RAM SARUP Vs. FAKHR-ULLAH KHAN

JUDGEMENT

(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 12 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 he 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 he 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 entiled to sue for the recovery of the money due to him on that document. It further held that the suit had been brought on the 14 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, came 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 been raised in the lower appellate court was whether the suit was barred by time. The promissory note was executed on the 12 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 15 of September, 1914, and reached France on the 13 of October, 1914. He remained there till the 15 of December, 1915. He then left for Basra where he stayed from the 8 of January, 1916, to the 15 of March, 1917, returning to India on the 21 of March, 1917. The present suit was filed on the 14 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 Reid. There it is stated that "the Indian Expeditionary Force entered the city of Basra on the 23 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 in Mesopotamia were known by the name of the Indian Expeditionary Force, and the despatches 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 occupied by the British troops or, for the matter of that, by the troops sent by the Government of India; but the occupation was military occupation for the purpose of proceeding with the expedition and protecting the army on its way onward and securing its 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 occupation, the object of which was much more restricted than that of an administration carried on for other purposes, and, in our 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 during which the defendant was absent from British India in France and Basra should be excluded. Taking that view of the matter, the suit of the plaintiff is clearly within time. In First Appeal from Order, No. 96 of 1921 Gaya and Ors. V/s. Kunj Behari Singh and Ors. decided on the 4 of August, 1921, a similar view was maintained. The learned Counsel for the defendant appellant asks 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 decided by it; but 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.