ORDER 1. Heard submissions at the bar. The appeal is against oral order below Exhibit 1 in Special Civil Suit No.459 of 2010 passed by 7th Civil Judge, Senior Division, Pune, on 18.7.2012, when preliminary issue was raised regarding jurisdiction of the Civil court to entertain and try the suit in view of specific remedy provided of appeal under Section 406 of the Bombay Provincial Municipal Corporation Act (hereinafter referred to as BPMC Act). Learned Judge after hearing submissions considered that efficacious remedy which is available to the plaintiff was not exhausted by the plaintiff and that there was no any other remedy to challenge the unlawful levy of octroi by the defendant. Learned Judge after making reference to a ruling in Abdulla Bin Ali vs. Galappareported in AIR 1985 Supreme Court 577, scrutinized the plaint to note the averments about the dispute as to deficit payment of octroi for the period 1999 to 2001 on the basis of which Municipal Corporation of Pimpri-Chinchwad demanded the tax arrears which according to the plaintiff was illegal demand, as the plaintiff contended that all those dues were already cleared and the demand of octroi is null and void. According to the plaintiff, there was no any express provision to bar jurisdiction of Civil court to decide about the legality and the powers of the Municipal authority to demand the taxes, while defendant had contended that Civil court had no jurisdiction, considering the provisions under Section 406 of the BPMC Act. Learned Judge also referred to Constitutional Bench ruling reported in Dhulabaivs. State of M.P. reported in AIR 1969 Supreme Court 78 to observe that jurisdiction of Civil court to entertain and try a suit may be barred by an express provision of a statutes or even impliedly. 2. Dispute in this appeal was in substance relating to the assessment of the tax for the period from the year 1999 to 2001 which was challenged in the suit. Learned Judge considered the remedy of appeal statutorily available under Section 406 of the BPMC Act and held that plaintiff has to move to avail of the statutory remedy of appeal on the ground that the civil court had no jurisdiction to grant relief to the plaintiff for want of jurisdiction under Section 9 of Code of Civil Procedure. Learned Judge considered the remedy of appeal statutorily available under Section 406 of the BPMC Act and held that plaintiff has to move to avail of the statutory remedy of appeal on the ground that the civil court had no jurisdiction to grant relief to the plaintiff for want of jurisdiction under Section 9 of Code of Civil Procedure. The civil suit was held not maintainable and the issue of jurisdiction was decided against the plaintiff. Hence this appeal. 3. Learned counsel for the appellant made reference to ruling in American Refrigerator Company vs. Pimpri Chinchwad Municipal Corporation reported in 1991(2) Bom.C.R. 642 which was in a writ petition before the Division Bench of this court. In paragraph 13 of the ruling while quoting submissions with reference to Section 169 of the Maharashtra Municipalities Act 1965, wherein remedy of appeal is provided against any claim for taxes or other dues, Division Bench of this court made observations that the petition was admitted as far back as February 1983 and an interim order was also passed in favour of the petitioners on their depositing in court a sum of Rs.10,000/-. Thus in the facts and circumstances of the case, after a lapse of more than 7 years, Division Bench of this court considered that it would not be fair on it's part to now deny to the petitioners any relief only on the ground that they should have availed of the statutory remedy of an appeal under Section 169. Thus, in the facts and circumstances of that case, considering that demand after a period of 9 years, this court felt as to how such question could have been entertained or decided in an appeal under Section 169. Thus, it appears that invoking the exercise of writ jurisdiction the rule was made absolute by this court, in the facts and circumstances of that case, by setting aside the demand made by Pune Chinchwad Municipal Corporation, long pending since prior to 30.8.1979. Thus, according to learned counsel for the appellant, it must be left to the civil court to entertain the suit and to decide the question regarding bar of limitation and other question as to whether Pimpri Chinchwad Municipal Corporation is entitled to levy the demand after lapse of say 9 years. 4. Thus, according to learned counsel for the appellant, it must be left to the civil court to entertain the suit and to decide the question regarding bar of limitation and other question as to whether Pimpri Chinchwad Municipal Corporation is entitled to levy the demand after lapse of say 9 years. 4. On the other hand, learned counsel for the respondent submitted with reference to Section 106 of the Maharashtra Municipalities Act that specific remedy of appeal against any rateable value or the capital value, as the case may be, or tax fixed or charged under the Act shall be heard and determined by the Judge before whom the appeal is provided against such levy of tax or rateable value or charges. Thus, according to learned counsel for the respondent, specific statutory remedy of appeal is provided which is statutory right of plaintiff/appellant, and therefore, learned Judge was right to arrive at a conclusion that Civil court had no jurisdiction to entertain and try the suit. Reference is made to a ruling in Dai Ichi Karkaria Ltd. vs. Pimpri Chinchwad Municipal Corporation & Ors. decidedby Single Judge of this court in Appeal fromOrder No.714 of 2013 decided on 29.7.2013. Learned counsel for the respondent invited my attention to the fact that Section 406 of the BPMC Act was considered as also earlier ruling by this court in Titan Industries Limited, Mumbai vs. Thane Municipal Corporation and Ors. reportedin 2011 (6) Mah.L.J. 228 on the point that Civil court has no jurisdiction to decide the issue regarding levy of octroi in view of statutory remedy of appeal under Section 406 of the BPMC Act. The contention regarding issue of limitation also appears to have been dealt with by this court in Dai Ichi Karkaria's case, in paragraph 9, as in that case tax was levied after 23 years, and there was an argument that it is barred by limitation. This court specifically observed that “the court which has jurisdiction would decide the issue and not the court not having jurisdiction.” In other words, consensus of ruling in Titan Industries Limited, Mumbai, case as also in Dai Ichi Karkaria's case, appears that the plaintiff has to be relegated to the specific statutory remedy of appeal available under Section 406 of the BPMC Act on the ground that Civil court would have no jurisdiction to entertain and try the suit. My attention is also invited to the fact that in Dai Ichi Karkaria's case, Special Leave Petition was preferred and it was dismissed by Hon'ble Supreme Court of India by observation that if the petitioner pursues the remedy under Section 406 of the BPMC Act, 1949, within 30 days from today, the time granted in the order dated 31.10.2012 shall stand extended to that date. Even otherwise, delay occurred due to time spent bonafide to pursue the litigation has to be condoned when remedy prescribed by the statute is availed of, which was not availed of, on account of bonafide – but wrong impression that ordinary remedy is available by way of civil suit. 5. Having considered the submissions at the bar and the rulings referred to before this court, I am of the opinion that impugned order is legal and correct. Learned counsel for the appellant prayed that plaint may be returned to the appellant so that it's contents can be relied upon along with memorandum of appeal before the appellate authority concerned because the plaintiff relegated to avail of statutory remedy of appeal under Section 406 of BPMC Act. 6. Hence, instead of dismissal of the suit, the order passed by the court below is modified to the effect that plaint in the suit shall be returned to the plaintiff to enable him to avail of statutory remedy of appeal by filing the plaint along with appropriate memorandum of appeal before the appellate authority concerned, in view of Section 406 of the BPMC Act, 1949. 7. Interim order will continue for a period of Four Weeks. 8. First Appeal is disposed of accordingly. 9. Civil Application No.2960 of 2013 would not survive and stands disposed of.