n Singfe BrtM* IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH CIVIL REVISION N0. ^ 72005 Sf^-- UNDER SECTION 115 OFTHE CODE OF CrVIL PROCEDURE. 1908 PETITIONERS (DEFENDANTS) /c? /^ _^'/w A/, My ^y /^y Y' / -J <? y 1. 2. < 3. 4. ^" State of Chliatdsgarh Through: Collector, Durg (CG) The Collector Excise, Dwg, Distt : Durg (CG) The District Excise OfGcer, Dui^, O/o District Excise, Durg, Tah. & Distf : Dui^ (CG) Shri S. N. Sahu, S/oShriS.R. Sahu, Aged about 34 years, (Excise Sub Inspector) Present Adds; O/ o Excise Sub Inspector, Dui^, Circle North Intenor, Ravi Shaaker Stadium, Durg, Tah. & Distt : Dm^ (CG). VERSUS RESPONDENT ^'Baljeet Siugh Bhatia, > S/ o Trilok Singh Bhatia, Liquor Contractor, R/o Amapara Ward, Balod, Tahsil: Balod, District : Dus-s (CG). H BBi •l;l{l!Ill^^l^llllNi';N;^:^'^: ''^'•^^&S'i^^' HIGH COURT QFCHHAmSGARH AT BILASPUR Single Bench: Hon'bleShri Jystice Prashant Kumar Mishra Civil Revision No.58 of 2005 State of Chhattisgarh and others versus Batjeet Singh Bhatia ORDER Postfor 20-8-2010 Sd/- Prashant Kumar Mishra Judge HIGH COURT OF CHHATTISGARHAT BILASPUR Single Bench: Hon'b!eShri_JysticePrashant Kumar Mishra Civil Revision No.58 of 2005 Applicants Non-ApDlicant versus State of Chhattisgarh and others Baljeet Singh Bhatia Present: Shri G.D.Vaswani, Government Advocate and Shri Ajay Dwivedi, Deputy Government Advocate for the State/applicants. Shri Varun Sharma, counsel forthe non-applicant. Civil Revision under Section 115 of the Code of Civil Procedure i ORDER (Passed on Ao1kAugust, 2010) The instant revision application under Section 115 of the Code of Civil Procedure, 1908 has been preferred by the applicants - State of Chhattisgarh and others challenging the order passed by the trial Court on 28-1-2005 deciding issues No.11 and 12 as preliminary issues and holding that the suit filed by the plaintiff is maintainable. Issue No.11 was to the effect that whether the plaintiff has no right to file the suit and the suit is not maintainable, whereas issue No.12 was with respect to the valuation of the suit. 2. The plaintiff/non-applicant herein preferred the suit on the -allegation that the licence for retail sale of liquor for Balod Group of Foreign Liquor Shop for the year 2000-2001 was issued in favour of M/s Prime Liquors, Balod. The said licence expired on 31-3-2001 and ,the balance stock was kept in the godown of the licensee. The '.>3;i ^ quantity of the balance stock of foreign liquor was 43,682.2 Bulk Litres = 32,761.6 Proof Litres. It was further stated that licence for the year 2003-2004 was issued to a new licensee and the Excise Sub-lnspector came under the influence of the new licensee and prepared a forged inquest to seize 456.96 Bulk Litres of foreign liquor and registered Crime No.09/03-04 dated 14-4-2003 against the plaintiff. Charge- sheet under Sections 34(2) and 59 of the Chhattisgarh Excise Act (henceforth 'the Act') was presented in the Court of Judicial Magistrate First Class, Balod. According to the plaintiff, the said seized foreign liquor was a part of the balance quantity of M/s Prime Liquors, Balod, which was a licensee for Balod Group in 2000-2001. The plaintiff valued the suit at Rs.60,000/-, which was the value of the seized liquor and for the purpose of permanent injunction the suit was valued at Rs.300/-. The plaintiff prayed for a decree of declaration to the effect that the seized liquor is a part of balance stock of M/s Prime Liquors, Balod, the licensee of the year 2000-2001 and that he has been falsely implicated by the Excise Sub-lnspector. The plaintiff also prayed for a permanent injunction to restrain the defendants from destroying the entire balance stock of M/s Prime Liquors, Balod. 