ABDUL SHAKUR KHAN Vs. RAJENDRA KISHORE SARAN SINGH

JUDGEMENT

(1.) This second appeal gives rise to a question of limitation. The plaintiff instituted a suit to recover two sums of Rs. 75 paid by him to the other party on 26th October 1926 and 1 January 1927. His case was that he made these payments by way of premium or nazrana because the defendant-respondent had promised to execute in his favour a lease of a certain holding. He claimed that the sums should be returned on the ground that the defendant-respondent had resiled from his promise and refused to execute the lease. The defendant-respondent did not allege that he was prepared to execute the lease. His defence was that there had been a subsequent arrangement by which the claims of the parties had been adjusted and that for that reason the amounts were no longer due. This defence was disbelieved by the Courts below. I am left, with these facts that the plaintiff advanced these two sums on the faith of a promise made by the other party that he would execute he lease in the plaintiff's favour and that subsequently the defendant refused to execute the lease.

(2.) The suit was originally instituted in the Court of Small Causes on 26 October 1929. The Court ultimately decided that it had no jurisdiction and turned the plaint for presentation to the proper Court on 21 May 1930. It was presented on 11th June 1930. The learned Judge of the lower appellate Court came to the conclusion, and rightly, so, that the plaintiff was entitled to the benefit of the provisions of Section 14, Limitation Act, for the period from. 26 October 1929, to 21 May 1930, that is for a period of very nearly seven months. He decided that the plaintiff's claim in respect of the payment made on 1 January 1927 was therefore within limitation on 11 June 1930 but he held that the claim for the other payment made on 26 October 1926, was barred by time, because it was outside limitation by the period extending from 21 May 1930 to 11 June 1930.

(3.) The plaintiff has only himself to blame for the decision which was reached. In his plaint, he asserted that his cause of action arose on 26 October 1926 and 1st, January 1927. On the consideration of the facts alleged it is clear enough that his cause of action did not arise on those dates. This was clearly a claim which was governed either by Art. 97, Limitation Act, or by Art. 115, that is, it was either a claim for money paid upon on existing consideration which afterwards failed in that the payments were made in consideration of the promise to execute the lease and the promise was afterwards repudiated or it was a claim for compensation for the breach of any contract express or implied not in writing registered and not specially provided for. It is immaterial which of these articles is applied to the facts of the case. It has been suggested on behalf of the respondent that the plaintiff rightly said that his cause of action arose on 26 October 1926 and 1 January 1927, but it is obvious that this is not a good argument because it is inconceivable that the plaintiff could have instituted a suit for the recovery of the money advanced on 26 October, if he had wished to institute it on the next day, 27 October. He would clearly then have had no claim for the refund of the money. In one sense of course a part of the cause of action did arise-on the dates mentioned because there would have been no cause of action if no money had been advanced, but it is also evident that these were not the complete causes of action because the plaintiff could not claim his, money until there was a breach of the promise to execute the lease. As the second payment was made on 1st January 1927 it is obvious that the breach of the promise occurred after that date, and the cause of action really arose from the breach. As the plaintiff was entitled to the benefit of the provision's of Section 14, Limitation Act, his claim for both the sums was clearly within time.