P.N.Mookerjee, J. - (1.) This appeal is by the Municipal Commissioners or Howrah against a decision of the lower appellate Court holding inter alia that the assessment of Holding No. 433/1, G. T. Koad for the period in question is void and illegal and decreeing the plaintiffs suit for such declaration and temporary injunction, restraining the appellant Municipality from realising taxes on the basis of the said impugned assessment.
(2.) The suit was dismissed by the learned trial Judge but, on appeal, that decision was reversed and the plaintiffs suit was decreed, as aforesaid.
(3.) On the materials before us, we are in agreement with the learned court of appeal below in regard to its conclusion that the impugned assessment was in contravention of Section 134 of the Calcutta Municipal Act, as applying to Howrah and, prima facie, therefore, apart from the question of the bar of res judicata, which we will discuss hereiubelow, the said assessment would have been void and illegal. The difficulty, however, of the respondent before us is by reason of the judgment of this Court, reported in Administrator Howrah Municipality v. M/s. Calcutta Electric Supply Corporation Ltd., (1958) 62 Cal WN 293. That was a judgment inter partes, where the assessment of Holding No. 433, with which the amalgamation of the present Holding No. 433/1 was overlooked or ignored by the Municipality in the matter of making of the impugned assessment, was in question. In dismissing the respondent's appeal on that occasion, in regard to the said Holding 433, this Court proceeded upon the firm view that the present impugned assessment in regard to Holding No. 433/1 had become final. That was an integral part of the said decision and, without the said finding, the decision of this Court on the said occasion could not have been made. In the above state of things, whatever be the position if the matter had been or be considered res inte-gra, the decision in the instant case must go against the respondent on account of the bar of constructive res judicata, The learned District Judge, in allowing the respondent's appeal and decreeing its suit, appears to have missed this aspect of the matter and accordingly, his decision cannot be upheld. We would, therefore, hold that the instant suit of the respondent for a declaration that the impugned assessment is ultra vires, void and illegal and for a permanent injunction, even though it might have otherwise succeeded on merits, must fail on the ground of constructive res judicata by reason of the above decision of this Court (1958) 62 Cal WN 293.;