Decided on July 07,2005

STATE OF C.G. Appellant


V.K.SHRIVASTAVA,J. - (1.) This appeal is directed against the order dated 26-2-1997 passed by the Additional District Judge, Baikunthpur in Civil Suit No. 1-A/96, whereby temporary injunction in favour of respondent has been granted and appellants have been restrained to recover the fine imposed on respondent.
(2.) Respondent obtained license for 1-4-1993 to 31-3-1994 in form No. FL-1 for retail sale for foreign liquor in Baikunthpur and Churcha Colliery. The sale of liquor is regulated by the Excise Act and rules framed thereunder. Conditions for running of the shop including lifting of the foreign liquor are mentioned in the license issued to the respondent. Respondent did not lift the quantity agreed upon in the contract and also failed to deposit the license fees in the month of December, 1993 and January, 1994. Therefore, penalty of Rs. 2,56,284.00 was levied on him. The department proceeded to recover the sum as arrears of land revenue. Therefore respondent for declaring the imposition of fine against him as illegal and restraining the appellants from recovery of the same, filed a suit bearing Civil Suit No. 1-A/96 and to obtain temporary injunction, filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short, "the Code").
(3.) Appellants opposed the application on the ground that respondent did not lift the minimum quantity of liquor in the year 1993-94, and did not deposit the license fees in the month of December, 1993 and January, 1994. Respondent vide application dated 24-3-1994 pray to lift the liquor. Department agreed to issue the permit on depositing the license fees. Respondent violated the conditions of license, therefore, penalty was levied on him and proceeding to recover the same has been started. Appellants further objected the suit and application on various other ground viz., that the respondent did not value the suit properly and also did not pay the requisite Court Fees. No cause of action in his favour arose. No permission under Section 80(2) of the Code has been obtained.;

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