JUDGMENT

S.N. Katju, J. - This is an appeal preferred by the Municipal Board, Allahabad. Learned counsel for the respondent raised a preliminary objection that since the valuation of the appeal was only Rs. 169/- it was barred under Sec. 102 of the Code of Civil Procedure. The suit was for refund of excess of octroi tax realised from the plaintiff-respondent by the appellant. There was also a relief for "a declaration that the action of the defendant in exacting Rs. 160/0/6 in excess from the plaintiff was high handed, illegal, wrongful and ultra vires." The suit in substance was for recovery of the excess amount of octroi tax charged by the appellant from the respondent and the mere fact that a declaration was also sought that the aforesaid realisation was highhanded, illegal and wrongful, did not alter the nature of the suit which was in substance for recovery of the aforesaid excess amount charged from the respondent. The suit was, therefore, a suit of the nature cognizable by the court of small causes and the provisions of Sec. 102 of the Code of Civil Procedure were attracted. There is, therefore, force in the contention of the learned counsel for the respondent that the appeal was barred by Sec. 102 of the Code. Learned counsel for the appellant, however, prayes that the appeal should be treated as an application in revision.

2. One of the questions raised in the appeal is whether the Civil Court had jurisdiction to try the suit or whether the jurisdiction of the Court was barred by Sec. 164 of the U.P. Municipalities Act. The court below expressed the view that the suit was cognizable by the civil court. Thus one of the questions raised in the appeal is of jurisdiction. I will be justified in treating the appeal as an application in revision. The learned counsel for the appellant (referred hereinafter as the applicant) contended that the proper remedy for the plaintiff was to prefer an appeal against the order of assessment to the District Magistrate under Sec. 160 of the U.P. Municipalities Act. He had failed to do so and the assessment could not be questioned by virtue of the provisions of Sec. 164 of the U.P. Municipalities Act and the Civil Court had no jurisdiction to entertain the suit. The court below placed reliance on District Board of Farrukhabad v. Prag Dutt, AIR 1948 Allahabad 382 F.B. and Devi Prasad v. Municipal Board Kannauj, AIR 1949 Allahabad 741 and expressed the view that the assessment complained of was beyond the competence of the Board and was, therefore an illegal imposition and thus the Civil Court had jurisdiction to entertain the suit. In the aforesaid decision it was conceded that if the assessment was made within the frame work of the Act but the assessment was wrong, the remedy of the assessee was confined to an appeal under Sec. 160 of the U.P. Municipalities Act. Learned counsel for the applicant relied on the case of Radha Kishan v. Municipal Committee Ludhiana, A.I.R. 1963 S.C. 1547. It was observed:-

"The only dispute was as regards the rate of tax payable in respect of the salt brought by the appellant into the limits of the Municipal Committee. The rate depended upon the character of the salt. The ascertainment of the said fact is necessary step for fixing the rate and it is not possible to say that in ascertaining the said fact the authorities concerned travelled outside the provisions of the Act. The learned counsel contends that if a Municipal Committee levies terminal tax on an article not liable to tax under the Act, a suit would lie and, therefore, the same legal position should apply even to a case where the Municipal Committee levies the tax in respect of an article under an entry not applicable to it. We do not see any analogy between these two illustrations, in the former, the Municipal Committee does not act under the Act but in the latter it only commits a mistake or an error in fixing the rate of tax payable in respect of a particular commodity; one is outside the Act and