STATE OF RAJASTHAN Vs. FEMROZ AHERAM SHAH ILLAVABIA

JUDGEMENT

(1.) Brief facts of the case are that plaintiff-respondent filed the suit for recovery of Rs. 5929.60 from the defendant-appellant. According to the plaintiff, the plaintiff-respondent under the threat of attachment warrant had to give a cheque of Rs. 5775.00 to the appellant-defendant Excise Department, in the alleged recovery proceedings initiated by the Excise Department for dues against the plaintiff-respondent's father. According to the plaintiff, the plaintiff was not concerned with Kishangarh Distillery for which the plaintiff's father took the loan from the Excise Department, Udaipur. Since there was a threat of attachment of the property, therefore, the plaintiff paid the cheque mentioned above to the Recovery Officer but the plaintiff gave this cheque under protest and thereafter served notice upon the defendant-appellant under Sec. 80,C.P.C. and demanded the amount recovered from the plaintiff-respondent. When the defendant-appellant did not re-pay the amount, the plaintiff filed the suit for the recovery of the above amount. The defendant submitted written statement and stated that the demand notice was issued for recovery of Rs. 5773/- under the provisions of the Rajasthan Land Revenue Act for recovery of the Government dues. According to the defendant, certain amount was advanced to the father of the plaintiff out of which the father of the plaintiff repaid Rs. 24,216/-. Rs. 5973/- remained due in the father of the plaintiff, therefore, recovery proceedings were initiated under the provisions of the Rajasthan Land Revenue Act and in the recovery proceedings, the plaintiff paid the said amount. The defendant submitted that the plaintiff was under pious obligation to pay the debt of his father and he in fact paid the amount and, therefore, he has no right to recover the amount from the defendant. It is also submitted that when amount is recovered under the provisions of the Rajasthan Land Revenue Act, the civil court has no jurisdiction to entertain the suit.

(2.) The trial court framed the four issues and put burden to prove the issues upon the defendant. Before the trial court, on 11.12.1976 it is stated by the plaintiff that the plaintiff does not want to lead evidence on issue no.1. The trial court, therefore, closed the evidence of the plaintiff and fixed the date for evidence of the defendant. The defendant produced witnesses and again the plaintiff did not produce any evidence to rebut the evidence of the defendant. The trial court also framed an additional issue and burden to prove that issue was also upon the defendant. Be it as it may be, the trial court held that the plaintiff being Hindu was under pious obligation to pay the debt of his father and held that the defendant-appellant Excise Department had right to recover the amount from the plaintiff. The trial court also considered in detail Sec. 40 of the Rajasthan Excise Act,1950 and held that the amount recovered by the Excise Department could have been recovered by following the procedure as provided under the Rajasthan Land Revenue Act, 1956. The trial court held that in the proceedings for recovery of the Government dues under the provisions of the Rajasthan Land Revenue Act, suit for recovery of the said amount can be filed which is specifically provided under the provisions of the Land Revenue Act itself. In view of the finding recorded above, the trial court dismissed the suit of the plaintiff by the judgment and decree dated 31.3.1979.

(3.) The plaintiff preferred appeal against the judgment and decree of the trial court dated 31.3.1979. The appeal was allowed by the first appellate court after observing that the trial court committed mistake in holding that the plaintiff was liable to pay the debt of his father. The first appellate court also held that the trial court committed error in deciding issue no.1 partly in favour of the plaintiff and also committed illegality in deciding issue no.3 against the plaintiff.