The provisions of Section 23(4) of the Rajasthan Sales Tax Act are mandatory and bar the protection and do not admit of any exception being made.

1. - This is a plaintiff's second appeal in a civil suit for the recovery of refund amount of Rs. 1752.75p. which was decreed in favour of the plaintiff-appellant by the trial court but was dismissed by the first appellate court.

2. The plaintiff is a partnership firm having its head office at Bikaner and dealing in General Merchandise in Johan Hazer. Jaipur. The plaintiff is the assessee of the sales-tax, and the assessment for the year 1955-56 was made by the Commercial Taxes Officer. Jaipur on 17th September, 1956 and it was ordered that a sum of Rs. 1752.75p. should be refunded to the plaintiff-firm. 7 he refund was not made and a revision application was tiled before the defendant No. 2 Commissioner. Commercial Taxation Rajasthan, who reversed the order of the defendant No. 3 Commercial Taxation Officer, Jaipur Nagar Mandal 'A' Jalebi Chowk. Jaipur. on 21st July, 1960. This order of the Commissioner was set aside in the writ petition filed before this court at Jodhpur. on 13th February. 1962.

3. The plaintiff filed an application on 29th May 1963 for the said refund amount and second application on 3rd August, 1964 but, no refund was made.

4. The plaintiff then had to file a civil suit. It is surprising and shocking that the defendants came to contest this suit instead of making refund as per their own order of refund. Still more shocking aspect of the case is that the contest was made on the ground of limitation.

5. The first appellate court has held that even the provisions of Section 23(4) of the Rajasthan Sales Tax Act which lay down that no application for refund shall be entertained by the assessing authority after the period of t years of the close of the assessment year in which the amount was paid. are mandatory and bar the protection and do not admit of any exception being made because the refund should have been made latest by 1959, and the first application having been filed on 29th May, 1963 is clearly barred by the provisions obtained in Section 23(4) of the Rajasthan Sales Tax Act. In my opinion the judgment of the Civil Judge is perverse and the first appellate court has shown utter ignorance of law. The present one was a case, where the assessment order of the Commercial Taxation Officer granting the refund was there, and it was not a case where any application for the refund amount was required. Moreover, after the judgment of the High court in writ petition even such an application was made within three years because the judgment of the High Court way given on 13th February, 1962 and the application for refund was made on 9th May, 1963. In my opinion, the entire approach of the learned Civil Judge is perverse.

6. Consequently. this appeal succeeds and the judgment of the trial court is restored and that of the first appellate court is set aside.

7. Before parting with this judgment, it may be mentioned that their Lordships of the Apex Court in Madras Port Trust v. Hymaushu International, (AIR 1979 SC 1144) , in almost similar circumstances where claim for refund was resisted on the ground of limitation deprecated this practice of the State and observed that such a technical plea should not be taken by the Government as it is against all morality and justice.

8. In a series of the judgments, i have observed that while functioning under a Constitution committed to social welfare and justice, social, economic and political, the tendency of the State functionaries to resist just claim of the citizens on the unjust unethical, commercial and technical grounds of limitation deserves to be deprecated, for one it shows the apathy against justice and secondly, it increases the avoidable litigations.

9. The instant case should be an eye opener and example, where even when the order for the refund was passed by the Commercial Taxation Officer and this order for refund was upheld by the High Court in writ petition, the defendants-Officers, instead of executing and complying with their own order, exhibited grossly