Authored By : L.H. Jenkins, J.G. Wooddroffe

L.H. Jenkins, C.J.

1. This appeal arises out of a suit on an adjusted account,brought to recover a sum of Rs. 22,968 with interest. The Plaintiff, ChooneeLal Johurry, is the son of Hira Lal Johurry who died on the 29th of May 1905.His case, as it now stands, is that his father, Hira Lal Johurry, was a partnerwith the Defendant, Jalim Singh Srimal, in two businesses that of Hira Lal andJalim Singh and that of Jalim Singh Bhicum Chand both in jute, though ofdifferent classes. Without going into details as to these businesses it isenough to say that in March 1905 they were dissolved. The Plaintiffs case isthat on the 2nd of April 1905 a basis of settlement was formulated between hisfather, Hira Lal, and the Defendant, Jalim Singh, and further that on the 20thof August 1906 there was a final adjustment on which the suit rests. Mr.Justice Fletcher passed a decree in the Plaintiffs favour. From this decreethe present appeal is preferred, and I see that eminent Counsel has certifiedthat there are no less than fourteen good grounds of appeal against thatjudgment. Now, the facts really are very brief and very simple. The rival casesare these. It is said on the part of the Plaintiff that there was this basis ofa settlement, to which I have alluded, on the 2nd of April 1905, and there wasan adjustment on the 20th of August 1906. The Defendants case was a negativeto this : and, from the judgment of the learned Judge it appears that "the learned Counsel for the Defendant during the trial attempted to make thecase that there never was any adjustment of the accounts between the partiesbut that the parties were content to rest upon the basis of settlement and thatthe Defendant had paid substantially all that was due from him. This was thecase attempted to be made until the Defendant himself gave evidence, he beingthe last witness called during the trial; so far from the Defendant supportingthe case that was being attempted to be made by his Counsel he stated inexpress terms that an adjustment of the accounts did take place, but that ittook place on the 19th March 1905, and that the amount found due from theDefendant was Rs. 9,000 which he had practically fully paid." We come thento this, that it is common ground that there was an adjustment and that therewas a basis of settlement which preceded that adjustment; and, what we have todetermine is which of the two stories is true, that of the Plaintiff who fixesthe basis on the 2nd of April 1905 and the adjustment on the 20th of August1906, or that of the Defendant who places the basis of settlement on the 18thof March 1905, and the adjustment on the 19th of March 1905, the day following.Now the determination of this matter is a question of fact, to be determinedprincipally on an appreciation of the oral evidence adduced before the Court.The learned Judge came to certain clear conclusions. He did not accept the viewthat there was this basis of settlement on the 18th of March. In support of hiscontention that there was this settlement the Defendant put in evidence adocument Ex. 13. The learned Judge has dealt with the document and hasexpressed the opinion that it was not a genuine document. The genuineness ofthis document has been discussed with considerable detail before us, and theconclusion to which I come is that though I hesitate to say that it has beenestablished that the document is not genuine, I have no hesitation in affirmingthat the document has not been affirmatively established. So again as to thedate of adjustment : The learned Judge is clear that the adjustment took placeon the 20th of August 1906. The conclusion at which he arrived that thesettlement and the adjustment in March 1905 had not been proved has a materialbearing on the question whether the Plaintiffs version as to the adjustment inAugust 1906 should not be accepted as correct: and, holding the view I do as tothat adjustment I can see no reason for dissenting from the view of the learnedJudge that there was the adjustment on the 20th of August 1906, on which thissuit is based. It is true that the Plaintiff does not in his plaintspecifically mention the 20th of August, and in that respect, no doubt, thereis want of precision in the pleading. But at the same time the adjustment ispleaded in such a manner as to make it clear that it was after the 6th ofAugust 1905 : for, it is said that "subsequently to that date the accountsof the said business were adjusted in Calcutta by and between the Plaintiff andthe Defendant." I, therefore, think that not only was the learned Judgejustified, on the evidence, in coming to the conclusion he did, but furtherthat there was nothing in the pleading that should have restrained him fromcoming to that conclusion : so that on the merits the Plaintiffs would appearto be right, and, indeed, as has been pointed out by Mr. Das in the course ofhis argument, the Defendant has not ventured to suggest that if there was anadjustment in August 1906, the amount claimed by the Plaintiff on the basis ofthat adjustment as the result of the partnership dealings was not the correctamount.

