CHOTMAL GANESHRAM BHARADIA Vs. RAMCHAND TARACHAND

JUDGEMENT

(1.) THIS is an appeal from a Judgment of Mr. Justice Coyajee who dismissed the plaintiff's suit on the preliminary issue of limitation.

(2.) THE plaintiff alleged in the plaint that the defendants employed him as their commission agent to enter into transactions in various commodities in the Samvat Year 1993-1994 (i. e. 1936-37) and that he acted as their commission agent upto 1938-39. The accounts between the plaintiff and the defendants upto Samvat Year 1994 were according to the plaintiff made up and adjusted on the 4th August, 1937. There were further transactions between the parties and the suit is in respect both of the adjustment and the subsequent transactions.

(3.) NOW, there is no dispute that prima facie the suit is barred. The suit was filed on the 24th January, 1953 in respect of transactions which were completed in 1939. The plaintiff sought to bring the suit within time by relying on Section 13 of the Limitation Act and his averment in para 9 or the plaint was that the defendants were residing and carrying on business at Madhavpur in Jaipur State, a foreign territory upto 26th January, 1950. It is also not disputed that if this period was to be excluded, then the suit filed on the 24th January, 1953 would be within time. Therefore, the whole Question turns round the controversy as to whether the plaintiff is entitled to exclude this particular period and what was urged by the defendant was that looking to the law which was in operation at the date the suit was filed, viz. , the 24th January, 1953, the plaintiff was not entitled to exclude the period during which the defendants resided in the Jaipur State. Now, the law that was in force on the 24th January, 1953 permitted by S. 13 exclusion of time in computing the period of limitation prescribed for any suit during which the defendant had been absent from India and from the territories beyond India under the administration of the Government. It is undoubtedly true that if one were to contemplate "india" from the point of time of the 24th January, 1953, the defendants had not been absent from India at any time prior to the 24th January. 1953 because on the 24th January, 1953 India included the Jaipur State as an integral part of the country and it could not be said of the defendants that they had lived and carried on business outside India -- that India which was in existence and which was a political and geographical entity in 1953. It is also urged on behalf of the defendants by Mr. Dave that the law of limitation is a procedural law and it is well settled that no party has a vested right in procedure, and Mr. Dave asked us to ignore whatever the provisions of the Limitation Act were prior to the 24th January, 1953 and to give effect to the law in force on that day, even if in doing so a retrospective effect was given to the law and the right of the parties was affected.