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Beer Chunder Manickya Vs. Hurro Chunder Burmon - Court Judgment

LegalCrystal Citation
SubjectLimitation;Tenancy
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal211
AppellantBeer Chunder Manickya
RespondentHurro Chunder Burmon
Excerpt:
limitation - rent law (beng. act viii of 1869), section 30--special agreement. - .....whatever money should be found due from him upon such mofussil inquiry and investigation by the moharaja's agent within three months from the date of its ascertainment.' an inquiry was subsequently made by the moharaja's agent in the presence of the defendant, when, on the 25th ashar 1287 t.s., a sum of rs. 1,870 annas 7 pie 6 was found to be due from him. the moharaja accordingly brought this suit on the 28th october 1878 for recovery of the said amount.2. both the lower courts have applied section 30 of the sent act to the case, and have held that the suit is barred, because more than one year has elapsed since the date of the defendant's dismissal, as also since the date when the misappropriation by the defendant was first detected.3. we are clearly of opinion that the suit is not.....
Judgment:

Richard Garth, C.J.

1. The circumstances under which this case arose are these:

The plaintiff Moharaja appointed the defendant as tehsildar in one of his zamindaries on the 22nd Aghran 1283 T.S. The defendant worked as such up to the 9th Bhadur 1285 T.S., when he was dismissed. The defendant, on the 14th Bysack 1286 T.S., submitted an account of the collections and disbursements during the period of his service, but the Moharaja's officers took exception to several of the items, and made out a balance of Rs. 2,578 annas 15 pie 6 against him. The Moharaja was prepared to sue the defendant for recovery of this balance, but the defendant asked for time in order to enable him to make good the items by producing vouchers, as also by mofussil. inquiry. The Moharaja consented to give time to the defendant upon his executing an ikrar, with a promise to pay whatever balance would be found due from him upon such inquiry. The defendant accordingly gave a registered ikrar on the 23rd Chyet 1286 T.S., which (amongst other things) provided that he, the defendant, 'would furnish lowazima papers in support of his said account, and would wait on the Moharaja's officers in the mofussil while making the inquiry, and come to an adjustment of his account within six months from the date of ikrar; and would pay, without objection, whatever money should be found due from him upon such mofussil inquiry and investigation by the Moharaja's agent within three months from the date of its ascertainment.' An inquiry was subsequently made by the Moharaja's agent in the presence of the defendant, when, on the 25th Ashar 1287 T.S., a sum of Rs. 1,870 annas 7 pie 6 was found to be due from him. The Moharaja accordingly brought this suit on the 28th October 1878 for recovery of the said amount.

2. Both the lower Courts have applied Section 30 of the Sent Act to the case, and have held that the suit is barred, because more than one year has elapsed since the date of the defendant's dismissal, as also since the date when the misappropriation by the defendant was first detected.

3. We are clearly of opinion that the suit is not governed by Section 30 of the Rent Law. It is not a suit brought under ordinary circumstances for money in the hands of an agent, or for the delivery of accounts or papers. It is brought upon a special agreement, by which it was agreed on both sides that, for the purpose of ascertaining the correct amount due from the defendant to the plaintiff, an investigation was to take place and certain accounts and other papers were to be supplied by the defendant, in order to enable the plaintiffs agent to arrive at the truth, and a certain time was to be given to the defendant to pay the money, after this investigation had taken place.

4. A special agreement of this kind takes the case entirely out of the scope of Section 30. It would be a positive fraud upon the plaintiff, who has behaved very fairly in the matter, to allow him to be defeated by limitation under such circumstances; and it was nothing short of a fraud for the defendant to take such an objection.

5. Had a promissory note been given by the defendant for payment of the amount due at the end of two years, that clearly would have taken the case out of Section 30, and here we have a specific agreement for good consideration on both sides, which has the same effect.

6. If agreements such as these are virtually to be disregarded, the Rent Law would indeed be made a means of the grossest fraud and injustice.

7. The case will be accordingly remanded to the first Court for retrial on the merits. And as the defendant has set up the plea of limitation in fraud of his own arrangement, he must pay the costs of all the proceedings as far, as they have gone.

8. The costs of the hew trial will, of course, be in the discretion of the Subordinate Judge.


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