1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant-
original defendant-Bedi Nagar Panchayat to quash and set aside the impugned judgment and decree dated 10/11/1982 passed by the learned Civil Judge (Junior Division), Jamnagar in Regular Civil Suit No. 456/1976 as well as the impugned judgment and order passed by the learned appellate Court- learned Extra Assistant Judge, Jamnagar dated 12/04/1989 in Regular Civil Appeal No. 1/1983 by which the learned appellate Court has dismissed the said appeal preferred by the appellant- original defendant confirming the judgment and decree passed by the learned learned trial Court decreeing the suit.
2. It appears that the respondent-original plaintiff was having the property/shop at Madhapur Bhunga, which according to the respondent-original plaintiff was not within the octroi limit of the appellant-original defendant-Bedi Nagar Panchayat. Still the appellant-original defendant was trying to collect the octroi duty on the goods brought within the limits of Madhapur Bhunga and, therefore, the respondent-original plaintiff instituted Regular Civil Suit No. 456/1976 in the Court of learned Civil Judge (Junior Division), Jamnagar against the appellant-original defendant for declaration that the area of Madhapur Bhunga is not included within the octroi limits of Bedi Nagar Panchayat and, therefore, the appellant-original defendant has no right to collect the octroi duty on the goods within the limits of Madhapur Bhunga by the respondent- original plaintiff for consumption, use and sale etc..
2.1. The appellant-original defendant contested the suit by filing written statement at Exh. 10 contending interalia that the suit is not maintainable as the same has been filed against the President of the Panchayat. It was submitted that in fact the Administrator was appointed. It was also submitted that the area of Madhapur Bhunga was included within the octroi limits of the Panchayat and, therefore, it was contended that the appellant-original defendant had right to recover the octroi duty on the goods brought within the limits of Madhapur Bhunga for consumption, use and sale.
2.2. The learned trial Court framed the issues at Exh. 40. Both the sides led the evidence, documentary as well as oral and on appreciation of the evidence on record, the learned trial Court decreed the suit of the respondent-original plaintiff holding that the area of Madhapur Bhunga is not included within the octroi limits of the Bedi Nagar Panchayat and the octroi limits were not fixed as per the Rules and, therefore, the appellant-original defendant-Bedi Nagar Panchayat has no right to recover the octroi on the goods within the limits of Bedi Nagar Panchayat from the respondent-original plaintiffs.
2.3. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court decreeing the suit and granting the declaration and injunction as prayed for the appellant-original defendant preferred Regular Civil Appeal No. 1/1983 before the learned appellate Court and the learned appellate Court-learned Extra Assistant Judge, Jamnagar dated 12/04/1989 dismissed the appeal confirming the judgment and decree passed by the learned trial Court decreeing the suit. Being aggrieved and dissatisfied with the impugned judgment and decree/order passed by both the Courts below the appellant-original defendant has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
2.4. It appears that during pendency of the present Second Appeal area of Bedi Nagar Panchayat is included into the local city limits of Jamnagar City and, therefore, it was submitted by the learned advocate appearing on behalf of the appellant- original defendant-Bedi Nagar Panchayat that the appellant- Bedi Nagar Panchayat does not exist as the city of Jamnagar covers the area of Bedi Nagar Panchayat and despite the intimation to the Jamnagar Municipal Corporation with respect to the present proceedings he has received no instructions to proceed further with the matter and, therefore, a request was made by the learned advocate appearing on behalf of the appellant-original defendant-Bedi Nagar Panchayat to issue notice to the Jamnagar Municipal Corporation with regard to the present proceedings and consequently, Registry issued notice to the Municipal Commissioner, Jamnagar Municipal Corporation, Jamnagar informing about the present Second Appeal filed by Bedi Nagar Panchayat, returnable on 03/03/2011 and pursuant thereto Shri Premal Joshi, learned advocate has appeared on behalf of the Jamnagar Municipal Corporation. However, it is required to be noted that as such no formal application has been filed by the Jamnagar Municipal Corporation to substitute Bedi Nagar Panchayat into Jamnagar Municipal Corporation. Still as the learned advocate appearing on behalf of the Jamnagar Municipal Corporation has appeared pursuant to the notice issued by this Court and this Court has heard Shri Premal Joshi, learned advocate appearing on behalf of the Jamnagar Municipal Corporation.
