TMI Blog1989 (3) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... ct Jaya Krushan has filed the suit. The question of competency to file the suit ought to have been examined before admitting the plaint. Since the plaint has been admitted, the trial court shall give an opportunity to the plaintiff to amend it, by correctly describing the plaintiff and making consequential amendments in the body of the plaint if necessary. 3.. Plaintiff is a "Dealer" under the Orissa Sales Tax Act, 1947 (hereinafter referred to as "the Act"). He carries on business of sale and purchase of diesel, petrol and other lubricants being the sole agent of the Indian Oil Company having its godown at Cuttack. Plaintiff makes the payment of the price of the goods with the various taxes in advance to the company and brings petrol and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ages of Rs. 2,00,000 from defendant No. 4. 5.. Trial court passed an ex parte ad interim order of injunction which continued till it was made absolute by the impugned order. Trial court has held that the plaintiff has a prima facie case and would suffer irreparable injury in case such a huge amount is taken from the plaintiff and therefore, the balance of convenience would be in favour of granting the injunction. 6.. After hearing both the parties, I have no doubt that the ex parte order of injunction was passed on account of the casual and indifferent attitude of defendants Nos. 3 and 4 and inaction of their superior officers to have effective check and inspection of the offices. Learned Standing Counsel could not also satisfy me why d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice of the higher authorities by the plaintiff earlier to the notice under section 80, Civil Procedure Code. State of Orissa and its officers have become casual in dealing with notice under section 80, Civil Procedure Code although Parliament has fixed a period of two months for action on their part. 7.. Be that as it may under order XXXIX, rule 1, Civil Procedure Code where defendant threatens to dispossess the plaintiff or otherwise cause injury to him in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of preventing injury to the plaintiff in relation to such property as the court thinks fit until disposal of the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oof if there is allegation. When in the plaint and in the petition for injunction such a plea has not been taken by the plaintiff, the trial court ought not to have required the delegation to be proved in the case. A perusal of the Orissa Sales Tax Act would show that against the order of assessment, appeal lies to the Assistant Commissioner. During pendency of the appeal, the Assistant Commissioner has power to stay realisation of the tax demanded. Against the order of the Assistant Commissioner refusing to grant stay, revision lies to the Commissioner. Again, right of second appeal against the first appellate order is given under the Act. During the pendency of the appeal, the Commissioner of Sales Tax has power to grant stay. There is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly pass an order to stay realisation of the tax since administration of the State is likely to be affected by such stay. This would be more true where statutory remedies available are not availed of by the person alleging prejudice. From the aforesaid discussion, I am satisfied that the injury caused to the plaintiff has been invited by him on account of not following the remedies provided under the statute and cannot be said to be irreparable injury. 11.. Assuming that the plaintiff is not required to follow the statutory remedies to prove that injury by realising Rs. 1,20,488 would cause irreparable injury to him he ought to have alleged facts and brought materials on record to draw an inference to the effect. Lakhs or crores would not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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