Judgment N.C. Sharma, J.-This second appeal is directed by the plaintiff-Company against the decree of the Additional District Judge, Kota, dated May 7, 1976 whereby the decree of the Munsif (South) Kota, dated December 16, 1974, dismissing the suit of the plaintiff-Company for permanent injunction as against the respondent was confirmed. 2. Facts leading of the filing of the second appeal are that M/s. J. K. Synthetics Ltd., Kota, is a public limited company, with its factory at Kota. The plaintiff-Company, manufactures nylon yarn in its factory. The nylon yam manufactured is winded around the metallic cops and the nylon yarn is sent in this state outside municipal Limits of Kota to its customers. According to the plaintiff-Company, the purchasers of nylon yarn after using the yam return the cops to the Company. The returned cops are again utilised for winding up the nylon yarn for re-sale of the yarn. It was pleaded that it is a condition of sale with the customers that they would return the cops after using the yarn and for that purpose a security amount is also taken in deposit by the plaintiff-company so that the purchasers may return the cops in time. It was pleaded that the cops are mostly imported from outside India. The plaintiff-Company paid octroi duty to the Municipal Council, Kota when it brought the cops for the first time within the Municipal Limits and, therefore, octroi could not be demanded twice over by the respondent Municipal Council when they were received back from the customers after the latter had used the nylon yarn sold to them. However, the respondent Municipal Council on Dec. 18, 1962 for the first time demanded payment of octroi duty on the cops returned by the customers. The plaintiff-Company made an application to the Collector, Kota, under Section 285 of the Rajasthan Municipalities Act, 1959 (hereafter referred to as ‘the Act’). Before the Collector, the Municipal Council showed its willingness to enter into a mutual agreement with the plaintiff-company in this matter. It was represented on behalf of the Municipal Council before the Collector that all that it wanted was to be informed of the quantity of cops and their movement outside Kota Municipal limits so that it may be ensured that no cops are imported for use in Kota town. It was represented on behalf of the Municipal Council before the Collector that all that it wanted was to be informed of the quantity of cops and their movement outside Kota Municipal limits so that it may be ensured that no cops are imported for use in Kota town. The Collector, therefore, remanded the matter to the Municipal Council for taking action in the light of the above observations. Consequently, the respondent Municipal Council and the plaintiff-Company entered into an agreement on June 17, 1963, whereby it was agreed that the respondent will not charge octroi duty on cop’s which were returned by the customers of the company after using the nylon yarn purchased by them. The plaintiff-company was acting in accordance with the agreement. It used to pay octroi duty on new cops brought within the Municipal limits and used to send statements to the Municipal Council with respect to the cops returned by the customers. Originally it was agreed that the customers should return the cops within six months of the purchase of nylon yarn by them but later on this period was extended to one year. However, on Dec., 26, 1967 the respondent Municipal Council sent a letter to the plaintiff-Company that octroi duty will be charged on cops and terminated the agreement entered into on June 17, 1963. The plaintiff challenged the termination of the agreement and also, the right of the respondent to levy octroi duty on the cops which were returned by its customers after using of the nylon yam sold to them and instituted Civil Suit No. 238 of 1968 for the grant of permanent irjunction against the respondent restraining the latter from levying and charging octroi duty on cops returned to the plaintiff-company by its customers after using of the nylon yam sold by it. 3. MunicipalCouncil, Kota, filed its written statement on Jan. 20, 1973. The Municipal Council admitted that there had been agreement between the parties on June 17, 1963. However, it pleaded that the plaintiff company itself did not comply with the terms of the agreement. It was alleged that under the shelter of the agreement the plaintiff-company started bringing new cops within Municipal limits. The Municipal Council, therefore, did not remain bound by the agreement. However, it pleaded that the plaintiff company itself did not comply with the terms of the agreement. It was alleged that under the shelter of the agreement the plaintiff-company started bringing new cops within Municipal limits. The Municipal Council, therefore, did not remain bound by the agreement. Apart from that it was also pleaded that the Municipal Council was entitled to charge octroi duty even when cops were brought back again within the Municipal Council limits. Pleas regarding jurisdiction and necessity of statutory notice to the Municipal Council were also raised. 