(1.) The State of Andhra Pradesh represented by the Collector, East Godavari, Kakinada, the defen-dant in the lower Court, is the appellant in this appeal. The plaintiff is the respondent. The plaintiff was the licensed renter for the toddy shops in the villages of Palacherla and Kolamuru for the year 1-10-1947 to 30-9-1948. According to the terms of the auction, the toddy shops had to be located on an unobjectionable site in the gram kantam of the respective villages. But as the plaintiff was not able to obtain a suitable site in the grama kantam of the village of Palacherla, he located the shop of that village at a place outside the grama kantam. Therefore, his licence for the Palacherla shop was withdrawn by the Collector of Abkari on 24-6-1948. Further, purporting to act under Clause 37 of the licence, the Collector of Abkari cancelled on 9-7-1948, the licence held by the plaintiff for the toddy shop situate in the village of Kolamur, though with regard to this shop, the plaintiff did not commit breach of any of the terms under which the auction for the toddy shop at Kolamur was held. The plaintiff filed O. S. No. 72 of 1949 against the Province of Madras for a declaration that the orders of the Abkari Collector, East Godavari dated 24-6-1948 and 9-7-1948 cancelling the licence for the two toddy shops at Palacherla and Kolamur and the orders passed by the Collector, East Godavari and the Board of Revenue confirming the said cancellation are illegal and improper and capricious and for a decree for a sum of Rs. 31,381-12-0 consisting of the following items: This suit was resisted by the State of Andhra Pradesh mainly on the ground that the plaintiff committed a breach of the terms of the licence and that, therefore, the Collector of Abkari was entitled to cancel the licence and reauction the right to the same at the risk of the plaintiff. It was also contended that under Clause 37 of the licence, the Collector was entitled to cancel the licence relating to Kolamur shop also though the plaintiff did not commit breach of any of the terms of the auction with respect to that shop. The learned Subordinate Judge, Rajahmundry held that the Government was right in withdrawing the licence for Palacherla shop, but that they had no right to cancel the plaintiffs licence with respect to the Kolamur shop and that the Government had no right also to forfeit the deposits relating to the two shops and hence was liable to refund those amounts. He also held that the plaintiff was entitled to recover, the two sums of Rs. 7,603-12-0 and Rs. 9,258/- paid by him as tree tax. But he rejected the claim under the head of loss of profit. In the result, the suit was decreed except for the sum of Rs. 2,000.00. The Province of Madras appealed to the High Court of Madras in A.S. No. 699 of 1953. The said appeal was transferred to the High Court of Andhra Pradesh at Hyderabad. The State of Andhra Pradesh came in as the appellant in the place of the State of Madras. By judgment and decree dated 15-4-1958, this High Court modified the decree of the trial Court. The High Court held that the cancellation of the licence for the Kolamur shop was illegal and that the deposits made by the plaintiff could not be forfeited and that the same had to be refunded by the Government to the plaintiff. The judgment and decree of the High Court have become final. But sanding that suit in the trial Court, the Government reauctioned the two shops at Palacherla and Kolamur and claimed that, as a result of the re-auction there was a loss of Rs. 6,340.00 which the plaintiff was liable to make good to the Government. A demand was accordingly made on the plaintiff for that amount. The plaintiff paid that amount on 7-11-1950 into the Sub-Treasury, Rajahmundry as per the receipt, Ex. A-1. This amount represents the deficit consequent on the resale of the shops. The plaintiff claims that he is entitled to a refund of this amount of Rs. 6,340.00 minus the sum of Rs. 885.00 which was the deficit consequent upon the resale of the Palacherla shop. The High Court in its judgment fn A. S. No. 699 of 1953 noted that it was agreed between the parties that the Government was entitled to deduct the sum of RS. 885.00 out of the sum of Rs. 1200.00 deposited by the plaintiff with respect to the Palacherla shop. But after the decree of the trial Court in that suit the Government refunded the amount of Rs. 1200.00 to the plaintiff. Therefore, in this suit, the plaintiff gave credit to the Government for the sum of Rs. 885.00 which was due to the Government with respect to the Palacherla shop, and filed the present suit only for Rs. 5,455.00. The second item claimed in this suit is the interest on that amount i.e. Rs. 2,636-9-4 the suit claim being Rs. 8,091-94. The judgment in O. S. No. 72 of 1949 on the file of the Subordinate Judges Court is dated 6-1-1953 and the judgment of the High