Article 85 of the Limitation Act applies to cases where there is an open, mutual and current account between the parties, and reciprocity of dealings, even if the parties act in different capacities.

( 1 ) THIS revision under Section 25 of the Provincial Small Cause Courts Act is by the plaintiff against the decree, dated, 25-11-1959, passed by Shri S. P. Hakim, First Additional District Judge, Jabalpur, empowered under Section 9 of the M. P. Courts Act, 1958, in the Civil Suit No. 630 of 1959.

( 2 ) THE applicant filed a suit against the non-applicant for recovery of Rs. 843/-, alleging that the applicant was to purchase grain for the non-applicant and to sell the same as an adtiya. The applicant accordingly purchased some grain and sold it and made entries in the account books. According to the applicant the accounts were open, mutual and current. On the basis of the said accounts, an amount of Rs. 843/- was due. The cause of action was said to have occurred on the Dewali of the years 1953-54 and 1955-56. The suit was filed on 3-10-1958.

( 3 ) THE non-applicant's defence was that the claim was barred by time, as there was no open, mutual and current account. The suit was, therefore, barred under Article 83 of the Limitation Act.

( 4 ) THE learned Small Cause Judge found that the plaintiff had purchased 100 bags of teora dal and 100 bags of gram dal from the defendant. As such, the plaintiff was the commission agent. The defendant had deposited Rs. 843/- as margin money. As such, the learned Judge was of opinion that the obligation, if any, was one way and there were no mutual dealings. The liability of the defendant was there, but, the question of liability of the plaintiff never arose. The learned Judge relied on the observations in Union Bank Ltd. v. Raghavan Nair, AIR 1959 Kerala 204 and Hazarilal v. Hariram, AIR 1959 Raj 153 (2 ). In that view the learned Judge held that Article 85 of the Limitation Act was not applicable to the present case.

( 5 ) THE learned counsel for the applicant urged that for the purpose of applicability of Article 85 or the Limitation Act, it is not necessary that the parties should have mutual transactions of sale and purchase. But what was necessary was the mutuality in respect of accounting. It was pointed out that even if the plaintiff's liability be in two capacities, one as a commission agent for purchase of the grain on behalf of the defendant, and, secondly, 33 a commission agent for sale of the grain on behalf of the defendant, the accounts became open, current and mutual, as the defendant's liability or the plaintiff's liability could not be determined unless the accounts were gone into and settled. It was argued that although the transactions may have been one way, the liability was both ways in view of the dual capacity o? the plaintiff.

( 6 ) IN Madhav Motiram v. Jairam Sakharam, AIR 1921 Bom 451, the tests indicated by a Division Bench of Macleod, C. J. and Shah, J. for the applicability of Article 85 of the Limitation Act were stated in the following words : "that section differs very slightly from Article 85 of the present Limitation Act, and the test appears to me to be whether the dealings are mutual, that is to say, entered in an account consisting of mutual items of debit and credit, and not whether they might give rise to independent obligations or reciprocal demands, or whether, the balance might shift from one side to the other. Evidently Article 85 contemplates mutual dealings, and it was intended that if there was a continuous account of mutual dealings, then for the purposes of a suit the period of limitation should be computed from the close of the year in which the last item admitted or proved was entered in the account. "

( 7 ) A Division Bench of the Allahabad High Court consisting of Sir Grimwood Mears, Knight, C. J. and Mukerji, J. in Dau Dayal v. Piarilal, ILR 50 All 645 : (AIR 1928 All 236), indicated the test for applicability of Article 85 of the Limitation Act as follows :

"it appears to us that the plaintiffs' contention is correct. The counsel for the parties are agreed as to the meaning to be given to the word 'mutual' in Article 85 of the