Judgment:
Hari Nath Tilhari, J.
1. This is the defendant's Second Appeal from the Judgment and decree dated 14.2.1985, delivered by the Civil Judge, Gulbarga, in Regular First Civil Appeal No. 74/1974 (The State of Karnataka and Anr. v. Vimalchand and Ors.), dismissing the defendants' appeal and confirming the Judgment and decree dated 16.4.1974, delivered by the Court of II Additional Munsiff, Gulbarga, decreeing the plaintiff's suit for declaration, declaring that the plaintiffs-respondents have not been the partners of the firm : Mahaveer Automobiles, Gulbarga, as well as for the decree for permanent injunction restraining the defendants from making any recovery of the arrears of tax assessed on the firm - Mahaveer Automobiles from the person and property of the plaintiffs-respondents, in O.S.No. 33/1972.
2. The plaintiffs' claimed themselves to be the real brothers. They alleged in the plaint that they have no concern or dealing with the aforesaid firm - Mahaveer Automobiles, Gulbarga. The plaintiffs-respondents further alleged that plaintiffs have neither been partners of the firm nor have got any concern with the firm. But, in the notices issued for the recovery of the arrears of tax assessed on M/s Mahaveer Automobiles, Gulbarga, the defendants of the suit have wrongly shown the plaintiffs' names of the said firm and issued the notices calling upon the plaintiffs-respondents to pay the arrears of sales tax assessed on the firm. That in the notices issued to the plaintiffs, the Commercial Tax Officer, has wrongly shown the plaintiffs- respondents as liable for the arrears of tax relating to the business of the firm with which the plaintiffs did never have any concern or contact. That the plaintiffs made various representations to the defendants have started recovery proceedings against the plaintiffs which is illegal. That as such the plaintiffs issued the notice under Section 80 C.P.C., but, no reply was received from defendants.
3. Finally, plaintiffs have asserted that in the above circumstances, the plaintiffs-respondents had filed the suit for declaration and injuction as above. That in the plaint, the plaintiffs have further alleged that the defendants appellants had no authority to start the recovery proceedings regarding arrears of tax against the plaintiffs-respondents, particularly, when the plaintiffs had not been the partners of the firm nor did the plaintiffs have any concern with the same.
4. The defendants contested the suit by filing the written statement and contended that the plaintiffs-respondents are the real partners of the said firm. Further, the defendants alleged that in the application for registration under the Mysore Sales Tax Act, names of the plaintiffs have also been shown as partners of the firm. That the firm fell in certain arrears of tax and defendants-appellants had to take action for recovery of the arrears of tax against the firm and the partners. That the defendants' case is that the plaintiffs were the partners of the said firm, notices were issued to them to clear off the arrears of the tax. The defendants asserted that plaintiffs and other partners of the firm were prosecuted in C.C.No. 1189/69 and in that case, all plaintiffs, except plaintiff No. 3, were convicted and the Judgment shows that the plaintiffs have been the partners of the said firm. That the arrears of sales tax could be realised from the plaintiffs-respondents and the action taken by the defendants for recovery of tax or arrears of tax due from the firm was perfectly legal and valid. It was also asserted that plaintiffs were not entitled to file the suit without first exhausting the remedies of appeal under Section 64 of the Mysore Land Revenue Act. On these grounds, the suit has been asserted to be not maintainable.
5. On the basis of the pleadings on record, the following issues were framed:
1. Whether the defendants prove that the plaintiffs are the partners of the firm by name 'Mahaveer Automobiles'?
2. Whether the suit is barred under Section 63 of the Mysore Land Revenue Act?
3. To what relief parties are entitled?
6. The Trial Court after consideration of the material on record held that the evidence adduced by the defendants does not show or establish that plaintiffs were the partners of the said firm - Mahaveer Automobiles. Further, it held that the defendants failed to discharge the burden that was cast on them to prove that the plaintiffs were the partners of Mahaveer Automobiles. That the plaintiffs' suit cannot be held to be not maintainable nor can it be held that it was necessary for them to have exhausted any remedy available under the Act. The trial Court decreed the plaintiffs respondents' claim in the suit. The defendants-appellants having felt aggrieved from the decree of Trial Court, preferred the regular civil appeal under Section 96 of the Civil Procedure Code, for short, 'Code'.
7. The Lower Appellate Court on a consideration of material evidence on record held that the defendants failed to establish that respondents were the partners of Mahaveer Automobiles on which there were arrears of Sales Tax.
