Custodian Of Evacuee Property vs Muslim Ahmed Etc.
1991 Latest Caselaw 467 Del

JUDGMENT

Santosh Duggal, J.

(1) This is a regular second appeal filed by the Custodian of Evacuee Property in respect to the judgment in appeal dated 28th September, 1972 passed by the then Additional District Judge, Delhi whereby the appeal filed by the present appellant was allowed partly, but dismissed In respect to the claim on account of house tax allegedly payable in respect to the composite property which was the subject matter of the suit filed by the respondents for rendition of accounts against the present appellant.

(2) There is a concurrent finding of the two Courts below that there is no evidence on record that any house tax dues had been paid in respect to the composite property by the Custodian of Evacuee Property. It was further held that since the property was composite property, and thus the liability to pay house tax was joint and several ; both of the Custodian of Evacuee Property on behalf of the evacuee owners, and also of the non-evacuee owners, who were plaintiffs in the suit, unless the Custodian (appellant herein) had proved actual payment of any dues on account of house tax, no claim could be made on that account from out of the amount, payable by the custodian to non-evacuee owners against the gross receipts of the composite properties. The trial Court while passing the final decree, had allowed, on consent 13 per cent of the gross realisation on account of administration charges. The first appellate Court by means of the impugned judgment further allowed 10 per cent on account of maintenance and normal repairs in terms of rule 26(2) of the Administration of Evacuee Property Rules.

(3) In this regular second appeal, it is contended that there has been grave error In construing the provisions of Sections 120 and 122 of the Delhi Municipal Corporation Act, and it ought to have been held that the appellant was primarily liable to pay all taxes on the property in dispute, and the payments made by the appellant in that behalf ought to have been adjusted, and deducted from the amount held payable to the respondents, under the final decree, in the suit filed by them for rendition of accounts.

(4) This appeal is on board of this Court this week. Mr. Jagdev Singh, Advocate who had on earlier dates appeared for the appellant, has not appeared since yesterday.

(5) This appeal and other set of appeals (R.S.A. Nos. 100, 111,112 and 113/73) between the parties, on the same issue, were filed in the year 1973. In the absence of Shri Jagdev Singh, I have heard Shri Abdul Jalil, Counsel for the respondents, and have gone through the impugned judgment vis-a-vis the grounds of appeal.

(6) I find that no substantial question of law has been formulated white filing this regular second appeal, and all that is stated is that the claim on account of house tax ought to have been allowed. The question, however, is of fact as to whether the payment has been proved or not, and both the Cowls below have found that these payments were not duly proved. This is apparent from the plea of the appellant taken In this regular second appeal when it is pleaded that the first appellate Court ought to have allowed their application for additional evidence to prove these payments. This implies that even the appellant knows that so far the payments are not proved on record. The question as to whether the appellate Court should have allowed any application for additional evidence cannot be revived at this stage in a matter where the suit for accounts was filed in the year 1967. A preliminary decree-for rendition of accounts was passed on 7th November, 1967. The local commissioner submitted. report on 7th May, 1969 and after hearing the parties, the Court passed the final decree for accounts on 6th April 1970. The local commissioner who was to take evidence in respect to accounts between the parties reported that no evidence was produced during the period the matter was before him for over a year, showing payment of house tax.

(7) The appellant has not supplied any copy with this appeal of the application, which may have been filed for permission to lead evidence before the first appellate Court. I do not think that now after more than 18 years this matter be revived simply to enable the appellant to prove the payment of house tax, when not even a copy of the application has been supplied to show as to what was sought to be produced and what were the grounds for dot proving it earlier before the local commissioner or Court. It is further observed from the order sheet of the records of this appeal that by order dated 2hd April, 1986 the Court directed on concession made by Mr. Abdul Jalil, Counsel for the respondents, that in case there is any amount actually paid as house tax, the respondents would be agreeable to that amount being deducted, provided the balance was paid to them forthwith. Mr. R.M. Bagai, Advocate who was then appearing for the appellant took time to have the accounting done and bring the cheque by Monday, the 7th April, 1986, but on the adjourned date, he reported that some longer period for compliance of the Court's order would be required because the accounts have to be checked. No such accounts nor any payment of house tax have been shown to the Court, and the amounts payable to the respondents, under the final decree, passed as far back as on 14th September, 1970, remain unpaid.

(8) It is thus a case where the appellant has withheld the dues payable to the respondent as non-evacuee owners of the composite property, which is under its administration without any jurisdiction and without bringing forth any evidence of payment of house tax.

(9) I, therefore, think it a fit case to dismiss the appeal. It is regrettable that the appellant who is a Custodian of Evacuee Properties has held back the payments due to the non-evacuee owners, for so long by filing appeals and taking objections without substantiating them. The amounts of the decrees in this case and the other four cases are very meagre, if seen in the context that the appellant is a department of the Central Government.

(10) The appeal is accordingly dismissed with costs. Counsel's fee Rs. 300.00 .

(11) It is further directed that the decretal amount in this case and the other four cases, after deduction of the 205 in each case allowed by the Courts below, should be paid with interest @ 9% p.a. from the date of the decree of the first Court till payment, and in case the decretal amount is not paid to the respondents within two months from today, the respondents shall be entitled to take out the execution and the rate of interest payable from the date of default till realisation would be 12% p.a. on the decretal amount.