# O.P. Sharma (Magician/Jadugar) v. State of U.P. and others

- **Citation:** (2012) 2 ILRA 797
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-29
- **Case number:** Civil Misc. Writ Petition No. 167 of 2011
- **Bench:** Ashok Bhushan, Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/o-p-sharma-magician-jadugar-v-state-of-u-p-and-others-42158
- **Pages:** 9

## Headnote

U.P. Entertainment and Betting Tax Act
1979-Section-11-Demand
of
Entertainment
Tax-on
magic
showsallegation on refusal of free pass to
District
Authorities-the
annoyance
resulted demand of Entertainment Taxwhile none of condition of permission
ever breached-performance of dance and
music-necessary and integral part of
magic shows-in other part of country in
other regional shows never such tax
imposed-no specific denial-held-demand
of Entertainment Tax wholly arbitrarynon sustainable.

Held: Para 32 and 36

The case of the petitioner is that
performance of music and dance of short
duration is necessary and integral part of
such magic show. It is prevalent all over
the country. In the other part of the
country where a different language other
than Hindi is popular, the Magicians
perform dances of the regional popular
films. At no point of time, District
Administration of any District all over the
country has raised any objection to such
dance or music. There is no specific
denial in the counter affidavit except a
general denial.

In view of above discussions, we are of
the opinion that the action of the
respondents
demanding
the
Entertainment Tax is wholly arbitrary
and cannot be sustained. The impugned
show cause notice and the order passed
thereon are hereby quashed.
Case law discussed:
2005 NTN (28)- 71; (2008) 3 SCC 582; AIR
2008 SC 592

## Text

2 All] O.P. Sharma (Magician/Jadugar) V. State of U.P. and others
797
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2012

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 167 of 2011

O.P. Sharma (Magician/Jadugar)

 ...Petitioner
Versus
State of U.P. Thru' Principal Secretary
Entertainment and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar
Sri Praveen Kumar
Sri Vinod Kumar Sharma

Counsel for the Respondents:
C.S.C.

U.P. Entertainment and Betting Tax Act
1979-Section-11-Demand
of
Entertainment
Tax-on
magic
showsallegation on refusal of free pass to
District
Authorities-the
annoyance
resulted demand of Entertainment Taxwhile none of condition of permission
ever breached-performance of dance and
music-necessary and integral part of
magic shows-in other part of country in
other regional shows never such tax
imposed-no specific denial-held-demand
of Entertainment Tax wholly arbitrarynon sustainable.

Held: Para 32 and 36

The case of the petitioner is that
performance of music and dance of short
duration is necessary and integral part of
such magic show. It is prevalent all over
the country. In the other part of the
country where a different language other
than Hindi is popular, the Magicians
perform dances of the regional popular
films. At no point of time, District
Administration of any District all over the
country has raised any objection to such
dance or music. There is no specific
denial in the counter affidavit except a
general denial.

In view of above discussions, we are of
the opinion that the action of the
respondents
demanding
the
Entertainment Tax is wholly arbitrary
and cannot be sustained. The impugned
show cause notice and the order passed
thereon are hereby quashed.
Case law discussed:
2005 NTN (28)- 71; (2008) 3 SCC 582; AIR
2008 SC 592

(Delivered by Hon'ble Prakash Krishna, J.)

1. The petitioner Shri O.P Sharma
who is Magician has by means of the
present writ petition challenged the orders
dated 28.1.2011 and 29.1.2011 whereby the
District Magistrate, Gorakhpur has directed
the
petitioner
to
pay
a
sum
of
Rs.2,71,800.00 towards Entertainment Tax
and Rs.20,000/-, as penalty.

