- (1.) POONAM Srivastav, J. Heard learned Counsel for the appellant.
(2.) THIS is plaintiffs second appeal against the judgment and decree dated 20. 10. 1994 passed by the IV Additional District Judge, Bareilly in Civil Appeal No. 60 of 1994 setting aside the judgment and decree of the Trial Court dated 18. 3. 1991. Facts giving rise to the dispute are that the plaintiff had cane crusher in the name of partnership firm and he was granted license for the Session 1972-73 under the U. P. Sugar Cane (Purchase Tax) Rules, 1961 hereinafter referred to as the U. P. Act No. XI of 1961. On account of some dispute between the partners, the cane crusher could only run from 15. 1. 1973 to 19. 1. 1973 and thereafter its operation was stopped. Due information by the registered post was given to the Sugar Cane Inspector on 3. 2. 1973. It is contended that a reminder was issued on 27. 2. 1973 intimating the authorities that the cane crusher could run only from 15. 1. 1973 to 19. 1. 1973. This fact was also brought to the notice of the U. P. Cane Commissioner on 3. 2. 1973. However, despite the aforesaid receipt, the plaintiff received a demand notice regarding sugar cane purchase tax, which was replied by the plaintiff that since cane crusher was not operative, therefore, the plaintiff is not entitled to pay any tax. Nine statutory notices under section 80 C. P. C. were given by the plaintiff not to enforce-the demand for the aforesaid tax but it failed to yield any result. Hence, an injunction suit was instituted. The defendant/respondents contested the suit. They filed written statement stating therein that license was granted to the plaintiff and he had cane crusher in village Pundari, Tehsil Nauabgang, therefore, he was liable to pay sugarcane tax. Assertion of the plaintiff that the cane crusher was run only from 15. 1. 1973 to 19. 1. 1973, was specifically denied. No intimation was received by the authorities regarding closure of the crusher. A sum of Rs. 6930 was assessed as sugarcane purchase tax for the period commencing from 15. 1. 1973 to 2. 4. 1973 and consequent thereon recovery certificate was issued. The suit was instituted challenging the aforesaid recovery.
(3.) THE stand of the defendants was that the Civil Court had no jurisdiction to entertain the suit as assessment and imposition of the tax was governed by U. P. Act No. XI of 1961 and also the plaintiff could challenge the assessment of tax by filing an appeal within thirty days of intimation before the Sugar Cane Commissioner or Assistant Sugar Cane Commissioner and thereafter a revision could also be filed before the State Government. Tax was recoverable as arrears of land revenue, therefore, the suit was barred under the U. P. Z. A. and L. R. Act. The Trial Court framed as many as eight issues. Question of valuation was decided as preliminary issue by the trial Court which was made part of the judgment. Issue nos. 2 and 3 related to the legality of the demand notice and whether sugar cane unit of the respondent ceased to work after 19. 1. 1973. The Trial Court decreed the suit coming to a conclusion that demand notice was not proper. The appellant was liable to pay tax for the period of five day commencing from 15. 1. 1973 to 19. 1. 1973. Prior intimation by the plaintiff to the State Government was accepted by the Trial Court. On the question of jurisdiction, the Trial Court has also recorded its findings in favour of the plaintiff. A decree for injunction was passed against the defendants. The State Government preferred an appeal before the learned IV Additional District Judge, which was allowed giving rise to the instant appeal. The instant appeal was admitted on the following substantial questions of law: " 1. Whether the non-filing of an appeal under the Sugar Cane Purchase Tax Act will oust the jurisdiction of Civil Court for granting permanent injunction. 2. Whether in the present set of facts, one week prior notice before the closure was necessary when the unit itself has worked only four or five days? 3. Whether the finding that crushing unit has worked for the term of license could be recorded in absence of any monthly report of Cane Inspector that unit was still functioning? 4. Whether it could be concluded that notice had been served on appellant by refusal when the returned registered letter had not been brought on record? 5. Whether the Appellate Court could proceed to reverse a decree on an issue which had not been pressed before the Trial Court?";