The main legal point established is that the cause of action and limitation period under the Limitation Act were crucial in determining the outcome of the case.

A.C. Goyal, J.-This is the first appeal preferred by the plaintiff against the Judgment and decree passed by learned Additional District Judge No. 2, Jaipur City, Jaipur on 26.3.1996 dismissing the plaintiffs suit on the ground of limitation. The parties in this appeal would be referred as arrayed in the plaint.

2. Briefly narrated the facts are that the plaintiff filed a civil suit on 13.1977 for recovery of Rs. 25,546/-as damages on account of breach of contract by the defendants. The plaintiff placed orders to the defendant No. 1 for supply of Electric Driven Motor Pumps worth Rs. 27,443.95 as per schedule ‘A’ annexed to the plaint in the year 1973. The defendant No. 1 supplied the goods in part through his dealer the defendant No. 2. The Electric Motor Pumps were delivered directly to the Superintending Engineer, P.H.E.D., Sawaimadhopur and Pali as directed by the plaintiff as the plaintiff had agreed to deliver the pumps to P.H.E.D. department. The Superintending Engineer having inspected the Motor Pumps found the material of no use and informed the plaintiff vide telegrams dated 22.1974 and 22.1974 and demanded refund of 75% of the price paid in advance to the plaintiff The plaintiff vide two cheques dated 13.1974 and 28.2.1974 repaid a total sum of Rs. 11,965.50. Thereafter, the plaintiff asked vide registered notice dated 28.2.1974 to replace the pumps but the defendants failed to do so.

3. Both the defendants vide separate written statements denied all the averments, made in the plaint. It was the case of the defendant No. 1 that he did not supply any goods to the plaintiff and according to the defendant No. 2 the plaintiff himself purchased Electric Motor Pumps from his shop having inspected the goods and thus he is not liable for any damages. Both the defendants pleaded that the suit has been filed beyond limitation,

4. On the basis of the pleadings of the parties as many as eight issues were framed. Having recorded the evidence of the parties the learned Additional District Judge No. 2, Jaipur City, Jaipur decided all the issues in favour of the plaintiff except issue No. 8. While deciding issue No. 8 against the plaintiff it was held that cause of action arose on 26.2.1974 and thus the suit is beyond limitation.

5. The plaintiff has filed this appeal against the decision on issue No. 8 while the cross objections were filed by Sh. G.D. Gupta-the defendant No. 1.

6. I haveheard learned counsel for the parties. The first point which arises for consideration is as to whether the suit was within limitation? Learned counsel for the plaintiff- appellant referred the provisions of Section 22, 23 and Article 55 of the Limitation Act, 1963 which are reproduced as under:

Section 22. Continuing breaches and torts. In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.

Section 23. Suits for compensation for acts not actionable without special damage. In the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results therefrom, the period of limitation shall be computed from the time when the injury results.

Article 55. For compensation for Three years When the contract is the breach of any con- broken or (where there

tract, express or im- are successive

breaches)

plied not herein when the breach in

specially provided for respect of which the

suit is

instituted occurs or (where the breach is continuing) when it ceases.

7. According to learned counsel for the plaintiff-appellant it was a case of continuing breach of contract as the defendant did not make supply of the remaining pumps. It was also contended that the plaintiff-appellant refunded the advance money to the P.H.E.D. department vide two cheques dated 28.2.1974 and 13.1974 respectively and thus the cause of action arose on 13.1974