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TMI Blog2014 (11) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... shi, the defendant No. 6/respondent No. 6 was second partner in that firm. Due to dispute between the partners that partnership was dissolved on August 31, 1982. A civil suit relating to dissolution of partnership was also pending before the District Court. The High Court vide order dated April 12, 1984 directed to appoint a receiver on the property of the partnership firm. The respondents were the officers of Sales Tax Department and for recovery of tax of Rs. 75,000, the plot in question was attached by the Sales Tax Officer and Additional Tahsildar on January 18, 1983. Thereafter, the Deputy Commissioner, Sales Tax, vide order dated April 19, 1983 directed the Sales Tax Officer not to auction the plot but, to have a negotiation with the plaintiff for the remaining sales tax. Thereafter, on June 4, 1987, a demand notice of Rs. 97,838 as well as attachment notice was issued to the plaintiff and it was shown that both the notices were served by affixing them. Notices were affixed on June 6, 1987 and three days time was given for payment in demand notice. However, on June 6, 1987, the respondentofficer had also issued an auction notice that the plot would be auctioned on July 10, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intainable. The learned Additional District Judge after framing issues on various counts and recording the evidence of the parties, dismissed the suit mainly on the ground that it was not maintainable and it was barred by limitation. I have heard the learned counsel for the parties finally and also heard on I. A. No. 5649/2013, an application under order XLI, rule 27 of the CPC filed by respondent No. 5. After perusal of the evidence and considering the submissions made by the learned counsel for the parties, it is apparent that the land in question was attached by the officers of the Sales Tax Department on January 18, 1983 for recovery of Rs. 75,000, being revenue due towards the partnership firm. Since the suit is pending between the partners of the partnership firm and the powers of Sales Tax Officer being Additional Tahsildar are wide and therefore, it is not required to discuss as to whether the present plot, which was the personal property of one partner could be attached or not. However, it is apparent that vide order dated April 19, 1983, the Deputy Commissioner, Sales Tax directed respondent No. 3 to inform the details about the computation of sales tax of the plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he affixing can be done on an open plot. Under such circumstances, notices of demand and attachment of the property were not served to the appellant in the eye of law and therefore, without serving the notice of demand, neither the suit property could be attached, nor it could be auctioned. Gross negligence has been done by respondent No. 3 and possibility cannot be ruled out that such procedure was adopted due to connivance of respondent Nos. 3, 4, 5 and 6, as alleged by the plaintiff. Similarly, if method of auction is examined then, it is strange that date of auction was fixed and intimation of auction was given to the public in general by beating of drums. One person is directed to announce about the auction in the city of Bhopal with help of a loud speaker in an auto-rickshaw. If there is a village of limited population then, such type of publication of future auction can be done by beating of drums or by such methods as adopted by respondent No. 3 but, in a big city like Bhopal, it was required that intimation of auction be published in some prominent newspaper. The publication relating to auction was failed, which was shown by the records of respondent No. 3 itself, that on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e suit, the learned Additional District Judge considered this point in so many different issues and he gave different findings on different provisions relating to maintainability of the suit. However, he did not give his finding on the provisions of section 48(2) of the Act. He simply clubbed the point of limitation with that issue and consolidately found that suit was barred by limitation. The learned counsel for respondent Nos. 5 and 6 has submitted that for prosecuting a suit under section 48(2) of the Act, a sanction is required from the State Government. In this connection, the learned counsel for respondent Nos. 5 and 6 relied upon the order passed by the single Bench of this court in case of Kamruddin v. C.R. Pancholi, Regional Commissioner of Sales Tax, Ujjain [1974] M.P.L.J. S.N. 87. Actually, if the provisions under section 48(1) and 48(2) of the Act are considered then, it would be clear that these are two different provisions to prosecute a suit. As mentioned in the order passed by the single Bench of this court in case of Kamruddin [1974] M.P.L.J. S.N. 87 it is apparent that the provision under section 48(1) of the Act is an analogous provision to section 197 of the Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the period consumed in obtaining the sanction shall be adjusted in the limitation given in section 48(2) of the Act but, if a suit is filed against the Government because of the act done by its officer then, no sanction is required. It is not possible that the State, which is required to be made a defendant may be permitted to give such a sanction for its own liability and therefore, the provisions of section 48(2) of the Act indicate that the portion relating to the sanction is required only if the suit is filed against the officer of the State. If a suit is filed against the State for any misconduct done by the officer or in proceeding done by the officer, which was not legal then, no sanction is required to prosecute a civil suit against the State. By considering the aforesaid provisions, if a suit is filed, without getting any sanction against the officer concerned then, no relief can be given to the plaintiff against the officer but, relief can be given against the State and therefore, the suit filed by the plaintiff was maintainable against the State Government for deeds done by the officer but, no relief could be given against the concerned officer in his personal capaci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the same tune. The learned senior Advocate has also submitted that the plaintiff had challenged the sale (auction) of the plot and sale was completed by registration of the sale certificate and registration of sale certificate was done on March 1, 1988 and therefore, suit filed on March 24, 1988 was within the limitation. The contention of the learned Senior Advocate appears to be acceptable because before the registration of the sale certificate, sale could be cancelled at any stage and therefore, sale was completed when the sale certificate was registered. If for any auction, bid is finalised and a sale certificate is issued but, the sale certificate has no legal value unless, it is registered by the Registrar, Deeds and Documents. The sale certificate may be treated as an agreement to sale, unless it is registered or it may be treated as an unregistered sale deed, which has no legal value. Under such circumstances, sale was completed on March 1, 1988 when the sale certificate issued in favour of respondent No. 5 was registered and therefore, the suit filed on March 28, 1988 was filed within 3 months from that date and therefore, it was within the limitation. The learned Addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff may be taken on record, in which she has stated that she made a "Hiba" in the name of her son Mohd. Rehan Siddiqui on June 28, 1982. Order XLI, rule 27 of the CPC provides a right to produce additional evidence in the appeal but, either such evidence may have been produced before the trial court and trial court has refused to accept it or that evidence was obtained by the concerned party after disposal of the suit and the document must be relevant and necessary for the disposal of the suit. I don't understand as to why this document was produced by respondent No. 5 with an application under Order XLI, rule 27 of the CPC. Copy of the affidavit, which is filed with the application is not at all required for the disposal of the suit. The learned counsel for respondent No. 5 has submitted that the plaintiff had already transferred the land in question to her son by "Hiba" and she had no right to prosecute the present suit because she had lost her right on the suit property. The contention of the learned counsel for respondent No. 5 cannot be accepted on three different counts. Firstly, that evidence in a civil suit shall be considered according to the pleadings of the party. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Order XLI, rule 27 of the CPC (I.A. No. 5649/2013) filed by respondent No. 5 cannot be accepted. Hence, it is hereby dismissed. On the basis of the aforesaid discussion, it is apparent that an illegal procedure has been adopted by the officer of the State in attaching the property in question for recovery of sales tax and forcing its auction. Therefore, the proceeding of attachment and auction were not according to the law and such proceeding cannot be sustained. By such proceeding, no effect was caused on the ownership of the plaintiff on the suit property and therefore, a declaration may be given in favour of the plaintiff, relating to the suit property. Similarly, the officers of the State has created the third party interest (interest of respondent No. 5) on the property and the officers of the State as well as respondent Nos. 5 and 6 were interested to dispossess the plaintiff from the property by adopting illegal method and therefore, it is a case in which a perpetual injunction may also be issued in favour of the plaintiff. However, as discussed above, the plaintiff cannot get any relief against the officer concerned because no sanction was received by the plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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