C.M. Lodha, J.
1. This is a second appeal by the plaintiff Municipal Board, Jodhpur whose suit has been dismissed by both the lower courts of the ground that it is barred by time.
2. The respondent has not appeared in this Court inspite of service of notice upon him, and, therefore, the appeal has been heard ex-prate,
3. Briefly put the facts of the case are that the plaintiff--Board had given a contract to the respondent Gafoor for removing dead animals within the Municipal limits of Jodhpur for one year from 1.10.1951 to 30.9.52 for a sum of Rs. 12,175/-which was to be paid in two equal instalments by the end of period of the contract. The plaintiff's case is that the first instalment was paid but the defendant failed to pay the second instalment and conscquently it took steps to recover the amount of the second instalment through the Tehsil, Jodhpur, It is alleged that on 15.9.1952 the defendent made an application to the Board for depositing R. 400/- in part payment of the instalment due and asked for two months' time to pay the balance-Rs. 2087/8/-. This application in original has been put on the record and has been marked Ex. 3. Rs. 4000/- were admittedly paid by the defendant but the remaining amount of Rs. 2087/8/- was not paid and consequently the plaintiff brought the present suit for Rs. 2087/8/- as principal and Rs. 112/8/- as interest, total Rs. '2200/-.
4. The defendant opposed the plaintiff's suit on a number of grounds, and also pleaded inter alia that the suit was barred by limitation.
5. After recording the evidence produced by the parties the trial court repelled all the contention and held that the suit was barred by time. Consequently the plaintiff's suit was dismissed. The plaintiff filed appeal in the Court of District Judge, Jodhpur but was unsuccessful and has consequestiontly come in second appeal to this Court.
6. Learned Counsel for the appellant submits that in his application dated 15.9.1952 (Ex. 3) which is an admitted document, the defendant offered to pay Rs. 1000/- in part payment of the amount of Rs. 6087/8/- due from him and asked for two months' time to pay the remaining amount of Rs. 2087/8/-. On submission of this application the Municipal Board Jodhpur accepted the amount of Rs. 4000/- which the defendant was prepared to deposit forthwith and allowed two months's time to the defendant to pay the remaining amount of Rs. 2087/8/-. It is urged that there was thus a fresh contract between the parties as a result of which the cause of action accrued to the suit amount after the expiry of two months from 15.9.1952. The learned District Judge has held that there was no fresh contract as urged by the plaintiff and at best the application dated 15.9.1962 filed by the defendant could be treated as an acknowledgment of the plaintiff's claim which could give fresh start of limitation. Thus according to the learned District Judge the last date of limitation for filing the suit was 15.9. 1955, but since the suit had been filed on 29.9.1955, the suit was definitely out of limitation.
7. The only question which arises for consideration in this a appeal is whether cause of action accrued to the plaintiff for recovery of the suit amount on the suit amount on the expiry of two months from 15.9.1952. It may be observed that it was pleaded in para No.4 of the plaint that the defendant deposited the amount of Rs. 4000/- on 15.9.1952. and asked for two months' time to pay the remaining amount of Rs. 2087/8/- but inspite of having taken time from the plaintiff the defendant did not deposit the suit amount. Thus it is amply clear from the aforesaid averment in the plaint that the plaintiff granted time to the defendant on his request for payment of the suit amount. In these circumstances the only reasonable inference from the averments in the plaint is that the request for grant of two months' time to pay up the suit amount was accepted by the Municipal Board, and, therefore, the application dated 15.9.1952 could be treated as a fresh contract between the parties. It is interesting to note that the allegation contained in para No. 4 of the plaint as referred to above has not been specifically denied by the defendant in his written statement. In my opinion, the learned District Judge was not correct in not treating the application dated 15.9.1952. (Ex. 3) as a fresh contract between the parties. If this application is treated as a fresh contract between the parties then there is no escape from the conclusion that a fresh cause of action accrued to the plaintiff on the expiry of two months from this application, that is, on 15.11.1952 to file the present suit. If 15.11.1952 this is treated as the starting point of limitation than the last date of filing the suit would be 15-9-1955. But the suit as already stated above was filed on 29.9.1955. In this view of the matter I hold that the suit was within limitation and was wrongly dismissed by both the courts below as barred by time.
8. The contract as pleaded by the plaintiff was admitted by the defendant and all other pleas taken by him were rejected by the trial court. On appeal by the plaintiff, the finding of the trial court on other points in favour of the plaintiff were not challenged before the first appellate court nor the respondent has put in appearance in this Court. In these circumstances it would be reasonable to infer that the defendant had no grievance against the finding arrived at against him by the trial court.
9. In the result I allow this appeal, set aside the judgments and decrees of the courts below and decree the plaintiff's [suit for Rs. 2087/8/- only. The claim for interest is not being pressed Since the respondent has not appeared to oppose the appeal, I think it proper to leave the parties to bear their own costs.