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TMI Blog2018 (5) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived or frivolous petitions. Appeal dismissed with cost of ₹ 25,000/-. - S.A. No.182 of 1988 - - - Dated:- 16-4-2018 - A. K. Rath, J. For Appellants : Mr. P.P. Mohanty, A.S.C. (C.T.) For Respondents : Mr. R.P. Kar Mr. A.N. Ray, Advocates ORDER Dr. A.K. Rath, J. This is a defendants appeal against confirming judgment. 2. Plaintiffs-respondent nos.1 to 3 instituted the suit for realization of ₹ 9996/- with 18% interest. The case of the plaintiffs is that plaintiff no.1 is a registered partnership firm carrying on business in the manufacturing and sale of bricks in the name and style of MAA KURAI SHUNI BRICK INDUSTRIES . Since the firm did not have its transport facility, it used to engage the transport service from 16.12.1982 to 29.01.1983. The sales of the firm did not exceed the non-taxable limit of turnover of ₹ 50,000/-. The Additional Sales Tax Officer, Berhampur, defendant no.6, arbitrarily collected sales tax @Rs.51.00 on each t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessed for the assessment year ending period 1982-1983, it is entitled to refund of the tax collected at the check gate. However, some transit way bills for Exts.33, 41, 46, 49, 57, 70, 77, 78, 80, 107, 118 and 132 for the transits covered the period between 16.12.1983 to 21.01.1983. The plaintiff-firm is liable for a refund of ₹ 9333/-. Since the tax has been collected twice, the same amounts to wrongful enrichment of the defendants. Civil court has jurisdiction to try the suit. Felt aggrieved, the plaintiff filed appeal before the learned District Judge, Berhampur, which was subsequently transferred to the court of the learned Ist Additional District Judge, Berhampur and renumbered as M.A. No.9/87. The defendants also filed cross objection. Learned lower appellate court concurred with the findings of the learned trial court and dismissed the appeal. 5. The second appeal was admitted on the substantial question of law enumerated in ground no.5 of the appeal memo. The same is: 5. Whether in view of Sec.22 of the Orissa Sales Tax Act, the civil court has jurisdiction to entertain and decide the suit for refund of sales tax under the said Act ? 6. Heard Mr. P.P. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12; or (c) an order imposing penalty under sub-section (3) of section 9-B or under sub-section (3) of section 11. any dealer or person, as the case may be, may, in the prescribed manner appeal to the prescribed authority against such order. xxx xxx xxx (4)(a) Subject to such rules as may be made for reasons to be recorded in writing, the Commissioner may, upon application by a dealer (or person) or on his own motion revise any order made under this Act or the rules made thereunder by any person other than the Tribunal appointed under sub-section (3) of section 3 to assist him. 10. In Dhulabahi etc. and others (supra), the Constitution Bench of the apex Court laid down the principles regarding exclusion of jurisdiction of the Civil Court. The apex Court held : (1) Where the statute gives a finality to the orders of the special tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit. 12. In Most. Rev. P.M.A. Metropolitan and others, etc. vs. Moran Mar Marthoma and another, etc., AIR 1995 SC 2001, the apex Court held: 27. xxx xxx xxx One of the basic principles of law is that every right has a remedy. Ubi jus ibi remediem is the well known maxim. Every civil suit is cognisable unless it is barred, 'there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue' Smt. Ganga Bai vs. Vijay Kumar Ors., AIR 1974 SC 1126. The expansive nature of the Section is demonstrated by use of phraseology both positive and negative. The earlier part opens the door widely and latter debars entry to only those which are expressly or impliedly barred. The two explanations, one existing from inception and latter added in 1976 bring out clearly the legislative intention of extending operation of the Section to such religious matters where right to property or office is involved irrespective of whether any fee is attached to the office o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to certain restrictions, jurisdiction to try suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. In view of the same, both the courts perfectly justified that the civil court has jurisdiction to entertain the suit. The substantial question of law has been answered in affirmative. 16. Reliance placed on Orissa Cement Ltd. (supra) and Straw Products Limited (supra) is totally misplaced. In Orissa Cement Limited (supra), the plaintiff was a registered dealer under the Central Sales Tax Act. He instituted the suit for realization of money with P.L and F.I. According to the plaintiff, it paid tax under the Act for the years 1962-63, 1963-64 and 1964-65 on which it is entitled to rebate under Sec.13(3) of the OST Act, 1947, which was not allowed by the defendants. The defendants took the plea that the suit was barred under Sec.22 of the OST Act, 1947. A question arose before this Court was as to whether the orders rejecting applications for refund have been passed. Counsel for the State submitted that the applications of the plaintiff had been rejected. This Court held that the order is revisable and no suit is lie. The decision i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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