2. The petitioner applied for and was
granted permission subject to certain
conditions to perform magic shows for a
period 6.1.2011 to 28.2.2011 from 9.00 AM
to 9.00 PM at 'Shree Talkies, Mohaddipur
without payment of any entertainment tax.
Armed with the aforesaid permission, the
petitoner started giving his performance of
magic show at Shree Talkies, Mohaddipur.
The further allegation is that there was some
dispute between the petitioner and the
District officials with regard to issuance of
free passes to the viewers. Resultantly, the
District Magistrate issued a notice dated
22.1.2011 with the allegations that the
petitioner is carrying on dance shows
instead of showing magic to the public and
was required to show cause as to why the
Entertainment Tax under the provision of
798 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
U.P.Entertainment & Betting Tax Act 1979,
may not be levied.

3. The cause was shown which was
not found satisfactory by the District
Magistrate who ultimately passed the
impugned order demanding the payment of
Entertainment Tax and also levied the
penalty. Feeling aggrieved, the present
petition has been filed. A counter affidavit
which is a short document has been filed by
the respondents through Shri Mahendra
Singh,
Assistant
Entertainment
Commissioner.

4. In the counter affidavit, the
averments made in the writ petition have
been denied by making general allegations.
It has been stated that in the magic show,
live dance programme was also shown. In
the advertisement poster pasted in different
parts of the District, dancers in dancing pose
have been shown which clearly belies the
case of the petitioner, vide paragraph 17 of
the counter affidavit. In paragraph 23 of the
counter
affidavit
an
usual
plea
of
availability of alternative remedy under the
said Act has been set out.

5. The petitioner has reiterated his
stand taken in the writ petition, in the
rejoinder affidavit.

6. Heard Shri Ashok Kumar, learned
counsel for the petitioner and Shri
A.C.Tripathi, learned standing counsel for
the respondents.

7. The learned counsel for the
petitioner submits that there is general
exemption from payment of Entertainment
Tax
on
magic
shows.
The
State
Government
has
issued
exemption
notification in exercise of its power under
section 11 of the Act, exempting the magic
shows from payment of entertainment tax.
One such notification was issued on
11.10.1995 vide (annexure 3-A to the writ
petition).
In
pursuance
thereof,
the
petitioner applied for and was granted
permission to hold magic shows subject to
the conditions specified in the order passed
by the Additional District Magistrate,
Kanpur Nagar. None of the conditions
having been violated, there was no question
of realisation of any Entertainment Tax
from the petitioner on such shows. In the
show cause notice dated 22.1.2011, the only
material allegation against the petitioner is
that on two occasions, after interval, two
dances were performed on the pre recorded
tune, by the dancers. The submission is that
the period of one magic show is of two and
half hours. In the said slot, a magician has to
give
many
programmes
of
magic.
Background music tune is an essential part
of such performances. One or two dance
performances on pre recorded tune for a
total period of 5 to 7 minutes would not
change the nature and character of magic
show in any manner. Elaborating the
argument, it was submitted that even
classical and non classical dances have been
exempted from payment of Entertainment
Tax by the State Government by issuing
notification under Section 11 of the Act,
from payment of Entertainment Tax. With
regard to the question of availability of
alternative remedy, it was submitted that the
petitioner is challenging the very essential
jurisdictional facts to levy Entertainment
Tax and as such, the availbility of
alternative remedy has no bar to entertain
the writ petition. Reliance was placed on
certain decisions of Apex Court such as
State of H.P and others versus Gujarat
Ambuja Cement Ltd. and Anr. 2005 NTN
(28)- 71 and State of Kerala and others
versus Kurian Abraham (P) Ltd and
another (2008) 3 SCC 582.
2 All] O.P. Sharma (Magician/Jadugar) V. State of U.P. and others
799

8. In reply, the learned standing
counsel submits that in view of the fact that
dances were performed during the course of
magic show, the petitioner is liable to pay
entertainment tax. The exemption was
granted to exihibit magic shows and not to
exhibit shows of dances. In the guise of
magic show, the petitioner got performed
dances on the stage on the pre recorded hit
cinema films songs and as such has violated
the conditions of the exemption from
entertainment tax. He also raised the plea
relating to availability of alternative remedy
by way of an appeal to the State
Government.