4. The trial Court framed four issues in the case. It held that an agreement was entered into between the parties on June 17, 1983 that no octroi duty will be levied on the cops received back by the plaintiff-company but the plaintiff had to furnish full statement regarding cops winded up by nylon thread sent outside Kota Municipal limits and about the cops received back by it from the customers. However, it held that the plaintiff had not produced the relevant documents in the case. Neither the original agreement was produced nor the letters sent by the Municipal Council to the plaintiff and nor the replies sent by the plaintiff to the defendant Municipal Council were produced. The plaintiff had, therefore, not been able to establish that the defendant had committed breach of the agreement. It was contended before the trial Court on behalf of the plaintiff-company that the Municipal Council had no right to levy octroi duty on cops which were received back by the plaintiff-company from its customers. The Munsif (South), Kota did not agree with the above contention put forward by the plaintiff-company. It further held that the plaintiff-company had also failed to establish that it had not charged the price of the cops from its customers when it sold the nylon yarn winded up around the cops. He, therefore, held that the demand of the Municipal Council, Kota for payment of octroi duty was not unauthorised or illegal. It also held that if the plaintiff-company based its claim on the agreement, it could sue the Municipal Council for damages. Issue No. 2 was decided by the Munsif in this manner. He, therefore, held that the demand of the Municipal Council, Kota for payment of octroi duty was not unauthorised or illegal. It also held that if the plaintiff-company based its claim on the agreement, it could sue the Municipal Council for damages. Issue No. 2 was decided by the Munsif in this manner. On Issue No. 3, which was regarding necessity of serving notice, it was held that the plaintiff should have served a notice under Section 27 1(1) of the Act and the suit was not maintainable for want of service of notice. Lastly, it held that if the plaintiff had any grievance regarding its liability to be taxed by octroi duty, it had remedy to file an appeal before the Collector and the jurisdiction of the Civil Court to try this suit was barred. Thus on the basis of these findings on Issues Nos. 2 and 3 and on the question ofjurisdiction, the Munsif dismissed the suit of the plaintiff . 5. Theplaintiff filed Civil First Appeal No. 126 of 1975 which was decided by the Additional District Judge, Kota, on May 7, 1976. The Additional District Judge held that the plaintiff did not produce any document to show that the cops were not sold along with the nylon thread to its customers. According to him, it was incumbent upon the plaintiff to adduce evidence by producing sale memoes or any customer to establish that the price of cops was not charged by the plaintiff-company. According to the Additional District Judge, the statement of Vinay Kumar Gupta PW 1 that advance money was deposited by the customers for the return of the cops and that this advance deposit was to be forfeited in case the customers failed to return the cops showed that cops were sold and price was charged. According to him, when the article had been sold and price was charged, it attracted Section 104 of the Act. According to the Additional District Judge if any article was imported, within the Municipal limits of Kota for use, sale or consumption, it was liable to the payment of octroi duty. It could not be inferred that the Municipal Council had acted beyond its jurisdiction or in violation of the statutory provisions. According to the Additional District Judge if any article was imported, within the Municipal limits of Kota for use, sale or consumption, it was liable to the payment of octroi duty. It could not be inferred that the Municipal Council had acted beyond its jurisdiction or in violation of the statutory provisions. With regard to agreement entered into between the parties, it was stated that it clearly manifested a discretion in the Municipal Council to exempt the plaintiff from payment of octroi duty upon these articles. He held that the Civil Courts could not sit upon Municipal Council as an appellate authority because the matter was not within the jurisdiction of the Civil Court to adjudicate. Since the Municipal Council was not acting in violation of Section 104 of the Act, the jurisdiction of the Civil Court was barred. It was also held that it was necessary for the plaintiff company to serve the statutory notice upon the defendant before filing the suit. The Additional District Judge accordingly dismissed the appeal filed by the plaintiff-company. The Company has come in second appeal before this Court. 6. It was contended by Mr. Hastimal Parekh, appearing for the plaintiff-company, that no octroi was leviable on the import of cops and as a matter of fact the Municipal Council, Kota had no jurisdiction to impose any octroi tax on the import of cops what to say to subsequent transaction when the cops which were the property of the plaintiff-company were returned by the purchasers who purchased the nylon yarn. It was argued that the cops were packing material which was used for winding up the nylon yarn. It was next contended that it was established that what was sold by the plaintiff-company to its customers was nylon thread and cops were returned by the customers or the purchasers of nylon yam after they had used the nylon thread. It was argued that when the cops were received again by the plaintiff-company from its customers, they neither changed their form nor became a new commodity or a component of the new commodity. It could not therefore, be said that the cops were imported by the plaintiff-company for using them. The