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Firm Debi DIn Bhagwan DIn Through Binda Ram Vs. Firm Sarkar and Co. Through Satya Ranjan Sarkar - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All172; 56Ind.Cas.513
AppellantFirm Debi DIn Bhagwan DIn Through Binda Ram
RespondentFirm Sarkar and Co. Through Satya Ranjan Sarkar
Excerpt:
revision - limitation, plea of, not taken in trial court, whether can be taken in high court--plea depending on evidence--procedure--remand. - .....30 wagons had been sent to them but only 25 had been accepted. the sum of rs. 355 was due for the wagons accepted and r3. 125 for damages on the five wagons not accepted. under the terms of the contract between the parties the defendants applicants had agreed to pay rs, 50 per wagon as damages in case of their non acceptance, but the plaintiffs were claiming only at the rate of r3. 25 per wagon. the sum of rs. 355 was the balance of the price of the 25 wagons after deducting the amounts paid from time to time by the defendants-applicants. the learned judge of the small cause court decreed the claim. in revision to this court it is contended that on the evidence of the plaintiffs themselves the claim with regard to damages is barred. no plea of limitation was taken in the court below. it.....
Judgment:

Rafique, J.

1. This is an application in revision from the decree of the learned Judge of the Small Cause Court at Cawnpur decreeing the claim of the opposite party for Rs. 430. It appears that the plaintiff, the opposite party, sued for the recovery of Rs. 355 for balance of price of goods supplied and Rs. 125 for damages for goods supplied but not accepted. It was alleged in the plaint that the defendants-applicants had ordered 30 wagons of coal at the price agreed upon and that 30 wagons had been sent to them but only 25 had been accepted. The sum of Rs. 355 was due for the wagons accepted and R3. 125 for damages on the five wagons not accepted. Under the terms of the contract between the parties the defendants applicants had agreed to pay Rs, 50 per wagon as damages in case of their non acceptance, but the plaintiffs were claiming only at the rate of R3. 25 per wagon. The sum of Rs. 355 was the balance of the price of the 25 wagons after deducting the amounts paid from time to time by the defendants-applicants. The learned Judge of the Small Cause Court decreed the claim. In revision to this Court it is contended that on the evidence of the plaintiffs themselves the claim with regard to damages is barred. No plea of limitation was taken in the Court below. It is true that the omission to take that plea does not estope the defendants from taking it in this Court, but as is urged on behalf of the opposite party, the plea depends upon evidence. Had the plaintiffs notice of the plea of limitation, they would have met it by producing proper evidence on the point. I think that under the circumstances the only course open is to set aside the decree of the Court below and to remand the case for trial on the merits according to law, allowing the defendants to fake the plea of limitation and permitting both parties to give evidence in support of it Costs of this appeal and of the trial below will be costs in the cause.


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