Judgment

SEN, J.- This appeal arises out of an interim order of stay passed by a Single Judge of the Delhi High Court dated 16-12-1993 in Suit No. 1851 of 1993. This suit was filed by the plaintiff, C.L. Batra, after the previous attempt to obtain interim order of stay failed on a writ petition (Civil Writ Petition No. 583 of 1992), which was dismissed as withdrawn on 27-2-1992.

2. The grievance of the appellant, Municipal Corporation of Delhi, is that an interim order has been passed in this suit by which the assessee has obtained stay of recovery of tax of nearly one crore of rupees. The assessee was directed to deposit the admitted liability of Rs 3,00,000 only in respect of the property, M/s Grindlay Cinema Building, New Friends Colony, New Delhi.

3. The interim order was extended from time to time. The last of such extension was granted on 16-12-1993 in Suit No. 1851 of 1993.

4. The grievance of the appellant is that this interim order has opened a floodgate and many other suits have been filed bypassing the statutory provisions of appeal. Stay orders have been obtained in respect of demands totalling about rupees twenty crores. The case of the appellant is that the assessments have been completed in accordance with law. Copies of the assessment orders have been annexed to the special leave petition.

5. On behalf of the assessee, it has been contended that an authenticated assessment list is a condition precedent to any recovery proceeding. In the instant case, there is no such list in existence. Therefore, no recovery proceedings can be commenced. It has been pointed out that written statement filed on behalf of the Municipal Corporation was found inadequate and the written statement had to be amended. This necessitated the extension of the interim order. In the background of these facts, it cannot be said that the suit is not maintainable or the recovery proceedings should not be stayed.

6. In our view, no interim order should have been passed in this case at all for three reasons.

7. Firstly, it has not been satisfactorily explained why the statutory remedy of appeal was allowed to be bypassed. The trial Judge was conscious of this aspect of the matter and the judgment of the Delhi High Court in an earlier case. In fact, he has recorded in his order dated 9-9-1993 this fact:

"I am conscious of the order passed by the Division Bench of this Honble Court in Abaskar Construction Pvt. Ltd. decided on 30-9-1991."

There is no explanation why even after this he entertained the suit and passed the interim order.

8. Secondly, the assessee had filed a writ petition, praying for similar relief. When interim order was not granted on that writ petition, he withdrew the writ petition and filed this suit. This was an abuse of process of law. No liberty was obtained from the court to file a suit on the same cause of action, when the writ petition was withdrawn.

9. Thirdly, as early as on 6-1-1984, in the case of Siliguri Municipality v. Amalendu Das{(1984) 2 SCC 436} this Court had vacated an interim order staying recovery of tax. In that case, it was pointed out: (SCC p. 438, para 3)

"The Court has to show awareness of the fact that in a case like the present a Municipality cannot function or meet its financial obligations if its source of revenue is blocked by an interim order restraining the Municipality from recovering the taxes as per the impugned provision. And that the Municipality has to maintain essential civic services like wafer supply, street lighting and public streets etc., apart from, running public institutions like schools, dispensaries, libraries etc. what is more, supplies have to be purchased and salaries have to be paid. The grant of an interlocutory order of this nature would paralyse the administration and dislocate the entire working of the Municipality. It seems that these serious ramifications of the matter were lost sight of while making the impugned order."

10. In the case of Assistant Collector of Central Excise, Ch