cops were not sold by the plaintiff-company to its customers. It could not therefore, be said that the cops were imported by the plaintiff-company for using them. The cops were not sold by the plaintiff-company to its customers. The plaintiff-company only took security by way of deposit for the cops so that they may not be lost and the Additional District Judge was wrong in holding that the plaintiff-company also sold the cops along with the nylon yarn. Apart from that, an agreement was entered into between the parties on June 17, 1963 that no octroi duty will be leviable on the cops which were returned to the plaintiff-company by the customers after using the nylon thread. Municipal Council, Kota, was bound by the agreement. In pursuance of the agreement, the Municipal Council did not charge octroi duty from the year 1963 to 1967 and it was only in the year 1968 that the Municipal Council asked the plaintiff-Company to pay the octroi duty. It was not open to the Municipal Council to terminate the agreement and ask the plaintiff-company to pay the octroi duty on cops. Since the Municipal Council had no jurisdiction to charge any octroi duty on cops which the plaintiff-company got back from its customers and which cops had never been sold by the plaintiff-company, the jurisdiction of the Civil Court to try the suit was not ousted. As regards non-service of statutory notice, it was contended that it was a suit for permanent injunction and the very purpose of filing the suit would have been frustrated, if two months’ notice was given by the plaintiff-company to the defendant. Mr. P.C. Mathur, learned Counsel for the respondent Municipal Council supported the judgment of the Courts below. 7. Section 104(1) of the Act empowers of Municipal Council to levy an actroi on goods and animals brought within the limits of the Municipality for consumption, use or sale therein. Octroi can be levied at such rate and from such date as the State Government may direct by notification in the official gazette and in such manner as is laid down in the Act and as may be provided in the Rules made by the State Government. It appears that by Notification No. 8(6)LSG/6 1/II dated February 19, 1963 published in Rajasthan Gazette of Extraordinary. It appears that by Notification No. 8(6)LSG/6 1/II dated February 19, 1963 published in Rajasthan Gazette of Extraordinary. Part IV-C, of the same date, the State Government directed that every Municipal Board and Municipal Council levying octroi shall, from the date of publication of the notice in the official gazette, levy octroi on goods and animals brought within the limits of Municipality concerned, for consumption, use or sale therein at the rates in force in the concerned Municipality immediately before the commencement of the notice. By a notification dated November 15, 1962 published in Rajasthan Gazette Extraordinary Part IV-C dated November 20, 1963, the State Government had also framed the Rajasthan Municipalities (Octroi) Rules, 1962. 8. Beforeproceeding further it appears necessary to summarise the substance of the case of the plaintiff as contained in the plaint. Plaintiffs version as contained in Paras 4 and 6 of the Plaint has been that it pays octroi duty regularly with respect to the new cops imported for the first time by it within the Municipal limits of Kota Municipality. The grievance of the plaintiff-company is with respect to cops which are received back by it from its customers after the nylon thread sold to them is used by the latter and in relation to them it relied upon an agreement entered into between the parties on June 17, 1963. The background of this agreement was that the plaintiff-company had made an application under Section 285 of the Act before the Collector, Kota. In that application also, the plaintiff-company had stated that when the Company imported the cops, the octroi duty has been paid by it. It had made the grievance that after these cops were winded up, they were sent to the distributors of the yam and again returned to the plaintiff-company for winding purposes. It contended that the cops were not used or consumed within the limits of Municipal Council. On behalf of the Municipal Council, it was represented that all that the Municipal Council wants was to be informed of the quantity of cops and movements outside Kota town so that it may be ensured that no cops are imported for use in Kota town. The Municipal Council was willing to consider the request of the plaintiff-company as contained in its letter dated Dec, 23, 1963. The Municipal Council was willing to consider the request of the plaintiff-company as contained in its letter dated Dec, 23, 1963. The Collector remanded the case to the Municipal Council for action in the light of the above observations. The relief claimed by the plaintiff-company in para 18 of the plaint was also to the effect that the Municipal Council, Kota may be restrained by permanent injunction from levying octroi duty on cops which were returned to it for winding up nylon thread and that the Municipal Council should be compelled to adhere to the agreement entered into on June 17, 1963. 