PHOOLCHAND Vs. LAXMINARAIN

JUDGEMENT

(1.) THIS is a defendant's second appeal and is directed against an appellate judgment and decree of the learned District Judge, Jodhpur dated 2nd May, 1961 whereby in dismissing the defendant's appeal against the judgment and decree of the Civil Judge, Jodhpur the learned Judge affirmed the decree for a sum of Rs. 6,694/10/ -. The main question that has been canvassed before me, as was done before the learned District Judge, was about the suit being within limitation. The relevant facts may be recounted as follows:

(2.) RESPONDENT Laxminarain commenced this action on 3rd December, 1957. It was averred by him that the defendant was a member of the Bullion Association limited, Jodhpur and was carrying on bullion business as such. According to the plaintiff the defendant was constituted by him as his pucca Adatia and he started having dealings in the sale or purchase of bullion through the defendant. According to the usage prevalent in that Bullion Association Migsar Sud 5 of samvat Year 2011 (equivalent to 30th November, 1954) was the day of Vaida for the relevant transaction. For that vaida the plaintiff, according to him, had sold through the agency of the defendant 51 silver bars at rates ranging from 159 rupees per hundred tolas to 159 rupees 33 Paisas per hundred tolas. This was sometime before 25th November, 1954. It was the plaintiff's case that on 25th November, 1954 he asked the defendant's muneem Kundanlal and plaintiff's son to purchase 51 silver bars on his account, so that the previous transaction could be squared up. The plaintiff proceeded to say that the defendant's muneem and his son procrastinated and did not give any satisfactory reply. At this the plaintiff sent a telegram to the defendant to purchase 51 silver bars as already instructed, so that his outstanding transaction of sale could be squared up. This led to a telegram in rejoinder from the defendant. According to the plaintiff, as a result of these transactions with the defendant, he was entitled to get Rs. 6,694-10-0 as his profit. The defendant denied his liability and stated that he had done the business on behalf of the plaintiff in Kachchi Adat. He further pleaded that the plaintiff had sold 51 silver bars of an earlier Vaida which was carried forward and in order to square up that transaction the plaintiff had purchased 51 silver bars in all on two dates, i. e. 3rd november, 1954 and 24th November 1954. As a result of these transactions, according to the defendant, the latter had to realise Rs. 1,087 from the plaintiff. For this the defendant filed a separate suit against the respondent. Thus, according to the defendant, the plaintiff was not entitled to have any money from him. The plea of limitation was also raised by the defendant. The learned Civil Judge framed a number of issues but I am at this stage concerned only about the question of limitation and therefore it is not necessary to advert to the several issues,

(3.) THE learned Civil Judge held that the transactions had been entered into by the defendant with the plaintiff in pucca Adat. He also held that the defendant's version of the transactions was wrong and on the evidence recorded by him he held that the plaintiff's version was correct. In considering the question of limitation the learned Civil Judge observed that in Vaida transactions the date that is fixed for the making of the payments is the date from which the limitation begins. According to him, in the. present case as the Vaida was of Migsar Sud 5 of samvat Year 2011 and the date of making payments has been referred to in the evidence as 'ballan' which fell on migsar Sud 8 of Samvat Year 2011 corresponding to 3rd December, 1954 the suit was held by him to be within time as the same was filed on 3rd December 1957 as already observed. In coming to the conclusion that the date on which the payment was to be made was 3rd December 1954 the learned Civil Judge relied on the statement of the defendant himself and on the entries that he had made in his account books. The learned Civil Judge observed that the entries in the defendant's books went to show that even in respect of the past transactions the defendant used to make the credit of debit entries three days after the date of the Vaida, that is, on the 'ballan' day. The learned Civil Judge repelled the defendant's argument to the effect that the agency should be taken to have been terminated on 25th November, 1954, so that there could be no question of the period of limitation starting from that date.