- (1.) THIS is a civil second appeal by the defendant, Moolchand, against the judgment and decree of the District Judge, Alwar, dated the 12th of April,1952, confirming on appeal the judgment and decree of the court of the Munsif, Alwar, dated the 8th of August, 1951, by which a decree of Rs. 965/-was granted in favour of the plaintiff, Ramjiwan, against the defendant, Moolchand.
(2.) BRIEFLY stated the facts of the case are that both the plaintiff and the defendant, Ramjiwan, and Moolchand were employed in Jai Paltan, Alwar and they went abroad on active service during World War II. The case of the plaintiff is that he assigned a portion of his salary in favour of Moolchand and in consequence thereof, in all, an amount of Rs. 965/- was paid to Moolchand. This amount was to be refunded by Moolchand to the plaintiff on his return from abroad. But the defendant failed to return it. It was also alleged that the plaintiff advanced to the defendant an amount of Rs. 300/- in addition to the aforesaid amount after his return from the overseas. The defendant denied having received the amount of Rs. 965/ -. He admitted that this amount was received by him but it was pleaded that this payment was made to him in consideration of certain outstandings of the defendant against the plaintiff and for certain expenditures that were undertaken by the defendant for the plaintiff. Both the courts below held that he defendant failed to prove that any money was outstanding against the plaintiff or that he had undertaken any expenditures on his account. As the receipt of the amount was admitted by the defendant the suit of the plaintiff for an amount of Rs. 965/- was decreed. As regards the amount of Rs. 300/- the plaintiff failed to prove its payment to the defendant and his claim in respect of this amount was dismissed. It was also urged before the courts below by the defendant that the suit of the plaintiff was barred by the law of limitation and in this connection both the courts held that the suit of the plaintiff was governed by Art. 60 and the cause of action, therefore, arose to the plaintiff when he made a demand for the money after his return from overseas and thus the suit was within three years from the date of demand and was within time. In this appeal it has been contended that the plaintiff has failed to prove that the amount paid to the defendant was by way of deposit and the courts below were, therefore, not justified in holding that Art. 60 applied to the facts and circumstances of this case. No one has put in an appearance on behalf of the plaintiff-respondent inspite of service of a notice for the preliminary hearing of this case. This appeal has, therefore, been heard ex parte. The plaintiff appeared in support of his own case but he did not mention any circumstances under which he made the allotment of a portion of his salary in favour of the defendant. He denied the pleadings of the defending that any amount was outstanding against him and that it was in consideration of any such amount that he made the allotment. He also stated that he made the allotment by way of a trust. The first court found in favour of the plaintiff on the basis of the fact that he had gone out overseas and had made an allotment in favour of the defendant of a portion of his salary which could not have been done except with a view that it should remain as a deposit with the defendant to be returned to the plaintiff on his return. The lower appellate court did not specify in detail the manner in which it came to the conclusion that the amount was paid by way of deposit but assumed that it was so. Mr. R. A. Gupta for the appellant has urged that there Is no evidence whatsoever in support of the pleading of the plaintiff regarding the circumstances under which he made the allotment. The learned counsel has read the statement of the plaintiff and he has argued that unless the plaintiff had atleast in his statement given evidence regarding the circumstances under which the deposit was made the court could not have found in favour of the plaintiff that the amount had been advanced by way of deposit, It may be observed that the courts below have assumed from the averments in the plaint that the allotment was made by the plaintiff when he went overseas in favour of the defendant of a portion of his salary with a view to take it back on his return. The plaintiff did not produce any evidence except his own statement and in his statement the plaintiff failed to specify any circumstances under which he made the allotment of a portion of his salary in favour of the defendant. Under these circumstances, there was nothing from which the courts below could infer that the amount had been advanced by way of deposit so as to attract the application of Art 60 of the Indian Limitation Act. The admission of the defendant in his written statement also does not help the case of the plaintiff as he did not admit the fact of deposit and the case of the plaintiff, therefore, cannot succeed merely because the defendant had admitted the receipt of the amount. From the fact of receipt it could be presumed that the intention was of returning the amount to the plaintiff. No assumption could be made without any mention of the circumstances under which the amount was initially advanced that the payment was in the nature of a deposit. The onus of proof that the amount was advanced by way of a deposit is on the plaintiff and because there is no evidence in this behalf the plaintiff cannot succeed in invoking the aid of Art. 60 of the Indian Limitation Act. The suit of the plaintiff for the amounts advanced before three years from the 6th of January, 1947, when the suit was filed is barred by the period of limitation and as regards the amount paid to the defendant after the 6th of January, 1944, it is within time. The suit of the plaintiff was filed on the 6th of January, 1947, and according to the statement in (he plain Rs. 20/-p. m. were paid to the defendant from February, 1943, to March, 1945. Thus, from the 6th of January. 1944, to March, 1945, the defendants received in all an amount of Rs. 280/- for 14 months at the rate of Rs. 20/-p. m. and the claim of the plaintiff for the return of this amount would fall within the period of limitation. This appeal is partly allowed ex parte, and the amount of the decree is reduced from Rs. 965/-to Rs. 280/ only. The appellant shall get costs of this appeal in proportion to his success in this court. The costs allowed by both the courts below shall be reduced so as to bring them in proportion to the success in the suit. .;