SWADESHI INDUSTRIES LTD Vs. ADMINISTRATOR PANIHATI MUNICIPALITY

JUDGEMENT

(1.) This appeal is against an order of the learned Subordinate Judge, 10th Court, Alipore, refusing a prayer for temporary injunction pending the disposal of a suit which had been instituted by the present appellant for a declaration that the quarterly tax assessed in respect of the appellant's holding No. 220 of Mahalla Bhowanipore in Panihati was illegal, arbitrary and without jurisdiction and for a permanent injunction restraining the defendant, the Administrator of Panihati Municipality from realising quarterly taxes at this rate or enforcing the same. The learned Subordinate Judge appears to have been of the view that there was nothing on the record to find prima facie that the assessment made by the defendant was illegal or without jurisdiction; that the petition made by the plaintiff before the Review Committee was duly disposed of and the assessment prima facie appeared, therefore, to be lawful and final. He was also of the opinion that if the injunction was granted and realisation of the dues of the municipality was kept in abeyance, administration would suffer and the local people would be prejudicially affected; but in case the plaintiff succeeds, the money realised might be set off against future dues of the municipality. In this view, he rejected the prayer for temporary injunction.

(2.) After this appeal had been preferred and admitted for hearing, the plaintiff company made a prayer for amendment of the plaint and that prayer was allowed on 4-2-1958. By that prayer, a new paragraph 6A was added. It was in these words :

(3.) It has been rightly pointed out by Mr. Basu on behalf of the respondent that this amendment was made after the present appeal was preferred, so that the order passed by the learned Subordinate Judge refusing the temporary injunction was not made after a consideration of this point. I think it would have been open to us to refuse to hear any argument on the basis of the amended plaint inasmuch as the order appealed from was not made after the amendment. As however, an appeal is, in law, a continuation of the proceeding appealed from, we have preferred to hear the parties on the position in law as resulting on the amendment being allowed.