Syed Hasan Imam and Others vs Debi Prasad Singh

Ross, J.—The learned Subordinate Judge has dismissed the major part of the plaintiffs'' claim for accounts against the defendant on the ground of limitation. The defendant was the Tahsildar of Karanpura, a village in the estate represented by the plaintiffs from 1900 until the 14th December, 1917. The suit was brought on the 5th December, 1919. The learned Subordinate Judge has limited the account to the year 1917 and the plaintiffs file the present appeal.

The suit is governed by Article 89 of Schedule 1 to the Limitation Act. The period of 3 years limited by that Article begins to run when the account is, during the continuance of the agency, demanded and refused, or, where no such demand is made, when'' the agency terminates. Time would, therefore, begin to run in the present case from the 14th December 1917, unless during the continuance of the agency an account was demanded and refused. The material parts of the pleadings on this question are as follows. In paragraph 5 of the plaint it is said that

some days before he was dismissed the Rai Saheb asked him to render account; but he went on putting off the matter from day to day and did always promise that he would render account,

Paragraph 1 of the written statement is that the suit has not been properly framed and is barred by limitation, and in paragraph 10 it is said that on the expiry of the year this defendant used to render accounts. Now the plea of limitation is a plea in bar and there are no facts stated to raise a substantive defence of limitation. Therefore, paragraph 1 of the written statement must be read as meaning that on the face of the plaint the plaintiffs'' suit is barred. This plea manifestly fails because the allegation in the plaint is that the defendant promised to render accounts. Moreover, the substantive defence, which has been disbelieved by the learned Subordinate Judge, is that in fact accounts were rendered. In the words of the Judicial Committee in Nobin Chandra Barua v. Chandra Madhob Barua [1916] 44 Cal. 1.

The statement of objections on the part of respondent does not allege that there has been any demand and refusal of accounts.

The learned Subordinate Judge, however, has based his decision on certain statements of the plaintiffs'' witnesses. The plaintiffs witness No. 3 said in cross-examination.

Before the trust, defendant was asked several times to render accounts but I cannot give any exact idea of the demand, it may be 5 or 6 years before. I think some parvana was sent to him to render accounts. In my presence defendant was asked to render accounts some time.

In re-examination he said,

Defendant was asked to render account repeatedly and he put it oil but never refused to render account.

Plaintiffs'' witness No. 5 also says that.

Defendant was asked to render account but he went on putting off the matter.

If it is open to the defence to raise this substantive plea of limitation on these statements of the plaintiffs'' witnesses; the effect of these statements must be taken to be merely this; that demands were made and the defendant put the matter off. The learned Subordinate Judge has relied upon Madhusudhan Sen v. Rakhal Chandra Das Basak [1915] 43 Cal. 248. In that case the defendant was called upon to explain his papers and did not respond to the call. Apparently he did nothing and kept silent and this was construed as a refusal. In Bhabatarini Debi Chowdharuni v. Sheikh Bahadur Sarkar 1919 Cri.L.J. 90 it was pointed out that the question whether the failure of an agent to render accounts amounts to a refusal within the meaning of Article 89, depends upon the circumstances of each case. In my opinion there was in this case no refusal by the defendant. The expression ''puting off'' has been interpreted by this Court in Nawab Choudhary v. Lok Nath Singh 43 Ind.Cas. 570 as equivalent to postponement, and postponement is by no means tantamount to refusal, on the contrary it implies an admission that an account is due and will be rendered.

In my opinion, therefore, limitation in this case runs from the date of the tar ruination of the agency and the suit is within time.

On the merits of the case it was argued on behalf of the respondent that the defendant had actually submitted accounts, and reference was made to the evidence. This matter has bean fully discussed by the learned Subordinate Judge and his reasoning is so convincing that it is unnecessary to go into evidence. All the proofs that might have been expected to be forthcoming if accounts had in fact been rendered are absent in this case; and the learned Vakil for the respondent did not meet any of the arguments of learned lower Court.

I would, therefore, decree this appeal and decree the plaintiffs'' suit in. full. There will be a preliminary decree for accounts from 1307 to Aghan 1324, instead of for the limited period allowed by the Subordinate Judge, and the Commissioner will take the accounts for the entire period claimed.

The plaintiffs are entitled to the costs of this appeal.

Das, J.

I agree.