 and Rs. 1,30,705 30 respectively but had not paid octroi duty to it according to law at the rate of six percent. Suit No. 8/67 (36/68) instituted on 3 -7 -67 related to the recovery of octroi duty for the period between 1 -4 -64 and suit No. 39/1968 instituted on 15 -9 -68 related to octroi duty for the period between 1 -4 -63 and 31 -3 -64. Both the suits were originally filed against the State of Rajasthan alone, but, later on, Ganganagar Sugar Mills was also impleaded as defendant because the State of Rajasthan took the stand that the liquor was brought within the municipal limits of Jhalawar by Ganganagar Sugar Mills and not by its Excise Depart -ment. Both the defendants resisted the suit. The State of Rajasthan admitted having supplied liquor to its contractors, but denied that the liquor was brought by it within the municipal limits of Jhalawar. According to the State of Rajasthan, the liquor was supplied to it within the municipal limits of Jhalawar by Ganganagar Sugar Mills which is a limited company. The State of Rajasthan took several other pleas including that the suits were barred by time. The Ganganagar Sugar Mills in its written statement denied all the allegations made in the plaint. It however, admitted having sent liquor to the ware -house at Jhalawar under a contract and in accordance with the Rajasthan Excise Act. The learned Additional District Judge after framing material issues and on consideration of the evidence led by the parties found that the liquor was brought for purposes of sale by the Excise Department of the State of Rajasthan. He also held that the suits were not barred by time. He accordingly passed a decree for Rs. 9259 86 in suit on 8/67 (36/68) and for Rs. 5961 88 P. in suit No. 39 of 1968 against the State of Rajasthan and allowed pendente lite and future interest at the rate of four percent per annum on the decretal amounts. Aggrieved by the said decrees, the State of Rajasthan has preferred appeal No. III of 1972 in suit No. 8/67 (36/68) and appeal No. 112 of 1972 in suit No. 39 of 1968.

(3.) THE next contention on behalf of the State of Rajasthan is that suit No. 3/67 (36/68) was barred by time at least to the extent of the amount of octroi duty on the quantity of the liquor brought within the municipal area of Jhalawar between 1.4.64 to 11.4.64 It is conceded that the suit is governed by Article 113 of the Limitation Act, 1?63 and the plaintiff was required to file the suit within 3 years from the date the octroi duty became payable by the State of Rajasthan. Suit No. 8/67 (36/68) relates to the period between 1 -4 -64 and 31 -3 -65 and it was filed on 3 -7 -67. The civil courts remained closed on account of summer vacation from 6th June to 2nd July, 1967, both days inclusive and this period is liable to be excluded in calculating the three years period. The plaintiff is further entitled to exclude two months period for the notice Under Section 80 Civil P.C. served on the defendant -State of Rajasthan. This notice was admittedly sent on 12 -4 -67. If all this period is excluded, plaintiff's claim for recovery of octroi duty between the period 12 -4 -64 to 31 -3 -65 is within time. The only difficulty is with regard to the period between 1 -4 -64 to 11 -4 -64. There is no material on the record to show bow much of liquor was brought within the municipal limits during this period. It may be that no liquor was brought within the municipal limits during this period of 11 days In the absence of any material, it is difficult to say that the suit is barred by time.