1. Heard submissions at the bar. The appeal is against oral order below Exhibit 1 in Special Civil Suit No.459 of 2010 passed by 7th Civil Judge, Senior Division, Pune, on 18.7.2012, when preliminary issue was raised regarding jurisdiction of the Civil court to entertain and try the suit in view of specific remedy provided of appeal under Section 406 of the Bombay Provincial Municipal Corporation Act (hereinafter referred to as BPMC Act). Learned Judge after hearing submissions considered that efficacious remedy which is available to the plaintiff was not exhausted by the plaintiff and that there was no any other remedy to challenge the unlawful levy of octroi by the defendant. Learned Judge after making reference to a ruling in Abdulla Bin Ali vs. Galappareported in AIR 1985 Supreme Court 577, scrutinized the plaint to note the averments about the dispute as to deficit payment of octroi for the period 1999 to 2001 on the basis of which Municipal Corporation of Pimpri-Chinchwad demanded the tax arrears which according to the plaintiff was illegal demand, as the plaintiff contended that all those dues were already cleared and the demand of octroi is null and void. According to the plaintiff, there was no any express provision to bar jurisdiction of Civil court to decide about the legality and the powers of the Municipal authority to demand the taxes, while defendant had contended that Civil court had no jurisdiction, considering the provisions under Section 406 of the BPMC Act. Learned Judge also referred to Constitutional Bench ruling reported in Dhulabaivs. State of M.P. reported in AIR 1969 Supreme Court 78 to observe that jurisdiction of Civil court to entertain and try a suit may be barred by an express provision of a statutes or even impliedly.

2. Dispute in this appeal was in substance relating to the assessment of the tax for the period from the year 1999 to 2001 which was challenged in the suit. Learned Judge considered the remedy of appeal statutorily available under Section 406 of the BPMC Act and held that plaintiff has to move to avail of the statutory remedy of appeal on the ground that the civil court had no jurisdiction to grant relief to the plaintiff for want of jurisdiction under Section 9 of Code of Civil Procedure. The civil suit was held not maintainable and the issue of jurisdiction was decided against the plaintiff. Hence this appeal.

3. Learned counsel for the appellant made reference to ruling in American Refrigerator Company vs. Pimpri Chinchwad Municipal Corporation reported in 1991(2) Bom.C.R. 642 which was in a writ petition before the Division Bench of this court. In paragraph 13 of the ruling while quoting submissions with reference to Section 169 of the Maharashtra Municipalities Act 1965, wherein remedy of appeal is provided against any claim for taxes or other dues, Division Bench of this court made observations that the petition was admitted as far back as February 1983 and an interim order was also passed in favour of the petitioners on their depositing in court a sum of Rs.10,000/-. Thus in the facts and circumstances of the case, after a lapse of more than 7 years, Division Bench of this court considered that it would not be fair on it's part to now deny to the petitioners any relief only on the ground that they should have availed of the statutory remedy of an appeal under Section 169. Thus, in the facts and circumstances of that case, considering that demand after a period of 9 years, this court felt as to how such question could have been entertained or decided in an appeal under Section 169. Thus, it appears that invoking the exercise of writ jurisdiction the rule was made absolute by this court, in the facts and circumstances of that case, by setting aside the demand made by Pune Chinchwad Municipal Corporation, long pending since prior to 30.8.1979. Thus, according to learned counsel for the appellant, it must be left to the civil court to entertain the suit and to decide the q