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Saturday, October 1, 2016

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”. 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 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. 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.

                                                                  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 :

      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).

(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  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/-.

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 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”.


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  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.

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.

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