9.

Considered
the
respective
submissions of the learned counsel for the
parties and also pursued the record.

10. On the facts of the present case,
we are not impressed by the submissions of
the learned standing counsel to relegate the
petitioner to the statutory remedy by way of
appeal to the State Government. The said
remedy is not an adequate and efficacious
on the facts of the present case as the
petitioner was permitted to perform magic
shows for a limited period i.e 6.1.2011 to
28.2.2011.
Even
otherwise
also,
the
jurisdictional facts to initiate and levy
Entertainment Tax being absent as found in
the later part of this judgment, the interest of
justice will not be served by dismissing the
writ petition on the ground of availability of
alternative remedy. The objection raised by
the learned standing counsel is therefore,
rejected.

11. The U.P Entertainments and
Betting Tax Act 1979 has been enacted to
consolidate and amend the law relating to
tax on entertainments, amusements and on
certain forms of betting. In the State of U.P.
Entertainment has been defined in the
definition clause namely Section 2(g). It
includes any exihibition, performance,
amusement, game, sport or race (including
horse race) to which persons are admitted
for
payment
and
in
the
case
of
cinematograph
exhibitions,
includes
exhibition of news-reels, documentaries,
cartoons, advertisement shorts or slides,
whether before or during the exhibition of a
feature film or separately.

12. Section 3 of the Act is charging
section. It levies entertainment tax on
admission to entertainment. Payment for
admission has been defined by giving an
inclusive definition in Section 2(l) of the
Act. The levy of Entertainment Tax is on all
'payment
for
admission'
to
any
entertainment. The taxable event therefore,
is
payment
for
admission
to
any
entertainment.

13. Section 11 of the Act empowers
State Government to grant exemption from
Entertainment Tax for promotion of peace,
international good will, arts, sports or other
public interest, by general or special order.
Under
sub
section(4),
the
District
Magistrate has been authorised to grant
exemption if he is satisfied that the entire
gross proceeds of an entertainment are to be
devoted to philanthropic, religious or
charitable purposes, without any deduction
whatsoever on account of the expenses of
the entertainment, he may subject to the
rules made under the Act, grant exemption
to such entertainment from payment of tax
under this Act on such terms and conditions
as he may deem fit to impose.

14. It is not in dispute that element of
entertainment is therefore in the magic
shows also, that is the reason the State
Government has issued notification granting
exemption from payment of entertainment
800 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
tax to such shows. Proviso to section 11
provides that the State Government may
cancel such exemption if it is satisfied that
the exemption was obtained through fraud
or misrepresentation, or that the proprietor
of such entertainment has failed to comply
with any of the terms or conditions imposed
or directions issued in this behalf.

15. A copy of the permission granted
to the petitioner has been annexed as
annexure-1 to the writ petition. It contains
as many as 12 conditions. It is not the case
of the respondents that any of the conditions
subject to which the permission to perform
magic show was granted, has been violated
by the petitioner. The only ground raised in
the show cause notice dated 22.1.2011 is
that the District Magistrate (Entertainment
Tax Department) has received information
that while performing the magic show,
together with the magic show, two filmy
dances were also performed. One such
instance dated 18.1.2011 in the show of
6.00 PM has been mentioned therein. It was
found in the said show that after interval,
two dances of Hindi feature films namely
'Slum Dog Millionaire' and 'Dabang' were
performed with pre recorded music by the
dancers. Further in the newspaper, namely
'Amarujala Compact' dated 20.1.2011, a
news item under the heading 'Munni Ka
Jadu' was published which shows that the
alleged magic show is not a magic show but
it is an ordinary entertainment programme
and the entertainment tax @ 25% of the
total collection was proposed to be levied.
In reply, it was stated that the magic show is
being performed after taking the permission
from the District Magistrate office and
magic show is totally exempt from
entertainment tax by the notification dated
11.10.1995. Magic and only magic show
was performed.

