ORDER Abhay Manohar Sapre, J. 1. This is a first appeal filed by the appellant/plaintiff under Section 96 of the Code of Civil Procedure against the judgment/decree dated 24.1.1997 passed by VII Additional District Judge, Bilaspur in Civil Suit No. 14B/96. 2. By the impugned judgment/decree, the learned trial Judge dismissed the plaintiff's suit on the ground that it is not maintainable as being barred by virtue of bar contained in MP Electricity Duty Act, 1949 as amended by Section 5 of MP 46 of 1984. 3. So the short question that arises for consideration in this appeal is whether the learned trial Judge was justified in dismissing the appellant's (plaintiff's) suit as not maintainable by virtue of bar contained in Section 5 of the MP Act 46 of 1984? 4. The facts of the case are that the plaintiff filed a suit against the State and M.P. Electricity Board (for short called "Board") for recovery of Rs. 9,96,134.78. According to the plaintiff, this amount was wrongly/illegally recovered by defendant No. 3 i.e. Board purporting to be towards the electricity dues during the period in question and therefore, they were entitled to claim refund of the said amount from the defendants. 5. The main contention of the defendants in their written statement was that by virtue of bar contained in Section 5 of the MP Act No. 46 of 1984, the suit filed by the plaintiff for recovery of the amount is not maintainable. 6. The learned trial Judge upheld the preliminary objection raised by the respondents/ defendants and while answering the preliminary issue against the plaintiff dismissed the suit as not maintainable. 7. The only discussion in the impugned judgment on this issue is contained in para-11. It is apposite to reproduce para-11 hereinbelow: ^^¼11½ mHk; i{k rdksZ ,oa vfHkopuks ds i`”BHkwfe es ys[kd ,e- ,y- ftnay }kjk izk;ksftr e-iz- yk¡ eSuqvy f}rh; ,Mhlu ds i`”B dzekad 363 ,oa 364 es izdkf’kr dfFkr la’kks/ku ds lw{e v/;;u ,oa euu ls izfroknhx.k dh vksj ls fd;k x;k rdZ ,oa vfHkopu fof/k lac/kh rdZ ,oa vfHkopu gksus ls lh/kk&lh/kk Lohdkj ;ksX; gSA^^ 8. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow this appeal and while setting aside of the impugned judgment/decree, remand the suit for its disposal in accordance with law. 9. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow this appeal and while setting aside of the impugned judgment/decree, remand the suit for its disposal in accordance with law. 9. In our considered view, firstly the learned trial Judge did not discuss the issue at all much less with any judicial mind as to how and on what basis he reached to the conclusion that the suit is not maintainable; secondly, the learned Judge did not even refer to the provisions of Section 5 and yet proceeded to dismiss the suit as not maintainable. We cannot countenance such approach of the learned trial Judge. 10. Section 5 of the MP Act 46 of 1984, on which reliance is placed, reads as under: “5. Validation. - (1) Notwithstanding anything contained in any judgment, decree or order of any court the electricity duty imposed and recovered or purported to have been imposed or recovered in pursuance of item (ii) of clause (b) of Section 3 of this Act shall, for all purposes be deemed to be and to have always been validly imposed and recovered as if clause (c) of the Explanation to Section 3 of the Principal Act as amended by Section 3 of this Act were in force at all material times when such electricity duty was imposed or recovered and accordingly- (a) all acts, proceedings or things done or taken in connection with the imposition or recovery of such duty shall for all purposes be deemed to be and to have always been validly done or taken in accordance with law: (b) any duty imposed and recoverable in pursuance of the amendment made by item (ii) of clause (b) of Section 3 of this Act for the period prior to the commencement of this Act may be recovered in the manner provided therefor; (c) no suit or other proceeding shall be maintained or continued in any court against the State Government or any person or authority whatsoever for the refund of any duty so paid or recovered; (d) no court shall enforce any decree or order directing the refund of any duty so paid. (2) For the removal of doubt it is hereby declared that save as provided in sub-section (1) nothing in that sub-section shall be construed as preventing any person- (a) from questioning in accordance with the provisions of Principal Act, the imposition of electricity duty for any period; or (b) for claiming refund of the duty paid by him in excess under the Principal Act." 11. A bare perusal of Section 5 would go to show that the bar to file a suit is contained if a suit is filed to claim relief specified in sub-clause (c) and (d) of Section 5(1). However, sub-section (2)(a) and (b) of Section 5 save filing of the suit and enables the party to file it. In other words, if the suit is held barred by Section 5 because it is filed for the relief specified in clause (c) and (d) of Section 5(1), it is necessary for the trial Court to examine as to whether it is capable of being saved by Section 5(2)(a) or (b). It is, therefore, necessary for the trial Court to examine the factual pleadings of the plaintiff's case pleaded in the plaint and then examine as to whether the suit falls under Section 5(1)(c) or (d) or 5(2)(a) or (b). 12. If after examining, the trial Court comes to a conclusion that the case of the plaintiff falls under 5(1)(c) or (d), then it is liable to be dismissed as being barred. However, if it falls under Section 5(2) (a) or (b), then it can be held as maintainable for its decision on merits. 13. Since the learned trial Judge did not apply his mind at all to the facts of the case keeping in view the requirements of Section 5, referred above, we are constrained to allow this appeal and while setting aside of the impugned judgment/decree, remand the case to the trial Court for deciding the suit afresh in the light of aforesaid observations. In other words, if the trial Court comes to a conclusion on examining the nature of claim raised in the plaint that the suit falls under Section 5(2)(a) or (b), then it will proceed to decide the suit on merits. But if it comes to a conclusion that the case falls under Section 5(1)(c) or (d), then it will dismiss the suit as not maintainable. But if it comes to a conclusion that the case falls under Section 5(1)(c) or (d), then it will dismiss the suit as not maintainable. In either case, the trial Court would give its reasoning in support of its conclusion. 14. Let this be decided by the trial Court within a period of six months from the date of appearance of the parties. 15. The parties shall appear before the trial Court on 10th December, 2012. Record of the original case be sent back to the trial Court forthwith so as to reach the trial Court on or before 10th December, 2012. 16. Since we have remanded the case to the trial Court, the appellant is entitled for refund of the entire ad valorem Court fee paid by the appellant on the memorandum of appeal in this Court under Section 13 of the Court Fees Act. The necessary certificate of refund be issued by the Registry as per provisions of the Act/rules in favour of the appellant to enable them to claim the refund of Court fee. 17. No costs. Appeal Allowed.