1. This case Involves an interpretation of SECTION 13, Limitation Act, and was referred by Satya-narayana Rao and Rajagopalan JJ. to a Pull Bench because they were of opinion that the decision in - 'Rathina Thevan v. Packirlsami The-van', AIR 1928 Mad 1038 (A) on the authority of which the case was disposed of in the Courts below required reconsideration.
2. The suit which was filed in the Court of District Munsif of Paramakudi was for the recovery from 'two defendants of a sum of Rs. . 1466-10-4 alleged to be diie on account of dealings had by the defendants with the plaintiff's shop from 23-8-1941 to 18-10-1941 at Rangoon. The suit was filed'in 1946. It was stated in the plaint that the suit claim was not barred because the defendants had all along been in Rangoon and the second defendant alone had returned to India two months prior to the suit, the first/defendant still remaining in Burma. The first defendant allowed the suit to proceed-ex parte. The second defendant filed a written statement admitting the dealings but pleading that the entire amount due to the plaintiff had been paid. He also took the further plea that the suit was barred by limitation.
The two main issues framed for trial were (1). whether the discharge pleaded by the second defendant is true, and (2) whether the suit is in time. The District Munsif, and on appeal Subordinate Judge of Ramned, found that the discharge pleaded was not true and that the suit was barred by time. The suit was therefore dismissed. The plaintiff fs the appellant.
3. It is ouite clear that the suit was not maintainable against the first defendant. Admittedly, he was a resident of Burma on the date of the institution of the suit and no part of the cause of action had arisen in India. The District Munsif had no Jurisdiction to entertain the suit against the first defendant (vide Section 20 of the . Civil P. C.).
4. So far as the second defendant is concern-ed, the only question which falls for decision is whether the plaintiff is entitled as against him. to the benefit of the provision of SECTION 13, Limitation Act.
That section runs thus:
'In computing the period of limitation prescribed for any suit, the time during which thedefendant has been absent from British Indiaand from the territories beyond British Indiaunder the administration of the Government .shall be excluded.'
Prima facie, this section, if it applies, will save the suit from the bar of limitation, as the second defendant was absent from British India from the date of the cause of action till a few months before the institution of the suit. But the Court below decided against the plaintiff following the authority of a decision of a Divisional Bench of this Court in AIR 1928 Mad 1088 (A).
The material facts In that case were as follows: The plaintiff and defendant who. were residents of Mannargudi in India had gone to Kaula Lampur to earn their livelihood, and while there the defendant executed a promissory note to the plaintiff on 18-11-1921. In 1925 the plaintiff brought a suit in the District Munsif's Court of Mannargudi on the promissory note and sought to deduct the time during which he was absent in Kaula Lampur under SECTION 13, Limitation Act. The learned Judges held that the plaintiff waa not enHtled to the benefit of SECTION 13 as the cause of action for the suit did not arise in British India but at Kaula Lampur where the promissory note was executed. As the correctness of this decision has been impugned before us, it is necessary to set out the reasoning on which that decision is based. That can be found in the following extracts from the Judgment of Devadoss J. who, delivered the Judgment of the Bench:
'In computing the period of limitation for any suit, the time during which the defendant has been absent from British India shall be excluded. It obviously means computing the period of limitation for a suit which is maintainable in India and, therefore, the transac- . tion must have taken place In India.....In thiacase the transaction took place outside the British India, though the contracting parties are natives of British India. The time did not begin to run against the defendant in British India. To hold that the plaintiff is entitled to bring the suit on a foreign bill by reason of the presence of the defendant in British India would lead to any foreign bill or foreign cause of action, however old it might be. and however long It may have bepn barred, being sued on in British India within the period of limitation prescribed by the Limitation Act. Supposing a bill which Is barred by the law of limitation In England or in France is sent to India when a promisor happens to visit it, could a suit be brought on it because the defendant is in British India, and the time could only run from the time he came Into India? The defendant coming to India does not give rise to any cause of action ........It would be stretching the provisions of SECTION 13 to an unwarranted limit if we hold that in whichever part of the world the cause of action might have arisen and however old the cause of action might be a suit is maintainable on it here, provided it is brought within the period of, limitation prescribed by the Act for such suit, the time, being catenated from the date of the arrival of the defendant in British India.'
