JUDGMENT

1. This is an appeal by the Municipal Board of Benares arising out of a suit brought by the plaintiff company for refund of certain octroi duty charged from them on certain ceiling fans imported into the Municipal limits. The goods were detained at the barrier and were charged at the rate of six pies per rupee on their value. The plaintiffs paid the duty under protest and got their goods released. The plaintiff company has now instituted the suit in the Civil Court for refund of the octroi on the ground that the goods were not chargeable with octroi at all. The defendant inter alia pleaded that the Civil Court had no jurisdiction to entertain the suit. An issue on the question of jurisdiction was framed by the trial Court, but it was not seriously pressed on behalf of the defendant. The point was again raised in the grounds of appeal before the lower appellate Count, but the judgment of that Court does not suggest that the point was argued. Before a learned Judge of this Court in second appeal the point does not appear to have been, argued, and the only question considered was whether the electric ceiling fans could come under the category of "hardware" so as to be chargeable under Article 82 of the Schedule.

2. A preliminary objection is taken on behalf of the plaintiff that a new point which was not argued before the Judge of this Court should not be allowed to be raised in the Letters Patent appeal. Reliance is placed on the observations in Brij Bhukhan v. Durga Dat (1898) 20 All. 258, that in appeals under the Letters Patent an appellant is not entitled to be heard on points which he had not raised before the Judge from whose decree lie was appealing. Probably all that the learned Judges-meant to lay do n was that he was not entitled as of right to raise such, a question, and not that the Letters Patent Bench itself is precluded from allowing such a point to be raised. Even in Ram Kinker Rai v. Tufani Ahir 1931 All. 35, it was conceded that a question involving jurisdiction can be raised for the first time in appeal. It was pointed out in a lateir Full Bench case of Mahabir Singh v. Narain Tewari 1931 All. 490, that the list could not be exhaustive and any suggestion that no other category could be considered would be an obiter dictum. The matter has been set at rest by the pronouncement of their Lordships of the Privy Council in M.E. Moolla & Sons, Limited v. Mrs. Burjorjee 1932 P.C. 118 where their Lordships quoting the remarks of Lord Watson in Connecticut Fire Insurance Co. v. Kavanagh (1892) A.C. 473, at p. 480 pointed out that where a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent, but expedient in the interests of justice to entertain the plea. But the expediency of adopting such a course may be doubted when the pleas cannot be disposed of without deciding nice questions of fact. We are therefore of opinion that a plea of want of jurisdiction can be raised in this Letters Patent appeal even though it does not appear to have been pressed before the learned Judge of this Court.

3. The first contention urged on behalf of the appellant is that no suit far a refund of octroi duty lies in the Civil Court. Section 128(1), Municipalities Act, 1916, empowers a Board to impose several kinds of "taxes", and the list includes an octroi on goods or animals brought within the Municipality for consumption or use therein. The opening portion of the sub-section indicates that an octroi is regarded as one of the taxes which can be imposed by the Board. In Section 133(1) it is specifically mentioned that if the proposed of "tax" falls under any of the Clauses (i) to (xii), Sub-section (1), Section 128, the Commissioner may refuse to sanction it. Clause (8). Sub-section (1) is the clause referring to octroi on goods. Similarly Section 166 speaks of any sum on account of "tax" other than