C.M. Lodha, J.
1. The facts giving rise to this second appeal by the defendant-Municipal Board, Bharatpur are these :
2. The plaintiff-respondent Ramjilal is a resident of Bharatpur. He filed the suit out of which this appeal arises for refund of Rs. 1,136.69 paise against 'the appellant on the ground that the said amount had been illegally recovered as 'Gaushala Tax' from him, on ac-count of import of 'Bidies'. and cigarettes into Bharatpur where he is carry-ing on his business. The tax pertains to the period from 17-4-1966 to 1-10-1966. The Municipal Board. Bharatpur resisted the plaintiff's suit on the ground that the impugned levy was valid under the Bharatpur Municipal Act of 1925 (which will hereinafter be called 'The Bharatpur Act' read with Rajasthan Municipal Validating Act, 1956 (Act No. 37 of 1956)) (which will hereinafter be called the Validating Act of 1956), and the Rajas-than Municipal Taxes (Validating) Act. 1961 (Act No. 8 of 1961) (which will hereinafter be referred to as the Validating Act of 1961).
3. After recording the evidence produced by the parties the learned Munsiff, Bharatpur by his judgment dated 17-3-1969 dismissed the plaintiff's suit holding that the impugned tax had been validly levied and recovered. Aggrieved by the judgment and decree of the trial Court the plaintiff filed appeal and the learned Additional District Judge, Gangapur at Bharatpur by Ms judgment dated 28-11-1970 set aside the judgment and decree of the trial Court and decreed the plaintiff's suit for Rs. 1136.69 paise. He held that the defendant's, plea that the impugned tax had been validated by virtue of the Validating Acts of 1956 and 1961, was barred by constructive res judicata in view of the previous judgments inter parrtes marked Ex. 1 and Ex. 2. Dissatisfied with the judgment and decree of the learned Additional District Judge, the Municipal Board has filed this second appeal.
4. Before coming to the question of law decided by the learned Additional District Judge it would be convenient and proper to refer to two previous judgments inter partes which have been relied upon by the plaintiff to shut out the defendant's plea regarding validity of the impugned tax. One is a judgment by the Civil Judge, Bharatpur in Civil Suit No. 89 of 1956. decided on 31-7-1961. (Plaintiff Ramjilal v. Defendant-Municipal Board, Bharatpur). A certified, copy of this judgment has been placed on the record and marked Ex. 1. This judgment shows that previously also on 3-5-1956 the plaintiff filed a suit for refund of Rs. 822.13 paise on account of the same 'Gaushala Tax' said to have been recovered by the defendant illegally and it was held that the defendant had failed to prove that the tax had been legally and validly recovered under the Bharatpur Act. In this view of the matter, the learned Civil Judge granted a decree for refund of the impugned tax. Ex. 2 is another judgment between the same parties in Civil Suit No. 2/64 given by the same Court by which the plain-tiff's suit for recovery of Rs. 600/- was decreed on the ground that the previous judgment dated 31-7-61 (Ex. 1) operated as a bar against the defendant from agitating that the tax was validly and legally recovered. It may be pointed out that both the Validating Acts of 1956 and 1961 had come into force when the judgment Ex. 1 and Ex. 2 were pronounced but no reference was made to them on behalf of the defendant in these cases. However, the Municipal Board seeks to justify the levy and recovery of the impugned tax in the present suit on the basis of the two Validating Acts of 1956 and 1961. According to the learned Additional District Judge it is not open to the Municipal Board to press into service the said two Validating Acts in the present suit on account of the principle of constructive res judicata.
5. Learned counsel for the appellant has urged that the bar of constructive res judicate does not apply in the present case. In support of his contention' he has relied upon Maritime Electric Co. v. General Dairies. AIR 1937 PC 114; Bikan Mahuri v. Ml Bibi Wali-an AIR 1939 Pat 633; Batul Begam v. Hem Chandra. AIR 1961 All 519 and Mohan Ram v. T. L. Sundararamier, AIR 1960 Mad 377 (FB).
On the other hand, learned counsel for the respondent-plaintiff has placed reliance on Bindeswari v. Bageshwari, AIR 1936 PC 46 and Venkataseshayya v. Virayya. AIR 1958 Andh Pra 1 (FB).
6. In AIR 1937 PC 114, their Lordships were pleased to observe as follows:--
'Where the statute imposes a duty of a positive kind, not avoidable by the performance of any formality, for the doing of the very act which the party filling seeks to do, it is not open to the opposite party to set up an estoppel to prevent it. This conclusion must follow from the circumstance that an estoppel is only a rule of evidence which under certain special circumstances can be invoked by a party to an action.'
