The normal rule of law is that civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided under Section 9 of the Code of Civil Procedure but such exclusion is not readily inferred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the Civil Courts to try civil suit. The test adopted in examining such a question is (i) whether
the legislature intent to exclude arises explicitly or by necessary implication, and (ii)whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it.
10] In case of Dhulabhai ..vs.. State of Madhya Pradesh [AIR 1969 SC 78] the principles of exclusion of jurisdiction of Civil Court were laid down few of them which are relevant are quoted below:
"1] Where the statute gives a finality to the orders if the special tribunals the courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
2] Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of
the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statutes or not. 11] What appears from the scheme of the Act is that the aggrieved person has a right of appeal against any order of taxation authority. Rule 29 of the Maharashtra Motor Vehicles Taxes Rules 1959 lays down procedure of filing the appeal. Limitation provided is of 30 days. Rule 29-A provides for stay in appeal and revision. Rule 30 provides for hearing of the appeal after giving an opportunity to the parties concerned. It discerns from the above that special right or liability has been created under Motor Vehicles Tax Act and Motor Vehicles Tax Rules. It provides for determination of rights and liabilities and for that forums are prescribed. Remedies in the nature of appeal and revision available under the said Act, are at par with the remedies normally associated with Civil Court. In that view of the matter it will have to be held that the suit field by the plaintiff is impliedly barred.
Bombay High Court
In The High Court Of Judicature At ... vs Ramesh S/O Sitaram Hiranwar on 6 August, 2012
Bench: M.N. Gilani
This appeal arises out of the judgment and decree dated 20.12.1991 passed by the District Judge, Nagpur in R.C.A. No.75/1982. Facts are thus: M/s Pandurang & Krishnarao Co / plaintiff owned a truck. On 10.9.1973 it was sold to defendant no.4, for a consideration of Rs.8,500/- and parted possession in his favour. Later on the defendant no.4 transferred the truck to defendant no.5. Since then defendant no.5 has been in actual possession of the said truck. On failure to pay the taxes, defendants no.1 to 3 started recovery proceedings, firstly against defendant no.5 and thereafter against the plaintiff. Claiming that the recovery proceeding is illegal, the plaintiff filed suit for relief of declaration and permanent injunction.
2] The defendant no.1 to 3 resisted the suit, interalia on the ground that the suit is not maintainable on two counts. Firstly on the ground that the earlier suit filed by the plaintiff being the Suit No.439/1978 was dismissed in default and as such the plaintiff is precluded from bringing another suit on the same cause of action. The second ground pleaded was that the jurisdiction of the civil 060812sa343.92 .odt
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court is impliedly barred in view of the remedy provided under the Bombay Motor Vehicle Taxes Act and Motor Vehicles Tax Rules to question the liability of the noticee.
3] The learned trial court framed as many as four issues on the ground of maintainability. On the touchstone of Order 9 Rule 9 of C.P.C. the trial court held in favour of the defendant. However, the issue whether the suit is impliedly barred was neither framed nor any discussion finds place in the judgment of the trial court as well as in the judgment of the first appellate court. On merits also, the issues were decided against the plaintiff, mainly on the ground that there was no lawful transfer of the truck and therefore the liability of the plaintiff to pay the taxes remained. The defendant was also held liable to pay taxes along with the plaintiff. Ultimately the suit came to be dismissed, in view of bar created under Order 9 Rule 9 of C.P.C.
4] The first appellate court formulated the following points for determination and recorded findings thereon: 1] (a) Whether the present suit is maintainable after dismissal of Civil Suit No.439/1978?
(b)If yes, against whom?
2] Who are liable to pay taxes of truck No.BYY 1816?
3] Whether the judgment and decree of the lower Court are legally sustainable?
060812sa343.92 .odt
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4] What order?"
(1)(a) Yes;
(b) Suit is maintainable against Respondents No. 4 & 5. (2) Appellants and Respondent No.5 are liable to pay taxes. (3) No.
(4) Appeal is partly allowed.
The plaintiff / appellant herein assailed the findings recorded by the first appellate court by filing this second appeal. This court admitted the appeal on the ground of maintainability of the suit. After perusing the judgment of both the courts below, apart from the maintainability of the suit, on the ground of implied bar of jurisdiction of the civil court, the issue of maintainability on the touchstone of provisions of Order 9 Rule 9 also arises in this appeal.
5] In the paragraph 3 of the written statement, exhibit 28, filed by the defendant, objection to the jurisdiction of the civil court was specifically raised. It seems that inadvertently the issue of bar of jurisdiction was neither framed nor dealt with. Although the provisions of Bombay Motor Vehicle Taxes Act, 1958 were considered to decide on whom the liability to pay taxes devolves in case there is an unauthorised transfer-it appears from the point formulated by the first appellate court that the issue of implied bar of the jurisdiction of the Civil Court was not considered. 6] The Civil Court has jurisdiction to entertain a suit of civil 060812sa343.92 .odt
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nature except when its cognizance is expressly barred or barred by necessary implication. Admittedly, there is no provision under the Bombay Motor Vehicles Taxes Act which excludes the jurisdiction of the Civil Court. The contention is that when the special law provides adequate and satisfactory alternative remedy to the party aggrieved i.e. party who has received a notice calling upon him to pay tax, impliedly the jurisdiction of the civil court is barred. 7] It is, therefore, necessary to examine the relevant provisions of the Bombay Motor Vehicles Taxes Act 1958. Section 4 of the Act enjoins the duty on the registered owner or any person having possession or control of the motor vehicle annually to pay the tax, provided under section 3 of the Act. Then there are provisions of payment of monthly taxes, issue of certificate of taxation, payment of additional taxes, liability to pay arrears of tax, interest to be paid if taxes not paid within time, refund of the tax paid in advance etc. Section 12 provides for recovery of the tax as arrears of land revenue, if it is not paid within due date. Section 12-B empowers the authority under the Act to seize and detain the motor vehicle when there is default in payment of tax and interest etc. Section 14 which is relevant reads as under:
"Section 14 (1)Any person, who is aggrieved by any order of a taxation Authority, may file an appeal before such person or authority, in such manner, within such time, and on payment of such fees, as may be 060812sa343.92 .odt
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prescribed.
