Decided on July 23,1955


Referred Judgements :-



VISWANATHA SASTRI,J. - (1.)The point that arises for decision, is whether the suit is barred by Order 2, Rule 2, of the Code of Civil Procedure. The petitioner is a house-owner assessed to property tax by the respondent, the Vijayawada Municipality. The property tax payable by the petitioner was successively enhanced by the Municipality for each of the years 1945-46 to 1948-49 in spite of the petitioner's objection. In O. S. No. 392 of 1949 on the file of the District Munsif's Court, Vijayawada, the Municipality sued the petitioner for recovery of Rs. 760-2-9 alleged to be due from him for the property tax for the years 1946-47, 1947-48 and 1948-49. The petitioner's defence in the suit was that the enhancement was illegal and that he was entitled to a decree for Rs. 6-6-3 after setting off the amount paid by him by way of property tax to the Municipality for these three years. The Court held that the enhanced levy was illegal and gave a decree in favour of the petitioner for Rs. 6-6-3 as claimed by him. The petitioner thereafter brought the suit out of which this Civil Revision Petition arises, for recovery of Rs. 233-12-0 representing the principal and interest of the enhanced tax realised from him by the Municipality for the year 1945-46. The defence of the Municipality was that the payment was voluntarily made by the petitioner and that the suit was barred by Order 2, Rule 2, Civil Procedure Code. The suit was dismissed by the Court below. Hence this Civil Revision Petition.
(2.)It is clear that the payment of the enhanced tax by the petitioner for 1945-46 was not voluntary. The tax-payer, though not legally bound to pay the enhanced tax had to pay it under the compulsion of a warrant. The payment was therefore one made under coercion within the meaning of Section 72 of the Contract Act and the petitioner is entitled to recover the money so paid by a suit.
(3.)Relying on a decision of the Madras High Court in Kathersa Rowther v. Abdul Rahim Sahib, ILR (1942) Mad 836 , the Court below was of the opinion that the petitioner should have included the amount now sued for in the claim for set-off which he put forward in O. S. No. 392 of 1949. In the decision above cited, it was held that a defendant who pleaded a set off under Order 8, Rule 6, Civil Procedure Code, was bound by Order 2, Rule 2, Civil Procedure Code and should be deemed to have been a plaintiff within the meaning of Order 2, Rule 2. Therefore he had to suffer the consequences of his omission to include part of his claim in the set-off which he pleaded in the former suit. No doubt under Order 8, Rule 6, a plea of set-off is both a defence to the extent of the plaintiff's claim and a claim by the defendant in the suit itself for the balance due to him. That is why Order 8, Rule 6, provides that a written statement pleading a set-off has the effect of a cross suit by the defendant so as to enable the Court to pass a decree in his favour. A defendant pleading a set-off is under no greater disability than is imposed by Order 2, Rule 2, Civil Procedure Code, upon a plaintiff. Order 2, Rule 2, only requires that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action and not every suit shall include every cause of action which a plaintiff may have against the defendant. As observed by the Privy Council in dealing with a similar provision in the Ceylon Civil Procedure Code, the rule is directed to secure the exhaustion of the reliefs available in respect of a cause of action on which the suit is based and not to the inclusion in one and the same suit of different causes of action even though they arise from the same transaction or series of transactions - see Payana Reena Saminathan v. Pana Lana Palaniappa. 41 Ind App 142 (PC) . Here the tax had to be assessed and demanded separately for each half year by the Municipality and was also paid by the assessee under protest in respect of each half year. It is not as if the lax for a half year if not paid becomes merged in the tax liability for the succeeding half years or that there is a continuous running account between the Municipality and the petitioner. The assessment for each half-year is a separate proceeding and an illegal levy in respect of each of the half-years gives rise to a separate cause of action to the plaintiff for recovery of the amount so levied. On each occasion on which the Municipality exacted payment of more than what was lawfully due to it, it was committing an actionable wrong in respect of which the plaintiff had a distinct cause of action. For these reasons I am unable to agree with the decision of the Court below 'that the suit was barred by Order 2, Rule 2.

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