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Fakhrullah Khan Vs. Ram Sarup - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All64; 68Ind.Cas.978
AppellantFakhrullah Khan
RespondentRam Sarup
Cases Referred(Goya v. Kunj Behari Singh
Excerpt:
limitation act (ix of 1908), section 13 - foreign territory--basra, whether under administration of government of india--period of absence in basra, exclusion of. - - ' basra is clearly not within british india. we do not see any reason why the plaintiff should not be allowed the benefit of section 13 and we agree with the lower appellate court in finding that the period daring which the defendant was absent from british india in france and basra, should be excelled taking that view of the matter, the suit of the plaintiff is clearly within time......that fact is not sufficient to show that basra was under the administration of the government of india. basra was compiled by the british troops or for the matter of chat by the troops sent by the government of india; but the carnations was military carnations for the purpose of proceeding with the expedition and protecting the army on its way onward and securing this safety and support. the territory was, except for those purposes, not under the administration of the government of india. it was foreign territory under military carnations, the object of which was much more restricted than that of an administration carried on for other purposes and, in oar opinion, section 13 is wide enough to apply to cases of absence in such territory, though it may be under temporary military.....
Judgment:

1. This appeal arises out of a suit brought by the plaintiff-respondent for the recovery of money due on a promissory-note executed by the defendant in favour of the plaintiff, on the 12th of April 1913. The promissory note purports to have been executed for Rs. 1,000, The whole of this sum was payable on demand. The allegations of the defendant were that be executed the said promissory-note for Rs. 100, that the plaintiff was not competent to enter into the transaction which resulted in the taking of the promissory-note from the defendant because ho was a Government servant and that the claim was barred by limitation.

2. The Court of first instance found that the promissory-note in question had been executed for Rs. 1,000 by the defendant in favour of the plaintiff on an old account, and that the plaintiff was entitled to sue for the recovery of the money due to him on that dominant. It farther held that the Suit had been brought on the 14th of August 1918, after the time allowed by law had expired and that Section 13 of the Indian Limitation Act did not save limitation. It, therefore, dismissed the claim. The lower Appellate Court, however, jams to the conclusion that Section 13 was applicable and that the suit was within time. It decreed the claim accordingly. In the lower Appellate Court the defendant does not appear to have challenged the findings arrived at by the Court of first instance in regard to the question of the genuineness of the promissory note for the amount for which it purported to have been executed or in regard to the right of the plaintiff to file the suit The only point which appears to have bean raised in the lower Appellate Court was whether the suit was barred by time. The promissory note was executed on the 12th of April 1913 at Meerut, where the defendant was employed as a store keeper in the Supply and Transport Department. It is admitted that he left Karachi for France on the 15th of September 1914 and reached' France on 13th of October 1914. He remained there till the 15th of December 1915. He then left for Bisra where he stayed from the 8th of January 1916 to the 15th of March, 1917, returning to India, on the 21st of March 1917. The present suit was filed on the 14th of August 1918. If the period spent by the defendant in Basra and France be taken into consideration and excluded from the operation of limitation under Section 13 of Act IX of 1908, then the present suit would be within time. That section provides that in computing the period of limitation prescribed for any suit, the time during which the defendant had been absent from British India and from the territories beyond British India under the administration of the Government of India, shall be excluded. The term 'British India' has been defined in Section 3, Clause (7) of the General Clauses Act, 1897, as meaning all territories and places within His Majesty's dominions which are for the time being governed by His Majesty through the Governor General of India or through any Governor or other official subordinate to the Governor General of India.' Basra is clearly not within British India. The only question for consideration is whether Basra was a territory outside British India under the administration of the Government of India within the meaning of Section 13 of the said Act at the time when the defendant was staying there in military employ.

3. The Court of first instance refers to the Indian Year Book for 1917, edited by Sir Stanley Reed. There it is stated that 'the Indian Expeditionary Force entered the city of Basra on the 23rd of November 1914 : and the notables were assembled and a proclamation stating the reasons for the occupation and the friendliness of the British Government, was read and salutes were fired.' It is further stated that 'the subsequent operations in Mesopotamia remained under the charge of the Government of India; and the War Office did not assume direct responsibility until February 1917.' It is true that the troops which took part in the campaign its Mesopotamia were known by the name of the Indian Expeditionary Force, and the dispatches relating to its operations were published in the Gazette of India; but that fact is not sufficient to show that Basra was under the administration of the Government of India. Basra was compiled by the British troops or for the matter of chat by the troops sent by the Government of India; but the carnations was military carnations for the purpose of proceeding with the expedition and protecting the army on its way onward and securing this safety and support. The territory was, except for those purposes, not under the administration of the Government of India. It was foreign territory under military carnations, the object of which was much more restricted than that of an administration carried on for other purposes and, in oar opinion, Section 13 is wide enough to apply to cases of absence in such territory, though it may be under temporary military occupation of the kind above mentioned. We do not see any reason why the plaintiff should not be allowed the benefit of Section 13 and we agree with the lower Appellate Court in finding that the period daring which the defendant was absent from British India in France and Basra, should be excelled Taking that view of the matter, the suit of the plaintiff is clearly within time. In First Appeal from Order No. 96 of 1921 (Goya v. Kunj Behari Singh), decided on the 4th of August 1921, a similar view was maintained. The learned Counsel for the defendant-appellant auks us that the case may be remanded to the lower Appellate Court in order that the other points determined by the Court of first instance may be denuded by it; bat as there is no affidavit indicating that those points had been taken there, we are unable to accede to that request. The appeal is dismissed with costs.


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