16. The question which we are
required to adjudicate upon is whether the
allegations made in the show cause notice
are sufficient to establish that the petitioner
performed
the
ordinary
entertainment
programme instead of magic show.

17. The facts are not much in dispute,
we take the facts as are founded in the show
cause notice.

18. A magic is nothing but a trick.
Dictionary meaning of magic is 1. the secret
power of appearing to make impossible
things happen by saying special words or
doing special things. 2. The art of doing
tricks that seems impossible in order to
entertain people. 3. A special quality or
ability that seems too wonderful to be real.

19. Adj.1. having or using special
powers to make impossible things happen
or
seem
to
happen:
a
magic
spell/charm/potion/trick. There is no magic
formula for passing exams- only hard work.
2. (informal) having a special quality that
makes sth seem wonderful: It was a magic
moment when the two sisters were reunited
after 30 years. She has a magic touch with
the children and they do everything she
asks. Trust is the magic ingredient in our
relationship. 3. [not before noun] (BrE,
informal) very good or enjoyable: 'what was
the trip like?' Magic! '

20. Magic (sometimes referred to as
stage magic to distinguish it from
paranormal or ritual magic) is a performing
art that entertains audiences by staging
tricks or creating illusions of seemingly
impossible or supernatural feats using
natural means. These feats are called magic
tricks, effects, or illusions.
2 All] O.P. Sharma (Magician/Jadugar) V. State of U.P. and others
801

21. Performances we would now
recognize as conjuring have probably been
practiced throughout history. The same
level of ingenuity that was used to produce
famous ancient deceptions such as the
Trojan Horse would also have been used for
entertainment, or at least for cheating in
money games, since time immemorial.

22. Various steps are taken by a
Magician to destract the attention of public
from one point and to get focused attention
of all the viewers to a particular point so
that he may successfully perform his trick.
It is not in issue that duration of a show of
magic is generally in between two and half
hours to three hours with interval. During a
show, a Magician is required to present
various items of magic one after the other.
He has to prepare himself and his assistants
while performing one item and while
switching to the next one. A swift action is
required to shift to the next item, after the
completion of earlier one, so that the
continuity is maintained. During the
intervening period, music etc. is played. In
all such performances light music plays an
important role. The department has not
raised any objection with regard to the
music played during such performances.
The only objection is that during the show
of about two and half hours to three hours,
two live dances were performed on the
stage by the dancers. The respondents thus
are treating the magic show, a show of
general entertainment. The issue is whether
such understanding of the department is
legally justified or not. Its answer depends
upon the viewers' point of view. Whether
they made the payment for admission to
such show to enjoy magic show or to enjoy
the two dances which were performed. In
our considered opinion, answer is very
obvious. The viewers paid for admission to
the show to enjoy magic show and not to
enjoy the dances which were of 5 to 7
minutes in all. A man of ordinary prudence
will not go to such show just to see the live
performance of two dances on filmy songs,
not even performed by an extra ordinary or
a renowed performer. The dances were just
ordinary dances, performed by the ordinary
artist. The yardstick for judging the reaction
on the viewers of the show has to be of
prudent, reasonable person.

23. The department has not placed any
evidence to show that the viewers coming
to the show, made the payments for
admission to see dances performed there.

