Case No: Civil Appeal No. 10 of 1988
Judge: ATM Afzal ,
Court: Appellate Division ,,
Advocate: Mr. Mahmudul Islam,MR. SR Pal,,
Citation: 42 DLR (AD) (1990) 63
Case Year: 1990
Respondent: Abdus Sobhan Talukder
Subject: Limitation, Law of Contract,
Delivery Date: 1989-6-5
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J
Bangladesh, represented by the Deputy Commissioner, Pabna and ors
Abdus Sobhan Talukder (Md.) and anr
June 5, 1989.
The Limitation Act, 1908
The Limitation Act, 1908
Section 13 and Article 113
No date having been fixed for performance of the contract, the second part of column 3 of Article 113 will apply to the case i.e. time will begin to run when the plaintiff has notice that performance is refused. The suit having been filed long after 3 years of refusal of the defendant was prima facie barred by limitation. The defendant having left the country immediately after refusal the plaintiff is entitled to the benefit of section 13 of the Evidence Act in that the law allows the period of absence of the defendant to be excluded from the period of limitation…………………..(11 & 23)
Cases Referred to-
Khan Sher Dil Khan Vs. Sir Abdul Wadud 7 DLR (FC) 170; Forbes & others Vs. Smith (1856) II Exchequer 161; Atul Kristo Bose Vs. Lyon & Co. (1887); ILR 14(Cal) 457; Veeraswami Reddy Vs. Kanakammal AIR 1961(Mad)198; Muthia Chettiar & ors. Vs. V.E.S. Shanmugham Chettiar & another, AIR 1969(SC) 552; ILR 8 Bom 561; ILR 4 All. 530; 7 DLR (FC) 170.
Maksudur Rahman, Senior Advocate, instructed by B. Hossain, Advocate-on-Record—For the Appellant Nos. 1 & 2.
S.R. Pal, Senior Advocate, instructed by Kazi Ebadul Hoque, Advocate-on-Record—For the transposed Appellant Nos. 3-5.
Mahmudul Islam, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record—For the Respondent No.1
Not represented-Respondent No.2.
Civil Appeal No. 10 of 1988.
(From the judgement and order dated 18 February 1987 passed by the High Court Division, Rangpur Session in Civil Revision Case No. 127 of 1982).
This appeal by leave at the instance of respondent Nos. 3-5 (defendants) (transposed to the category of petitioners in the leave petition) arises out of judgment and order dated 18 February 1987 passed by a Single Judge of the High Court Division, Rangpur Bench in revision decreeing O.C. Suit No. 335 of 1969 after setting aside the judgment and decree of the courts below.
2. Plaintiff-respondent (No.1) brought the said suit for specific performance of contract in the Second Court of Assistant Judge, Serajganj alleging, inter alia, that defendant No.1 (respondent No. 2 herein) contracted to sell the suit land to him for a consideration of Tk. 999/- and on receipt of the entire consideration executed kabala (Ext. 1) on 29.4.63. Then income tax clearance certificate was obtained on 8.2.64 but the kabala was not registered as defendant No. 1 was away from his house and soon thereafter the East Pakistan Disturbed Persons (Rehabilitation) Ordinance 1964 was promulgated. Defendant No.1 being a member of the minority community was required to take permission under the said Ordinance for making transfer and being requested by the plaintiff to obtain the same, he refused raising this or that plea. Plaintiff then himself filed petition to the Board of Revenue for permission for registration of the kabala. On 2.4.69 he was intimated by the Board of Revenue that no permission was necessary as the Ordinance lost its force in the meantime. Defendant No. 1 having already left for India the suit was filed on 24.12.69 upon assertion that the cause of action arose on aforesaid 2.4.69.
3. Defendant No.2 (petitioner No. 2 in the leave petition) and defendants 3-5 (appellants) filed separate written statements but the suit was contested by the appellants only. Their case, inter alia, is that defendant No. 1 left for India in the last part of March 1964, that he never possessed the suit land, that the suit land was duly declared enemy property and they took lease of the same from the Assistant Custodian, Pabna. It was asserted that the suit was barred by limitation.