2.5. It appears that at the relevant time one Civil Application No. 357/1991 was submitted by the appellant-original defendant permitting it to bring on record certain documents, which are produced alongwith the said application and the said application was ordered to be heard alongwith the present Second Appeal.
3. Shri Premal Joshi, learned advocate appearing on behalf of the Jamnagar Municipal Corporation (though not substituted as appellant) has requested to allow Civil Application No. 357/1991 and permit the original appellant to bring certain documents produced alongwith the application by way of additional evidence submitting that for just decision of the main Second Appeal those documents are required. He has also stated at the bar that as such so far as the Jamnagar Municipal Corporation is concerned, no record has been received with respect to octroi from the Bedi Nagar Panchayat and so far as Jamnagar Municipal Corporation is concerned, as such they do not have any other material and/or documents and/or any file except the notice issued by this Court in the present Second Appeal. He has produced on record the communication dated 01/08/2012 addressed by the office Superintendent, Tax and Octroi Officer, Octroi Department of the Jamnagar Municipal Corporation, which is directed to be taken on record.
4. Heard Shri Premal Joshi, learned advocate appearing on behalf of the Jamnagar Municipal Corporation. It is to be noted and as stated hereinabove, the Second Appeal preferred by the Bedi Nagar Panchayat-original defendant, who is now not in existence, is included into the local limits of Jamnagar Municipal Corporation. As stated hereinabove, as per the communication dated 01/08/2012 addressed by the Superintendent, Tax and Octroi Officer, Octroi Office of the Jamnagar Municipal Corporation to the Labour Officer, Labour Branch, Jamnagar Municipal Corporation, the copy of which is sent to Shri Premal Joshi, learned advocate appearing on behalf of the Jamnagar Municipal Corporation, has no further papers with respect to octroi record from the Bedi Nagar Panchayat. It is also required to be noted that as such the present Second Appeal is of the year 1989 and the Civil Suit is of the year 1976 and, therefore, even if any order is passed in favour of the Panchayat, which is not in existence, neither the Corporation nor any other authority would be in a position to recover any octroi from the respondent-original plaintiff as there is no material available with the Jamnagar Municipal Corporation. The aforesaid is observed so as to appreciate and/or consider the present Second Appeal and the application submitted by the appellant-original defendant-Bedi Nagar Panchayat is considered for additional evidence.
5. Having heard Shri Premal Joshi, learned advocate appearing on behalf of the Jamnagar Municipal Corporation and considering the impugned judgment and orders passed by both the Courts below, it appears that as such the learned trial Court has passed the decree and granted the declaration and permanent injunction on the basis of the evidence on the record and the learned appellate Court has confirmed the judgment and decree passed by the learned trial Court considering the evidence, which was already on record before the learned trial Court. It is not in dispute that the documents, which are sought to be produced alongwith the Civil Application in the present Second Appeal, are sought to be produced for the first time in the year 1991 i.e after a period of 18 years of filing of the suit and, therefore, as such, considering the evidence on record, which was available before the learned trial Court, it cannot be said that the learned trial Court has committed any error and/or illegality in granting the declaration and permanent injunction in favour of the respondent-original plaintiff.
5.1. Now so far as the application submitted by the appellant- original defendant-Bedi Nagar Panchayat requesting to permit the original appellant to produce additional evidence is concerned, under normal circumstances, this Court would have considered the same, however, considering the fact that original suit is of the year 1976 and even the appellant-original defendant-Bedi Nagar Panchayat is not in existence since long and even the Jamnagar Municipal Corporation has no further record available as they have not received any octroi record from the Bedi Nagar Panchayat, which is now not in existence, to consider the application would be an exercise in futility. Even if the Second Appeal is allowed, in that case also, it is not possible for the Jamnagar Municipal Corporation to recover the octroi for the interregnum period in absence of any other octroi record with it. It is also reported that the respondent-original plaintiff is also not available and he has left the premises.
6. Considering the aforesaid facts and circumstances of the case and considering the impugned judgment and order/decree passed by both the Courts below as such no illegality has been committed by both the Courts below in granting declaration and permanent injunction, which is granted on appreciation of evidence already on record and, therefore, no interference of this Court is required in exercise of powers under Section 100 of the Code of Civil Procedure. Under the circumstances, the present Second Appeal deserves to be dismissed and is accordingly dismissed.
CIVIL APPLICATION No. 357/1991 In view of dismissal of Second Appeal, no further order is required to be passed in the Civil Application and the same is also accordingly disposed of.
(M.R. SHAH, J.)
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