MUKHI TAPOOBHAI KESHAVJI Vs. GONDAL MUNICIPALITY

JUDGEMENT

(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 :

(2.) The plaintiff challenged the collection 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 relief was valued at Rs. 500.00. The planit 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 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 Rs. 26251 The details of this claim are stated in paragraph 18 of the plaint. The plaintiff also claimed Rs. 7280-00 an interest from 20-8-1968 to 20-12-1970. He claimed Rs. 250.00 as notice charges. Total claim was for Rs. 33741-34. This suit was filed on 26-4-1971.