M. B. SHARMA, J. - (1.) THE State of Rajasthan, defendant in the original suit has preferred this second appeal against the judgment and decree dated February 29, 1968 of learned Senior Civil Judge, No. 1, Jaipur city, Jaipur.
(2.) IN short, the facts of the case are that Haridass respondent filed a suit against the appellant, State of Rajasthan for recovery of Rs. 1789. 31 on account of grain supplied by him to the Devasthan Department of the State of Rajasthan. He set up a case in the plaint that he applied for payment of the amount to the State Government and a report from the Devasthan Department was sought by the Deputy Secretary, Revenue Dapartment. The Assistant Commissioner, Devasthan Department called the plaintiff and tallied the accounts available in his office with the entries in the account books of the respondent and then arrived at the figure of Rs. 1789. 31 as due to the respondent. The Assistant Commissioner, Devasthan Department, thereafter sent his report to the Devasthan Commissioner and a copy of it was endorsed as Exh. 1 dated March 23, 1962 to the respondent. The respondent basing his claim on the above referred to letter of the Assistant Commissioner, Devasthan Department and taking it as an "account stated", filed a suit in the court of Munsif (West), Jaipurcity, Jaipur, which was transferred to the court of Additional Munsif, Jaipurcity, Jaipur. The State of Rajasthan while admitting that Rs. 1789. 31 were due to the respondent, raised a plea that the letter of the Assistant Commissioner, Devasthan Department, which was relied upon by the respondent as an 'account stated" does not come within that definition and, therefore, the respondent's suit was not governed by Art. 26 of the Limitation Act, the suit was thus time barred. Learned Munsif framed necessary issues and after trial, dismissed the suit of the respondent on the ground that the letter of Assistant Commissioner, Devasthan Department does not amount to an "account stated". The respondent preferred an appeal which as already stated was allowed by the learned Senior Civil Judge, Jaipur City. The learned lower appellate court held that the factual report given by the Assistant Commissioner, Devasthan Department to Commissioner, Devasthan on March 23, 1962, a copy of which was endorsed to the respondent, amounts to an "account stated" within the meaning of Art. 26 of 'he Limitation Act and as such, the suit was within limitation. In arriving at this conclusion, the lower court has placed reliance upon the case of Chhogalal vs. Kanayalal (l ). Thus, the only point in this appeal is as to whether the letter of the Assistant Commissioner, Devasthan Department dated March 23, 1962, the copy of which was endorsed to the respondent, amounts to an "account stated" and if so then whether this settlement of account, which only contains time barred items can give a fresh period of limitation. The Supreme Court in Gorden Woodruff and Company (Madras) Ltd. vs. Shaik M. A. Majid and Company (2) in para 15 dealing with "account stated" have observed - "the expression ''account stated" has more than one meaning. It sometimes means a claim to payment made by one party and admitted by the other to be correct. An account stated in this sense is no more than an admission of a debt out of Court; while it is no doubt cogent evidence against the admitting party, and throws upon him the burden of proving that the debt is not due, it may, like any other admission, be shown to have been made in error. Where the transaction is of this character, it makes no difference whether the account is said to be "stated"or to be "stated and agreed"; the so-called agreement is without consideration and amounts to no more than an admission. There is, however, a second kind of account stated where the account contains items both the credit and debit, and the figures on both sides are adjusted between the parties and a balance struck. "
(3.) A look at the letter dated March 23, 1962 of the Assistant Commissioner, Devasthan Department, to the Commissioner, Devasthan Department, a copy of which was endorsed to the respondent, will show that after tallying the old record with the department with the accounts of the respondent, a sum of Rs. 1789. 31 was shown to as payable to the respondent. A look at the aforesaid letter dated March 23, 1962 further shows that there are items both of credit and debit and both the figures are adjusted between the parties and thereafter a balance struck. Therefore, there can be no doubt that the aforesaid letter of Assistant Commissioner, Devasthan Department is an "account stated" within the meaning of Art. 26 of the New Limitation Act, which corresponds to Art. 126 of the Old Limitation Act. The contention of learned Additional Government Advocate is that even a settlement of account which may amounts to an "account stated" has to be arrived at within the period of limitation and in case, all the items contained therein are time-barred then section 25 (3) of the Contract Act must be satisfied. He, therefore, submits that admittedly these items of the "account stated" are time-barred and, therefore, the suit could not be held to be within limitation. The contention of learned Advocate for the respondent is that it is not disputed that the sum claimed by the respondeat was due against the State of Rajasthan. Therefore, the State should not be allowed to raise the plea of limitation. According to learned Advocate even if two views can be taken on the point as to whether the letter dated March 23, 1962, which is an "account stated" gives start to a fresh period of limitation, it cannot become a question of law within the meaning of section 100 of the Code of Civil Procedure and appeal cannot be entertained under the aforesaid section. In support of his submission, learned Advocate has placed reliance on State vs. Associated Cement Co. , Lakheri, S. B. Civil Regular Second Appeal No. 21 of 1980, decided by a Single Bench of this Court at Jaipur on February 20, 1980, learned Judge has observed as follows: - "the principal point argued by Mr. Mathur learned Additional Government Advocate appearing for the State-appellant is that the suit was time-barred. This argument has been repelled by first appellate court and after giving elaborate and weighty reasons. Even if two views can be taken on this point, it cannot become a substantial question of law on which an appeal can be entertained under section 100 of the Code of Civil Procedure. " ;