24. By no stretch of imagination, it
can be said that in a show of two and half
hours to three hours duration, if two dances
of 5 to 7 minutes are performed, the show
would become dance show instead of magic
show. The allegation in this regard is in
paragraph 17 of the Counter affidavit
wherein it has been stated that from the
inspection of magic show it was found that
live dance was shown during magic show.
An advertisement poster pasted in different
parts of the district shows the dancers in
dancing pose which clearly proves the case
against the petitioner. The said paragraph 17
of the counter affidavit is reproduced below:

17. That the contents of paragraph
no.29 of the writ petition are incorrect
hence denied. From the inspection of magic
show it was found that Live dance
programme was shown during magic show.
An advertisement poster pasted in different
part of the district shown the dancers on
dancing pose which clearly proves the case
against the petitioner. A true copy of the
extract of relevant poster is being filed
herewith and marked as Annexure no.CA-1
to this counter affidavit.
802 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

25. Except the aforesaid paragraph,
there is no pleading and proof to the effect
that the show performed by the petitioner
was not a magic show. A judicial notice can
be taken of the fact that even in the
programmes telecasted on television may be
of news, music, interviews, commercial
breaks, intervene. The Commercial breaks
and their frequency depends upon the
popularity and their durations knows as
T.R.P.. But the facts remains that such
programmes
are
never
treated
as
programme other than the programme
telecasted.
A
music
programme
or
exhibition of feature film remains the same
notwithstanding the commercial breaks. If
the logic of the respondents is imported,
then all such programmes will become
programmes of advertisements instead the
programme being telecasted. On the basis of
the said analogy also, it is difficult to hold
that the show performed by the petitioner on
the stage to amuse the public with help of
music and dances is other than a magic
show.

26. There is yet another angle to the
issue. Attention of the Court was invited to
a notification dated 22.7.1981 issued by the
State Government in exercise of its power
under section 11(1) of the Act. By the said
notification, the Governor is pleased to
order that the Drama, Nautanki, Kawwali,
Kavi Sammelan, Mushaira, Classical and
Non Classical Dance, shall be exempt from
payment of entertainment tax. The said
notification is reproduced below:

"In exercise of the powers under subsection (1) of Section 11 of the Uttar
Pradesh Entertainments and Betting Tax
Act, 1979 (U.P Act No.28 of 1979) and in
supersession of all previous orders on the
subject, the Governor is pleased to order
that the following classes of entertainments
shall be exempted from payment of
entertainment tax with effect from August
16, 1981:

(1) Drama

(2) Nautanki

(3) Qauwali,

(4) Kavi Sammelan,

(5) Mushaira

(6) Classical and Non-classical Music

(7) Classical and Non-classical Dance

(8) Variety programmes consisting
exclusively of two or more of items 1 to 7
above.

(9) Games and sports whether held by
registered sports associations or by any
other body (excluding games of Skill and
Video games or any other game of
electronic devices by whatever name called)

(10) Skating

(11) Dangals and wrestling bouts
including free style wrestling and

(12) Circus including acrobatic feats."

27. It was argued and rightly so that
under the said notification, Classical and
Non-Classical dances are exempt from
payment of Entertainment Tax with effect
from August 16, 1981. It follows that no
Entertainment Tax is payable on dances
Classical and non Classical. The natural
corollary is that even if one or two dances
of hit Hindi films were performed during
the course of magic show, these dances
2 All] O.P. Sharma (Magician/Jadugar) V. State of U.P. and others
803
themselves are exempt from payment of
Entertainment Tax under the aforesaid
notification dated 22.7.1981. This also
supports the petitioner's case against the
levy of Entertainment Tax on him.

28. It was also argued that there is no
allegation of breach of any of the conditions
granting exemption, from payment of
entertainment tax. One of the conditions for
grant of exemption is that during the course
of programme, no obscene dance shall be
performed. Neither it is proved nor alleged
that any obscene dance was performed
during the magic show. There being no
violation of the conditions of grant of
exemption from payment of Entertainment
Tax, the levy of Entertainment Tax cannot
be justified. The said argument has got
substance and cannot be brushed aside.