8. Having recorded the above findings, the Lower Appellate Court dismissed the first appeal and confirmed the finding of the Trial Court as well as the decree passed by the Trial Court.
9. That having felt aggrieved from the Judgment and decree of the First Lower Appellate Court confirming the decree of the Trial Court, the defendants have come up in Second Appeal under Section 100 of the Code of Civil Procedure.
10. At the stage of admission, the appeal had been admitted by this Court on the following questions as substantial questions of law:
1. Are the decrees, granting permanent injunction in favour of respondents, as passed by two Courts below, are in accordance with law in view of Ex.D-3 and D-4? And
2. Is not the suit of the respondents-plaintiffs barred by law of limitation in view of Section 34 of the Kamataka Sales Tax Act?
11. On these two points, the second Appeal has been admitted. I have heard the learned Government Counsel Sri N.B. Vishwanath appearing on behalf of the appellants and Sri T.S. Amar Kumar holding brief for Sri T.S. Ramachandra, learned Counsel for the respondents. Learned Counsel for the appellants pressed that these two points are involved as framed by this Court in this Second Appeal. The learned Counsel for the appellants laid great emphasis on Exs.D1, D2, D3 and D4 and submitted that in view of these documents, the plaintiffs-respondents have been shown and established to be the partners of the firm and as such, the findings recorded by the Courts below, are erroneous and are based on improper appreciation of evidence. Further, the learned Counsel for the appellants submitted that in the criminal case, the respondents were prosecuted, convicted and also, fine was realised as per Exs. D3 and D4. That Exs.D1 and D2 which are the applications for registration of the firm under Sales Tax Act reveal that the plaintiffs to be the partners of the firm. So, the learned Counsel for the appellants submitted that the finding of the Trial Court was incorrect. That on behalf of the respondent it has been submitted that the Courts below have considered the documents referred by the learned Counsel for the defendants appellants namely, Exs.D1 and D2 and also applied its mind to Exs.D3 and D4 and emphasised that the Trial Court also considered Ex.P-1 and it is after the perusal of the oral and documentary evidence on record, the two Courts below have concurrently held that plaintiffs-respondents were not the partners of the firm Mahaveer Automobiles, The learned Counsel for the plaintiffs-respondents submitted that this being the concurrent finding of fact it cannot be challenged in the Second Appeal nor can be interfered with simply on the ground of misappreciation of evidence. The learned Counsel for the respondents submitted that these documents had been considered by the Courts below and finding arrived at by Courts below cannot be said to be based on non-consideration of evidence. Further, the learned Counsel for the respondents submitted that concurrent finding of fact even if it is wrong or is arrived at on the basis of misappreciation of evidence, is not liable to be interfered with in Second Appeal.
12. I have applied my mind to the contentions advanced by the learned Counsels for both the parties and perused the record. That as regards Exs.D1 & D2 the Lower Appellate Court has observed that the learned Munsiff has also referred to the evidence of P.W.2, who was once serving in the firm Mahaveer Automobiles and having regard to the fact that defendants have not examined any person to prove their signatures on Exs.D1 and D2 and not having examined the Commercial Tax Officer, who attested the signature of the application forms Exs.D-1 and D-2, there is no acceptable reliable evidence to hold that the plaintiffs are the partners. The learned Lower Appellate Court further observed: 'In view of the fact that the plaintiffs have denied their concern or relationship with the firm as partners, it was incumbent upon the defendants to prove the signatures of plaintiffs on Exs.D.1 and D.2 and the evidence of D.W.2, on the other hand supported the case of the plaintiffs. That after having referred to the finding of trial Court in para 19 of the judgment, the lower appellate Court observes: 'Admittedly the then C.T.O. - Sri Balaraj Rao who received Ex.D.1 and D.3 has not been examined to prove that signature of alleged partners were made before it. In this Court while, the appeal was being heard, also D.G.P. was unable to produce Ex.D.1 and D.2 which were returned to A.G.P. on 22.11.75 ........ Merely because the judgment of Criminal Court are produced at Ex.D3 and D4 showing the plaintiff as partners of firm called Mahaveer Automobiles, I am of the view that it will not be sufficient to hold that plaintiffs were the partners of the said firm. The 1st appellate Court held that finding on Trial Court, to the effect that plaintiffs -respondents were not established to be partners of the firm Mahaveer Automobiles did not suffer from any error of fact or law. Thus, lower appellate Court affirmed the Trial Courts finding and decree. It has nowhere been shown or urged before me that there was any error of law on the part of the Lower Appellate Court in holding that Exs.D1 and D2, to be not worthy of reliance along with Exs. D3 and D4. Instead, the two Courts below have taken the view that the Judgment of the learned Munsiff-Magistrate in the Criminal case is not binding on the Civil Court and the judgment of the Criminal Court cannot taken to be sufficient one or sufficient evidence to prove that plaintiffs are partners of the firm. I further find that to prove what, judgments are relevant and admissible, the law is contained in Sections 40 to 44 of the Evidence Act. Under Section 40, previous judgments are relevant, if there is a question as to bar of second suit or second trial. Under Section 41 of the Evidence Act - there is relevancy of certain judgments, namely, judgments given in exercise of probate, admiralty or insolvency jurisdiction, and such judgments have been declared to be relevant when there are issues as- to existence of any legal character, title of any such person till such things are relevant. Section 42 of the Evidence Act provides that the Judgments, orders or decrees other than mentioned in Section 41 are relevant to matters of public nature and relevant to the enquiry and it provides that judgments, orders or decrees are not conclusive proof. Section 43 of the evidence Act very clearly declares that judgments, decrees and orders other than referred in Sections 40, 41 and 42 are irrelevant unless existence of such judgment, order or decree is a fact in issue or it is relevant under some other Section. Section 44 of the Evidence Act provides that where a Judgment or order is shown to be relevant under Sections 40, 41 and 42, the party against whom they are tried to be relied can show that the Court was not competent to deliver the judgment or it was obtained by fraud or collusion.
13. In view of the provisions of Sections 40 to 44, I am of the opinion that in the present case, Exs.D3 and D4 cannot be said to be relevant for the purpose of proving that the plaintiffs respondents were the partners of the firm. A judgment of the Criminal Court does not bind the civil proceeding in a civil suit and does not operate as res judicata which has rightly been held by the two Courts below as well. The two Courts below have taken into consideration Ex.P1, the partnership deed and have found that the name of the plaintiffs-respondents are not mentioned as partners of the firm. Thus in my opinion, the two Courts below have really considered the relevant material and evidence and excluded the irrelevant material. The question of appreciation or misappreciation of evidence does not involve the question of law. It is no doubt true if a finding is based on certain piece of inadmissible evidence along with admissible evidence or the finding has been arrived at after excluding wrongfully some admissible evidence treating it as inadmissible, then, no doubt in that case or cases in which finding is arrived at, on the basis of no evidence, but, on conjectures, such finding of fact can be challenged in second appeal but otherwise howsoever grossly erroneous a finding of fact may be, it cannot be challenged in the Second appeal simply on the ground of quantum of evidence or on the ground of reliability or otherwise of evidence nor on the ground appreciation of evidence. That, it lies within the sphere of the jurisdiction of Courts of facts, to appreciate the evidence and to rely or not to rely on particular evidence. Thus considered in my opinion, the finding of fact recorded by the Courts below concurrently that the plaintiffs- respondents were not the partners of the firm is a pure finding of fact and it cannot be interfered with in the Second Appeal. That as regards the second contention, namely, the contention of the appellants that the suit giving rise to this appeal had been barred by limitation on account of the provisions of Section 34 of the Karnataka Sales Tax Act, firstly, I am of the opinion that as the defendants-appellants have not raised any such question as to the maintainability of the suit or non-maintainability of the suit on the ground of Section 34 or any question that suit was barred in view of Section 34 of the Sales Tax Act and as no issue was pressed by the defendants at the trial stage, nor they got any issue framed on the point nor any argument was addressed on this point before the Trial Court nor was such a plea or such an argument raised before the 1st appellate Court for consideration. Bare raising of the ground in the memo of appeal did not entitle them to raise this plea for the first time. Really, from the conduct of the defendants-appellants by their not raising this plea in the written statement as well as their non raising this plea at the time of framing of the issues and not raising this plea at the time of hearing of the 1st appeal and even if this plea was raised in the grounds of appeal, but, no argument was advanced, the plea should be deemed to have been waived. When I so observe, I find support from the decision of their Lordships of the Privy Council in the case of MUDANNA VIRAYYA v. MUDANNA ADENNA,
'It is true that the Limitation Act was mentioned in Adenna's written statement and in his grounds of appeal, but, before the trial Judge no issue was directed to bear upon the question, nor does the point appear to have been taken at the Bar during the trial. In these circumstances their Lordships do not think the point was open on appeal.'
