NAGARPLAIKA THAKURDWARA Vs KHALIL AHMED .
Bench: ANIL R. DAVE,L. NAGESWARA RAO
Case number: C.A. No.-009822-009822 / 2016
Diary number: 9676 / 2012
Advocates: KAMLENDRA MISHRA Vs
ABHA JAIN
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9822 OF 2016 (Arising out of S. L. P. (C) No.16318 of 2012)
NAGARPALIKA THAKURDWARA … APPELLANT
VERSUS
KHALIL AHMED & ORS. … RESPONDENTS
J U D G M E N T
ANIL R. DAVE, J.
1. Leave granted.
2. Being aggrieved by the Judgment dated 21.9.2011
delivered by the High Court of Judicature at Allahabad in
Second Appeal No.781 of 2011, the appellant Nagar Palika
has approached this Court by way of this appeal.
3. The facts giving rise to the present litigation in a
nutshell are as under :
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The respondents, who claim to be residing outside the
municipal limits of Nagar Palika Thakurdwara, District
Moradabad, filed a Civil Suit being OS No.13 of 1994
against the appellant in the court of Civil Judge (Junior
Division), Thakurdwara, praying for the following reliefs :
“(a) That the defendant no.1 be restrained by decree
of permanent injunction that they remain restrained
from recovery of alleged house tax of Rs.6760/-
regarding crusher in question, present building no.319
and calendaring factory building no.320 and shops in
question, building no.321 to 332 respectively which
are outside the limits of municipality and situated in
village Fatehullah Ganj in property owned by Plaintiff
nos.2 and 3 situated in village Fatehullah Ganj and
from recovery of Rs.4,246.07 amount described in the
recovery certificate or more by itself or its agent
defendant no.2 or by any other medium or be
restrained from imposing any house tax till the
pronouncement of the properties in question to be
within the limits of municipality by the Government in
either years.
(b) That the defendant no.1 be ordered to give the
cost of the present suit to the plaintiff(s).
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(c) That the relief which is fit in the opinion of the
Hon’ble Court in favour of the plaintiff(s) be granted.”
Thus, the case of the respondents was that their
premises were not within the municipal limits of the
appellant Nagar Palika and therefore, the Nagar Palika had
no right to levy any tax on the said properties of the
respondents and therefore, the appellant be restrained from
recovering tax in respect of the said properties from the
respondents. The respondents had also impliedly prayed
for a declaration to the effect that they were not liable to pay
any tax to the appellant Nagar Palika under the provisions
of the Uttar Pradesh Municipalities Act, 1916 (hereinafter
referred to as ‘the Act’).
4. Written Statement was filed by the appellant stating
that the premises of the respondents were very much within
the municipal limits of the Nagar Palika and the said fact
was also known to the respondents as respondent no.1 had
also contested an election for being a President of the
appellant Nagar Palika. Moreover, it was also the case of
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the appellant that the suit was not maintainable in view of
the provisions of Sections 143 and 160 of the Act.
5. The said suit was dismissed and therefore, the
respondents preferred first appeal, being Civil Appeal No.30
of 2008, before the Court of Additional District Judge,
Moradabad, which was allowed by a judgment dated
19.7.2011.
6. Being aggrieved by the aforesaid judgment dated
19.7.2011, the appellant filed Second Appeal No.781 of
2011, which has been dismissed by the High Court by
virtue of impugned judgment and therefore, this appeal has
been filed by the appellant.
7. The short reason for which the appeal filed by the
appellant has been dismissed by the High Court is that the
claim in the second appeal was less than Rs.25,000/- and
by virtue of the provisions of Section 102 of the Code of Civil
Procedure, 1908, no second appeal would lie from any
decree when the subject matter of the original suit is for
recovery of money not exceeding Rs.25,000/-.
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8. The learned counsel appearing for the appellant
submitted that the High Court committed an error by not
considering the fact that the suit had been filed seeking
permanent injunction, praying that the appellant Nagar
Palika should be restrained from recovering any tax under
the Act from the respondents as the properties belonging to
the respondents were situated beyond the municipal limits
of the appellant Nagar Palika.
9. The learned counsel further submitted that the High
Court only considered the amount of tax which was payable
at the relevant time, which was only Rs.11,006.07, but
ignored the fact that the suit was also for a declaration to
the effect that the properties of the respondents were not
within the municipal limits of the Nagar Palika and
therefore, no tax could have been levied thereon by the
appellant. Thus, the suit was not only for recovery of
money, but was also for a declaration and permanent
injunction. Moreover, it was also submitted that the suit
itself was not maintainable in view of the provisions of
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Sections 140 and 163 of the Act and therefore, the appeal
could not have been allowed by the first appellate court.
10. On the other hand, the learned counsel appearing for
the respondents submitted that the impugned judgment is
just, legal and proper for the reason that by virtue of the
second appeal filed by the appellant, the appellant wanted
to recover only a sum of Rs.11,006.07 by way of tax from
the respondents. The learned counsel, therefore, submitted
that the second appeal deserved to be dismissed.
11. Upon hearing the learned counsel and looking at the
facts of the case and in the light of the legal provisions, we
are of the view that the High Court ought not to have
dismissed the second appeal.
12. Section 102 of the Code of Civil Procedure, 1908, reads
as under :
“102. No second appeal in certain cases. - No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees”.
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13. In the instant case, the suit was not only for recovery
of money, but it was for a declaration and permanent
injunction. Moreover, the issue with regard to location of
the properties in question had to be decided. It was to be
ascertained whether the properties were situated within the
municipal limits of the Nagar Palika and if so, whether the
appellant was entitled to levy tax thereon under the
provisions of the Act. If the properties were not within the
municipal limits of the appellant Nagar Palika, the appellant
could have been permanently restrained from recovering
any tax under the Act in respect of the properties in
question. Thus, several other issues were also to be decided
in the said suit. It is also pertinent to note that the
maintainability of the suit was also challenged by the
appellant in view of the provisions of the Act.
14. The purpose behind enactment of Section 102 of the
CPC is to reduce the quantum of litigation so that courts
may not have to waste time where the stakes are very
meagre and not of much consequence. In the instant case,
though apparently the amount which was sought to be
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recovered was Rs.11,006.07, looking at the prayer made in
the plaint, the consequences of the final outcome of the
litigation would be far-reaching.
15. So as to avail advantage of the provisions of Section
102 of the CPC, the subject matter of the original suit
should be only recovery of money and that too, not
exceeding Rs.25,000/-. If the subject matter of the suit is
anything other than recovery of money or something more
than recovery of money, provisions of Section 102 of the
CPC cannot be invoked.
16. In the instant case, the original suit was not only for
recovery of money, but was also for a declaration and
permanent injunction. In view of the aforestated fact, the
provisions of Section 102 of the CPC could not have been
applied.
17. In the circumstances, we set aside the impugned
judgment and remit the matter to the High Court so that
the Second Appeal can be decided afresh after hearing the
parties concerned.
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18. As the suit was filed in the year 1994 and possibly no
tax might have been recovered by the appellant till now, we
feel that the second appeal should be decided at an early
date. The parties to the litigation shall appear before the
High Court on 17.10.2016 and the High Court is requested
to fix the date for final hearing of the second appeal so that
the appeal can be finally decided preferably within six
months from the date of receipt of a copy of this judgment
by the High Court.
19. The appeal is, accordingly, disposed of as allowed with
no order as to costs.
.…………………………….J. (ANIL R. DAVE)
……………………………..J. (L. NAGESWARA RAO)
NEW DELHI SEPTEMBER 28, 2016.