- (1.) Leave granted. Heard the counsel for the appellant and respondents.
(2.) This appeal is preferred against the judgment and decree of the learned Civil Judge, Ghaziabad (Uttar Pradesh) dated September 11, 1991 in Suit No. 451 of 1990 in rather peculiar circumstances. Smt. Kamla Devi, first respondent herein [who died pending the present appeal and whose legal representatives have come on record] was the owner of premises/building bearing Property No. 416, Kucha Brijnath, Chandni Chowk, Delhi. By an order dated January 28, 1991 the Deputy Assessor and Collector determined the rental value and rateable value of the said building [comprising four floors] with effect from April 1, 1993 and also determined the property taxes payable thereon Against the order of assessment, Kamla Devi filed an appeal before the learned District Judge, Delhi on March 8, 1991. While the appeal was pending, Kamla Devi went to Ghaziabad and filed a Suit No. 451 of 1991 against (1) Municipal Corporation of Delhi, and (2) the Deputy Assessor and Collector (House Tax) SC-I for a declaration that "the orders dated 28-1-91 passed by Defendant No. 2 as illegal, invalid and void ab initio" and for a prohibitory injunction restraining the defendants from "attaching the plaintiff's property or taking any other action/proceedings/orders against the plaintiff or her assets in pursuant to the order dated 28-1-1991 passed by the Deputy Assessor and Collector SC-I, MCD". the suit was filed on April 19, 1991. In the first paragraph of the plaint, Kamla Devi stated that she is resident of C-92, Inder Puri, Loni, Ghaziabad owned by her grand-children. In Para-2, she stated that on April 18, 1991 "three persons claiming to represent defendant came to the residence of the plaintiff and threatened to attach her assets stating that the rateable value for the purposes of fixing house tax has been increased by Defendant No. 2 in respect to property No. 416, Kucha Brijnath, Chandni Chowk, Delhi-6 owned by the plaintiff" and that after great persuasion and interference by local respectable persons, did the officials postpone their action for a day. Then follow a number of paragraphs. Paragraphs 3 to 16, set out the several reasons and grounds for which the order of assessment dated January 28, 1991 was said to be contrary to law and illegal. In Paragraph 19 pertaining to cause of action, she stated that the cause of action for the suit arose on April 18, 1991 when the defendant sent their officials to C-92, Inder Puri, Loni, Ghaziabad to attach the properties belonging to the plaintiff and also because the defendants were persisting with their illegal acts. It is on the above pleas that the declaration and prohibitory injunction afore-mentioned were asked for. It is significant to note that no document was filed along with the plaint - or later - showing that any attempt was made by the defendants or their officials to distrain or attach the plaintiff's movables or other properties at Ghaziabad. Among the twelve documents filed by the palintiff, the last document is the assessment order dated January 28, 1991. No other document subsequent to that date has been filed. It is equally significant to notice that the declaration asked for is with respect to assessment order passed by the second defendant [an officer of the appellant-Corporation] relating to a house situated in Delhi. More significant is the wide language in which the prohibitory injunction was asked for. It is worded widely to restrain proceedings against any of the properties or assets of the plaintiff [situated anywhere] for recovery of the said tax. Another important fact to be noticed is that the plaintiff, while setting out in detain the reasons for which the assessment order aforesaid was said to be illegal, did not disclose in her plaint that she had already filed an appeal against the said assessment order before the appropriate authority and it was pending. Suit notices were issued to the defendants and were supposed to be served upon them. The suit was decreed on September 11, 1991.
(3.) The judgment sets out the averments in the plaint at length and then says that though served, the defendants have not filed any reply and that, therefore, the case is proceeded with ex parte. Except stating that the plaintiffs has reiterated the averments in the plaint and that "the case of the plaintiff as stated deserves to be accepted in a one sided matter", no specific finding is recorded in the judgment that the officials of the appellant-Corporation did indeed seek to attach or sell the assets of the plaintiff. The suit was decreed in the following terms: "it is declared that the defendant's order dated 28-1-91 are illegal, bad and contrary to law and that the defendant and his representatives/agents are hereby restrained from auctioning the property at C-92, Inder Puri, Loni, Ghaziabad pursuant to the orders dated 28-1-91". While it is true that the prohibitory injunction as confined only to properties at Ghaziabad, yet the declaration that the order dated January 28, 1991 is illegal and contrary to law makes it unenforceable and ineffective for all purposes.;