In AIR 1939 Pat 377 Wort J., observed that the principle of res judicata is only a form of estoppel and it is a principle of law for which, no au hority is required and that there can be no estoppel against the statute. He also held that if the Regulation prohibits the recovery of a sum the previous judgment entitling the plaintiff to recover the same, cannot stand in the way of defence of the defendant. In this connection he also made it clear that if the previous case of 1872 had decided not only the liability of defendant, but thatthe nature of the imposition was not such as to bring it within the mischief of the Regulation the matter would have been concluded, but the judgment of the previous case merely decided the defendant's liability to pay rather than the question of the nature of the sum. In these circumstances the learned Judge came to the conclusion that in such a case no assistance can be derived from the principle of constructive res judicata,
7. In AIR 1960 All 519 it was held that the rule of constructive res judicata is really a rule of estoppel, There can be no estoppel against statute.
In AIR 1960 Mad 377 (FB) Ananta-narayanan. J., stated the law as follows a
'But where the fact is not in dispute that the decree contravenes both public policy and the law because it is a decree for sale of service inam land, or where it is incontrovertibly established by material on the same footing as the decree itself, in the very suit, the executing court is entitled, as a matter of conscience and its powers, to go behind the decree and to refuse to execute it. The rule of constructive res judicata cannot operate to prevent the court from doing so, both because this is an overriding power, and because in such an instance, it would really be a matter of refusal to infringe the law and there can be no estoppel against statute.'
In AIR 1936 PC 46 (relied upon by the learned counsel for the plaintiff-respondent) their Lordships were pleased to hold that the decision in the suit as to the construction of Section 12-A is res judicata to the validity of the grant and that it is not open to the respondent to challenge the validity of the same grant.
8. In AIR 1958 Andh Pra 1 (FB) it was held that the scope of the doctrine of res judicata vis-a-vis a decision of a court on the validity of an alienation contrary to a statutory prohibition is found in the decision of AIR 1936 PC 46. In both these cases it may be noted that the validity of the provisions of the statute was considered in the previous decisions and it was held that the previous decisions regarding the validity of the particular statutory provision would operate as res judicata. The position is, however, different in the present case inasmuch as the effect of the two Validating Acts of 1956 and 1961 was not at all considered in the previous decisions Ex. 1 and Ex. 2. The limited question for my decision, therefore, is whether failure on the part of the defendant to refer to these two Validating Acts in the previous two cases would operate as a bar against it to rely on them in the present suit by virtue ofthe principle of constructive res judicata?
9. In the facts and circumstances of the present case I am of opinion that since the effect of the two Validating Acts was not at all considered in the previous two decisions, the plaintiff cannot fall back on the principle of constructive res judicata that is to say that it was the defence which the defendant could have set up in the previous action but as it did not it must be presumed that the point was decided against it. The decision of the learned Additional District Judge, therefore, cannot be sustained on the ground that the plaintiff is entitled to get a decree on account of the bar of constructive res judicata against the defendant.
10. However, learned counsel for the plaintiff-respondent urges that the question of the impugned levy being valid under the Validating Acts of 1956 and 1961 did not arise in the previous judgments Ex. 1 and Ex. 2, as it was held therein that the Municipal Board had failed to satisfy the Court that the levy was justified by the provisions of Section 29 of the Bharatpur Act and consequently it was a tax initially without authority of law. It has been, argued in this connection that this finding would operate as res judicata. In this connection it has been further contended that If it was not a valid levy under the Bharatpur Act, It could not be made valid under the two Validating Acts relied upon by the defendant. It has also been submitted that any tax not specified under Section 29 of the Bharatpur Act could be levied only with the previous sanction of the Darbar and since the defendant had failed to prove the previous sanction of the Darbar the levy was without authority of law. On the other hand learned counsel for the appellant Board has invited my attention to the Gazette Notification of the former State of Bharatpur dated 21-8-1919 and has argued that the levy was originally under the said Gazette Notification called the 'Rules of Shri Krishan Gaushala. Bharatpur' and the levy continued to be a valid one under the Bharatpur Act, as well as the Rajasthan Town Municipalities Act. 1951 and then under the Rajasthan Municipalities Act, 1959. He has further submitted that in any case under the Validating Acts of 1956 and 1961 the levy was justified.
11. I may point out that the learned Additional District Judge has not addressed himself to the question whether the defendant's plea regarding the validity of the impugned tax would be barred by res judicata on account of levy having not been held to be justified under the Bharatpur Municipal Act, 1955 in the previous decisions, and if so, what would be the effect of the Validating Acts on the rights of the parties. It may be mentioned here that the parties have also led evidence and it would be proper, in the circumstances, to remand the case to the first appellate Court to decide the whole matter afresh on the lines indicated above.
12. Accordingly. I allow this appeal in part, set aside the judgment and decree of the learned Additional District Judge. Bharatpur dated 28-11-70, and send the case back to him to restore the appeal to its original number and decide it afresh on the lines indicated above. There will be no order as to costs.