4. The learned Assistant Judge found that no attempt for permission was made in 1964, that permission was sought in 1968 and that cause of action arose when defendant No.1 left the country in 1964 and as such the suit was barred by limitation and further that the plaintiff had miserably failed to prove his own case. Accordingly the suit was dismissed by judgment and decree dated 19.9.75. On appeal by the plaintiff, the learned Subordinate Judge, Pabna agreed with the finding of the trial Court as to limitation but reversed the other finding on merit holding that the plaintiff had proved his alleged contract. In the result, therefore, the appeal was dismissed by judgment and decree dated 5.3.79.
5. The plaintiff then went to the High Court Division in revision and obtained the rule in Civil Revision No. 127/82. A learned Single Judge who heard the matter, by the impugned Judgment, decreed the suit in favour of the plaintiff upon reversing the findings on limitation made by the courts below. The learned Judge held that the cause of action in the suit arose in 2.4.69 when the plaintiff was informed by the Board of Revenue that no permission was required as the Ordinance in question had already expired. The suit having been filed within 3 years next from that date i.e. 2.4.69 it was not barred by limitation.
6. Leave was granted to consider whether the issue as to limitation was correctly decided by the High Court Division and further whether the High Court Division was wrong in holding that the vesting of the suit land in the Custodian of the Enemy Property did not authorise them to lease out the suit land without first taking possession thereof.
7. At the hearing of the appeal Mr. S.R. Pal, learned Advocate for the appellants, made his entire submission on the first ground relating to limitation and the reply also on behalf of the plaintiff-respondent was limited to that point. We take it that the appeal has been pressed on the question of limitation only and on no other ground.
8. The question which calls for consideration is whether the view taken by the learned Judge of the High Court Division that the cause of action arose on 2.4.69 and thus the suit was not barred by limitation was correct or not. Mr. S.R. Pal has submitted that the said view is entirely misconceived. Mr. Pal, however, conceded that the learned Judge of the High Court Division was right in holding that Article 113 of the Limitation Act shall govern the present case and not Article 181 thereof as was (allegedly) held by the Courts below. According to Mr. Pal, the limitation will start from the date of the Kabala i.e. 29.4.63 but if it is not accepted the time will run, in any case, from 8.2.64 when income tax clearance certificate was obtained for the purpose of registration of the kabala. In either case, the suit will be barred because it has been filed tong after 3 years on 24.12.69.
9. Mr. Mahmudul Islam, learned Advocate for the plaintiff-respondent No.1, has frankly submitted that he agrees with Mr. Pal that the view taken by the learned Judge of the High Court Division that the cause of action arose on 2.4.69 was wrong. He has, however, submitted that the cause of action arose when respondent No. 1 refused to take step for obtaining permission under the Ordinance and that must have been before the end of March 1964 when admittedly respondent No.1 had left for India. Mr. Islam submits that the suit would have been clearly barred by limitation but for section 13 of the Limitation Act which provides that the plaintiff is entitled to exclude the period of absence of the defendant from the country. Thus viewed, Mr. Islam submits, it could not be said that the suit was barred by limitation.
10. All the courts including the High Court Division proceeded on the basis that the period of limitation is 3 years. The courts below, however, have not specifically mentioned Article 113 nor Article 181 as stated by the learned Judge of the High Court Division in his judgment. There was some controversy as to whether the time taken by the plaintiff for seeking permission under the Ordinance and/or the period of pendency of the Ordinance itself could be excluded in computing the period of limitation. The Courts below took the view that no absolute bar in filing the suit under section 6(2) of the Ordinance and further that the plaintiff having applied for permission in 1968 when the suit was already time-barred, the limitation of 3 years, in any case, debarred the plaintiff from instituting the suit. Mr. Islam has candidly submitted that he does not dispute the proposition that notwithstanding the bar of section 6(2) of the Ordinance, the plaintiff could at least file his suit. His simple contention is that but for section 13 of the Limitation Act, the plaintiff has no way to save the suit from limitation.
