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Judgment
Srinivasa Ayyangar, J.—The defendants in the suit from which this second appeal has arisen are appellants before us. The suit was instituted
as an ordinary suit for an account of the management of certain properties belonging to the Zamorin''s estate by defendant as. agent.
The first question that has been argued by the learned vakil for the appellants was that the lower appellate Court was wrong in holding that the
plaintiff''s claim was not barred by the law of limitation. The argument with regard to both in the Court of first instance'' and in the appellate Court
appears to have proceeded entirely on the question which was the appropriate article to be applied to the facts of this case, the defendants
contending that the Article applicable was 90 and not 89. Article 90 was invoked because according to the third column of that article time would
begin to run from the date on which the neglect or misconduct becomes known to the plaintiff, the allegation in this case being that the misconduct
became known to the plaintiff even during the currency of the agency. So far as the question which is the proper article applicable is concerned,
there can be no doubt at all here that the proper article applicable is Article 89. In fact this Court has in the case of Muthiah Chetty v. Alagappa
Chetty [1914] 41 Mad. 1 decided that in circumstances very similar to the present case even when what is charged includes misappropriation the
proper article to be applied is only Article 89. The expression ""neglect or misconduct"" appearing in the third column of Article 90 has special
reference to what is termed negligence or misconduct of the agent in the conduct of the agency. The word ""misconduct,"" therefore, in that article
should not be construed as including everything that may in ordinary parlance be called misconduct. If the expression ""misconduct"" should be
construed so generally, then of course any failure of duty on the part of the agent will amount to misconduct, a failure to render an account, a failure
to pay over the money in his hands payable to the principal and so on. But the misconduct or negligence appearing in contradistinction to each
other in the third column of that article must be construed technically as referring to what the principal charges as misconduct on the part of the
agent in the business of the agency.
Further, Article 90 is undoubtedly the residuary article with regard to actions between principal and agent and Article 90 should be held to be
applicable only if no other article can possibly be regarded as applying to the facts of the particular case. There is no reason whatever why Article
89 should not in terms be held applicable because the suit contemplated by that is by a principal against his agent for moveable property received
by the latter and not accounted for. If the moveable property is not accounted for it does not matter what the reason for failure to account may be
All that is necessary is the mere failure to account. Therefore if the special Article 89 could apply it follows that Article 90 should not be applied.
There is also, as already stated direct authority for the position.
Then taking it that the proper article applicable is Article 89 the learned vakil for the appellants argued that even so the suit of the plaintiff should
have been held to have been barred by the law of limitation because according to him .the agency terminated more than three years before the
institution of the suit. The facts with regard to this construction are these. It is said that this defendant 1, who was acting as agent took leave on 1st
January 1921 and that in or about July that year he applied for ex tension of the leave. He was refused the same; thereupon he tendered his
resignation and resigned his office. The lower appellate Court has taken the date of resignation as the date of the termination of the agency. Though
several interesting questions may arise with regard to whether a person in the position of defendant 1 taking leave has his agency terminated at any
rate temporarily during the period of his leave, still the first point to be borne in mind is that the termination of the agency is a question of fact. If,
therefore, the defendants wished to rely upon any facts for the purpose of showing that the agency terminated not as alleged by the plaintiff on the
resignation of his office by defendant 1, but on an earlier date, it was incumbent on the defendants to have pleaded to the same and shown why or
how according to their contention the agency became terminated on an earlier date. This they did not do. In fact the whole contention up till now
on the part of the defendant has been only with regard to the proper article of the Limitation Act applicable to the case. If the starting point of
limitation would be determined with reference to allegation of facts, it is incumbent on the parties to plead specifically to the same so that the other
party might have a reasonable opportunity of pleading in-answer thereto. It is not for us to indicate in what manner and to what extent it might be
open to the parties to plead to it, but remembering that it is a question of fact if the plea had been raised it is conceivable that it might have been
open to the plaintiff to show by evidence either oral or documentary which might have a bearing on the case that the agency really terminated in
spite of the leave on the resignation by defendant 1. There is not even a ground taken with regard to this matter in the grounds of appeal to this
Court.
In these circumstances we are satisfied that it will create a wrong precedent and will be fraught with serious consequences if we should allow the
appellants to argue in this Court in second appeal a question which necessarily involves a question of fact of that character. Having therefore coma
to the conclusion that the proper article applicable to this case is Article 89 and no question having been properly raised with regard to the starting
point of limitation, if the proper article should be 89 it follows that the lower appellate Court was right in its judgment with regard to the question of
limitation.
The only other questions that have ''been raised by the learned vakil for the appellants have reference to the percentage allowed by the lower
appellate Court differing in that matter from the Court of first instance with regard to the dry-age and wastage. That again is essentially a question
of fact. The learned vakil for the appellants tried to persuade us to take the view that the lower appellate Court misdirected itself in the manner in
which it stated the question. It is impossible to accede to any such contention. The question has been stated properly because the lower Court
properly refused to take the percentage prescribed by the plaintiff as ipso facto binding on the defendants and therefore directed its attention to
determining what the reasonable percentage is and on that matter it has come to the conclusion that the rates prescribed by the plaintiff were right
because they were reasonable and the lower appellate Court arrived at the conclusion that the rates were reasonable having regard to the various
matters set out and referred to in detail in the judgment of the lower appellate Court. There were abundant materials on which it was open to the
Subordinate Judge to have come to the conclusion that he did with regard to those rates and we cannot consider this is a case in which the
judgment has been vitiated by any circumstances whatsoever. In the result, therefore, his judgment with regard to these rates being mainly a
question of fact, it follows that we have no right to interfere with it. The second appeal is, therefore, dismissed with costs.
Curgenven, J.
I agree with my learned brother for the reasons which he gives that Article 89, to the exclusion of Article 90, Limitation Act, is the proper
provision to apply. The appellants'' vakil has rained the further question that in fixing the termination of the :agency, as the learned Subordinate
Judge has done, as the date when defendant 1 resigned his appointment he has committed an error and that it should rather be referred to the point
of time when on taking leave he vacated the appointment and handed over charge to his successor. I do not wish to say anything on the merits of
this argument because I am clear that the question must depend on facts which may not necessarily have been adduced in evidence and to allow it
to be raised now, in the absence indeed of any ground of appeal, might place the plaintiff in an unfair situation I agree, therefore, that we must
accept the termination of the appointment as fixed by the lower appellate Court, as the date from which time is to run
On the second point I think it is clear, as indeed issues 2 and 3 show, that the onus of showing that for a certain recorded amount of green
paddy received by defendant 1, only a less amount of dry paddy was to be rendered to the estate lies upon defendant 1. The lower appellate
Court has rejected the direct evidence which he gives upon this, unsupported as it is by any voucher, account or other record. In fact it has been
admitted before us on his behalf that no such account was maintained. In these circumstances the only alternative method practicable was to
ascertain by the indirect evidence of experiments in similar conditions and so forth whether the claim as made by the plaintiff appeared to be
substantiated. The learned Subordinate Judge has gone into that question in paras. 3, 4 and 5 of his judgment and it is a question of fact. He has
agreed with the learned District Munsif in rejecting the contention, if it was the plaintiff''s contention, that the terms of the order of Ex. CC were
binding on defendant 1 of their own force and he has only accepted the rates which that order prescribes because from various considerations he is
able to say that they are reasonable and just. In these circumstances I can find no grounds for interfering with his decision and I agree that the
appeal should be dismissed with costs.