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Ezra Sion and Co. Vs. Kailas Viraiah - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 50 of 1936
Judge
Reported inAIR1937Bom242; (1937)39BOMLR263
AppellantEzra Sion and Co.
RespondentKailas Viraiah
DispositionApplication dismissed
Excerpt:
.....been absent from british india and from territories under the administration of the government of india.;secunderabad is under the administration of the government of india within the meaning of the section, anantapadmanabhaswami v. official receiver of secunderabad (1933) l.r. 60 i.a. 167 : s.c. 35 bom. l.r. 747. followed. - - the burden, in my view, is clearly upon the plaintiff, and the only question is whether the plaintiff has established that the cantonment of secunderabad, which is admittedly territory beyond british india, is under the administration of the government, which must mean the government of india, so that the defendant has been absent from territories under the administration of the government of india. at any rate i am clearly of opinion that the plaintiff has not..........promissory-note and the filing of the suit the defendant was living in secunderabad, which is a british cantonment. section 13 of the indian limitation act provides that in computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from british india and from the territories beyond british india under the administration of the government shall be excluded. it seems to me clear that the plaintiff, who seeks to take advantage of the extension of time allowed under section 13, must bring himself within the terms of the section. that is to say, the burden is upon him to prove both that the defendant has been absent from british india, and from territories under the administration of the government of india. that was the view taken by.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an application in revision under Section 115 of the Civil Procedure Code. The plaintiff sued in the Small Causes Court, Bombay, for the balance of the price of goods sold and delivered. The goods were sold and delivered on June 16, 1929, and the suit was filed in September, 1934. So that prima facie it is out of time. The plaintiff sought to bring the case within Section 13 of the Indian Limitation Act. The trial Court held that the suit was barred, and the case did not come within Section 13, and on appeal to the full Court, the full Court agreed with the decision of the trial Judge. It is not disputed that between the date of the promissory-note and the filing of the suit the defendant was living in Secunderabad, which is a British Cantonment. Section 13 of the Indian Limitation Act provides that in computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from British India and from the territories beyond British India under the administration of the Government shall be excluded. It seems to me clear that the plaintiff, who seeks to take advantage of the extension of time allowed under Section 13, must bring himself within the terms of the section. That is to say, the burden is upon him to prove both that the defendant has been absent from British India, and from territories under the administration of the Government of India. That was the view taken by the learned trial Judge, but the full Court seem to have thought that if the plaintiff established that the defendant was absent from British India, the burden was upon the. defendant to show that the place where he was under the administration of the Government. The burden, in my view, is clearly upon the plaintiff, and the only question is whether the plaintiff has established that the Cantonment of Secunderabad, which is admittedly territory beyond British India, is under the administration of the Government, which must mean the Government of India, so that the defendant has been absent from territories under the administration of the Government of India. There is a recent decision of the Privy Council, Anantapadma-nabhaswami v. Official Receiver of Secunderabad , in which the status of Secunderabad is discussed. According to the facts, which the reporter says are stated in the judgment of the Judicial Committee, Secunderabad was fixed for a British cantonment pursuant to Article 4 of a treaty of 1798 between the Nizam and the East India Company. Civil jurisdiction is exercised in the administered areas of the Hyderabad State, including the Cantonment of Secunderabad, under an Order of the Governor General in Council made on December 21, 1925, under the Indian (Foreign Jurisdiction) Order in Council, 1902. The Order of 1925 superseded earlier Orders. In the judgment of the Privy Council their Lordships say this (p. 171):-

It is not suggested that the position of Secunderabad has altered from that stated by the Foreign Office to the Court, and referred to in the judgment, in Hossain Ali Mirza v. Abid Ali Mirza I.L.R. (1893) Cal. 177. That reply makes it clear that the British Cantonment in Secunderabad still remains part of Hyderabad State and the property of the Nizam. The administration of justice according to British enactments by the District Court established there does not render the orders of that Court anything but the orders of a foreign Court in relation to the Courts of British India.

Mr. Virkar for the plaintiff relies strongly on that passage from the Privy Council's judgment, particularly where holding that the order of the District Court of Secunderabad is the order of a foreign Court in relation to the Courts of British India. That seems to me, however, to be quite a different question from whether Secunderabad is under the administration of the Government of India. It seems to me from the statement of fact which I have read that the Privy Council adopt the view that it is. At any rate I am clearly of opinion that the plaintiff has not succeeded in establishing that it is not. That being so, in my opinion the judgments of the lower Courts are right, and the plaintiff's suit is out of time. The application must be dismissed with costs.


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