PER: MR. N. V. ANJARIA, J.:-

1. With consent of and request by both the learned Advocates, the matter was taken up for final consideration, and was heard at length.

2. By presenting this appeal under Section 100 of the Code of Civil Procedure, 1908, the appellant-Corporation seeks to challenge the judgment and decree passed by learned Sixth Additional District Judge, Jamnagar District, Jamnagar, whereby the appellant-original defendant is directed to refund the original plaintiff, who was the appellant before the lower Appellate Court and is respondent herein, Rs.88, 345.50 (Rupees Eighty Eight Thousand Three Hundred Forty Five and Paisa Fifty) being the amount of the penalty of octroi recovered by the Corporation.

3. The relevant facts of the case are that plaintiff purchased vehicle being Tata Sumo bearing Registration No.GJ-10-Complaint-9534 on 02nd February, 1996, for the purpose of using it for his factory at Hapa. Factory address of Hapa in the Hapa Industrial Area being outside the limits of Jamnagar Municipal Corporation, according to the case of the plaintiff, the Corporation had no Authority in law to collect penalty on octroi on the vehicle in question. It was pleaded that despite that the Corporation charged not only the octroi of Rs.8,834.50, but levied ten times penalty and thus recovered total Rs.97, 180. It was the further case that thereafter objections in writing were lodged, demand notice dated 19th March, 1998 was given seeking refund of the amount, but the same was not answered, much less the amount refunded. The plaintiff once again therefore gave another notice dated 26th May, 1998, through Advocate.

3.1 The plaintiff-respondent thereupon instituted Special Civil Suit No. 65 of 1998 for recovery of the amount of Rs.97, 180/-, pleading and contending that in September, 1997, the officers of the corporation in course of and under excuse of drive to recover the octroi came to plaintiff's place on 30.09.1997. It was alleged that' they behaved high handedly, asked for old bills and required to pay octroi of rupees one lakh and further asked the plaintiff to voluntarily disclose that the octroi was unpaid. At that time the plaintiff refused to voluntary disclosure; it was the case of the plaintiff that the aforesaid amount of Rs. 97,180/- was collected towards octroi and penalty, which was paid.

3.2 In the Written Statement at Exhibit 38, the defendant Corporation denied the case put forth by the plaintiff. It was contended that at the time of checking, partner of the plaintiff firm voluntarily disclosed Rs.51,000/-; that a cheque dated 05.03.1998 for Rs.25,000/- and dated 10.03.1998 for Rs.26,000/-and thereafter, upon request the plaintiff, the second cheque for Rs.26,000/- was returned back. It was thereafter contended that the cheque for Rs.97,180/-was given towards octroi and penalty and subsequently cash was given and the Corporation returned the cheque. It was the case of the defendant corporation that the address of Hapa I was given at the time of purchase of the vehicle with a view to evade the payment of octroi, and therefore octroi and penalty were rightly recovered and paid, with such attendant facts the corporation, thus, mainly raised two-fold contentions. It was contended that the plaintiff had paid the amount inclusive of penalty voluntarily, therefore, there was no question of refunding the same. According to the defendant the amount being of penalty for octroi theft the same was rightly paid and duly collected. Furthermore, on the ground that the appeal was pending consideration before the Standing Committee of the Corporation, the suit was not competent and the Civil Court could not have exercised its jurisdiction to try and entertain the suit.

3.3 On the premise that the amount was voluntarily paid, and the plaintiff had made request to the standing committee, the Court of 5th Jt. Civil Judge (S.D.) Jamnagar dismissed the suit by judgment and order dated 28th December, 2001. It however neg