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Mohamed Sulaiman Rowther Vs. N.K.A. Mohamed Ibrahim - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1967)2MLJ483
AppellantMohamed Sulaiman Rowther
RespondentN.K.A. Mohamed Ibrahim
Cases ReferredIsmailji v. Ismail Abdul I.L.R.
Excerpt:
- .....time, that is the defendant should not have been in india for a period exceeding thirty-six months from the date of the commencement of the cause of action until the date of filing of the suit. thus calculated, it cannot be disputed that the present suit, is in time. learned counsel would address certain arguments on the merits and the evidence. the scope of the jurisdiction of this court in revision is strictly limited.3. in the result the revision fails and is dismissed with costs.
Judgment:

M. Natesan, J.

1. This revision is directed against the decree on appeal in a suit on a. promissory note for the recovery of a sum of Rs. 914-90. The last endorsement on the promissory note is dated 17th February, 1952, and the suit, it is stated, is saved from the bar of limitation under Section 13 of the Limitation Act,1908, by the absence of the defendant from India. The learned District Judge has found that if the period during which the defendant had been outside India are excluded, the suit is within time. The learned Counsel for the petitioner contends that it is not open to the plaintiff to add up the several periods during which the defendant had been outside India, and he can avail himself of the provisions of Section 13 of the Limitation Act only in cases where there is continuous absence. Learned Counsel, contends that once the defendant returns back to India thereafter the time will begin to run and there can be no suspension of the running of limitation even if the defendant should be out of India thereafter. I see nothing to warrant this limitation in the applicability of Section 13 of the Limitation Act. Section 13 runs thus:

In computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from India and from the territories beyond India under the administration of the Central Government shall be excluded.

2. The provision for exclusion of the time during which the defendant had been outside India is mandatory. The section does not state that it must be one continuous period and there is no scope for the interpretation that if the defendant had, at intervals, been within India, he cannot get the benefit of Section 13. Learned Counsel is unable to cite any authority for his contention, and he admits that the decision in Veeraswamy Reddy v. Kanakkammal : AIR1961Mad199 , is against his contention though not directly in point. But there is the decision Ismailji v. Ismail Abdul I.L.R.(1921) Bom. 1228, which supports the plaintiff. As I read the section, even if the defendant is absent, not at a continuous stretch but at intervals, still it will be time during which the defendant has been absent from India, and the plaintiff would be entitled to deduct the total period of absence of the defendant from India. If, deducting the entire period of absence, the suit is within three years from the commencement of the cause of action, the suit will be in time, that is the defendant should not have been in India for a period exceeding thirty-six months from the date of the commencement of the cause of action until the date of filing of the suit. Thus calculated, it cannot be disputed that the present suit, is in time. Learned Counsel would address certain arguments on the merits and the evidence. The scope of the jurisdiction of this Court in revision is strictly limited.

3. In the result the revision fails and is dismissed with costs.


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