# M/S Modi Tyre Factory, Ghaziabad v. C.J.M. and others

- **Citation:** (1999) 2 ILRA 154
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-modi-tyre-factory-ghaziabad-v-c-j-m-and-others-39266
- **Pages:** 4

## Text

THE INDIAN LAW REPORTS [1999
154
must be deposited before the appeal can be considered. The
petitioner filed the appeal, but did not follow the mandatory
provision by accompanying the deposit of tax with the appeal. In the
circumstances, an ad interim order was denied by the appellate
authority and the appeal is not being heard.

This means that this writ petition has been filed only
for the purpose of obtaining an ad interim order. There can be no
short cuts to the authority of law nor can the Court make any
compromise with the conditions of Section 161 of the Act. The law
is very clear on this aspect, section 160 of the act provides for an
appeal. To an owner or occupier of property who is aggrieved by an
assessment on property taxes. Section 161 mentions in no uncertain
terms that the amount of tax which has been determined or assessed
must be deposited before the appeal can be considered. In reference
to the present assessment of rateable taxes, the petitioner did not
deposit the tax. The only indulgence the Court can grant is that
should the petitioner make deposit of the amount which has been
assessed, which assessment aggrieves the petitioner, the appellate
authority, then, may consider the appeal and render a decision on it
within two months of the deposit of the tax.

With the aforesaid observations, the petition is
consigned as dismissed.

Petition Dismissed.
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1999
------
M/S Modi Tyre
Factory,
Ghaziabad
 Vs.
C.J.M. and
others.
------
Ravi S.
Dhavan, J.
A.K. Yog, J.
1998
------
August, 19
2 All.] ALLAHABAD SERIES
155
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By the Court

The petitioners seek a writ of certiorari quashing the
orders passed by Respondent Nos. 2,4 and 5 whereby the prayer of
the petitioners to decide certain issues as preliminary issues before
deciding the suit was rejected.

The Collector, Shahjahanpur filed a Suit under section
229-B/209 of U.P. Zamindari Abolition and Land Reforms Act on
behalf of the Gaon Sabha alleging that the land belonged to the Gaon
Sabha and the petitioners have no right over the land in dispute and if
they are found in possession, they may be evicted.

The petitioners filed written-statement and claimed
that they have a right over the land in dispute. It was further alleged
that during consolidation proceedings the plaintiff could raise an
objection in regard to the title and right over the land in dispute and
such objection having not raised, the claim of the plaintiffrespondent was barred under Section 49 of U.P. Consolidation of
Holdings Act (hereinafter referred to as the Act). It was further
pleaded that the Collector had no power to institute the suit on
behalf of the Gaon Sabha.

The trial court framed various issues. Issue No. 3 was
whether the suit was barred by Section 49 of the Act, Issue No. 6
related to the question as to whether the Collector has power to file
the Suit on behalf of the Gaon Sabha and the State Government and
Issue No. 8 was whether the court fee paid was sufficient.

The petitioners filed an application that these issues
may be decided as preliminary issues. The trial court rejected this
application on 22.11.1984 taking the view that these issues can be
decided along with other issues as they involve questions of facts as
well as law. The petitioners filed a Revision against the said order
before the Additional Commissioner which was dismissed on
5.6.1985. The Board of Revenue dismissed the Revision against this
order on 18.2.1998.

1998
------
Mithlesh
Kumari & ors.
 Vs.
Gaon Sabha,
Shahjahanpur
& others.
------
Sudhir
Narain, J.
THE INDIAN LAW REPORTS [1999
156

Sri Y.S. Saxena, learned counsel for the petitioners
contended that Section 49 of the Act bars the jurisdiction of the
Court to adjudicate upon any matter which has either been decided
by the consolidation authorities or which could or ought to have
been taken under the provisions of the Act. He has placed reliance
upon a decision rendered in Jaswant Kumar Vs. State of U.P. and
others, 1979 A.L.J. 276 wherein it was held that the finding recorded
by the consolidation authorities is binding on the ceiling authorities
and the same cannot be challenged in any civil or revenue court as
Section 49 of the Act is based on the rule of res-judicata so far as the
question relating to the declaration and adjudication of the rights of
the tenure holders in respect of the holdings are concerned.

The question is whether these issues ought to have
been decided as preliminary issues by the courts below. Order XIV
Rule 2(2) C.P.C. provides that where issues both of law and of fact
arise in the same suit, and the Court is of opinion that the case or any
part thereof may be disposed of on an issue of law only, it may try
that issue first if that issue relates to-

(a) the jurisdiction of the court, or
(b) a bar to the suit created by any law for the time being in
force, and for that purpose may if it thinks fit, postpone
the settlement of the other issues until after that issue has
been determined, and may deal with the suit in accordance
with the decision of that issue.

Sub-rule (2) leaves discretion upon the court.

It is not mandatory on the Court to decide the question of the
jurisdiction or other issues relating to the maintainability of the suit.
Sub-rule (1) of Rule 2 mandates a Court that notwithstanding that a
case may be disposed of on a preliminary issue, the Court shall,
subject to the provisions of s ub-rule (2), pronounce judgment on all
issues.

The intention of the Legislatre is that instead of
prologing the suit by first deciding a preliminary issue and thereafter
deciding other issues, be avoided as far as possible. If all the issues
are decided that may avoid unnecessary multiplicity of the
proceedings in relation to deciding the preliminary issue. It is open
for the Court, however, in some circumstances if it is apparently
1998
------
Mithlesh
Kumari & ors.
 Vs.
Gaon Sabha,
Shahjahanpur
& others.
------
Sudhir
Narain, J.
2 All.] ALLAHABAD SERIES
157
clear that the suit is not maintainable or barred by jurisdiction, to
dispose of such issues, may decide such issues as preliminary issues.

The orders of the courts below, in considering that the
preliminary issues are to be decided after taking evidence along with
other issues, do not suffer from any manifest illegality. There is no
merit in the writ petition and, it is, accordingly dismissed.

Petition Dismissed.
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By the Court

The petitioner claims that he should be granted a permanent lease in
respect of an area measuring 2.60x.50 sq.m situated at Sy. No 202
Pauri Garhwal.

The petitioner is a vegetable /fruit vendor. He was granted permit to
use and occupy the land mentioned above for one year for the
period from 5.2.1998 to 4.3.1999. The petitioner before the expiry of
the said period moved application on 27.11.1998 and again on
2.11.1998 for grant of permanent lease in respect of the area on
which he was permitted to occupy for one year. THIS Application
1999
------
March, 10