Lakshman Prasad vs Ghasi Ram and Others

C.B Capoor, J.—This is a Plaintiff''s second appeal and arises out of a suit filed by him to recover a sum of Rs. 527/13/9 as price of cloth alleged to have been put chased by the Respondents and interest thereon.

The plaint allegations were that the Plaintiff Appellant carried on business in cloth and the Defendant Respondents, who were members of a joint Hindu family, purchased cloth from the Plaintiff. It was also alleged that the Defendants dealt in readymade garments and they supplied the same to the Plaintiff for sale on commission basis. The amount claimed by the Plaintiff comprised the following items:

Rs. 247/12/-as principal.

Rs. 230/15/3 as interest.

Rs. 49/4/6 as commission.

The defence, in the main, was that there was no agreement regarding the payment of interest, that certain items sought to be claimed were barred by the law of limitation. According to the defence, a sum of Rs. 7/- only was due to the Plaintiff.

The learned Munsif repelled the pleas put forward on behalf of the Respondents and decreed the suit. He held that the article of the Limitation Act applicable to the case was 85 and the whole of the amount claimed was within the prescribed period of limitation. The Defendants preferred an appeal against the aforesaid decision and the learned District Judge who heard the appeal held that there was no mutual, open and current account between the parties and that the article of the Limitation Act applicable to the case was 52. The learned District Judge passed a decree for a sum of Rs. 366//6 only. Aggrieved by the aforesaid decision the Plaintiff has preferred this appeal.

A preliminary objection has been raised on behalf of the Respondents that the second appeal is not competent in view of Section 102 of CPC There can be no doubt that the suit filed by the Plaintiff Appellant was of a small cause court nature and as it was below Rs. 1,000/- in value, a second appeal is not competent. The preliminary objection, therefore, prevails.

On behalf of the Appellant, it has been prayed that the second appeal may be treated as an application in revision. On behalf of the Respondents it has been contended that an application in revision also would not lie as the lower appellate court did not assume jurisdiction where none existed and did not fail to exercise the jurisdiction vested in it and as there was no material irregularity or illegality in the exercise of jurisdiction. The contention of the Appellant is that the lower appellate court decided the question of limitation wrongly and thus it tailed to exercise jurisdiction vested in it. It was previously held by this Court in the case of Babu Ram v. Mun minded it can enforce the obligation by a suit. Where there are independent obligations on both sides the balance generally keeps on shifting. In other words, while there is a possibility of the shifting of balance from one side to the other the shifting of balance is not sine qua non and the absence of a shifting balance is not a conclusive test for deciding as to whether there was a mutual, open and current account between the parties or not.

Now I advert to the cases cited on behalf of the parties. Reliance has, on behalf of the Respondents, been placed upon the following cases:

Radha Mohan and Others v. Ami Chand and Others 1933 (2) AWK 1102, Firm Mansa Ram and Sons v. Hira LalSanon and Anr. 1940 AWR (HC 55).

On behalf of the Petitioner, on the other hand, reliance has been placed upon the following cases:

Gopi Nath v. Ghameli and Anr. 1938 AWR (HG) 517.

L. Kesava Ghettiar v. M.M. Ramanatha Mudaliar AIR 1959 Mad. 470.

Messrs. Kesrichand Jaisukhlal v. Shillong Banking Corporation Ltd. AIR 1959 Ass 162.

Union Bank Ltd. Vs. N. Raghavan Nair, .

Kalipada Banerjee Vs. Sree Bank Ltd. (In Liquidation), .

In the cases cited on behalf of the Appellant, Petitioner, it was held that the absence of a shifting balance is not a conclusive test for holding that the account was not mutual, open and current. The preponderance of judicial authority is thus in favour of the view contended for on behalf of the Appellant Petitioner and with respect to the learned Judges who decided the 1933 and 1940 Allahabad cases (supra) ratio of the decision in the 1938 Allahabad case (Supra) and in the cases of the other High Courts referred to above has my preference.

In the instant case, it has already been observed that the Defendants purchased cloth from the Plaintiff and that the Defendants supplied readymade garments to the Plaintiff for sale on commission basis. The dealings between the parties thus created independent obligations. It was just a coincidence that during the course of dealings the amount due to the Plaintiff was always more than the amount due to the Defendants from the Plaintiff, but that circumstance, of itself, would not take the dealings out of a mutual, open and current account. I am, therefore, of the opinion the t the Article of the Limitation Act applicable to the case was 85 and the whole of the amount claimed was within three years of the last entry made in the accounts. The learned lower appellate court was thus not right in applying to the case Article 52 of the Limitation Act and rejecting a part of the claim as statute barred.

The application in revision is, therefore, allowed, the decree passed by the learned lower appellate court is set aside and that of the learned trial court is restored with costs throughout, excluding the costs incurred in this Court. Revision allowed.