2] The appeal shall be heard and decided in such manner as may be prescribed.
Section 14-A gives right to a person to file revision against the order of the taxation authority passed in appeal filed by him. The power of revision is vested in the State Government or the Transport Commissioner. Then there is provision of compounding of the offence.
8] It is therefore, submitted that under the Bombay Motor Vehicles Tax Act, there is a complete and exhaustive remedy provided to the owner or any person against whom the proceeding for the recovery of the tax has been initiated. 9] In case of State of Andhra Pradesh ..vs.. Manjeti Laxmi Kantha Rao (D) by L.Rs. And others [AIR 2000 SC 2220], it is held :
"5] The normal rule of law is that civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided under Section 9 of the Code of Civil Procedure but such exclusion is not readily inferred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the Civil Courts to try civil suit. The test adopted in examining such a question is (i) whether 060812sa343.92 .odt
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the legislature intent to exclude arises explicitly or by necessary implication, and (ii)whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it.
10] In case of Dhulabhai ..vs.. State of Madhya Pradesh [AIR 1969 SC 78] the principles of exclusion of jurisdiction of Civil Court were laid down few of them which are relevant are quoted below:
"1] Where the statute gives a finality to the orders if the special tribunals the courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
2] Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of 060812sa343.92 .odt
8
the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statutes or not. 11] What appears from the scheme of the Act is that the aggrieved person has a right of appeal against any order of taxation authority. Rule 29 of the Maharashtra Motor Vehicles Taxes Rules 1959 lays down procedure of filing the appeal. Limitation provided is of 30 days. Rule 29-A provides for stay in appeal and revision. Rule 30 provides for hearing of the appeal after giving an opportunity to the parties concerned. It discerns from the above that special right or liability has been created under Motor Vehicles Tax Act and Motor Vehicles Tax Rules. It provides for determination of rights and liabilities and for that forums are prescribed. Remedies in the nature of appeal and revision available under the said Act, are at par with the remedies normally associated with Civil Court. In that view of the matter it will have to be held that the suit field by the plaintiff is impliedly barred. In Krushnarao 060812sa343.92 .odt
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Vitthalrao Gollar ..vs.. State of Maharashtra and others [2000 (3) Mh. L.J. 585], the question before this Court was about implied bar of jurisdiction of civil court in the light of provisions of Sections 137 and 138 of the Bombay Prohibition Act. Under Section 137 and 138 of the Bombay Prohibition Act, parties aggrieved by orders passed by Prohibition Officers have a remedy of appeal and revision. Considering the same, this court observed that jurisdiction of the civil court is impliedly barred to entertain the suit against the orders passed by Prohibition Officer.
12] The learned first appellate court perused the record and proceedings in Civil Suit No. 439/1978. After reading the order dated 24.10.1978, whereby the suit came to be dismissed in default and after considering the other relevant aspects, in para 13 observed that,
"13. So far as the defendant namely the State of Maharashtra is concerned, the defendant had already filed written-statement and its counsel was present but plaintiffs and their counsels remained absent. Hence the dismissal of suit against it falls under Order 9 rule 8 of C.P.C. The remedy available to the plaintiffs was to make an application to get the suit restored to a file under Order 9 rule 9 of C.P.C. The same rule provides a bar for fresh suit on same cause of action. Therefore, so far as the defendant-State of Maharashtra is concerned, 060812sa343.92 .odt
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the bar of Order 9 rule 9 is applicable and suit against it is non maintainable....."
It was further observed in the same paragraph that, "...In this regard we noted that in the previous suit also the appellants have applied for declaration that they are not liable to pay taxes but the purchasers are liable to pay the taxes and for permanent injunction restraining the Recovery Officer to recover the taxes from the appellants. Same reliefs are claimed in the subsequent suit also. The letter dated 20-12-80 alleged to have been written for recovery of dues is continuation of same cause of action and therefore, fresh suit is barred in view of provisions of Order 9 Rule 9 C.P.C. so far as the respondent Nos.1 to 3 are concerned...." 13] Thus there is categorical finding of the first appellate court that "fresh suit is barred in view of provisions of Order 9 Rule 9 of the Code of Civil Procedure so far as respondent nos. 1 to 3 are concerned." All substantial reliefs claimed were only against defendant nos. 1 to 3. If the present suit is barred against respondent nos. 1 to 3-original defendant nos. 1 to 3-can it survives only against defendant nos. 4 and 5. Answer to this has to be in negative for the simple reason that the substantial reliefs claimed are directed only against defendant nos. 1 to 3. If the present suit is barred against defendant nos. 1 to 3, the suit only against defendant 060812sa343.92 .odt
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nos. 4 and 5 cannot survive. There cannot be a cause of action individually against defendant nos. 4 and 5, sans defendant nos. 1 to 3, particularly, in view of reliefs claimed. As a necessary corollary to this, the suit as a whole would be barred. 14] For the reasons aforestated, the appeal succeeds on both the counts. The appeal is allowed. The judgment and decree passed by the First Appellate Court is set aside and that of the learned trial court is restored on the ground of bar of suit under Order 9 Rule 9 of C.P.C. also on the ground that jurisdiction of civil court is impliedly barred. There shall be no order as to costs.
JUDGE
SMP/kahale
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