Notice under Section 326 of the U. P. Municipalities Act is necessary in a suit for injunction to restrain the Municipal Board from interfering with carrying drugs and medicines from railway station to any other place within the Municipality, as the act of imposition of octroi tax and discharge of official duty of realising that tax is one whole process and there is a reasonable connection between the two.

JUDGMENT:- The plaintiffs filed a suit for injunction to restrain the defendant from interfering with and checking the plaintiffs from carrying drugs and medicines etc., from railway station Faizabad to any other place within Faizabad Municipality and in the alternative to restrain the defendants from charging octroi tax at a rate higher than 1.25 nP. per maund on patent medicines manufactured in India.

2. The suit was resisted by the defendant on the ground inter alia that it was bad for want of notice under Section 326 of the U. P. Municipalities Act that none of the medicines brought by the plaintiffs was covered by Serial No. 73 but were covered by Serial No. 71 of the Schedule for non-refundable octroi and the duty charged was correct. At the trial of the suit it was also urged by the defendant that the civil Court had no jurisdiction to try the suit.

2-A. The trial Court held that no notice was necessary to be given under Section 326 of the Municipalities Act and that the Civil Court had the jurisdiction to try the suit. It, however, found that the goods were brought by the plaintiffs from outside within the municipal limits and the octroi duty was, therefore, payable thereon but it held that the drug containing alcohol was exempt from payment thereof. It did not agree with the contention that Item No. 73 for non-refundable octroi at a reduced rate included all patent medicines manufactured in India according to any system of medicine. In view of these findings relief B claimed in the suit was not granted. With regard to relief A it was observed that it could be granted only in a restricted sense in accordance with the findings on Issue No. 3. In the result, the trial Court partly decreed the suit by granting a permanent injunction restraining the defendant from interfering in carrying drugs containing Alcohol from Railway Station, Faizabad to any other place within Faizabad Municipality or from charging any octroi duty thereon from the plaintiffs and dismissed the suit with regard to other relief.

3. Against that decision both the parties filed separate appeals. The plaintiffs filed Reg. Civil Appeal No. 105 of 1962, and the defendant filed Reg. Civil Appeal No. 101 of 1962 in the Court of District Judge, Faizabad. The learned District Judge disposed of both the appeals by a common judgment dated 23-11-1965. Appeal No. 101 of 1962 was dismissed, whereas Appeal No. 105 of 1962 was allowed in part by holding that the plaintiffs were entitled on payment of octroi tax at 1.25 paise per maund to carry patent medicines manufactured in India from railway station, Faizabad to any other place within Faizabad Municipality and restraining the defendants by injunction from charging octroi tax in

excess of 1.25 paise per maund. The decree for further relief granted to the plaintiffs by the trial Court was maintained.

4. Aggrieved the defendant has Filed Second Appeal No. 49 of 1966 from the decree and judgment passed in Reg. Civil Appeal No, 101 of 1962, and has also filed Second Appeal No. 50 of 1966 from the judgment and decree passed in Civil Appeal No. 105 of 1962. I shall dispose of both these Appeals Nos. 49 of 1966 and 50 of 1966 by one judgment as they raise common points.

5. For the appellant, Municipal Board, Faizabad, it was urged at the outset that the Civil Court had no jurisdiction to try the suit and the suit was bad for want of notice under Section 326 of the U.P. Municipalities Act. I shall deal with these points in seriatim.

(1) Jurisdiction

6. The jurisdiction of a Court to entertain and decide a suit depends upon the allegations in the plaint and not upon those which may ultimately be found true. Such allegations may after the trial be held to be unfounded which will in consequence result in dismissal of the suit not because the Court had no jurisdiction but because the allegations on which it was based were found to be incorrect. The question of maintainability of a suit also thus depends on the allegations made in the

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