Palla Krishna Murthy Vs. Palla Subrahmanyam and ors. - Court Judgment

Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - sheshagiri rao, learned counsel for the petitioner, submits that the trial court was satisfied about the amount of court fee to be paid, while registering the suit, and there was no basis for it, in requiring the petitioner to pay the huge amount towards balance of court fee. it is not at all safe for a court, to form a final opinion on an important issue, in the middle of the proceedings.orderl. narasimha reddy, j.1. the petitioner filed o.s. no. 6 of 2003 in the court of ii additional district judge, kadapa at proddutur, against the respondents, for the relief of partition of suit schedule properties and separate possession of his share. the trial of the suit commenced. the petitioner was being examined as pw.1. during the cross-examination, pw.1 was confronted with a document, dated 29.06.1998, which is said to be a partition deed among himself and respondents 1 and 3. the document is marked as ex.b.1. taking the admission of the petitioner, as to execution of ex.b.1, the trial court had arrived at a conclusion that the jointness of the family is disrupted and it cannot be said that the petitioner is in joint possession of the suit schedule property. on that premise, the trial court required the petitioner to pay ad valorem court fee, after giving credit to the fixed court fee of rs. 200/-. an order was passed on 03.12.2008, directing the petitioner to pay the balance court fee of rs. 44,952/-. the same is challenged in this revision.2. sri j. sheshagiri rao, learned counsel for the petitioner, submits that the trial court was satisfied about the amount of court fee to be paid, while registering the suit, and there was no basis for it, in requiring the petitioner to pay the huge amount towards balance of court fee. learned counsel contends that the legal character of ex.b.1 can be determined only at the trial, and on the basis of mere alleged admission, the trial court cannot preempt the entire issue. he further contends that the question as to whether there was any prior partition among the parties, would have a bearing on the merits of the suit and the entire consideration has to be relegated to the stage of disposal of the suit.3. sri m.v. pratap reddy, learned counsel for the contesting respondents, on the other hand, submits that the trial court took note of an important aspect, touching upon the court fee and it is always competent for a court, to insist on the plaintiff in a suit, to pay the deficit court fee.4. the suit filed by the petitioner was one, for partition and separate possession of the suit schedule property. claiming joint possession of the property, he paid fixed court fee of rs. 200/-, under section 34(2) of the a.p. court fees and suits valuation act. the suit was numbered, and after service of summons and delivery of defence, the trial is in progress.5. it is not uncommon that if a plea of prior partition is taken as defence, in suits of partition, the defendants would naturally make every effort to substantiate their contention as regards prior partition. if the plea is proved, it becomes fatal to the suit itself, and on the other hand, if it fails, a possibility exists, for passing a preliminary decree. once a suit is presented to the court, it passes through several stages, in the context of assertions and denials made by the parties. if one goes by the contents of a plaint, he may gain an impression, that the suit deserves to be decreed. with the plea of defence by the opposite party, the scene changes to certain extent and doubts persist as to the veracity of the claim of the plaintiff. the court, would identify the exact area of controversy in the form of issues. the parties, in turn, would make efforts to adduce oral and documentary evidence, in support of their respective stands, vis-a-vis the relevant issues.6. then comes the stage of arguments. during the course of arguments, attempts would be made to fit, the facts pleaded by the respective parties as proved through evidence; into the relevant provisions of law. it is after crossing this stage, that the court would be in a position to express its views, on the issues or other important aspects, which have a direct bearing upon the case. courts cannot be permitted to form final opinions, half way through, except, as provided for under order x c.p.c.7. an admission can be said to be unequivocal, if only it covers all the facets of the controversy. one cannot just pick up a thread, in the fabric of evidence, or for that matter, the pleadings, and project it as the final word, on the issue. many a time, the so-called admissions can be explained away, either with the assistance of the further evidence, or through process of interpretation of the alleged interpretation (sic. admission). much, in this regard, would depend upon the purport of the relevant provisions of law and in many cases, the precedents on the subject. all this would be possible, only at the stage of arguments. it is not at all safe for a court, to form a final opinion on an important issue, in the middle of the proceedings. the parties have to be given full opportunity to present their point of view on any controversy, even if it relates to an alleged admission.8. in the instant case, the trial court proceeded on the assumption that an admission by pw.1 as to execution of ex.b.1, would clinchingly prove the prior partition of the suit schedule properties. the petitioner (be) given an opportunity to explain the purport of the alleged admission. he is entitled not only to lead further evidence, but also, to elicit necessary information in cross-examination of the witnesses, to be examined by the respondents herein. therefore, the order under revision cannot be sustained in law.9. for the foregoing reasons, the civil revision petition is allowed, and the order under revision is set aside. there shall be no order as to costs.

