BOROUGH MUNICIPALITY Vs. CHIMANLAL MOHANLAL

JUDGEMENT

(1.) This is a second appeal arising from a suit which had been filed by the respondent for a declaration that the assessment made by the appellant municipality of house -tax in respect of the year 1950 -51 was illegal inasmuch as the assessment had been increased as compared to what it was in the previous year and yet no notice was given to him. The respondent prayed besides that the amount of excess tax which the municipality levied and which according to him came to Rs. 175 -11 -0 be refunded to him. The trial Court as well as the appellate Court uphold this contention and the appellant -municipality has come in appeal.

(2.) NOW , a preliminary objection which has been taken is that no second appeal lies inasmuch as the suit which had been filed by the respondent is a suit of the nature cognizable by a Court of Small Causes and the amount or valuation of the subject -matter being loss than Rs. 500 no second appeal lies.

(3.) NOW , a view has been taken in some cases that asking for a declaration when the suit is really speaking a suit for refund of tax illegally levied does not prevent the suit from being a suit of the nature cognizable by the Court of Small Causes. One can understand of course that if a suit for declaration does not lie, the declaration would be a meaningless declaration and it would be proper to consider such a suit as a suit for refund alone. Section 42 of the Specific Relief Act is not exhaustive and there are suits which, though not covered by the section, may properly be filed as suits for a declaration. It appears to us however that it is not necessary to go into that question for the purpose of the present appeal, inasmuch as the appeal must fail on merits.