3, The defendants/applicants herein filed their written statement and stated th^t only one room of the godown was in the control of the Excise Department and the rest of the area is in the control of the Jicensee and that neither the map of the godown has been annexed with the plaint nor a copy thereofhas been supplied. It was stated that no other licensee has been permitted to lift the stock and that M/s Prime Liquors, Balod, the licensee, has removed the stock, the details . f'^- --;.•: . ' -»*. "".. ••-K^K : '%"'-• /.' y :<"'' of which have been kept in the record of the Excise Department and is known to the licensee. The defendants denied that the Excise Sub- Inspector has framed any false criminal case and that the plaintiff was in illegal business of the liquor after the period of licence was over. It was specifically stated that the criminal case for the offences under the Act shall be decided by the competent criminal Court and the suit is not maintainable. 4. The defendants also stated that the licensee M/s Prime Liquors, Balod is a necessary party to the suit and in its absence, the suit is pn'ma facie not maintainable as the plaintiff has not stated as to in what capacity the suit has been preferred. It was specifically stated that in the entire suit, the plaintiff has not stated as to how he is connected with the licensee M/s Prime Liquors, Balod and that since the period of licence is over, the plaintiff has no right to file a suit with respect to the balance stock or otherwise of the licensee. According to the defendants, the suit has been preferred only to avoid the criminal proceeding and thus it is not maintainable. 5. The defendants also stated that the valuation of the suit has been made by the plaintiff in an arbitrary manner and that the price/valuation of the seized liquor is in lakhs of rupees. It was also stated that a suit only for declaration and permanent injunction should have been filed before the Civil Judge Class-11, however, because of aFl51tra.ry valuation, the suit has been preferred before a higher Court and that toa without paying adequate Court-fee. It was also stated that the suit is notmaintainable because a notice under Section 80 of the ^' Code of Civil Procedure, 1 908 has not been served on the defendants. m •^ il.i-^@i^fi-, ss B§a;* v iiiB'isa:^ ^..'ii'78 .(? !'1 il%,,^^.>t.'^;y* ~"aSi--sx3S<Sy n' 6. Admittedly, the licence for Balod Group of Foreign LiquorShop was issued in favour of M/s Prime Liquors, Balod. This has been stated in paragraph 2 of the plaint. In the entire plaint, the plaintiff has not stated as to how and in what manner he is connected with M/s Prime Liquors, Balod. Even otherwise, from the pleadings made in the plaint, it would appear that the suit has been preferred to avoid and frustrate the criminal case registered against the plaintiff in pursuance to seizure of itlegal liquor made on 14-4-2003 in Crime No.09/03-04. Section 67 of the Act provides that no suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done. ; 7. The question as to whether the plaintiff can prove existence of bad faith or ma/a fide would arise when he is a licensee, however, when the plaintiff on the face of the pleadings made in the plaint is not the licensee, and was found to be in illegal possession ofthe liquor, the suit is apparently barred under Section 67 of the Act. Moreover, the plaintiff has not stated in the plaint that notice under Section 80 of the Code of Civil Procedure, 1908 was served upon the defendants before filing the present suit. For this reason also, plaintiff's suit is not maintainable. 8. Since it has been found that plaintiffs suit is not maintainable, this Court is not examining the other issue regarding valuation of the suit. 9. In the result, the civil revision succeeds and is allowed. The impugned order is set aside. It is held that the suit filed by the plaintiff q' deserves to be and is accordingly dismissed as not maintainable. There shall be no order as to costs. Sd/- Prashant Kumar Mishra Judge fV Gopal