DORAB PATEL, J.----This is a Letters Patent Appeal against the judgment of a learned Single Judge of this Court dated the 17th May 1966, by which he decreed the respondent's claim.
2. The facts material to this appeal are as follows The respondent is a Co-operative Housing Society and the area of the said Society formerly fell within the limits of Karachi Cantonment and not within the area of the K. M. C, therefore the Said Society had to make its own arrangements for street lighting and street sweeping. Accordingly, it had made all arrangements with the Karachi Electric Supply Corporation for street lighting, and used to pay the K. M. C. For sweeping the streets. By a notification of the Chief Commissioner of Karachi dated the 11th October 1952, the area of the Karachi Municipal Corporation was extended so as to include the area of the said Society. It is common ground between the parties that on the one hand the appellant became entitled to collect Municipal taxes in respect of the properties situated within the limits of the said Society after the said Notification, and. On the other hand became liable to provide street lighting and street sweeping. Despite the said Notification, however, the appellant took no steps for many years either to recover Muni--cipal taxes from the said Society, or to provide street lighting and street sweeping to it. Suddenly by its letter dated the 6th of June 1959 (Exh. 5) it informed the said Society that the property owners of the said Society had become liable "to pay general tax and Government taxes from that date (11th October 1952)."
Thereafter, correspondence began between the appellant and the respondent. The contention of the said Society was that since the appellant was demanding taxes retrospectively it was liable to return to the said Society the charges which it received from the Society on a contractual basis for sweeping the streets as well as to reimburse the Society the payments made by it for street lighting to the Karachi Electric Supply Corporation. The Society wrote to the Karachi Electric Corporation that it was the liability of the K. M. C. To pay for street lighting in view of the demand made by the K.
M. C. For taxes. In reply the Karachi Electric Supply Corporation threatened to cut off the electric supply to the area of the said Society and since the K. M. C. Refused to pay the said charges, the Society had to pay the bills of the Karachi Electric Supply Corporation under protest. Finally, by a notice sent through its Advocate (of which a copy is Exh. 7/4) the Society called upon the appellant K. M. C. To refund to it a sum of Rs. 10,740 which it had paid to the appellant as sweeping charges and to pay Rs. 6,466 which it had paid to the Karachi Electric Supply Corporation for street lighting.
As the terms of this notice were not complied with, the Society filed a suit in this Court against the appellant on the 14th of February 1963.
3. The contention of the Society, in the said suit, was that as from October 1952, the appellant had become responsible for street sweeping and street lighting in the area of the said Society. The Society had paid a sum of Rs. 10,740 to the appellant between October 1952, and June 1959, therefore the appellant was liable to refund that amount. However, the appellant had failed to provide street lighting, therefore the Society was compelled to pay a sum of Rs. 4,028 for street lighting to the Karachi Electric Supply Corporation between 1952 and 1959 and again a sum of R9.
2,438 for the same purpose on 8th December 1962, therefore the appellant was liable to pay those amounts to the Society. The Society also asked for declaration that the appellant was liable to maintain the street lighting and street sweeping in the Society at its own cost from the time the Society was included in the boundaries of the appellant.
4. The appellant contested this suit. In its written statement it repudiated liability both for the refund of the amount received for street sweeping, and the amounts paid for the Society to the Karachi Electric Supply Corporation for street lighting. Additionally, it pleaded that the Society's claim was time-barred. On the pleadings of the parties the following issues were framed:
(1) On what date the Karachi Parsi Colony was included within the Municipal limits?
(2) Is it open in law to the defendant Corporation to give a go-by to its letter dated 6-6-1959 demanding payment of taxes as from 11-10-1952?
(3) Is the defendant Corporation entitled in law to demand payment of taxes from 9-2-1947?
(4) Have the bungalow owners of the Katrak Parsi Colony failed to pay regular taxes as alleged in para. 4 of the written statement?
(4-A) Did the plaintiff make payment to K. E. S. C. Without the permission (as alleged in para. 9 of the written statement), if so, what is its effect ?
(5) Is the plaintiff entitled to the refund of the amount paid to the Karachi Electric Supply Corporation for street lights and to the refund of road sweeping charges paid to the defendant Corporation as claimed. Is this claim for refund time-barred?
6) Did the defendant Corporation receive the notice dated 29-9-1962 from the plaintiff?
(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 issue 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 6 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.th 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.