JUDGMENT

Bhide, J. - This was a suit for recovery of Rs. 7,328-4-6, as the price of wheat sold to the defendants. The suit has been decreed and the defendants appeal. The facts giving rise to this suit are rather peculiar and may be briefly stated as follows: A firm named, Charanji Lal-Kishori Lal brought a suit against the present plaintiffs and defendants on the allegation that a "kotha" of wheat was sold to the present plaintiffs and that the present defendants had stood surety for the price. The suit was decreed against the present plaintiffs only on the finding that Charanji Lal-Kishori Lal had sold the kotha to the present plaintiffs and that the defendants were not sureties. The learned Subordinate Judge who decided the previous suit while granting, the decree against the present plaintiffs remarked that they could file a separate suit against the present defendants if the kotha was sold by them to these defendants. The plaintiffs thereafter instituted the present suit for recovery of Rs. 4,817-12-3, as the price of the kotha from them, together with interest. The defendants pleaded inter alia that the suit was barred by time, but this plea was rejected by the learned Subordinate Judge and a decree was passed against them as stated above.

2. The learned Counsel for the defendants-appellants has only agitated the question of limitation in this appeal. It was urged on behalf of the plaintiffs-respondents that the defendants' Counsel had definitely given up this point in the Court below and hence it was not open to the defendants to raise it again in this Court. The statetnent in question was however made by the Counsel for the defendants in the Court below after the parties had led their evidence on all issues including that relating to limitation and had closed their cases. The plaintiffs have therefore not been prejudiced thereby in any way. In the circumstances, the point must be treated as purely one of law to be decided on the material already on the record and the aforesaid statement of the Counsel cannot be held to be binding on the appellants. The learned Subordinate Judge has held the suit to be one by a vendor for the price of goods sold and as such governed by Article 52, Schedule 1, Limitation Act. On behalf of the appellants it is urged that on the facts alleged by the plaintiffs the suit would be governed by Article 83, Schedule 1. Limitation Act, and would be barred by time. The learned Counsel for the respondents urged in reply that the defendants themselves stated in their Jawabdawa that the cause of action arose when the wheat was delivered to them on 20th September 1920. They thus admitted by implication that the suit was governed by Article 52 and the learned Subordinate Judge has found that the suit is within time under this article. It was contended that it was not open to the defendants to resile from this position now.

3. There is no doubt that the parties to this case have made conflicting statements on different occasions as it suited them. But it is well-settled that the question whether a suit is within time must be decided primarily on the basis of the plaintiffs' own pleadings and not on the basis on the defence set up. The plaint in the present case is rather vaguely worded. It is nowhere asserted in the plaint that the wheat was sold by the plaintiffs to the defendants and that the plaintiffs were suing for the recovery of its price. In fact there is no indication in the plaint that the suit was of the nature specified in Article 52, Schedule 1, Limitation Act. All that is stated therein is that it was held in the previous suit that the plaintiffs had sold the kotha in question to the defendants. In para. 5 of the plaint it was stated, further that the cause of action arose when the decree was passed against the plaintiffs in the previous suit,i.e., on 31st October 1922. The wheat was admittedly delivered to the defendants in September 1920. It seems therefore clear that according to the alleg