Court in A. S. No. 699 of 1953 is dated 15-4-1958. The present suit, 0. S. No, 47 of 1958 on the file of the Court of the District Judge, East Godavari, Rajahmundry was filed on 17-11-1958. In paragraph 17 at the plaint, it is stated that: "The cause of action for the suit arose on 7-11-1950 when the amount of Rs. 5,455.00 was illegally collected from the plaintiff and on 15-4-1958 when the High Court held that the action of the defendant is illegal and both parties agree to deduct Rs. 885.00 which amount representing the Palacherla shop." The State of Andhra Pradesh filed a written statement, the main defence being that the suit is barred by limitation. In paragraph 5 of the written statement, It is pleaded that the right of the plaintiff to claim a refund of Rs. 6,340.00 or Rs. 5,455.00 is not founded on the decision in A. S. No. 699 of 1953 of the Andhra Pradesh High Court. It was pointed out that the plaintiff has all along been contending that the collection of Rs. 6,340.00 from him on 7-11-1950 is illegal. Therefore, It is pleaded that his right to recover the whole or a part of Rs. 6,340.00 aross on 7-11-1950 and that this suit is barred under Article 62 of the 1st Schedule to the Indian Limitation Act. Again in paragraph 6 of the written statement, it is stated that no cause of action arose on 154-1958 and that the cause of action arose on 7-11-1950 and that the time began to run from the said date.
(2.) The second issue framed by the lower Court is whether the suit is barred by time. The discussion in the lower Court turned upon two questions, (1) What was the Article of Limitation applicable to the suit claim and (2) When did the cause of action arise? On behalf of the plaintiff, it was argued that the Article of limitation applicable to the present suit is Article 120 of the First Schedule to the Indian Limitation Act and that the cause of action arose on 15-4-1958 when the High Court finally held that the cancellation of the licence by the Government with respect to the Kolamur shop is illegal and that the plaintiff was "clearly entitled to refund of the deposit he had made for the purpose of the due payment of the rent as well as other necessary consequential reliefs." It was also suggested that even if it would be held that the cause of action arose on 6-1-1953 the date of the decision of the trial Court in that litigation, the suit is within time having been filed within six years from that date, under Article 120 of the Indian Limitation Act. It was also argued, relying upon certain observations of the Privy Council in Bassu Kuar v. Dhun Singh, ILR 11 All 47 and Mt. Swarnamayi v. Shashi Mukhi Barmani, 12 Moo Ind App 244 (P C), that if the plaintiff filed The present suit even before the High Court finally decided the prior litigation, it would be a futile ore, since so long as the order of the Collector of Abkari cancelling the licence stood, the plaintiff would not be entitled to a refund of the suit amount. On the other hand, it was contended on behalf of the Government that the Article of limitation applicable to the present suit is Article 62 of the Indian Limitation Act, that the period of limitation is only three years and that the cause, of action for the suit arose on 7-11-1950 when the amount was received by the defendant as prescribed by that Article, and that therefore the suit is barred by limitation. The lower Court was of the opinion that, if this suit were filed even before it was finally held in the prior suit that the cancellation of the licence with respect to the Kolamur shop is illegal, this suit would necessarily have to be dismissed and that the institution of this suit earlier would be only a futile action on the part of the plaintiff. Therefore, it held that the Article of limitation applicable to the present suit is Article 120 of the First Schedule to the Indian Limitation Act and that the cause of action arose only on 154-1958 when A. S. No. 699 of 1953 was finally disposed of by this High Court and when the rights of the parties were finally determined by the High Court, In this view, it held that the suit is not barred by limitation and decreed the suit claim.
(3.) The same contentions which were urged on behalf of the Government in the lower Court are again urged before me by the learned Government Pleader, and on behalf of the plaintiff-respondent, Mr. Ananta Babu, his learned counsel strenuously contended again before me that the Article of limitation applicable is Article 120 of the First Schedule to the Indian Limitation Act and that the suit is in time whether it be held that the cause of action arose either on 6-1-1953 the date on which the trial Court first held that the cancellation of the licence for Kolamur shop was Illegal or on 15-4-1958 when the High Court also held that the said cancellation is illegal. In either case, it is pointed out, the suit Is in time.;