1878 b In re RAM SUNKER Judgment. despatch in bringing the suit to a hearing. But in the Appeal Court, the same plaintiff may be in the position of respondent when the position of dominus litis belongs to the defendant, appel- BHADOORY. lant, and neither the plaintiff nor his representative after his death is under any obligation to proceed. In the present case no doubt the plaintiff being also appellant retained the position of dominus litis in the Appellate Court, but that is an accident, and does not affect the construction of the article in question. As we are of opinion that the applicant is not barred by the Limitation Act from proceeding, the only question that remains to be considered is, whether the application is a proper one to be granted. It appears that the granting of this application will not in any way retard the hearing of the appeal. Such being the case, if it is necessary for the applicant to explain why he has applied so late, we think that the circumstances mentioned in the affidavit which he has filed, satisfactorily account for the delay. The rule will be made absolute with costs. WHITE, J. Account, Suit for - Subsequent Suit-Res Judicata-Limitation-Rent Act― Plaintiff brought a suit for collection papers against the defendant, his agent, and got a decree. Having received and inspected the papers, he brought another suit for moneys which, he alleged, the defendant had falsely entered as expended. Held, that the suit was barred. Quare. Whether the Rent Act, section 30, contemplates the bringing of two successive suits, one for an account and the other for the amount due on that account. SPECIAL APPEAL from a decree passed by the Subordinate Judge of Tipperah, reversing that of the Moonsiff of Noorun gore. The defendant was the gomashtah of the plaintiff. He was discharged, and a suit was brought against him for collection papers on an account of 1282, and of some months of 1283, up to 24th of Aughran 1283. The defendant had tendered the papers before the institution of the suit, but the plaintiff objecting to some disbursements had refused to receive them, and on the institution of the suit, the defendant filed them in Court. The papers were taken out by the plaintiff, who, on inspection, found, as he alleged, that the defendant had entered in the account sums which had not been expended, and on the 18th of February 1876, instituted this suit for the amounts-Rs. 90. The Court of First Instance gave plaintiff a decree which was reversed on appeal as barred by limitation under section 30 of Act VIII (B.C.) of 1869. The plaintiff appealed specially to the High Court. Baboo Grish Chunder Chowdhry, for the Appellant. Baboo Hurry Mohun Chuckerbutty, for the Respondeut. The judgment of the Court (1) was delivered by JACKSON, J.:— It appears to us that the decision of the lower Appellate Court in this case is quite right. It seems that the defendant having served the plaintiff as gomashtah was discharged, and a suit was at first brought against him for papers and accounts. That suit was decided on the 4th March 1875. The papers and accounts were accordingly delivered, and upon examination of those accounts the plaintiff saw reason to think that more was due to him from the defendant than the account showed. Thereupon, on the 18th February 1876, he brought a second suit to recover what he claimed as due. By that time the defendant had been discharged from service nearly three years, but it was attempted to show that this suit was not barred because of fraud. Now the fraud complained of, on being enquired into, turns out to be merely this,that certain items in the accounts were disputed. That certainly was not a fraud on the part of the defendant which prevented plaintiff from being kept from the knowledge of defendant's receipt of any money. The most that can be said is this,—that he disputed certain amounts alleged to have been spent by the defendant on his account. It may be a question whether the Rent Act contemplated the bringing under its provisions, of two successive suits in such a case, one for account and second for the amount due on that account. I should have been inclined to hold that what the Legislature intended was, that the plaintiff should sue for the account and for such sum as he believed to be due upon that account. The separate suit contemplated for the delivery of accounts or papers by an agent appears to me to refer to something quite distinct, that is to say, to the delivery of papers or accounts belonging to the employer which the defendant improperly retains in his possession and the possession of which is essential to the plaintiff. Therefore, not perhaps altogether on the grounds stated by the Subordinate Judge, but clearly on the ground that the suit is barred, I think the suit was rightly dismissed, and this appeal must be dismissed with costs. (1) JACKSON and TOTTENHAM, J.J. 1878 GOLOKE NATH SEN BISWAS v. RAM KANTO DEY SIRCAR. Judgment. JACKSON, J. No. 2257 of THE ADMINISTRATOR-GENERAL OF BENGAL PLAINTIFF. 1877 Limitation-Agent-Account-Refusal to Account-Neglect to Account Mookhtar. An account of his receipts and disbursements having been demanded from a mookhtar, he, on the 3rd of August 1872, wrote a letter in which he promised to render full accounts during the ensuing vacation. This he neglected, though he did not refuse, to do. Held, that the limitation for a suit to compel an adjustment of account ran from the time when the defendant's promise to render accounts was broken, and was governed by Act IX of 1871, Sch. II., Art 90, (see Act XV of 1877 Sch. II., Art. 90.) SPECIAL APPEAL from a decree passed by the Subordinate Judge of Mymensingh, modifying that of the Moonsiff of that Baboo Kashee Kant Sen, for Appellant. Baboo Amanudro Nath Chatterjee, for Respondent. The facts are sufficiently set forth in the judgment of the High Court (1), which is as follows: : The only question raised in this case is that the decisions of the Courts below are erroneous, because the plaintiff's suit should have been held barred by limitation. We think that Article 90 of the second Schedule of Act IX of 1871 is applicable to this case. In this case the plaintiff, as principal, has sued the defendant, who was his agent, to render accounts of certain sums of money paid to him from time to time for the expenses of lawsuits, &c. The limitation, therefore, must run from the date on which the account is demanded and refused. In this case the lower Appellate Court found that the account being demanded the defendant at first promised to render it during the vacation of 1872, that is in Assin or Kartick 1279, but he never fulfilled that (1) MITTER and MACLEAN, J.J. promise, and therefore virtually refused to render the account at that time. The present suit is brought on the 15th of June 1875, or Assar 1282, and it is accordingly in time. We, therefore, overrule this objection, and dismiss the special appeal with costs. 1878 Res Judicata-Question raised, but not decided in previous suit-Title Leave to bring a fresh suit. In a suit between A and B a question of title was raised and decided in B's favour in the Court of First Instance, but on appeal the Judge refused to go into it, saying that B might bring a fresh suit. Held, that a subsequent suit by B raising the same question was not barred as res judicata. Watson vs. The Collector of Rajshahye, 12 W. R., 43, P. C., cited and distinguished. SPECIAL APPEAL from a decree passed by the Judge of Chittagong, modifying that of the Sudder Moonsiff of that district. This was a suit for possession of and establishment of the istemrari ryotee right of the plaintiff to certain land, of which the defendant was the owner. One Mahomed Ally had an istemrari transferable right in the land in dispute, and after his death, his heirs, on the 31st of January 1860, granted an ijara thereof to the plaintiff, who shortly afterwards brought a suit for a pottah against the plaintiff (the superior landlord), and on the 16th of June 1865, obtained a decree for a pottah, the term of which was to end on the same date as the ijara, namely, the 12th of April 1872. On the 16th of January 1873, plaintiff purchased the rights of the heirs of Mahomed Ally in the land, and at the hearing of a suit which the present defendant had previously (on the expiration of the pottah) brought for direct possession of the land, present plaintiff pleaded his purchase, and the suit was dismissed. |