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TMI Blog1965 (10) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... of Jodhpur was integrated with the United State of Rajasthan and the monopoly contract was allowed to continue by the new State. On the 26th January, 1950, the Constitution came into force in our country and the United State of Rajasthan became one of its Part B States. The plaintiff's case is that after the Constitution had come into force, the monopoly contract held by him had become unlawful and null and void and it was open to every citizen to conduct the business of carrying passenger and goods on hire by motor vehicles throughout the length and breadth of the State until the 1st April, 1951 when the Indian Motor Vehicles Act, 1939 (Act No. 4 of 1939) was made applicable to the State of Rajasthan and then a business of this character fell to be regulated by the provisions contained in that Act and no one could carry on such a business except under a permit obtained under the provisions of the said Act. The plaintiff's grievance was and is that under the circumstances the defendant State had no right to recover any money in connection with the contract held by him at law as the same had become wholly null and void after the 26th of January, 1950, on the coming into f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the trial court rightly applied Article 62 of the Limitation Act for, if the plaintiff's suit does fall within the ambit of that article, it cannot but be dismissed as having been brought beyond the three years' period prescribed therein. 7. Learned counsel for the plaintiff strenuously contended before us that the trial court had fallen into a serious error of law in holding that this suit falls to be governed by Article 62, and elaborated his point somewhat like this. His submission was that the money which was realised by the defendant State from the plaintiff was in pursuance of a contract which was perfectly valid when it was entered into between the parties and, therefore, a suit brought for the refund of the moneys so paid to the State would not rightly attract Article 62 of the Limitation Act. He further contended that the payments made by the plaintiff were made under some kind of mistake which was discovered at the time he gave the notice to the State to refund the same. It was further urged in this connection that in this view of the matter the present suit would be governed by Article 96 of the Limitation Act and the limitation against him commenced when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing contract or not. If they were made in fulfilment of a contract which was good then there could be no valid objection to the making or exacting of such payments by the party entitled to payment. If, however, there was no such subsisting contract, then it would be a contradiction in terms to say that the payments in question had been made by the plaintiff in performance thereof. As we look at the case propounded by the plaintiff in his plaint, the position taken up by him unmistakably is that the contract had come to an end on the 26th of January, 1950 on the doctrine of frustration and, therefore, it became dead or extinct There can, therefore, be no question of any payments being exacted by the State in performance of a contract which was no longer good or subsisting. In other words the payments made by the plaintiff from the 26th of January, 1950, upto the 31st of March 1951, were payments which the defendant State had no right to receive in law. We hold accordingly. 9. If the conclusion to which we have come above is correct, and we have no doubt that that is so, then the further question is whether the plaintiff can avoid the application of Article 62 of the Limitation Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct interpretation to put on Article 62, which interpretation, if we may say so with all respect, is in conformity with the preponderance of judicial opinion in our country, it is for the Legislature to intervene and express its intention more clearly than seems to have been done at the present moment. If we may say so with respect, we are in entire agreement with this view. 11. Learned counsel for the plaintiff, however, strenuously contended that the case before us is distinguishable from the Jain Brothers' case ILR (1963) Raj 1063: (AIR 1964 Raj 17) because here the money in dispute had been realised by the State from the plaintiff in performance of a contract and not in violation of any statute as in that case. This, in our opinion, makes no difference in principle as the fiction of an illegal payment having been exacted within the meaning of Section 65 arises in this class of case as in the other. It is the plaintiff's own case that no monopoly could possibly be sustained after the Constitution came into force on the 26th of January, 1950. Further, assuming that the suit money pertained to the performance of a contract which had been validly entered into between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unded on the plea of mistake. The entire tenor of the plaintiff's case, as disclosed in his plaint, negatives this submission. Nowhere is it said therein that the payments made by the plaintiff were made under mistake. No issue was raised or invited on this point, during the course of trial. To allow the plaintiff to set up a new case, on a point like this, which, as we look at it, is essentially one of fact in the circumstances of the case would be to take the defendant by complete surprise, and we are not prepared to allow this to be done. There would be a further difficultly in the way of the plaintiff for successfully overcoming the bar of limitation because the question would still arise when the mistake became known to the plaintiff. We asked learned counsel to place his finger on his plaint and tell us when, according to it, the mistake became known to the plaintiff. He was obviously unable to give any satisfactory reply for the plaint is absolutely silent on the point, and all that he was able to tell us was that the mistake became known to the plaintiff when he gave the notice under Section 80 to the State, or, alternatively, he argued that it was for the defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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