1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated:08.06.2011 C o r a m The HONOURABLE MR.JUSTICE A.SELVAM S.A.(md).No.115 of 2011 S.Manickam ... Appellant/Plaintiff Vs. The Madurai Municipal Corporation, through its Executive Authority, The Commissioner, “Anna Maligai” Melur Road, Madurai. ... Respondent/Defendant Prayer:This second appeal has been filed under Section 100 of C.P.C, against the judgment and decree dated 01.04.2010 made in A.S.No.13 of 2010 on the file of the Principal Subordinate Judge, Madurai partly allowing the judgment and decree dated 20.11.2009 made in O.S.No.1472 of 2005 on the file of the Additional District Munsif Court, Madurai Town. For appellant : Mr.R.Vijaya Kumar For respondent: Mr.M.Jothi Basu JUDGMENT This second appeal has been directed against the judgment and decree dated 01.04.2010 passed in A.S.No.13 of 2010 by the Principal Sub- Court, Madurai, wherein, the judgment and decree passed in O.S.No.1472 of 2005 by the Additional District Munsif Court, Madurai are reversed. 2.The appellant herein as plaintiff has instituted O.S.No.1472 of 2005 on the file of the trial court for the reliefs of declaration and perpetual injunction, wherein, the present respondent has been shown as sole defendant. 3.In the plaint, it is averred that the plaintiff is the owner of the property which has been described in the plaint. The defendant has assessed the property tax for the building mentioned in the plaint under Assessment No.4401 in every half year and the plaintiff has paid property tax properly and he is not bound to pay any arrears. But all of a sudden, the defendant has issued a distraint notice dated 28.08.2001, wherein he claimed arrears of house tax upto 01.04.1996 and also upto 01.10.2001. The earlier period mentioned in the notice is barred by limitation and subsequent period mentioned in the notice is totally illegal. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 4.In the written statement filed on the side of the defendant, it is averred that the property tax has been levied as per annual rental https://hcservices.ecourts.gov.in/hcservices/ 2 value. It is false to say that the notice issued to the plaintiff is illegal. The plaintiff is not entitled to file the present suit without exhausting his remedy by way of filing appeal before the Tax Tribunal. There is no merit in the suit and the same deserves to be dismissed. 5.On the basis of the pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence, has decreed the suit in respect of the relief No.1 and dismissed the same in respect of relief No.2. Against the disallowed portion, the plaintiff as appellant has preferred A.S.No.13 of 2010 on the file of the first appellate court. 6.The first appellate court, after hearing both sides and upon reappraising the evidence available on record, has dismissed the appeal and thereby dismissed the suit in entirety. Against the judgment and decree passed by the courts below, the present second appeal has been preferred. 7.As agreed by the learned counsel appearing on either side, the present second appeal is disposed of on merits at the stage of admission. 8.on the side of the appellant/plaintiff, the following substantial questions of law have been raised for consideration: "1.Whether the finding of the 1st appellate court that the civil suit is not maintainable is correct in the light of the judgment reported in 2010 (2) CTC 51? 2.Whether the 1st appellate court was right in reversing the decree granted by the trial court when there was no appeal filed by the defendant challenging the allowed portion?” 9.The present suit has been instituted so as to declare that the defendant is not entitled to take distraint proceedings for the property tax due in respect of the suit property prior to the period 1st April 1996 and the same is barred by Limitation under Section 483 of the Madurai City Municipal Corporation Act 1971 and for consequential injunction restraining the defendant from making any distraint for the recovery of the property tax due for the suit property prior to 1st April 1996; and also to declare that the defendant is not entitled to take distraint for the recovery of the tax due in respect of the suit property prior to the period 1st October 2001 and also to grant consequential injunction restraining the defendant from making distraint action for the recovery of the property tax in respect of the suit property for the period prior to 1st October 2000. 