5. The learned Judge, therefore, concludedthat in order to get the benefit of S, 13, the cause of action or the transaction which gives rise to the cause of action must have taken place in British India. 'As the period of limitation did not begin to run in British India, the plaintiff cannot claim the benefit of SECTION 13, which can only apply to a cause of action which arises in British India.' This decision was followed by a single Judge of this Court in - 'Subramania Chettiar v. Maruthamuthu : AIR1944Mad437 . With great respect to the learned Judges who decided : AIR1928Mad1088 we think that they overlooked certain well established rules of private international -law and provisions of Indian statutes embodying them. The Courts of any country have jurisdiction to entertain actions 'in personam' in respect of any cause of action or relating to any contract wherever the cause of action might have arisen or wherever the contract has been made, provided that at the commencement of the action the defendant was resident or present in that country. (Vide Dlcey's Conflict of Laws, Vth Edn. page 398, Halsbury's Laws of England, 2nd Edn. Vol. VI, page 256, Article 309).
The general principle is also well settled that in regard to such actions all matters of procedure are governed by the 'lex fori', the law of the country in which the action is brought. Statutes of limitation, unless affecting immoveable property, in so far as they bar the remedy of a plaintiff, are always considered to be statutes relating to procedure. So, the statute of limitation in force in the country in which the action is brought, will be applicable and not the statute of limitation which might obtain In the place where the cause of action arose, or the contract was made; There is, however, one exception to this general rule, namely, where, by the proper law governing the transaction in respect of which an action is brought, the statute of limitation in force in the country in which the cause of action arose or the contract was made operates not only to bar the remedy but also to extinguish the right, the rules of limitation in force in the country in which the suit is brought have no application (Halsbury's Laws of England, Vol. VI p. 355).
6. The above rules apply to India as well. Under Section 9, Civil P. C., the Courts have Jurisdiction to try all 'suits of civil nature excepting suits of which their cognizance is either expressly or implledly barred. Under Section 20(a) of the Code . any suit other than suits mentioned in Sections 16 to 19, namely, suits concerning Immoveable property, may be instituted in a Court within the local limits of whose jurisdiction the defendant, or each of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries Ion business, or personally works for gain, Such a suit will be maintainable even though the cause of action might not have arisen within the local limits of that Court's jurisdiction Section 11, Limitation Act embodies the rules relating to limitation mentioned above. It runs as follows:
'11. (1). Suits instituted in British India on con-tracts entered into in a foreign country are subject to the rules of limitation contained in this Act.
2 No foreign rule of limitation shall be a defence to a suit instituted in British India on a contract entered into in a foreign country, unless the rule has extinguished the. contract and the parties were domiciled in such country ' during the period prescribed by such rule.' Applying these rules to the present case, the position is this: Though the cause of action for the suit arose outside India, that is. In Burma, the suit was properly instituted as against the second defendant, because at the time of the institution of the suit the defendant was residing within the local limits of the jurisdiction of the District Munsif's Court' of Paramakudi. The period of limitation applicable to the suit Would be the period prescribed by the relevant Article in Schedule I, Limitation Act. it follows that in computing such period the special rules contained la . sections like 13 would also apply to the suit. It was not even suggested, either in the Courts be-low or here, that according to the law of limitation and prescription in Burma .the plaintiff's claim became extinguished and therefore would not furnish the basis of the present suit. It is not disputed that if SECTION 13 is applied, the suit is in time.
7. We shall now refer to the decisions which have a bearing more or less direct on this point. We shall begin with - 'Williams v. Jones', (1811) 104 ER 441 (C), a leading authority on the subject. The plaintiff brought a suit in the Court of the King's Bench in England against the defendant for the recovery of money 'expended by him at the request of the defendant in prosecuting and defending certain suits in the Supreme Court at Port William in Bengal and at other Courts in the East Indies. The defendant pleaded the statute of limitations as the cause of action had accrued more than six years before suit. To this plea the plaintiff replied that the defendant foe-fore and at the time when the said, cause of action first accrued to the plaintiff was beyond the seas, that is, in the East Indies, and that the defendant afterwards returned from beyond the seas to England and the plaintiff commenced the suit within six years after the defendant first returned. It appeared that the suit if it had been brought in India would have been barred. It was held that suit was saved from the bar of limitation.