14. The plea as mentioned above not having been raised before the two Courts below in the written statement, or at hearing of the suit or appeal nor any issue was framed in my opinion, the two Courts below did not commit any error in not considering this aspect of the matter or in not going into this point. Considering from this angle of the matter firstly I am of the opinion, that this plea is not to be allowed to be taken at the stage of this Second Appeal. In my opinion, further the submissions of the learned Counsel for the Appellants that the suit was barred in view of Section 34 of the Karnataka Sales Tax Act have not got any substance. It will be profitable to refer to the provisions of Sections 33, 34 and 35 of the Karnataka Sales Tax Act, for short
'33. Bar of certain proceedings :- (1) NO suit, prosecution or other proceeding shall lie against any officer or servant of the State Government, for any act done or purporting to be done under this Act without the previous sanction of the Government.
(2) No officer or servant of the State Government shall be liable in respect of any such act in any civil or criminal proceeding if the act was done in good faith in the course of the execution of duties or the discharge of the functions imposed by or under the Act
ACT'. Section 33 of the Karnataka Sales Tax Act, for short 'Act' reads as under:-
Section 34 of the Act reads as under :
Section 34. Limitation for certain suits and prosecutions ;-No suit shall be instituted against the State Government and no suit, prosecution or other proceeding shall be instituted against any officer or servant of the State Government in respect of any act done or purporting to be done under this Act, unless the suit, prosecution or other proceeding is instituted within six months from the date of the Act complained of.
Section 35 of the Act reads as under :
Section 35: Courts not to set aside or modify assessments except as provided in this Act:- No suit or other proceeding shall except as expressly provided in this in this Act, be instituted in any Court to set aside or modify any assessment made under this Act.
15. Section 33 gives a complete protection, from suits or prosecutions or proceedings, to the Officers and servants of the State Government for any act done by them under the Act or for any act purporting to have been done. That no suit or prosecution or proceeding shall lie against Officer or servant of the State Government for any act done or purporting to have been done by him under the Act unless and until previous sanction has been taken from the Government. Clause (2) clearly provides that the officers and servants of the State Government will not be liable Or shall not be subject to any liability in respect of any act done by them under the Act or purported to have been done by any of them under the Act. If the Act was done in good faith in execution of the duties or discharge of functions imposed by or under the Act. Section 34 provides for limitation of certain suits and prosecutions. It provides that no suit shall be instituted against the Government nor any such prosecution shall be launched against any officer or servant of the State Government in respect of the act done or purporting to be done under the Act, unless the suit prosecution or proceedings have been instituted within a period of 6 months from the date of the act complained of. Section 34 no doubt, prescribes limitation of 6 months for suits which may be instituted against the Government or an Officer or servant of the State Government in respect of any act done by that Officer or servant or any act which purported to have been done under the act of that Officer. A reading of Sections 33 and 34 of the Act indicates that the purpose of these Sections provide protection to the Officers and servants of the State and the State Government for acts done or the acts purported to have been done under that Act. Where the first protection is that firstly without sanction, the suit cannot be filed nor any prosecution can be launched, the second protection is that the Officers shall not be personally, liable in respect of such acts if the acts were done in good faith in execution of the duties and the third protection is that suit shall not and cannot be filed after six months. The sine qua non for action to which these sections had applied is any act done or any act purported to be done by the officer of the State under the Sales Tax Act. It means those acts must have been done in good faith believing the act had been done in the official capacity. It gives protection in respect of acts done bonafidely under the act with the impression that it was done under the Act. Here, the learned Counsel pointed out that cause of action for the suit has been alleged to be the notice dated 24-8-1971, issued from the Office of the Tahsildar, Gulbarga, which notice appears to have been issued by the Tahsilder's Office, Gulbarga.