11. We do not hesitate to hold that the view taken by the learned Judge of the High Court Division that limitation started from 2.4.69 was entirely wrong. Three years limitation under Article 113 begins to run from "The date fixed for the performance, or if no such date is fixed when the plaintiff has notice that performance is refused". Evidently the intimation of the Board of Revenue dated 2.4.69, which has been held to be the date when the cause of action arose, has nothing to do with the requirements as above which will govern the time for running of the limitation. Further, there being no dispute that there was no total prohibition under Ordinance for filing of the suit, the time spent for obtaining permission or the pendency of the Ordinance or the intimation by the Board of Revenue were not of any relevance. It must be said that although the right Art. (113) of the Limitation Act has been found to govern the limitation, the learned Judge erred in misapplying the law to the facts of the case. No date having been fixed for the performance of the contract, the second part of column 3 of Article 113 will apply to the case i.e. time will begin to run when the plaintiff has notice that performance is refused. The plaintiff’s case is that the respondent in spite of request made by the plaintiff refused to file application for permission for registration of the document and admittedly he had left for India in the last part of March 1964. The suit having been filed on 24.12.69 tong after 3 years of refusal of the defendant the suit was, prima facie, barred by limitation.
12. Now the question which emerges for consideration is whether the plaintiff is entitled to the benefit of section 13 of the Limitation Act. In other words, could the period of the defendant's absence from the country, now Bangladesh, be excluded in computing the period of limitation. If the answer is in the affirmative the suit will be saved but otherwise not.
Section 13 of the Limitation Act runs as follows:
"In computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from (Bangladesh) and from the territories beyond (Bangladesh) under the administration of (Government)....shall be excluded."
It has been argued that in computing the period of limitation the period of absence of defendant No.1 from the country since the last part of March 1964, which is admitted, should be excluded. Apparently on a plain reading of the section there does not appear to be any good reason not to accept the submission. Mr. Pal, however, has submitted that the word 'absent' in the section should be understood in the sense of temporary absence i.e. one who was present but absent temporarily and likely to return at some further date. In the instant case he submits that the plaintiffs own case being that the defendant had left Pakistan for India (implying for good) the section is not attracted. Mr. Pal submits that if the contention of Mr. Islam is accepted then it will mean that the plaintiff can wait indefinitely and in that case the law of limitation will be frustrated. This could not have been the intention of the legislature. In this connection, Mr. Pal has referred to the decision in the case of Khan Sher Dil Khan Vs. Sir Abdul Wadud 7 DLR (FC) 170.
13. Mr. Islam has submitted that it will be unreasonable to put any imaginary qualification to the word 'absent' when the legislature, in its wisdom, has chosen not to qualify the said term. The word 'absent' should be given its ordinary and unrestricted meaning without any qualification, he submits. He has further submitted that there will be neither indefiniteness nor frustration as the plaintiff is not debarred from bringing the suit even during the absence of the defendant but all that the law provides is that he will be entitled to exclude the period of the absence of the defendant in computing the period of limitation. In support of his submission he has cited several decisions to which we shall presently refer.
14. In the case of Forbes & others Vs. Smith (1856) II Exchequer 161 a replication (Plaintiffs answer to defendant's plea) was being considered. Plea was taken by defendant that the suit was barred as it was not brought within the prescribed period of 6 years of the accrual of the cause of action and further that defendant's return was a condition precedent for institution of the suit.
15. Plaintiff answered that at the time the cause of action arose the defendant was not in the country and the defendant did not at any time between the time of accrual of cause of action and six years before the commencement of suit return to the country and continued beyond the country until six years before the commencement of the suit.
16. As per Sec. 19 of 4 Ann C.16 if the defendant, at the time the cause of action accrued, shall be outside the country, the plaintiff shall be at liberty to bring the said action against the defendant within six years from the date of return of the defendant. It was contended that enactment made the return of the defendant and the commencement of the action within six years afterwards condition precedent to the right to maintain it. It was further contended that the plaintiff had first a period of six years within which he might bring his action, then there was a further period of six years to begin at future time when the defendant returned; but between the first and the second period the plaintiff could not maintain any action. This contention was rejected by all the three judges.
17. It was held by Platt, B. that "if the defendant is abroad, the limitation does not begin to run until six years after his return, but the plaintiff is not obliged to wait until his return."
18. In the case of Atul Kristo Bose Vs. Lyon & Co. (1887) ILR 14(Cal) 457, the defendants were foreigners and they never came to India on or after the date of the accrual of the cause of action. It was argued that the word 'absent' should be understood as applicable only to such persons as have been present or would ordinarily by present or may be excepted to return. Various other restrictions upon the meaning of the word 'absent' were suggested that it would be held applicable only to persons who ordinarily reside in India; or, again, to persons who are temporarily absent and intend to return. It was, however, held "but the section in question is not intended to define the persons for or against whom limitation shall run but to direct the mode of computing time. And if we were to attempt to restrict the meaning of 'absent' in such ways as are contended for, there is probably no limit to the number of suggestions that might be made and, as far as we can see, no reasons for accepting one suggestion in preference to another...........The decisions upon corresponding sections in English Acts strongly support the broader construction... ....The words of the section are express and the case is within them."
