- (1.)This is defendants' appeal against judgment and decree dated 28th April, 1998 passed by Sri J.P. Pandey, Civil Judge (Senior Division), Muzaffarnagar in O.S. No. 143 of 1995, decreeing the suit, declaring that the amount recovered by the defendants from the plaintiff towards the arrears of licence fee without adjusting the damages suffered by the plaintiff is illegal. A decree for mandatory injunction directing the defendants to adjust Rs. 10,01,520/- first towards the damages suffered by the plaintiff was passed. Further, the amount recovered as pendente lite may also be adjusted and final accounting be done. It has also been provided that if any excess amount is found due to the plaintiff, it shall carry six per cent interest. Ram Kishan, the plaintiff, an excise licensee under the U.P. Excise Act, instituted the aforesaid suit on the allegations that he in the auction dated 26th April, 1977 took four liquor shops for the excise year 1977-1978 held at Muzaffarnagar for a sum of Rs. 34 lakhs for the period 27.4.1977 to 31st March, 1978. Under the licence he was entitled to open shops from 10:00 a.m. to 10:00 p.m. By a gazette notification dated 18th September, 1977, the time for running shops by late evening was reduced by two hours from 10:00 a.m. to 8:00 p.m. It was alleged that it is evening when major business of selling liquor takes place. Late evening hours are the peak hours of such kind of business and by restricting it up to 8:00 p.m., he has suffered damages and that is the reason he could not deposit the licence fee etc. The shop was also ordered to be closed during the Vidhan Sabha election which caused a loss of Rs. 34,100/-1 for three days. The cause of action arose as the defendants instead of acceding to the request of the plaintiff to grant remission issued a recovery warrant for Rs. 10,01,520/-. Out of the said amount certain amount was recovered. Earlier, the plaintiff had filed suit at Meerut which was dismissed on 13.4.1982 by the Civil Judge, Meerut holding that the Meerut Court has no territorial jurisdiction to try the suit. The matter was carried in first appeal No. 305 of 1982 before the High Court and the High Court vide its order dated 12th August, 1994 ordered for return of the plaint.
(2.)The suit was contested by raising number of pleas including that the suit is not maintainable. It was pleaded that the suit is barred by Sections 279, 287A and 330 of U.P.Z.A. & L.R. Act. It is barred by Revenue Recovery Act. It is barred by U.P. Public Money Recovery Act. It is barred by Sections 34 and 41 of the Specific Relief Act etc.
(3.)The trial Court framed thirteen issues on the basis of the pleadings of the parties. They are as follows :
1. Whether the defendants were empowered to issue order dated 18th September, 1977 to reduce the working hours and opening days? "'

2. Whether the plaintiff has suffered any loss due to the order dated 18th September, 1977 and is entitled for remission of the amount shown in the replication?

3. Whether non supply of spiced liquor has caused damages to the plaintiff and is entitled to adjust it against licence fees?

4. Whether the plaintiff is entitled to get refund of Rs. 4,19,700/-2 from the defendants?

5. Whether the suit is barred by Section 80 CPC and is not maintainable?

6. Whether the plaint is liable to be dismissed under Order VII Rule 11 CPC?

7. Whether the suit is bad for mis-joinder of the parties?

8. Whether the suit is barred by Revenue Recovery Act?

9. Whether the suit is barred by U.P. Public Money Recovery Act?

10. Whether the suit is barred by Sections 34, 31 and 41 of the Specific Relief Act?

11. Whether the suit is barred by principles of estoppel and acquiescence?

12. Whether the Civil Court is not competent to entertain the suit?

13. To what relief the plaintiff is entitled?