16. Section 35 of the Act clearly provides that to set aside or to modify any assessment order made under this Act, no suit or proceeding shall be instituted in the Civil Court. The language used in section is negative to the effect that no suit or proceeding shall, except as provided under the Act shall be instituted in any Court to set aside or modify the assessment made under the Act. When I read Section 35 under the context of Sections 33 & 34, I find that so far as assessment proceedings concerned, such proceedings having been made or taken under the Act, Section 35 provides that those proceedings cannot be challenged and shall not be challenged in the Civil Courts by the process of Civil suit. The bar is against suits to be filed in the Civil Court challenging assessment etc. But, as regards the actions of officers of the Government purporting to be done under the Act in course of execution or discharge of functions imposed by the act, the sections indicate that ordinarily, no litigation, will be filed in the Court and if at all it can only be done with the previous sanction of the Government, while, in the case assessment proceedings, the finality has been attached to the proceedings under the Act. Scope of Sections 33 and 35 are quite distinct and Section 34 is supplementary to the provisions of Section 33. When a dealer has been assessed to the tax in accordance with the provisions of law, it is beyond doubt that he is liable to pay the tax and if he fails to obey the proceedings in accordance with law to be taken he is liable or action. But, unless he is assessed and he is shown to be the assessee, on assessement being made assessed, recovery proceedings cannot be started against him nor a notice against him the assessee can be issued. In this present case, the sine qua non for action that has been taken by the plaintiffs - respondents is in relation to the notice dated 24-8-1971, issued by the Tahsildar Office, Gulbarga. Nothing has been brought on record by the defendants - appellants to show that, at the time, the partnership or to say Mahaveer Automobiles were assessed to tax, the plaintiffs-respondents were shown or alleged to be the partners of the firm at the time of assessment, in other words, neither any copy or judgment of Assessing Authority or of any Authority under the Act, namely, Appellate or Revisional Authority has been filed nor is it defendants' case that at the time of assessment as well, the plaintiffs were shown as partners of the firm in course of assessment proceedings and they did not object to the proceedings. So, in the present case, there is no challenge to the act of the authorities or the Assessing Authority or the like. The learned Counsel pointed out that really in a Criminal case, it came out that the plaintiffs-respondents were the partners of the firm and so, notice was issued against them calling to pay the arrears of tax. Until and unless a person is shown and established to have been assessed to tax as assessee in the course of the assessment proceedings or that he was partner of the firm assessed or that by taking proper proceeding assessment order had been amended incorporating that person as assessee, no recovery certificate could be issued against him. (see GULAB CHANDRA v. STATE OF U.P., 1975 Tax Law Reporter 1713 & SANT BUX SINGH v. S.T.O., 1974 (34) STC 289 All It has also not been indicated, shown or proved if any notice of demand had been issued to plaintiff at any earlier stage, that is, prior to certificate being issued to the Revenue Authorities for realisation, or prior to notice dated 24.8.1971 issued by Tahsildar. No provision under the Sales Tax Act has been brought to my notice that in course of recovery proceedings, it has been open to the plaintiffs-respondents to make a challenge by filing objections to the recovery proceedings to say that he has not been a partner of the firm and so, not liable for action nor it has been brought to my notice that there is any provision which entitles him to escape from the liability of action. If the acts and rules are silent on this aspect of the matter then Section 35 of the Act shall not apply to the recovery proceedings. That Section 35 barred any suit challenging the assessement or having reference to the assessment proceedings taken against the person concerned and it provides that no suit shall lie to challenge the assessment proceedings only as such, in my opinion, the present suit cannot be held to be barred either under Section 34 or Section 35 of the Act.
17. Here, the plaintiff had filed the suit after having received a notice of demand from Tahsildar that plaintiff should deposit the arrears of sales tax which had been assessed on the firm known as Mahaveer Automobiles, so, it is the action of Tahsildar, in my opinion, which does not purport to have been done under the Act which has given a cause of action to the plaintiff to file the suit for declaration of his legal character and status, that plaintiffs are not the partners of the firm - Mahaveer Automobiles and a consequential relief has no doubt been claimed to the effect as they have not been the assessee and the opposite party should not illegally realise anything from them. The suit, in my opinion, being the suit for declaration is covered by Article 58 of the Limitation Act, 1963 which provides as under:-
Article 58 of the Limitation Act. To obtain any other declaration. Three years, when the right to sue first accrues.
It means a suit for declaration of this nature with consequential relief could be filed within a period of 3 years. If it is taken as not a suit for declaration, but, it is a suit for declaration and injuction and is not covered by any other provision, or article under the schedule, then, definitely, it can be said that it is covered by residuary Article i.e. Article 113 which also prescribes 3 years from the date of the right to file the suit when cause of action of suit accrues. Thus considered in my opinion Section 34 does not apply, instead, provisions of Articles 58 or 113 is applicable and as such, the suit filed within 3 years from the date of issuance of Tahsildar's order dated 24.8.1971 has been within time. As such, as the suit has been within limitation and has not been barred by limitation, there is no substance in the second contention of the learned Government Counsel.
18. Thus considered the second appeal has got no force and is liable to be dismissed, and it is hereby dismissed. Costs are made easy.