19. A Single Judge of the Madras High Court in the case of Veeraswami Reddy Vs. Kanakammal AIR 1961(Mad)198 held that the interval between the date when the cause of action arose and the date when the suit was instituted should be first computed. From that interval the time during which the defendant has been absent from India should be subtracted by virtue of sec. 13. This reply was given in answer to a similar contention raised by Mr. Pal here that s.13 is not available because s.9 enacts that when once time has began to run no subsequent disability or inability to sue stops it.
20. It was further held that the "the journeys of the defendant or his absence from India did not affect his right to sue. The Limitation Act nowhere says that no suit may be filed when the defendant is outside India." In that case the suit was filed on a promissory note seven years after its execution, the defendant having gone over to Ceylon two years after executing the said note and did not come back to India since then. The learned Judge referred to ILR 8 Bom 561 and ILR 4 All. 530 in support of the view taken.
21. In the case of Muthia Chettiar & ors. Vs. V.E.S. Shanmugham Chettiar & another, AIR 1969(SC) 552 it has been held "In computing the period of limitation prescribed for the suit, "the time during which the defendant has been absent from India" has to be excluded under section 13. The words of the section are clear and full effect must be given to its language. The section makes no exception for cases in which the cause of action arose in a foreign country or for cases in which the defendant was in a foreign country at the time of the accrual of the cause of action. In all such cases the time during which the defendant has been from India must be excluded in computing the period of Limitation."
22. We have considered the only decision cited by Mr. Pal, 7 DLR (FC) 170, which does not say anything contrary to what has been noticed above. Indeed it is no authority in support of the contention of Mr. Pal that a restricted meaning should be given to the word 'absent'. In that case provision of section 13 was sought to be invoked in an action against the Wali of Swat State. It was observed that the wording of sec. 13 makes it clear that it has no application to an entity which could neither be present in nor absent from the territories specified. It was observed earlier in that case that the suit was to be brought in the name of the State under section 87 C.P.C. Obviously such a defendant is incapable of being either present in or absent from 'British-India' or indeed any other territory. It was finally held that "section 13 of the Limitation Act is a rule of extension of limitation, which applies within its terms, and as has been seen already its terms do not operate in relation to a legal entity such as the State of a Ruling Chief".
23. Section 13 of the Limitation Act occurs in Part III under the heading 'Computing of Period of Limitation'. It is based on English Law, according to which, if the defendant is beyond seas at the time of the right of action accruing to the plaintiff, the time or times appointed by the statute do not begin to run until the defendant returns from beyond seas. (Banning on Limitation 3rd Edn, P. 65) It is a rule of extension of limitation providing for excluding of the period of absence of the defendant from Bangladesh. From the language of the section and also in view of the authorities noticed above it appears to us that the word 'absent' occurring in section 13 should be given its plain and ordinary meaning without subjecting it to any qualification. When the law allows the period of absence of the defendant to be excluded, why should that be denied to a plaintiff by puling some artificial meaning to the word 'absent' merely because the period may be too tong in a particular case. However, the plaintiff is not obliged to wait till the return of the defendant but if he choose to wait, which will be at his risk and prejudice, the time of absence of the defendant must be excluded. In the practical field it is difficult to conceive that a plaintiff would wait indefinitely on account of the absence of the defendant to allow his claim to become stale or to allow disappearance of all evidence by lapse of time. In the view of section 13 which we take, it is clear that the instant suit is saved from limitation. There has been no dispute before us that defendant No.1 left the country in the last part of March 1964 and has not returned since then. Mr. Islam has been able to make out a case for the plaintiff with adroitness, the force of which Mr. Pal has found difficult to resist.
24. Although we do not agree with the view taken by the learned Judge of the High Court Division on the question of limitation, but nevertheless, for different reasons as indicated above, we also take the view that the suit is not barred by limitation.
The final order of the High Court Division in the impugned Judgment, therefore, stands.
25. In the result the appeal is dismissed without any order as to cost.