2. Then it has been urged that the Defendant has a grievanceand that the learned Judge ought to have held that there was a total variancebetween the pleading and proof in this case. I do not agree with thiscontention. The cause of action was the adjustment. No doubt, as I have said,the actual date of the adjustment was not specified; I have dealt with thatfact. But so far as there is a variance between what is alleged and what isproved, it does not relate to an integral part of the cause of action, nor canI find any trace that the Defendant has been really hampered in his defence by thepleading in the case-so far as there was an uncertainty as to the date ofadjustment it was very simple and very easy for the Defendant to have had thisdate specified had he so desired.

3. Then I come to the question of limitation. It is urgedthat as this suit was not instituted until the 6th of April 1908, it is out oftime, at any rate as to one of the two sums which go to make up the totalclaimed. These two sums are Rs. 12,966-2-6 and Rs. 10,001-13-6. The argument isas to the former of these two sums.

4. Now, it has been brought to. our notice by Mr. Das thatuntil the case came to this Court there was no suggestion that these two sumsdid not stand together, and a perusal of the pleading and of the judgmentappears to me to amply support his statement. It is conceded that thecontention cannot succeed as to the Rs. 10,001-13-6. I, therefore, would beslow to hold that he could now succeed as to the other sum for, as has beenurged before us, the fact that the two sums were treated as standing togetherhas influenced the Plaintiff as to the line of. proof he deemed requisite. Hemight have adduced further proof had it been brought to his notice that it wasnecessary for him to deal separately with each of these two sums and thecircumstances relating to them in such a way as to meet this particularobjection. The settlement of account contained in the ledger and set forth atpage 92 of the printed paper-book has been brought to our notice, and I see noreason for doubting Mr. Dass assertion that it might have been within thepower of the Plaintiff to have adduced evidence to show that with regard tothose several sums set forth there resulting in the balance of Rs. 12,966-2 6,there were materials to show that there was the cross demand which was necessaryfor the purpose of meeting the plea of limitation. Beyond that it is assertedby Mr. Das- and no real attempt has been made to meet this assertion-that theitem of Rs. 15,950 does constitute a sufficient cross demand for the purpose ofaffording an answer to the plea of limitation that has been raised in relationto this particular amount, I am the more ready to believe in this from the factthat this adjustment of account really arises out of partnership relationswhich would naturally give rise to such a position. It appears to me that thePlaintiff has succeeded in showing that the suit is one on an adjusted accountwhich entitles him to claim that by virtue of that adjustment, there was a newcause of action originating on the 20th of August 1906; and in that view it isclear that there is no bar of limitation to the Plaintiffs claim, and that isso whether the article that should be applied be Art. 115, as would seem to bethe view that was taken in Nobin Chandra Sahoo v. Suroqp Chandra Dass 6 W. R.328 (1866), or Art. 120, as may possibly be the view to be deduced from theauthority, Umedchand Hukumchand v. Bulakidas Lalchand 5 Bom. H. C. R. 16 at p.20 (1868). It is not necessary for me to notice the argument that was advancedin Mr. Mitters opening, but practically abandoned in the course of his reply,as to whether the terms of Art. 64 of the Limitation Act were not such as tohave annulled the right to sue on an oral adjustment of account, for, it hasbeen decided repeatedly that the function of the third column of the secondschedule of the Indian Limitation Act is not to define causes of action but tofix the starting point from which the period of limitation is to be counted. Inmy opinion the decree of Mr. Justice Fletcher is correct, and we must dismissthis appeal with costs.

J.G. Wooddroffe, J.

I agree.

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Jalim Singh Srimalvs. Choonee Lall Johurry(19.06.1911 - CALHC)