Judgment:
ORDER

L. Narasimha Reddy, J.

1. The petitioner filed O.S. No. 6 of 2003 in the Court of II Additional District Judge, Kadapa at Proddutur, against the respondents, for the relief of partition of suit schedule properties and separate possession of his share. The trial of the suit commenced. The petitioner was being examined as PW.1. During the cross-examination, PW.1 was confronted with a document, dated 29.06.1998, which is said to be a partition deed among himself and respondents 1 and 3. The document is marked as Ex.B.1. Taking the admission of the petitioner, as to execution of Ex.B.1, the trial Court had arrived at a conclusion that the jointness of the family is disrupted and it cannot be said that the petitioner is in joint possession of the suit schedule property. On that premise, the trial Court required the petitioner to pay ad valorem Court fee, after giving credit to the fixed Court fee of Rs. 200/-. An order was passed on 03.12.2008, directing the petitioner to pay the balance Court fee of Rs. 44,952/-. The same is challenged in this revision.

2. Sri J. Sheshagiri Rao, learned Counsel for the petitioner, submits that the trial Court was satisfied about the amount of Court fee to be paid, while registering the suit, and there was no basis for it, in requiring the petitioner to pay the huge amount towards balance of Court fee. Learned Counsel contends that the legal character of Ex.B.1 can be determined only at the trial, and on the basis of mere alleged admission, the trial Court cannot preempt the entire issue. He further contends that the question as to whether there was any prior partition among the parties, would have a bearing on the merits of the suit and the entire consideration has to be relegated to the stage of disposal of the suit.

3. Sri M.V. Pratap Reddy, learned Counsel for the contesting respondents, on the other hand, submits that the trial Court took note of an important aspect, touching upon the Court fee and it is always competent for a Court, to insist on the plaintiff in a suit, to pay the deficit Court fee.

4. The suit filed by the petitioner was one, for partition and separate possession of the suit schedule property. Claiming joint possession of the property, he paid fixed Court fee of Rs. 200/-, under Section 34(2) of the A.P. Court Fees and Suits Valuation Act. The suit was numbered, and after service of summons and delivery of defence, the trial is in progress.

5. It is not uncommon that if a plea of prior partition is taken as defence, in suits of partition, the defendants would naturally make every effort to substantiate their contention as regards prior partition. If the plea is proved, it becomes fatal to the suit itself, and on the other hand, if it fails, a possibility exists, for passing a preliminary decree. Once a suit is presented to the Court, it passes through several stages, in the context of assertions and denials made by the parties. If one goes by the contents of a plaint, he may gain an impression, that the suit deserves to be decreed. With the plea of defence by the opposite party, the scene changes to certain extent and doubts persist as to the veracity of the claim of the plaintiff. The Court, would identify the exact area of controversy in the form of issues. The parties, in turn, would make efforts to adduce oral and documentary evidence, in support of their respective stands, vis-a-vis the relevant issues.

6. Then comes the stage of arguments. During the course of arguments, attempts would be made to fit, the facts pleaded by the respective parties as proved through evidence; into the relevant provisions of law. It is after crossing this stage, that the Court would be in a position to express its views, on the issues or other important aspects, which have a direct bearing upon the case. Courts cannot be permitted to form final opinions, half way through, except, as provided for under Order X C.P.C.

7. An admission can be said to be unequivocal, if only it covers all the facets of the controversy. One cannot just pick up a thread, in the fabric of evidence, or for that matter, the pleadings, and project it as the final word, on the issue. Many a time, the so-called admissions can be explained away, either with the assistance of the further evidence, or through process of interpretation of the alleged interpretation (sic. admission). Much, in this regard, would depend upon the purport of the relevant provisions of law and in many cases, the precedents on the subject. All this would be possible, only at the stage of arguments. It is not at all safe for a Court, to form a final opinion on an important issue, in the middle of the proceedings. The parties have to be given full opportunity to present their point of view on any controversy, even if it relates to an alleged admission.

8. In the instant case, the trial Court proceeded on the assumption that an admission by PW.1 as to execution of Ex.B.1, would clinchingly prove the prior partition of the suit schedule properties. The petitioner (be) given an opportunity to explain the purport of the alleged admission. He is entitled not only to lead further evidence, but also, to elicit necessary information in cross-examination of the witnesses, to be examined by the respondents herein. Therefore, the order under revision cannot be sustained in law.

9. For the foregoing reasons, the Civil Revision Petition is allowed, and the order under revision is set aside. There shall be no order as to costs.