Claim for tax refund not barred; right to sue established post relevant judicial decisions.

1 This appeal is directed against the judgment rendered by the Civil Judge (S. D.), Gondal in Special Civil Suit No. 9 of 1971 decided on 31-12-1974. The facts which gave rise to the filing of this appeal may be briefly stated as under : -
The original plaintiff who is the appellant is a partnership firm and it is carrying on the business of fruits and vegetables at Gondal. The respondent - Gondal Municipality had levied octroi duties on various items. However, vegetables were exempted from levy of octroi. The plaintiff amongst other vegetables was carrying on the business of potatoes and onions. Gondal Municipality felt that Octori could be collected on those two items as according to Gondal Municipality potatoes and onions were not vegetables within the meaning of their octroi rules.

2. The plaintiff challenged the contention of Gondal Municipality and filed Civil Suit No. 54 of 1958. In that suit the plaintiff claimed a relief of declaration and prayed that it be declared that potatoes and onions were not liable to octroi duty. The consequential relief that was claimed was for refund of octroi paid and that rebel was valued at Rs. 500/-. The plaint of that suit is produced at Exh. 161. That suit came to be dismissed on 2-1-1960. The plaintiff filed First Appeal in the District Court which was numbered as First Appeal No. 16 of 1960. That appeal was decided on 1-12-1960. The Assistant Judge, Gondal had heard the appeal and the appeal was allowed and the declaration sought in the original suit was granted. However, the consequential relief that was prayed for was not granted. The copy of the decree is produced at Exh.19. Gondal Municipality filed Second Appeal in the High Court. It was numbered as Second Appeal No. 257 of 1961. That second appeal came to be decided on 20-8-1968. The Second Appeal came to be dismissed. The judgment is produced at Exh. 21.

3. After Second Appeal was dismissed the original plaintiff filed Special Civil Suit No. 9 of 1971 in the Court of Civil Judge (S. D.) Gondal. In that suit he claimed a refund of the octroi paid by him between 5-12-1960 and 25-5-1966. The total amount claimed was Rupees 26251-34. The details of this claim, are stated in paragraph 18 of the plaint. The plaintiff also claimed Rs. 7280.00 as interest from 20-8-1968 to 20-12-1970. He claimed Rs. 250/- as notice charges.
Total claim was for Rs. 33741.34. This suit was filed on 26-4-1971.

4. Gondal Municipality contested the suit. The learned Civil Judge framed issues at Exh.22. At the trial on behalf of plaintiff - Abdulmalek Kasam gave his evidence at Exh.92. He examined one Rajabali, Partner of the firm at Exh.164. On behalf of the defendant, Octroi Officer of Gondal Municipality Dinkarray gave his evidence at Exh.177. We may here state that the learned Civil Judge dismissed the suit mainly on two grounds. The first ground on which the suit was dismissed was that the suit was barred under O.2, R.2, of the Civil Procedure Code. The second ground was that the suit was not within time.

5. We have heard the learned advocate Shri S.M. Shah for the appellant and the learned advocate Shri J.D. Ajmera for the respondent. We may here state that the only points which we are required to decide are two points and those two points are : -
(i) Whether Civil Suit No. 9 of 1971 was barred under O.2, R.2 of the Civil Procedure Code; and
(ii) Whether the suit filed was within period of limitation.

6. The learned Advocate Shri Ajmera submitted that when the plaintiff filed Civil Suit being Civil Suit No. 54 of 1958, he could have claimed a relief of per