Lord Ellenborough C. J. pointed out that the statutes of limitation applicable in India might have the effect of barring the remedy in the Courts in India but did not extinguish the right of the plaintiff. There was only an extinction of the remedy in the foreign Court, that is, in. India, but no extinction of the right. The plaintiff was, therefore, entitled to the benefit of the. statutes In England. 21 James 1 c. 16 Section 7, and 4 Anne, C. 16, Section 19 which saved to the plaintiff his action, if he or the defendant were, beyond the seas at the time the cause of action acerued, it the suit is brought within the time limited, after his return from beyond the seas. Bailey J. expressly referred to the argument advanced before him of the hardship and Inconvenience which may be caused to ' a defendant, but considered that it could not prevail to defeat the plaintiffs right under the statute.
'Ruckmaboye v. Lullobhoy Mottichand', 5 Moo Jnd App 234 (D), which was decided by the Privy Council arose out of an action brought in the Supreme Court of Judicature at Bombay. The action was for conversion of certain chests of pium. The defendant pleaded the bar of limitation inasmuch as the cause of action had accrued More than six years before the commencement of the suit. The plaintiff relied- on 21 James 1 c. 16 to save his suit from the bar, alleging that she was residing outside the jurisdiction of the Supreme Court and beyond the territories subject to the Government of the East India Company and she did not come within the said territories ,'r within the Jurisdiction of the Court until within six years of the commencement of the suit. It was held that the plaintiff was entitled to the benefit of the saving provision in 21 James 1 Ch. 15 and 4 Anne c. 18. Sir John Jervis, in his full and elaborate discussion after observing that
'while the courts of almost all civilised countries entertain causes of action which have originated in a foreign country, and adjudicate upon them according to the law of the country in Which they arose, yet such courts respectively proceed according to the prescription of the country in which it exercises its jurisdiction.'
referred to two cases to illustrate the application of that rule. One is the case of - 'the British Linen Co. v. Drummond', (1830) 10 B (E). This was a suit in England Upon a contract made in Scotland, where the time limit was forty years. The defendant pleaded the English statute which prescribed a shorter period, and it w'as held to be a good plea. The other case is that of - 'Huber v. Steiner', (1835) 2 Bing 202 (P). That was a suit in England upon a promissory note made in France, where the period of limitation was shorter than in England. The suit was instituted in England after the expiration of the period prescribed in the French statute but within six years, the period prescribed by the English statute. The defendant pleaded the French statute, but it was held to be a bad plea.
8. In - 'Mahomed Museeh-ood-deen Khan v. Clara Jane Museeh-ood-deen',. 2 NWPHCB 173 (G), SECTION 13 of the earlier Limitation Act of 1859, corresponding to the present SECTION 13 of the Act of 1908, was applied in the following circumstances: A suit was brought by a wife against her husband for the recovery of the amount due to her on account of dower payable under a written agreement and for maintenance and other reliefs. The parties had been married in England, according to Mahomedan law, in 1863. The defendant left England and eventually returned to India in December 1885. The plaintiff came to India In June 1869 and Instituted the suit. It was held that the plaintiff was entitled to rely on the provisions of SECTION 13, Limitation Act, and to exclude from the computation of the periods of limitation applicable to her several claims, the time during which the defendant was absent out of British India. The argument that such a Construction of SECTION 13 would lead to very inconvenient results 'was pressed upon the learned Judges, but without success. The learned Judges said:
'It is true that such a construction may lead to Very inconvenient results. A person may reside out of India for years, and, according to the law of limitation of the country in which he resides, the remedy against him in respect of a cause of action of the nature of a personal action may be lost, yet, on his coming to India, it will revive. We can hardly conceive that this was the intention of the legislature. It would seem that In the Act no provision has been made for cases in which the cause of action arises in a foreign country, or in which, at the time the cause of action accrues, both parties are residing in one and the same foreign country possessing tribunals to which they might have recourses; at the same time, it is to be remembered that the law of limitation is a law which bars the remedy and does not destroy the right, and, therefore. If by any of its sections we find indulgence shown to suitors, we are bound to give full effect to the language in which that Indulgence is conceded.'
