Cause of action arising out side India.

This case involves an interpretation of section 13 of the Indian Limitation Act and was referred by Satyanarayana Rao and Rajagopalan, JJ., to a Full Bench because they were of opinion that the decision in Rathina Tevan v. Packirisami Tevan1 on the authority of which the case was disposed of in the Courts below required reconsideration.

The suit which was filed in the Court of the District Munsif of Paramakudi was for the recovery from two defendants of a sum of Rs.1,466-10-4 alleged to be due on account of dealings had by the defendants with the plaintiff’s shop from 23rd August, 1941 to 18th October, 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 alone been in Rangoon and the 2nd defendant alone had returned to India two months prior to the suit, the 1st defendant still remaining in Burma. The 1st defendant allowed the suit to proceed ex parte. The 2nd 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 2nd defendant is true, and (2) whether the suit is in time. The District Munsif, and on appeal the Subordinate Judge of Ramnad, found that the discharge pleaded was not true and that the suit was barred by time. The suit was therefore dismissed. The plaintiff is the appellant.

It is quite clear that the suit was not maintainable against the 1st 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 1st defendant (vide section 20 of the Code of Civil Procedure).

So far as the 2nd defendant’ is concerned, 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 of the Indian Limitation Act.

That section runs thus:

“In computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from British India and from the territories beyond British India under 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 2nd 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 Courts below decided against the plaintiff following the authority of a decision of a Divisional Bench of this Court in Rathina Tevan v. Packirisami Tevan1. The material facts in that case were as follows. The plaintiff and defendant who were residents of Mannargudi in India had gone to Quala Lampur to earn their livelihood, and while there the defendant executed a promissory note to the plaintiff on 16th November, 1921. In 1925 the plaintiff brought a suit in the District Munsiff’s Court of Mannargudi on the promissory note and sought to deduct the time during which he was absent in Quala Lampur under section 13 of the Limitation Act. The learned Judges held that the plaintiff was not entitled to the benefit of section 13 as the cause of action for the suit did not arise in British India but at Quala 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 Biritish India shall be excluded. It obviously means computing the period of limitation for a suit which is maintainable in India, and therefore, the transaction mus