BHAG CHAND Vs. HANUMAN MISTRI

JUDGEMENT

(1.) This is a defendant's application in revision against an order of the learned Judge, Small Cause Court of Basti decreeing the plaintiff's suit with costs and future and pendente lite interest at 3 per cent. per annum. The plaintiff's story is that on 22-5-1944 the plaintiff entered into a contract with the defendant for the supply of 50,000 first class bricks at controlled rates, between the 5th June and 19-6 1944. The number of first class bricks supplied by the defendant during this period was 18,500 and that of second class bricks 2,77,749. The plaintiff's case is that the controlled rate fixed for first class bricks was Rs. 16 per thousand and that the rate for second class bricks had been settled at Rs. 13 per thousand. According to the plaintiff's calculation, the total price of the bricks supplied was Bs, 656-12-0. His allegation is that a sum of RS. 1000 had been paid in advance by him to the defendant. If this price of bricks supplied which comes to Rs. 656-12-0 is deducted from this amount, Rs 343-4-0 would be owing to the plaintiff from the defendant.

(2.) It was further alleged by the plaintiff that on 12 7 1944, on approaching the defendant for a fresh supply of bricks, the defendant had supplied to him 4000 bricks at a rate which exceeded the control rate by Rs. 4, i. e., at Rs. 20 per thousand.

(3.) The defendant is thus alleged to have realised an extra amount of Bs. 16 on account of the transaction on 12-7 1944. The plaintiff, therefore, claimed Rs. 359-4-0 plus the amount of Rs. 65-8-0 as interest at the rate of Rs. 6 1/2 p. c. per annum. The defence took the line that the quality supplied was the same as given out by the defendant in the receipts. The defendant further stated that the rates given were Rs. 20 per thousand for first class bricks. There was an additional charge of Rs. 2 for cartage. It was further alleged that, on account being taken, it would be discovered that Rs. 11 3-0 were owing to him from the plaintiff. The defence, however, with which I am concerned in the revision before me, is that which relates to limitation. It was pleaded by the defendant that the suit was barred by limitation. According to the defendant the limitation for instituting the suit out of which this appeal has arisen expired on 19 6-1947. Between the 19th June and 5-7-1947 the vacations intervened. On the re-opening of the Court, i. e., 5th July, this suit was instituted by the plaintiff in the Court of the learned Munsif of Basti. It was a Small Cause Court suit and it was discovered on the 8th July that the learned Munsif had no jurisdiction to entertain small cause Court matters. The learned Munsif, thereupon, returned the plaint and direct-ei the plaintiff to institute the suit before the Civil Judge who was also the Small Cause Court Judge. After the plaint had been returned to the plaintiff, there was no delay on his part in instituting the suit before the learned Small Cause Court Judge. The suit was instituted by him on the 8th July. The point which has arisen in this case is whether, in the circumstances which existed in the case, the plaintiff's suit for recovery of the balance of the amount which remained with the defendant in respect of the advance for the bricks the plaintiff had paid to the defendant, was or was not beyond time. The way in which the learned counsel for the defendant applicant has presented his case is somewhat as follows : The Schedule to the Limitation Act (Act IX [9] 1908) prescribes the period of limitation for various causes of action. It is not, to the sections but to the schedule that we have to look for periods of limitation. This case is admittedly governed by Article 181. In the present case, the period of limitation prescribed by the Limitation Act was three years. If we turn to Section 4, Limitation Act, we find that it provides that: