Manish Pitale JUDGMENT
Manish Pitale, J.
1. Heard. Admit. Heard finally with the consent of the learned Counsel appearing on behalf of the respective parties.
2. The question that arises for consideration in this appeal is, whether the suit filed by the respondent seeking declaration and permanent injunction against the appellant/Municipal Corporation, in respect of dues towards Municipal tax, was maintainable. The appellant/Municipal Corporation has relied upon provisions of the Maharashtra Municipal Corporations Act, 1949 (hereinafter referred as the said Act), particularly Section 406 thereof, to claim that the jurisdiction of the Civil Court is impliedly ousted and that, therefore, the Civil Court in the present case did not have jurisdiction to entertain the suit filed by the respondent.
3. The relevant facts, in brief, giving rise to the present appeal, are that on 01.09.2014, the respondent, a Public Trust, filed suit for declaration and permanent injunction against the appellant/Municipal Corporation praying for a declaration that bills and notices issued by the appellant/Municipal Corporation in respect of Municipal tax dues were without jurisdiction as the respondent/Public Trust was using the building in question for charitable and educational purposes. The respondent/Public Trust further prayed for a permanent injunction to restrain the appellant/Municipal Corporation from threatening or actually putting seal on the building in question. A further prayer was made for refund of amounts that were earlier deposited by the respondent/Public Trust with the appellant/Municipal Corporation. It is relevant to mention here that the respondent/Public Trust had paid the said tax without demur for the year 2010-11.
4. On 01.04.2015, the appellant/Municipal Corporation filed an application under Section 9 read with Section 151 of the Code of Civil Procedure (CPC) for returning the plaint to the plaintiff/respondent/Public Trust for filing appeal under Section 406 of the said Act. It was contended that when remedy of appeal was available under the said provision, the suit filed by the respondent/Public Trust was not maintainable. On the basis of the said application, on 16.06.2015, the trial Court passed an order framing preliminary issue as to whether the said Court had jurisdiction to try and entertain the suit.
5. On 03.08.2015, the trial Court passed its order holding that the Court did not have jurisdiction to try and entertain the suit, as remedy of filing appeal under Section 406 of the said Act was available to the respondent/Public Trust. Accordingly, the plaint was directed to be returned to the respondent to be presented before the proper forum.
6. The said order was challenged by the respondent/Public Trust before this Court by filing an appeal, wherein it was held by this Court that the second direction given by the trial Court in the order dated 03.08.2015 for returning the plaint was not maintainable and it was set aside. This Court further held that the aforesaid order of the trial Court was appealable under Section 96 of CPC. Therefore, the respondent/Public Trust filed Regular Civil Appeal No. 112 of 2015 before the District Court at Akola under Section 96 of CPC.
7. By the impugned judgment and order, the District Court has allowed the appeal of the respondent/Public Trust and remanded the matter to the trial Court with a direction to determine the suit afresh on all issues. The District Court has held in the impugned judgment and order that the grounds raised in the suit by the respondent/Public Trust cannot be ........