1. This is a second appeal from the decision of the learned Subordinate Judge of Muttra. The plaintiff, who is an old pardanashin woman, brought a suit in the Court of the Munsif for the sum of Rs. 2,371-11-0 being principal and interest on a sum of money deposited by her with the defendants in the year 1924. Both the lower Courts have dismissed the plaintiff's suit. The lower appellate Court came to the conclusion that the money was a deposit and that Article 60, Lim. Act, applied. Although in the plaint the date of demand was said to be within three years of the suit, one of the witnesses for the plaintiff in the cross-examination said that various demands had been made for the money and the first one was in or about the month of April 1927. The learned Judge on this statement elicited in cross-examination decided that the demand had been made in April 1927 and that as Article 60 applied, the action was time barred. The plaintiff appeals to this Court.
2. The important point in this case is one of practice. It raises the question of pleadings. The plaintiff in her plaint alleged that this money had been deposited, that she had demanded it from the defendants, but they took no notice of her demands. Eventually on 29th September 1930, a notice of demand was sent by post to the defendants but that they had neglected to pay the money. The defence did not admit any demand, and by way of further plea the defendants stated that no money was received from the plaintiff at all by them. Nowhere in the defence was it raised that this money had been demanded by the plaintiff at a date which would make the claim time-barred. It is clear, therefore, that it was not a part of either the plaintiff's or the defendants' case that the money being a deposit there was a demand at a date which time barred the suit. The learned Judge merely on a statement extracted from the plaintiff's witness in cross-examination decided this case on a point which was neither raised in the pleadings nor the subject-matter of an issue. This, in India, is a very dangerous proceeding. The witness might be bribed to make a statement in cross-examination contrary to his party's interest. It is clear to us that the Judge has not taken the proper course in this case. When a point like this arises in the trial of an action, the Judge has first of all to consider whether in the interests of justice an amendment of the pleading ought to be allowed at that stage. If he decides, on the application of the parties, that an amendment at that late stage ought to be allowed, it is his duty to allow the amendment and adjourn the case in order that the amendment may properly be formulated in the pleadings and an opportunity given to the other party to amend their pleading as they think fit. The costs of the amendments and all the costs thrown away would be payable by the party making the application. If this-had been done in this case as the point was entirely new and was the only point on which the case was to be decided the-whole of the costs in the trial Court and in the Court of appeal would have had to be paid by the defendants. Further in a; case like this the Judge ought to have dismissed an application, if one had been made, for permission to amend the pleadings. The defendants had no merits at all. They had taken the money of an old pardanashin lady; they had refused to pay it on demand; and the only ground upon which they resisted payment was purely a technical one under the Limitation Act. If therefore the proper procedure had been followed in the lower Court, the plaintiff's appeal to the lower appellate Court must have been successful the same result necessarily follows here. We refuse to consider a point not raised in the pleadings and concerning which no issue had been struck; it is contrary to justice that that it should be considered at this stage.
3. It is well settled now that the plaintiff must show prima facie that his suit or cause of action is not barred by limitation. The Civil Procedure Code requires that the plaint should set forth the cause of action and when it accrued, and, if cause of action arose beyond the period allowed by any law for the institution of the suit, the ground upon which exemption from such law is claimed. The Code of Civil Procedure provides that if a suit appears-from the statement in the plaint to be barred by any positive rule of law the Court shall reject the plaint. It will therefore be seen that the plaintiff is under the necessity of satisfying the Court that his case is not barred by limitation. But when the plaintiff's suit is prima facie within time, then if the defendant alleges that it is not within limitation, it is for him to make out such a case. On the plaint, as it stood, the suit of the plaintiff was within limitation. The plaint showed that the sum claimed was deposited with the defendants, that demands had been made and the last demand by registered notice was made within a period of limitation. In the plaint there was nothing to show that any demand had been made earlier, which would have had the effect of making the case time barred. If the defendants wished to defeat the claim of the plaintiff on the ground of limitation then it was absolutely necessary for them to plead that on account of a particular demand made by the plaintiff the cause of action had accrued not on the date alleged in the plaint but on some previous date, and on that ground the suit was not within limitation. But no such plea was taken by the defendants and therefore the lower appellate Court was not justified in throwing out the claim on the ground of limitation because of the statement made by a witness during his cross-examination. The reason for this is obvious and it is that the plaintiff has had no opportunity of meeting the case which the Court below made out for the defendants. If the plaintiff had known that the defendants would resist her claim on the allegation that owing to some previous demand the suit was not filed within limitation then she might have been able to prove by satisfactory evidence that such was not the case. The result is that the appeal is allowed and the suit of the plaintiff is decreed with costs in all the Courts. The plaintiff will also have interest pendente lite and till realisation at the rate of six par cent.