9. In the ground of First Appeal also in para 4, the plaintiff-company clearly stated that it pays octroi duty on the cops which were imported for the first time within the Municipal limits of Kota and its only grievance was that octroi cannot be charged on cops which are returned to the plaintiff-company by its customers for the reason that the plaintiff-company only sells the thread to its customers and not the cops and the cops only come back to it for rewinding. According to plaintiff-company the cops are not sold to the customers and no price is charged for the cops. However, in the grounds of second appeal, the plaintiff-company has enlarged the scope of its case by pleading in ground No. 5 that in fact no octroi duty is leviable even for the first time when the cops are imported by the plaintiff-company within the Municipal limits of Kota for being used for winding up the nylon thread and that the Municipal Council has no jurisdiction to impose any octroi tax on the import of the cops what to say of subsequent transactions when the cops which are the property of the plaintiff-company, are returned to it by the purchasers of the nylon yarn. This case was not at all pleaded by the plaintiff-company in its plaint filed before Munsif , Kota and such a plea was also not raised by it before the First Appellate Court. This case was not at all pleaded by the plaintiff-company in its plaint filed before Munsif , Kota and such a plea was also not raised by it before the First Appellate Court. This plea cannot be allowed to be agitated in second appeal and more so when the case of the plaintiff-company was that it paid octroi duty without any objection when the cops were imported for the first time within Municipal limits, when the alleged agreement was only with respect to the cops which were returned by the customers and when the relief claimed was also with respect to the returned cops and for adherence to the agreement. 10. The precise finding arrived at by the Courts below may also be summarised. What the trial Court stated while deciding Issue No. 2 was that the plaintiff-company had not produced any document or account to show that it used to furnish information to the Municipal Council, Kota regarding the winded cops sent outside the Municipal limits and of their return and thus it failed to prove by best evidence in its possession that the Municipal Council, Kota, had committed breach of the agreement. It also held that the plaintiff-company had not produced any bill or the contract form with its customers in order to show that what was sold to the customers was only nylon thread and not the cops and further that there was condition in the contract with the customers that they will return the cops to the plaintiff-company. Thus, the plaintiff-Company failed to establish that it did not charge any price of the cops from the customers. Lastly, it was held that there were no provisions to show that octroi duty will not be charged simply because the duty had been paid at the time when the cops were for the first time imported within the Municipal limits. 11. Thefindings given by the Additional District Judge, Kota, may also be summarised as follows in his own words :-“It is very clear from the evidence on the record that cops are used in the factory of the plaintiff for winding up nylon thread Municipal Council, Kota had rightly imposed tax for octroi upon any article which is used, sold or consumed within its jurisdiction under Section 104(2) of the Rajasthan Municipalities Act. The argument made by the learned Counsel For the Appellant cannot be appreciated that such article is not consumed or sold by the plaintiff so, it should not attract Section 104 for imposition of tax, but evidence came on record and adduced by plaintiff does not brush aside such inference. It is very clear from testimony of P.W. 1 Shri Vinay Kumar Gupta that cops are used for winding of nylon thread for which agreement Exhibit 2 has taken place between the parties. He could not produce any document pertaining to show that such cops are not sold when article of nylon is sold to the customers. It was incumbent upon plaintiff to adduce such evidence by producing any sale memo before the Court or any customer who could speak about supply of cops which are returned back and price is not charged for such cops upon customer but it has not been done. Shri Vinay Kumar has upon cross-examination by defendant to this effect and specific questions being put to him about any sale memo therein price was not charged for cops, but he has failed to produce any evidence before the Court to this effect. It is stated by Shri Vinay Kumar that customers deposited advance money for return of cops. If the customers failed to return the cops their deposits stood forfeited It manifests that cops are sold and price is charged It is used for winding of thread Where any article has been sold and price is charged, it attracts Section 104 of the Act of 1959 and argument made by learned Counsel For the Appellant cannot be appreciated and allowed. If any article is imported within the jurisdiction of Municipal Council Kota for use, sale or consumption, it is liable for tax or octroi as imposed by Municipal Council to that place. It cannot be inferred that the defendant has acted beyond its jurisdiction or in violation of statutory provision or principle of law. Agreement Exhibit 2 which took place between the parties clearly manifests discretion of Municipal Council to exempt the plaintiff from payment of octroi upon such article. It is for the Municipal Council Kota to consider these circumstances but, this Court cannot sit upon such body as an appellate Court because such matter is not within the jurisdiction of the Civil Court”. It is for the Municipal Council Kota to consider these circumstances but, this Court cannot sit upon such body as an appellate Court because such matter is not within the jurisdiction of the Civil Court”. The version of defendant Municipal Council has been three-fold in their written statement Firstly, the yarn is sent wound around the cops and when the cops are returned, they enter the Municipal limits as new item of goods and are liable to octroi duty on entering into Municipal limits. Secondly, the plaintiff-company itself did not comply with the terms of the agreement and committed breach. Lastly, the plaintiff-company has started abusing the terms of the agreement inasmuch as they started importing new cops within Municipal limits of Kota under the shelter of the agreement. 