Honble GARG, J.–This is a defendant No. 1 appellants first appeal against the judgment and decree dated 28.8.1981 passed by the learned Additional District Judge, Sri Ganganagar by which he decreed the suit of the plaintiff respondent in the manner that notice dated 1.5.1975 which was issued by the appellant-defendant No.1 against the plaintiff respondent for recovery of Rs. 10,350/-was held null and void against the plaintiff respondent.

(2). It arises in the following circumstances:-

The plaintiff respondent filed a suit against the appellant-defendant No.1 and one more other in the Court of District Judge, Sri Ganganagar on 28.7.1975 stating that plaintiff-respondent and one more defendant No.2 used to conduct business in the name of M/s Meghraj Bhawanidas at Karanpur for the sale of Lanced Poppy Heads. They have got a license for the year 1964-65 from the Excise Department. The District Excise Officer, Merrut, UP issued a permit No. 146 dated 22.12.1964 in favour of the firm Ramanand, wholesale dealer in Lanced Poppy Heads at Merrut, for obtaining 150 quintal Lanced Poppy Heads. After receipt of the permit by the plaintiff-respondent, the plaintiff respondent, after taking permission from the Excise Department at Ganganagar, sent 150 quintal Lanced Poppy Heads to the firm Ramanand, Wholesale Dealer at Merrut. The said Lanced Poppy Heads were sent by the plaintiff respondent on 23.12.1964 through two trucks and the said goods were received by the firm Ramanand at Merrut. About the receipt of the said goods, Excise Officer, Ganganagar enquired from the Excise Officer, Merrut and upon this, the Excise Officer, Merrut through letter No. 1368 dated 20.4.65 informed the Excise Officer, Ganganagar that 150 quintal Lanced Poppy Heads have been received by the firm Ramanand at Merrut. But, the appellant-defendant No.1 issued a notice dated 1.5.1975 to the plaintiff respondent and claimed excise duty to the tune of Rs. 10,350/-on the ground that the said goods have not been received by the firm Ramanand at Merrut. The said notice dated 1.5.1975 was challenged by the plaintiff respondent in this suit and it was prayed that the said notice, being illegal and invalid, be declared as null and void, as the goods have been received by the firm Ramanand at Merrut.

(3). The suit of the plaintiff-respondent was contested by the appellant-defendant No.1 by filing a separate written statement on 13.2.1976 and it was alleged by the defendant appellant that the goods i.e. 150 quintal Lanced Poppy Heads have not been received by the firm Ramanand at Merrut, but on the contrary, the said goods remained in Ganganagar, therefore, the notice which was issued by the appellant-defendant No.1 was valid and the plaintiff-respondent was liable to pay excise duty. Hence, the suit of the plaintiff-respondent be dismissed.

(4). On the pleadings of the parties, the following issues were framed by the learned lower court:-

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2-D;k uksfVl /kkjk 80] O;ogkj izfØ;k lafgrk oS| gS\

3-D;k nkok fe;kn ds ckgj gS\

4-D;k nkok pyus ;ksX; ugha gS\

5-i{kdkjx.k fdl vuqrks"k ds ikus ds vf/kdkjh gSA**/span>

Note:-

1. That issue No.1 which was originally framed by the learned lower court was re-drafted by the order dated 12.1.1981 and burden of proving the issue No.1 was specifically placed on the plaintiff respondent by the learned lower court.

2. That in the lower court both the parties did not lead any evidence and the learned lower court decided the case on the basis of the material available on record.

(5). It may be stated here that during the hearing of the suit in the lower court, the plaintiff respondent filed an application on 20.1.1979 before the learned lower court and sought answers from the appellant-defendant No.1 in respect of some interrogatories. The defendant No.1 appellant replied to the said interrogatories by separate reply wh

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