P L D 1970 Karachi 216 (PLP)

(7) Is the plaintiff entitled to the declaration sought in paras. 13 of the plaint and is any relief claimed, overruled? (8) What should be the decree? Both parties examined witnesses and produced 'documents in support of their respective stands. The learned Single Judge decided all the issues in favour of the Society and decreed its claim. Therefore the appellant filed this appeal.

5. Counsel for the appellant submitted that the respon dent's claim were barred by time in terms of Article 2 of the, Limitation Act and that the learned Single Judge erred holding that they fell under Article

120. Article 2 states as follows:‑ Period Time from which period Description of suit. of limitation. begins to run. (2) For compensation for 90 days. When the act or omission doing or for omitting takes place to do an act alleged to be in pursuance of any enactment in force for the time being in Pakistan. The respondent's claims are for the refund of the charges' it has paid to the Karachi Electric Supply Corporation for street lighting and the charges it has paid to the appellant for street sweeping. The claims being for the refund and reimbursement of specified amounts spent by the Society, they cannot be treated as claims for compensation for doing or omitting to do an act. The Society could frame its suit so as to make it for the recovery of compensation and in that event it would 4 have been governed by Article 2 of the Limitation Act, but it has framed it differently and demanded as explained in paragraph 8 of the plaint the refund of the money spent by it.

6. Learned counsel .then argued that even if the respon dent's claims fell under Article 120 the amounts claimed should not be decreed as they were time‑barred even under that Article. The Article is as follows.‑ Period of Time from which period Description of suit. Limitation. begins to run. 120. sSuit for which no Six years. When the right to period of limitation is sue accrues. provided elsewhere in this Schedule. According to counsel for the appellant, the cause of action for the amounts of which it sought refund arose in October 1952 when the area of the Society was within the limits of the appellant, therefore any claim made more than six years after that date was barred by time. In this case the suit was instituted after six years in 1963. But according to the respondent the cause of action arose when the appellant called upon it to pay taxes vide its letter dated the 6th June 1959 (Exh. 5). The question for determination therefore is: when did the cause of action arise within the meaning of Article 120.

7. As the respondent is not claiming any relief in respect of the taxes demanded by the appellant, that notice is not relevant to the respondent's cause of action. The respondent's claim is based on the allegation that it is entitled to get the refund of the amounts paid by it for street sweeping and street lighting on the ground that these services are some of the obligations of the appellant. On this basis any payments made by the respondent after these services become the liability of the appellants are recoverable through Court if the recovery is claimed within six years of the payments. They became the obligations of the appellants by virtue of the notification of the Chief Commissioner, Karachi, dated the 23rd October 1952.

8. Turning now to the question as to which of the claims, if any, of the respondent is within time, we shall first examine its claim for the refund of the amount paid by it to the Karachi Electric Supply Corporation. It had sent a cheque for Rs. 2,438 with its letter, on the 8th of December 1962 (Exh. 7/3). It is thus within time. But the respondent has similarly claimed the refund of Rs. 4,028 for payments made by it to the K. E. S. C. Between 1952 and 1959 without disclosing the dates of those payments. As there is no evidence to show that the said amount or any part thereof was paid within six years of the date of the filing of the suit, it cannot be allowed. As to the respondent's claims for the refund of the money paid by it to the appellant for street sweeping, the particulars of this claim are contained in the Schedule to the plaint. According to this Schedule pay ments aggregating Rs. 10,740 were made between October 1952 and June 1959. As we have observed, the respondent cannot recover from the appellant any payments made by it to the appellant more than six years before the date of the filing of the suit; therefore, its claim for the refund of these amounts can be decreed in the sum of Rs. 4,697 only. We may explain here that since the appellant is ordered to refund the amount received by it for rendering conservancy services, it follows that the appellant is entitled to recover the corresponding tax, namely the conservancy tax from 11th October 1952 to 30th June 1959. Accordingly, we have by our order of the 21st of May 1969, decreed the respondent's claim in the sum of Rs. 7,135 with costs. Claim decreed partly.