9. In - 'Atul Kristo Bose v. Lyon and Co.', 14 Cal 457 (H), no doubt the cause of action arose either wholly or in part in Calcutta, but the decision is valuable for its interpretation of the word 'absent'. It was contended that the word 'absent' should be understood as applicable only to such persons as have been present or would ordinarily be present or may be expected to. return. The learned Judges did not accept that argument, and it was held that the word 'absent' did not Import a previous presence and departure. The following observations of the learned Judges are also apposite:
'It was pointed out in argument that, according to the construction which we place upon the Act, a man who was in England when a cause of action against him accrued, and has remained there ever since, may be liable after an indefinite time to be sued in a Calcutta Court. And it was contended that this was something absurd, something that the legislatures could not have intended, and that we ought to adopt some construction which would avoid It. The answer given by the Privy Council to a somewhat similar objection in the case already cited is sufficient. The words of section are express, and the case is within them: Moreover, there is no more hardship than In the converse case of a man resident In Calcutta,. who will Incur a liability to another person resident In Calcutta who remains in Calcutta long enough for any suit against him to be barred by the law prevailing in Calcutta, as well as ordinarily in England, who then goes to England and finds himself liable to be sued there at any time within six years. And this Is exactly what happened under the Statute of Anne in (1811) 104 ER 441 (C).'
10. In - 'Palaniyappa Chettiar v. Veerappa Chettiar', AIR 1918 Mad 238 (I), SECTION 13 was applied to a suit, the cause of action for which arose outside. British India. No doubt, there is no discussion as regards its applicability. Indeed, there does not appear to have been any. contest at the Bar on this point. The very eminent counsel who appeared in that case evidently thought that there was nothing in SECTION 13, Limitation Act, which precluded its application to a suit, the cause of action for which arose outside India. 'Ismailji Haji Halimbhal v. Ismail Abdul Kadar', : AIR1921Bom460 (J), is, however, a direct case on the point. In April 1916, the plaintiff sued in a British Indian Court for dissolution of partner- ship of a firm which carried on business to South Africa. One of the partners returned to British India in July 1908 and was there till November 1910 when he returned to South Africa; thereafter in October 1915 he came back and settled in British India. It was held that the suit was in time, as the periods during, which defendant No. 1 was absent from India should be excluded from the period of limitation, under SECTION 13, Limitation Act. This decision is authority for the position that a suit for the dissolution of a partnership carried on in foreign territory can be instituted in a Court in British India if the defendant happened to reside within the jurisdiction of that Court. It is also authority for the position that SECTION 13 would apply to a suit based on a cause of action which arose out of British India. The learned Judges relied upon the decisions in (1811) 104 ER 441 (C), 5 Moo Ind App 234 (D) and 14 Cal 457 (H).
11. The result of the authorities can be summed up briefly thus: (l) A suit can be instituted for personal relief against a defendant In a Court within the local limits of whose Jurisdiction the defendant is residing or carrying on business on the date of the Institution of the suit, wherever the cause of action for the suit had arisen and (2) to such a suit, the provisions of the Statute of Limitation in force in the country of the forum, i.e., the 'lex fori' would apply. Applying these principles to the present case, we hold that the suit was maintainable against the second defendant in the Court of the District Munsif of Paramakudi as he happened to reside within the limits of the Jurisdiction of that Court and that SECTION 13, Limitation Act, would apply to the'case and the plaintiff would be entitled to deduct the time during which the defendant had been absent from British India in computing the period of limitation prescribed for the suit. The decision in AIR 1928 Mad 1088 (A) on the authority, of which the Courts below came to a contrary conclusion, was, in our opinion, wrongly decided.
12. The appeal is therefore, allowed. As thereis a concurrent finding against the second defendant on his plea of discharge the suit is decreed against him for the amount claimed inthe plaint with interest from the date of suit atsix per cent, per annum, with costs throughout.As already observed the suit was not malntain-able and will stand dismissed as against the firstdefendant.