12. It is not disputed on either side that the agreement Exhibit 2 was entered into between the parties. Mehmood Khan witness of the defendant Municipal Council had admitted in his statement that an agreement was arrived at between the plaintiff-company and the Municipal Council, Kota, and Exhibit 2 is the copy of that agreement. His statement is that the plaintiff-company did not comply with term No. 5 of the agreement and, therefore, the agreement was cancelled. The statement of Vinay Kumar Gupta, Commercial Sales Officer of the plaintiff-company, is that the plaintiff-company used to import cops from outside India. Lately it had started its own factory at Kanpur to manufacture cops. Whenever new cops were imported within Municipal limits of Kota, octroi duty was paid by the plaintiff-company. He also deposed that the plaintiff-company had made an application to the Collector, Kota under Section 285 of the Act and the order of the Collector Kota was Exhibit 1. He also mentions about the entering into an agreement between the parties and that Exhibit 2 is the copy of the agreement. As a matter of fact, the controversy between the parties is on two points. According to the plaintiffs evidence, only nylon and polyster yarns were sold to the customers and not the cops around which they are wound The cops were returned by the customers. For that purpose security deposit was taken from the customers and if they did not return the cops, its price was recovered from the security deposit. According to the plaintiffs evidence, only nylon and polyster yarns were sold to the customers and not the cops around which they are wound The cops were returned by the customers. For that purpose security deposit was taken from the customers and if they did not return the cops, its price was recovered from the security deposit. The cops returned are again utilised in the winding up of nyion and polyster thread and the transactions of sale of yarn and return of cops goes on in the above manner. If the cops are damaged, they are sent for repairs to the factory of the plaintiff-company at Kanpur and after repair, they are utilised again. According to the plaintiff-company, it continued to comply with the directions of the agreement. According to the statement of Mehmood Khan D.W, 1, examined on behalf of the Municipal Council, the plaintiff-company did not comply with term No. 5 of the agreement and therefore, the agreement Exhibit 2 was cancelled by the Municipal Council. It is stated by him that the plaintiff-Company did not use to furnish information about the wound up cops sent by it to the customers and about the return of the cops. He has said that when the wound up cops aresent outside, the goods might have been sold by the plaintiff-company. 13. The first question, therefore, which calls for determination is whether, if the cops are returned, by the customers after using the yam to the plaintiff-company, is the plaintiff-company liable to pay octroi on cops brought again within the Municipal limits of Kota Municipality or not? As already stated, Section 194(1)(2) of the Act provides in relation to octroi that every Municipality shall levy at such rate and from such date as the State Government may in each case direct by notification in the official gazette and in such manner as is laid down in the Act and as may be provided in the Rules made by the State Government in this behalf , an octroi on goods and animals brought within the limits of the Municipality for consumption, use or sale therein. Reference may here be made to the decision of their Lordships of the Supreme Court in Burmah-Shell Oil Storage and Distributing Company of India Limited. Belgaum vs. Belgaum Borough Municipality, AIR 1963 SC 906 . Reference may here be made to the decision of their Lordships of the Supreme Court in Burmah-Shell Oil Storage and Distributing Company of India Limited. Belgaum vs. Belgaum Borough Municipality, AIR 1963 SC 906 . Burmah Shell Storage and Distributing Company dealt in petrol and other petroleum products which it manufactured in its refineries situated out side the octroi limits of Belgaum Municipality. It brought its products inside the area of Belgaum Municipality either for use or consumption by itself or for sale generally to its dealers and licensees who in their turn sold them to others. The Company also directly sold its products to Government both Civil and Military and to local bodies and big private concerns. The Company had a Divisional Office and Depot in Belgaum. The Company in the normal course of its business operations appointed dealers and licensees and typical form of agreement between the company and such dealers and licensees had been exhibited in the case. According to the company, the goods brought by it within the octroi