MANGTU LAL BAGARIA Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This is an appeal under the Letters Patent from a decision of Varma J. in a second appeal. It appears that plaintiff is the receiver of an estate which owns certain coal-mines in Dhanbad. In 1929-30 a certificate was issued under the Public Demands Recovery Act to recover certain arrears of cess payable by the estate and a sum of Rs. 52 was realized in May 1930. In 1934-35 a fresh proceeding was started to realize the balance, and the plaintiff was obliged to deposit a sum of Rs. 438-2-3. Thereafter, he brought the present suit to recover this amount on the allegation that the assessment of cess was wholly illegal and the proceedings by which the sum of Rs. 438-2-3 was realized from him was without jurisdiction.

(2.) The suit was resisted by the Secretary of State on various grounds and the trial Court as well as the first Court of appeal held that the suit could not succeed. The plaintiff thereupon preferred a second appeal which was heard by Varma J. In this appeal the points raised by him were, first, that the proceedings of 1934-35 were without jurisdiction inasmuch as two certificates could not be issued in respect of the same demand; and, secondly, that the certificate Court could not under Section 45, Cess Act, recover the said amount more than three years after it became due. Both these points have been decided against the plaintiff by Varma J., and hence this appeal under the Letters Patent. As to the point that two certificates were issued in regard to the same demand, Varma J. observed as follows: Now, with regard to the first part of the argument I must say at once that in spite of the strenuous efforts of Mr. Mitra he has not been able to refer to any materials on the record which could satisfy me that two certificates were actually issued, and although I agree with the proposition of law that two certificates could not be issued for the same period, on the question of fact this part of his contention must fail.

(3.) Notwithstanding these observations, it was contended on behalf of the appellant that in fact two certificates were issued, and learned Counsel for the appellant pressed us to allow him an opportunity to produce certain papers as additional evidence to establish his contention. Now, the judgments of the first two Courts clearly show that the contention raised on behalf of the appellant is an entirely new one. From the judgment of the learned Munsif it appears that one of the issues framed in the suit was "whether the certificate proceedings of 1934-35 were illegal, without jurisdiction and barred by limitation. In discussing this issue, the learned Munsif has set out the case put forward before him on behalf of the plaintiff in these words: His next contention is that there was certificate of non-payment issued against him which was put into execution in certificate execution case No. 107-R.C. 1929-30, that that case was struck off in 1930 and then more than three years after, in 1934 a fresh execution for recovery of the unpaid amount was instituted by the certificate officer of Dhanbad against him under case No. 171-R.C. of 1934-35; that this latter case was clearly time-barred.....