Calcutta High Court
Harrington vs Gonesh Roy on 7 February, 1884
Equivalent citations: (1884)ILR 10CAL440
JUDGMENT Tottenham, J.
1. It is unfortunate that in this appeal nobody has appeared for the respondent, and therefore no arguments have been put before us in favour of the District Judge's order.
2. It appears to us that the reason given by the District Judge for holding that the suit was not barred by limitation cannot be supported in law. The Judge relies on Section 13 of the Limitation Act, which provides that "in computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from British India shall be excluded." He goes on to say "admittedly Mr. Harrington," the defendant in this case, "has been so absent from the date of dispossession till now." It seems, however, that Mr. Harrington is represented in this country by Mr. Orowdy, who, in the first instance, was made a defendant in the case as manager and mookhtar of the Bhugwanpur Factory.
3. If the Judge's interpretation of Section 13 were correct, there would be no limitation at all as against a proprietor residing in England, although suits might be conducted for and against him through his agent in this country. It is impossible to believe that this was the intention of the law. Mr. Harrington, the proprietor, was not made a defendant until the 16th June 1881, and by Section 22 of the Limitation Act a suit as against him is to be taken to be instituted on that date. That was more than one year after the alleged dispossession. It seems a hard case that the plaintiff should be shut out from relief by his ignorance that Mr. Harrington was the real proprietor; but, as observed by the Subordinate Judge, he was clearly aware that Mr. Crowdy was not the proprietor in that he sued him merely as "manager and mookhtar." It was, therefore, within his power to ascertain against whom the suit ought to have been brought.
4. Upon a strict interpretation of the law we think that the Subordinate Judge was right in holding that the suit was barred.
5. We must, therefore, set aside the order of the lower Appellate Court, and restore that of the first Court with costs, one gold mohur.