RAMANI RAJI MOHOLI Vs. TODANPURI MANIAH

JUDGEMENT

(1.) This Second appeal arises out of a money suit brought by Ramuniraja Mouli against Thodapnure Manayya which was decreed in part by the trial court but was wholly dismissed by the Appellate Court. Plaintiffs case was that he and the defendant are traders, that the defendants father and thereafter the defendant himself had money dealings with him and that as a result of accounting a sum of Rs. 4,5247-was found due which the defendant in spite of demand failed to pay. The defendant admitted that there were dealings between his father and the plaintiffs firm but denied his liability to any extent and raised several objections as to the maintainability of the suit. His objections are that as there were three partners in the plaintiffs firm the suit by the plaintiff alone is not maintainable, that it was barred by limitation and that in any event he is not entitled to interest as there was no agreement in that behalf. Though the suit as brought related to several items, having regard to the fact that some of these items were evidently time-barred at the time of trial, plaintiff limited his claim only to four items which are said to be the advances made between the period 1-5-1948 and 21-10-1949. The learned Sub-Judge found that but for the first item which is Rs. 2000.00 and was advanced on 1-5-1948 all other items were in point of fact advances of earlier dates, and thus barred by limitation. He therefore decreed the suit only to the extent of Rs. 2000.00.

(2.) The District Judge in appeal came to the conclusion that even this item having regard to the language in which it was couched is barred by limitation and thus he dismissed the whole suit. The plaintiff has therefore come in Second appeal to this court.

(3.) The controversy in this second appeal mainly centres round item No. 1. Items 2 to 4 seem to be placed beyond dispute in view of the concurrent findings of the courts below and even withdrawal of the appeal filed in that behalf. As to item No. 1, having regard to the language used, we have no hesitation to hold that the trial court was right in holding that the amount of Rs. 2000.00 was advanced on 1-5-1948 to Gampa Lakshmayya, the clerk of the defendant as per the instructions given by the defendant the previous night. The entry in the account book in this behalf is in Telgu and in our opinion capable only of that construction. The defendants contention has been that though this entry appears to have been made on 1-5-1948 the amount must have been paid if at all to Gampa Lakshamayya on the previous night. Gampa Lakshmayya was examined as a witness: but the defendant did not choose to put a single question whether the amount was paid to him in the night. Much capital has been made of his statement to the effect that the said entry was not made in his presence. Even so that would not give lie to the plaintiffs contention, nor does it necessarily follow therefrom that the amount was not paid the day on which it was entered in the account book. Read by itself the entry would support rather than rebut the contention of the plaintiff. In the absence of any evidence to the contrary, there is no reason why we should assume the payment to have been made on a previous night and entered the nest morning under that date. In our opinion, this payment must be held to have been made on 1-5-48, the date on which it was entered.