29. Along with the counter affidavit, a
photo copy of the advertisement poster
pasted in the different parts of the District
has been filed as annexure CA-1 to show
that dancers on dancing pose were shown
therein vide para 17, already quoted above,
it is difficult to decipher any such thing
from the copy of the said poster. On the
contrary in the major portion of the poster, it
is mentioned that come with family to see
the show of Magician O.P. Sharma and in
the right side of the poster, a photograph of
a girl has been shown who occupies a very
small fraction of the poster. The said
photograph is not in a dancing pose nor it
can be inferred that it is a show of dance.
The said advertisement poster negates the
stand of the respondents. There is no
invitation to the public to come to dance
show. It is ingenuity of the advertisers to
show a female figure invariably in almost in
all the advertisements to attract the attention
of the public, even in respect of such
products exclusively meant for men.

30. It is useful to notice a recent
decision of the Apex Court under the Act in
Amit Kumar v. State of U.P. & others, AIR
2008 SC592, wherein a fashion show was
held at Gorakhpur for selection of 'Mr.
Gorakhpur'
and
'Miss
Gorakhpur'.
Entertainment tax was not paid on the
aforesaid fashion show, by the organizer. A
show cause notice was issued to the
organizer. The organizer took the stand that
programme was of competitive nature and
there was no element of entertainment
involved. It was stated that no fee was
charged as admission was permitted on the
basis of invitation card. The Supreme Court
on these facts has held that fashion show
was held with full knowledge that
entertainment tax was payable in respect
thereof and that though tickets may not have
been issued in respect of the programme
and only invitation cards had been issued,
the same was merely a subterfuge for the
purpose
of
evading
and/or
avoiding
payment of entertainment tax. Contention
that fashion show was held with the object
of educating prospective students who
would be interested in joining the Institute
of Art, Fashion Designing and Modelling
and was, therefore, exempt under Section
11(3) of the Act was rejected. Reliance was
placed on the advertisement indicating that
the object of the show was to invite people
to come and watch the new world of
glamour and modelling and to see the world
of exotic fashion in Gorakhpur itself, vide
para-15. Emphasis has been laid therein on
object of the show, and if the said principle
is invoked herein, the object of the show
was of magic show and not of dance show.

31. Before parting with the case, it
may be stated that a grievance has been
raised by the petitioner that the proceedings
giving rise to the present writ petition were
804 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
set to motion as the petitioner refused to
give free passes beyond a limit to the
District
Administration.
The
District
Administration got annoyed and by way of
revenge, the impugned notice and order
have been passed. Be that as it may, it is not
necessary for us to say anything in this
regard.

32. The case of the petitioner is that
performance of music and dance of short
duration is necessary and integral part of
such magic show. It is prevalent all over the
country. In the other part of the country
where a different language other than Hindi
is popular, the Magicians perform dances of
the regional popular films. At no point of
time, District Administration of any District
all over the country has raised any objection
to such dance or music. There is no specific
denial in the counter affidavit except a
general denial.

33. Before parting with the case, we
may make general observations.

34. Until the last decade i.e 1990s, the
street performer was a common feature of
the rural and the urban landscape which has
now completely vanished from the horizon.
The street performer was an integral part of
the
traditional
Indian
source
of
entertainment of the masses. However, the
advent of other sources of entertainment
notably cable, television and internet have
dwindled the interest of the public from
such street performances. This has forced
the street performer to leave this avocation
and to find new sources of livelihood.
Among those hardest hit by this change of
interest, is the traditional Indian Magician or
jadugar. Magic is now a dying art in India
with performances running to unsold tickets
and empty seats. The zenith achieved by
Indian magicians like P.C.Sarkar on the
world stage has now reached its lowest ebb.
Time has come for every Indian to feel
concern. India is country of rich traditions.
We value over traditional art. Article 51A of
the constitution, under clause(f) states that it
shall be the duty of every citizen of India to
value and preserve the rich heritage of our
composite culture.

35. It should be the priority of the
Government to prevent this art from dying
out by providing monetary assistance as
well as educating the people about the
science behind this art. Life of a magician
and his junior artists is always in danger
while giving the performances. They are
dare devil persons. A small miscalculation
may bring their lives to the end in a fraction
of a second. Such persons need protective
hands.

36. In view of above discussions, we
are of the opinion that the action of the
respondents demanding the Entertainment
Tax is wholly arbitrary and cannot be
sustained. The impugned show cause notice
and the order passed thereon are hereby
quashed.

37. This Court on 7.2.2011 had passed
a conditional stay order directing the
petitioner to deposit security for the amount
demanded in the form of NSC or fixed
deposit to the tune of Rs.one lac and of the
remaining amount of demand by other than
cash or bank guarantee or fixed deposit.

38. In view of the success of the writ
petition, the security furnished by the
petitioner stands released forthwith and the
respondents are required to issue necessary
order in this regard and refund the security
if so, deposited within a period not later
than 15 days from the date of production of
certified
copy
of
this
order.
2 All] Guljar Ahmed V. Smt. Akhtari
805

39. The writ petition succeeds and is
allowed with cost of Rs.5,000/- payable by
the respondents, respondent no. 3 in
particular, within a period of one month.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.05.2012

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Second Appeal No. - 214 of 2012

Guljar Ahmed

 ...Petitioner
Versus
Smt. Akhtari

 ...Respondents

Counsel for the Appellant:
Sri Nipun Singh

Counsel for the Respondents:
....................................

Code of Civil Procedure-Section 100Malicious
Prosecution-suit
for
cancellation of sale deed executed in
favor of his own mother-to defraud
creditors-dismissed
by
Trail
Courtdirection
to
lodge
FIR-Lower
1st
appellate Court-dismissed the Appealargument that in view of Section 53 of
Transfer of property Act such sale deed
can be canceled at instance of creditors
and not by plaintiff-Appeal dismissed
with cost of Rs. 25000/-for frivolous,
fraudulent
suit-payable
to
Bar
Association within 3 month.

Held: Para 7

Accordingly, second appeal is dismissed
on merit. However the directions given
by the courts below for issuing notice or
lodging FIR against plaintiff and his
counsel are quashed. However plaintiff is
saddled with the penalty of Rs.25,000/-
for instituting frivolous, fraudulent suit
and consuming time of the Court. This
amount shall be paid by him to the Bar
Association
of
Kairana,
District
Muzaffarnagar
within
three
months
failing which the Collector shall recover
the same from him like arrears of land
revenue and pay to the Bar Association.
The Bar Association shall utilise the
amount only for purchasing the Books.
Case law discussed:
AIR 1946 PC 177; AIR 1954 Nagpur 129(DB);
AIR 1939 Madras 894; AIR 1961 Punjab 423;
AIR 1954 Madras 173; AIR 1963 Mysore 257;
AIR 1935 All. 529 (FB)

(Delivered by Hon'ble Sibghat Ullah Khan, J.)

1. Heard learned counsel for the
appellant at the admission stage.

2. This second appeal arises out of
O.S. No.177 of 2005 filed by appellant
against his mother defendant respondent
for declaring the sale deed dated
20.07.2002 executed by him in favour of
his mother/ defendant as void on the
ground that it was executed to defraud
the creditors by the plaintiff. Even the
defendant did not appear but the suit was
dismissed ex parte on 15.07.2006 by
Civil Judge, Senior Division, Kairana,
District Muzaffarnagar. Not only the suit
was dismissed but show cause notice was
also issued to the plaintiff and his
learned counsel to show cause within
seven days as to why FIR should not be
lodged against them. Against the said
decree, plaintiff appellant filed Civil
Appeal No.30 of 2006, which was
dismissed
by
A.D.J.
Court
No.9,
Muzaffarnagar on 24.01.2012 hence this
Second Appeal. Plaintiff further stated in
the plaint that after execution of the sale
deed, he had cleared his debts.

3. According to the Section 53,
Transfer of Property Act:

"Every
transfer
of
immovable
property made with intent to defeat or