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Gulab Rai and anr. Vs. Tulsi Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All437; 101Ind.Cas.322
AppellantGulab Rai and anr.
RespondentTulsi Ram
Excerpt:
- - 1919 a plaintiff is only entitled to the benefit of section 18 of the limitation act when he shows that he has been prevented by fraud from knowledge of his right to institute a suit and it cannot be said in the present case that the plaintiff was prevented from such knowledge after the 13th of september 1917. moreover, it |is incumbent on a plaintiff, seeking the benefit of section 18 of the limitation act, to distinctly allege the particular fraud, by which he has been kept from the knowledge of his right of suit against the defendant, specifically and with detailed particulars and this has not been done in the present case. 9. in my judgment the decrees of the courts below are perfectly correct and i dismiss the appeal with costs......the suit is time barred. it is argued on behalf of the plaintiff-respondent that the present suit is governed not by article 62 but by article 120 of the first schedule to the limitation act, and that the right to sue accrued to the plaintiff on the 26th of august 1918, when his suit was dismissed by the revenue court and, as the present suit was filed with in six years from that date, the suit was within time. it is said that even if the right to sue accrued oh the 13th of september 1917, the suit is within time. further, it is argued by the learned counsel for the respondent, that even if article 62 applies the plaintiff is entitled' to the benefit of section 18 of the limitation act, as his right to institute a suit against the defendants was kept from his knowledge by.....
Judgment:

Iqbal Ahmad, J.

1. This is a defendant's appeal and arises out of a suit brought by the plaintiff-respondent for recovery of Rs. 900 under the following circumstances:

2. The plaintiff and the defendants and one Munna Lal were co-sharers in a village. Munna Lal was the lambardar and on the latter's death Tulsi Ram plaintiff-respondent, sued Ram Narain, the son of Munna Lal, for the profits of 1320 to 1323 Faslis in the Revenue Court. Ram Narain contested the suit on the allegation that he had paid the profits of the share of Tulsi Ram to Jagannath and Gulab Rai defendants. The written statement containing this allegation was filed by Ram Narain on the 13th of September 1919. The defence of Ram Narain found favour with the Court, and Tulsi Ram's suit was dismissed on the 26th of August 1918, and that decision was affirmed on appear on the 11th of March 1919. Thereupon the suit giving rise to the present appeal was brought on the 23rd of August 1921, by Tulsi Ram, plaintiff-respondent, for recovery of the profits for the aforesaid years and for interest and for the costs of the suit in the Revenue Court, against Jagannath and Gulab Rai, defendants-appellants. The plaintiff's allegation was that the defendants fraudulently concealed the fact of the receipt of the plaintiff's share of the profits from the lambardar, and all along assured the plaintiff that they had not realised any amount due to him, and the plaintiff came to know the real facts when his suit for profits was ultimately dismissed by the appellate Court on the 11th of March 1919.

3. The defendants contested the suit on the ground that they had not realised the profits of the plaintiff's share,and that the suit was time barred. They also denied the allegations of the plaintiff relating to the perpetration of fraud by them.

4. The pleas taken in defence have been overruled by both the Courts below and the suit has been decreed, In second appeal before me the decrees of the Courts below are assailed on the,ground, that the article applicable to the suit was Article 62 of the First Schedule to the Limitation Act, and inasmuch as the suit was brought more than three years after the alleged date of the receipt of money by the defendants, and even more than three years after the 13th of September 1917, the date on which Ram Narain, asserted in the Revenue Court that he had paid the plaintiff's share of the profits to the defendants-appellants, the suit is time barred. It is argued on behalf of the plaintiff-respondent that the present suit is governed not by Article 62 but by Article 120 of the First Schedule to the Limitation Act, and that the right to sue accrued to the plaintiff on the 26th of August 1918, when his suit was dismissed by the Revenue Court and, as the present suit was filed with in six years from that date, the suit was within time. It is said that even if the right to sue accrued oh the 13th of September 1917, the suit is within time. Further, it is argued by the learned Counsel for the respondent, that even if Article 62 applies the plaintiff is entitled' to the benefit of Section 18 of the Limitation Act, as his right to institute a suit against the defendants was kept from his knowledge by means of fraud practised by the defendants, and as that fraud came to his| knowledge on the 26th of August 1918, the date on which his suit was dismissed by the Revenue Court, the time of three years, allowed by Article 62 of the-First Schedule to the Limitation Act must be reckoned from that date.

5. In my judgment Section 18 of the Limitation Act has no application to the facts of the present case. The fraud contemplated by Section 18 of the Limitation Act is an actual and active fraud and not what is called constructive fraud. The words 'has...been kept,' in Section 18 of the Limitation Act, point to the conclusion, that in order to constitute a fraud it is not enough that there should be merely a tortuous act unknown to the injured party but that

there must be some abuse of a confidential position, some intentional imposition, or some deliberate.concealment of facts...there must be something actually said or done which is directly intended to prevent discovery,

6. vide Rustomji's Law of Limitation, Second Edition, pages 93 and 94. In order to attract the provisions of Section 18 of the Limitation Act, there must be an intentional concealment of facts by the-defendant with a design to keep the plaintiff from the knowledge of his right to institute a suit; and in the present case there is no finding by the Courts below that there was such concealment of facts by the defendants with a view to throw the plaintiff over the period of limitation. As was pointed out in the case of Asa Nand v. Jhangi Ram [1919] 2 P.W.R. 1919 a plaintiff is only entitled to the benefit of Section 18 of the Limitation Act when he shows that he has been prevented by fraud from knowledge of his right to institute a suit and it cannot be said in the present case that the plaintiff was prevented from such knowledge after the 13th of September 1917. Moreover, it |is incumbent on a plaintiff, seeking the benefit of Section 18 of the Limitation Act, to distinctly allege the particular fraud, by which he has been kept from the knowledge of his right of suit against the defendant, specifically and with detailed particulars and this has not been done in the present case. For the reasons given above, if the present suit was governed by Article 62 of the Limitation Act, it was time barred.

7. But, in my judgment, the suit is governed not by Article 62 but by Article 120 of the Limitation Act, and having been filed within six years from the date that the right to sue accrued to the plaintiff, was within time. The defendants having denied the receipt of the plaintiff's share of the profits, and they having no right to realise the same, it cannot be said that they received the money 'for the plaintiff's use.' The phrase 'when the money is received' in the third column of Article 62 of the Limitation Act shows that Article 62 applies only to those cases in which on the date of the receipt of the money by the defendant, the receipt is by him, for the plaintiff's use, and does not apply to cases in which the money received by the defendant becomes by subsequent events money received for the plaintiff's use. As I have said above, in the present case it cannot be said that on the date that they realised the profits of the plaintiff's share from the lambardar they received the money from him for the plaintiff's use. It was pointed out in the case of Ramasami Naidu v. Muthusami Pillai [1918] 41 Mad. 923 that

in an action foe money had and received, there must be, as shown by the English decisions, some privity of a legally recognizable nature between the plaintiff and the defendant,

8. and I am unable to discover any such privity between the parties to the present suit. There being no article in the First Schedule to the Limitation Act in terms applicable to the present suit, the suit must be governed by Article 120 of the Limitation Act.

9. In my judgment the decrees of the Courts below are perfectly correct and I dismiss the appeal with costs.


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