PATOJI SURYANARAYANA Vs. PARVATHIPURAM MUNICIPALITY

JUDGEMENT

(1.) These five transferred appeals arise out of five suits on the file of the Court of the District Munsif, Parvathipuram which suits along with some others were disposed of by a common judgment. The plaintiffs in all the suits are ratepayers owning house properties in Parvathipuram Municipality. The suits are filed to recover some amounts paid by the plaintiffs to the Municipality under a levy which was subsequently found to be illegal and void. Subsequent to the levy in question by the Municipality in a representative capacity the ratepayers filed a suit O.S. No. 26 of 1967 on the file of the Court of the District Munsif, Parvathipuram, for a declaration that the levy was illegal and void. The District Munsif's Court decreed the suit and it was confirmed in the appeal filed by the Municipality in A.S. No. 11 of 1963 on the file of the Court of the Subordinate Judge Srikakulam. Thereafter the present suits and other suits were filed by the ratepayers alleging that under the levy the Municipality collected the tax amounts illegally and that they made those payments under a mistake of law without knowing at that time that the levy was illegal and they came to know about the illegality of the levy only after A.S. No. 11 of 1963, mentioned above, was disposed of.

(2.) The Municipality contested the suits on two grounds viz., on the ground of limitation and on the ground that the suits are barred by reason of Order 2, rule 2 of the Code of Civil Procedure. On the question of limitation, the District Munsif's Court, held against the Municipality and found that the suits are within time. But on the second ground of nonmaintainability of the suits by reason of the prohibition contained in Order 2, rule 2, Civil Procedure Code, the Court held against the plaintiffs and accordingly dismissed the suits. Therefore, the plaintiffs filed appeals in the Court of Subordinate Judge Parvathipuram. When similar suits were filed on the small cause side of the same Munsif's Court and in those suits the only question was whether the suits were filed in time and when the Court held that they were filed in time and accordingly decreed the suits, the Municipality filed civil revision petitions in this Court against those judgments and decrees. With regard to the question of limitation on the ground that common question of law is involved in the civil revision petitions and in the appeals filed in the Sub-Court, Parvathipuram, the appeals relating to the present transferred appeals and some other appeals were transferred to the High Court to be disposed of along with the civil revision petitions and after they were transferred, those appeals were re-numbered here as transferred appeals. That is how these transferred appeals happened to be here for disposal. Some civil revision petitions C.R.P. No. 2023 of 1970 and batch and some transferred appeals Tr. A. S. No. 279 of 1973 and batch in which only question in controversy was whether the suits were filed in time were disposed of by this Court by a common judgment dated 5th October, 1974 holding that the suits were filed out of time and therefore they were barred by limitation and accordingly those civil revision petitions and transferred appeals were allowed in favour of the Municipality and the suits of the ratepayers were dismissed. With regard to limitation, the question was whether three years period of limitation for the suits started from the date of the judgment in O.S. No. 26 of 1961 or from the date of the Judgment in A.S. No. 11 of 1963, mentioned above. The District Munsif's Court, Parvathipuram, holding that it started only from the date of the Judgment in A.S. No. 11 of 1963 held the suits which were filed within three years from that date to be in time. But this Court, in the judgment mentioned above, held that the period of limitation started from the date of the judgment in O.S. No. 26 of 1961 and therefore the suits which were filed after more than three years from that date were barred by time. In these appeals also on behalf of the Municipality it was contended that apart from the non-maintainability of the suits on account of prohibition contained in Order 2,rule 2, Civil Procedure Code, the suits have to be dismissed on the ground of limitation also. Following the Judgment of this Court mentioned above, these transferred appeals also have to be disallowed and the dismissal of the suits has to be confirmed on the ground of bar of limitation apart from the question whether the suits are maintainable or not on account of the prohibition contained in Order 2, rule 2, Civil Procedure Code. Though the dismissal of the suits can be confirmed on the ground of bar of limitation alone, as the question of maintainability of the suits on account of the prohibition contained in Order 2, rule 2, Civil Procedure Code, was also argued, I will consider the same now.

(3.) As already mentioned above, on a levy made by the Municipality, which was subsequently found to be illegal, the ratepayers including the present appellants paid some amounts for certain half years commencing from 31st March, 1960 to 31st March, 1964. The appellants filed their present suits in the year 1967 for refund of the amounts paid by them for certain half years. Earlier, admittedly, these appellants filed suits in the year 1965 for refund of some amounts on the same allegation of illegality of the levy and mistake of law in payment of the amounts for certain half years. Later the present suits were filed for the amounts paid for the remaining half years. When the earlier suits were filed by the appellants, the amounts, for which the present suits were filed were also paid by them to the Municipality and were recoverable from the Municipality which were paid under the same levy, on the same ground of its illegality and mistake of law in payment of the amounts. It is, therefore, contended by the Municipality that the suits are not maintainable in view of the prohibition contained in Order 2, rule 2, Civil Procedure Code.