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Raghunath Shaw Vs. Kanai Lal Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 1486 of 1960
Judge
Reported inAIR1962Cal97
ActsLimitation Act, 1908 - Schedule - Articles 52 and 85; ;Provincial Small Cause Courts Act, 1887 - Section 25
AppellantRaghunath Shaw
RespondentKanai Lal Das and ors.
Appellant AdvocateChandidas Roy Choudhury, Adv.
Respondent AdvocateShyamacharan Mitter and ;Purnendu Prokash Sircar, Advs. for Opposite Party No. 1
DispositionRevision dismissed
Cases ReferredMuhammad Bakar v. Bahal Singh
Excerpt:
- .....recovery of a sum of rs. 579/8/6 on khata account. according to the allegation of the plaintiff opposite party one shyamlal shaw who was the predecessor-in-interest of the petitioner of this rule and opposite parties nos, 2 to 5, had purchased a certain quantity of rice from him and a sum of rs. 579/8/6 was outstanding on account of the transaction between the plaintiff opposite party and shyamlal. the suit was instituted against the heirs of shyamlal.2. the suit was contested by the present petitioner who denied the liability and also took a plea of limitation. the defence of the petitioner was negatived and the suit was decreed against all the heirs of shyamlal and there was a direction that the decretal dues would be realised from out of the assets of shyamlal. the present rule was.....
Judgment:
ORDER

Renupada Mukherjee, J.

1. This Rule arises out of a decree passed by the Small Cause Court Judge, 1st Subordinate Judge, Hooghly, against petitioner Raghunath Shaw and some other opposite parties in a suit for recovery of a sum of Rs. 579/8/6 on khata account. According to the allegation of the plaintiff opposite party one Shyamlal Shaw who was the predecessor-in-interest of the petitioner of this Rule and opposite parties Nos, 2 to 5, had purchased a certain quantity of rice from him and a sum of Rs. 579/8/6 was outstanding on account of the transaction between the plaintiff opposite party and Shyamlal. The suit was instituted against the heirs of Shyamlal.

2. The suit was contested by the present petitioner who denied the liability and also took a plea of limitation. The defence of the petitioner was negatived and the suit was decreed against all the heirs of Shyamlal and there was a direction that the decretal dues would be realised from out of the assets of Shyamlal. The present Rule was obtained by Raghunath Shaw one of the sons of Shyamlal.

3. Mr. Roy Choudhury who supported the Rule contended that the learned trial Judge of the Court of Small Causes went wrong in law in deciding the question of limitation. He submitted that the suit was instituted after the lapse of more than three years from the date of the last transaction of sale of rice and so the Court below should have held that the suit is barred by limitation. Mr. Roy Choudhury contended that the proper article of the Limitation Act applicable to this case was Article 52 of the First Schedule of the Limitation Act. That Article lays down that the period of limitation for recovery of the price of goods sold and delivered is three years from the date of the delivery of the goods where no fixed period of credit is agreed upon. In the present case no such period of credit was agreed upon between the parties and admittedly all the dates of delivery of the goods were outside a period of three years from the date of the institution of the suit. The Court below held that Article 85 of the Limitation Act is the proper Article which is to be applied to this case. There can be no doubt that Article 85 has no implication, because it provides for a period of limitation in respect of mutual, open and current account. The Court below has found that during his life-time Shyamlal paid some money towards the unpaid price and that date of payment was within a period of three years from the date of the institution of the suit. Such a payment, however, does not make the account a mutual, open and current account. The account was one-sided and that Was the khata account of the plaintiff opposite party where the transactions were regularly ente'red. In these circumstances, I am definitely of opinion that the Court below committed an error in law in holding that Article 85 of the Limitation' Act should be applied to this case and that limitation would run from the date when the purchaser made his last payment. The suit was governed by Article 52 of the Limitation Act and the claim of the plaintiff opposite party was prima facie barred by limitation.

4. Mr. Roy Choudhury contended on behalf of the petitioner that as the claim of the plaintiff opposite party was barred by limitation, the learned Judge of the Court below was not justified in law in passing a decree in favour of the plaintiff and this Court should interfere under Section 25 of the Provincial Small Cause Courts Act. That section runs in the following terms :

''The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case, and pass such order with respect thereto as it thinks fit.'

5. Mr. Shyamacharan Mitter contended on behalf of the plaintiff opposite party that he is not in a position to assail the contention of Mr. Roy Choudhury that the claim of his client was barred by limitation. But he submitted that the claim of his client was a true claim and there is absolutely no reason for setting aside the finding of the Court below to that effect. Mr. Mitter further argued that the claim of the plaintiff opposite party having been found to be a true claim, no substantial injustice has been caused by the decree passed by the Court below and so I should not interfere under Section 25 of the Provincial Small Cause Courts Act. In support of this contention Mr. Mitter relied on a case of this High Court reported in Govinda Chandra v. Brojendra Mohan, AIR 1946 Cal 526. It has been held in that case that the powers of revision under Section 25 of the Act mentioned above are discretionary and the High Court will refuse to interfere with the trial Court's decision when no injustice has resulted therefrom to the applicant, even though there has been a misapplication of the law oE limitation by the Court below and especially when injustice will result to the opposite party by such interference.

6. There can be no doubt that the claim of the plaintiff opposite party is a true and just claim. Mr. Roy Choudhury has not been in a position to attack that finding of the Court below. The opposite party will be deprived of his just dues if the decree passed by the Court below is set aside on the ground that the claim of the opposite parties was barred by limitation. An exactly similar view has been taken in a case of Allahabad High Court reported in Raghunath Sahai v. Official Liquidator of the Himalaya Bank Ltd., ILR 15 All 139. That case follows a Full Bench case of the same High Court, Muhammad Bakar v. Bahal Singh, reported in ILR 13 All 277 (FB). It has been held in that Full Bench case that Section 25 of the Provincial Small Cause Courts Act does not give a right of appeal in all Small Cause Court cases either on law or on fact, and that the powers conferred on the High Court by that section are purely discretionary and not to be exercised unless it appears that some substantial injustice has resulted from the decree of the Court of Small Causes. Following this Full Bench decision of the Allahabad High Court as well as the decision of our Court to which I have already referred, I hold that in the present case I should not interfere with the decree passed by the learned Judge of the Court of Small Causes simply because the law of limitation has been erroneously applied by the learned Judge who held that the claim of the plaintiff opposite party was a true claim.

7. It follows from the above observations that this Rule must be discharged. I, accordingly, discharge this Rule. Having regard to the circumstances of the case I do not make any order as to costs in this Court.


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