10.As stated earlier, the trial court has decreed the suit in respect of the first relief and dismissed the suit in respect of the second relief. But the first appellate court has dismissed the suit in toto. 11.The learned counsel appearing for the appellant has attacked the judgment and decree passed by the first appellate court with regard to first relief sought for in the plaint by way of invoking Section 483 of the Madurai City Municipal Corporation Act, 1971 and the same reads as follows: https://hcservices.ecourts.gov.in/hcservices/ 3 “Limitation for recovery of dues:-No distraint shall be made, on suit shall be instituted and no prosecution shall be commenced in respect of any sum due to the corporation under this Act after the expiration of a period of six years from the last day of the period in respect of which such sum is claimed, or in case the same is not claimed in respect of any specific period, from the last day of the year in which the claim arose.” 12.Even a cursory look of the said provision, it is made clear that no distraint or suit shall be instituted with regard to any due which is beyond the period of six years. Therefore as per the said provision, the first relief sought for in the plaint can easily be granted. The distraint notice given by the defendant to the plaintiff has been marked as Ex.A.1. In Ex.A.1, a claim has been made with regard to the period mentioned in the first relief. Since Ex.A.1 has been given on 28.08.2001 and even prior to giving of Ex.A.1, no demand notice has been given, it is needless to say that the period mentioned in Ex.A.1 upto 1st April 1996 is totally barred by limitation and therefore, there is no hesitation in granting the first relief sought for in the plaint. 13.The learned counsel appearing for the appellant/plaintiff has contended that the second relief sought for in the plaint can also be granted in view of Section 28(1) of the Madurai City Municipal Corporation Act, 1971, and the same reads as follows: “Where any tax, not being a tax in respect of which a notice has to be served under Section 135 or Section 146 is due from any person the commissioner shall cause to be served upon or sent to such person a bill for the sum due before proceeding to enforce the provisions of rule 29.” 14.From the close reading of the said provision, it is made clear that prior to issuance of distraint, a demand notice is very much essential. But, in the instant case, before issuance of Ex.A.1, no demand notice has been given to the plaintiff. Under the said circumstances, the second relief sought for in the plaint is also well within the contour of law. 15.The first appellate court has dismissed the suit in entirety on the basis that since the plaintiff is having alternative remedy, the present suit is not legally maintainable. The present suit has been instituted for the reliefs of declaration and perpetual injunction. Since the first period mentioned in Ex.A.1 is barred by limitation and since with regard to second period prior to issuance of distraint, no demand notice has been issued, it is needless to say that the civil court is having jurisdiction so as to declare that the proceedings taken under Ex.A.1 is totally illegal and therefore the conclusion arrived at by the first appellate court for dismissing the suit in entirety is totally absurd. Under the said circumstances, the present second appeal can easily be allowed. Since the present second appeal can easily be allowed, all the substantial questions of law raised in the present second appeal are really having substance. https://hcservices.ecourts.gov.in/hcservices/ 4 16.In fine, this second appeal is allowed without costs at the stage of admission. Consequently, connected M.P.No.1 of 2011 is closed and the judgments and decrees passed by the courts below are set aside and O.S.No.1472 of 2005 is decreed as prayed for without costs. However liberty is given to the defendant to take appropriate proceedings if it is permissible under law against the appellant/plaintiff so as to recover the alleged due of property tax. vs Sd/- Deputy Registrar[LA] /True copy/ Assistant Registrar To. 1.The Principal Subordinate Judge, Madurai. 2.The Additional District Munsif Court, Madurai Town. Copy to: The Section Officer, VR. Section, Madurai Bench of Madras High Court, Madurai. +1 cc to M/s.R.Vijayakumar, Advocate SR.No.17628. +1 cc to M/s.Jothi Basha, Advocate SR.No.17582. S.A.(MD).No.115 of 2011 Dated:08.06.2011 4P/6C RPB 06.07.2011 https://hcservices.ecourts.gov.in/hcservices/