P L D 1955 Federal Court 174 (PLP)

CORNELIUS, J.‑This appeal from a judgment of the Judicial Commissioner of the North‑West Frontier Province comes before us on a certificate granted by that Court. The appellants were the plaintiffs in the suit which was brought to pre‑empt a‑ sale of land effected by a resident of Mardan District, in favour of Sir Abdul Wadud alias Mian Gul Shahzada. Wah of Swat State. The sale‑deed was registered on the 20th December, 1940 Limitation was apparently believed to be one year under Article 10 in Schedule I to the Limitation Act, 1908, for suit was institut ed on the 19th December, 1941. A preliminary objection was taken on behalf of the Wali of Swat that he. was a Ruling Chief, and the suit wag not maintainable against him without the written consent of the Central Government as required by section 86, C. P. C. It is of interest to note here that two of the, plaintiff namely Pir Muhammad Khan and Sher Dil Khan had .applied on the 8th December, 1941 to the Central Government for the necessary consent.. The third plaintiff, the Chief of Hoti, made similar application on the 26th of December, 1941. Formal consent was issued to each of the three plaintiffs by the Government of India on the 10th February 1942. On the 18th February, 1943, tha trial Court granted permission to the' plaintiffs to amend their plain so as to make it a suit against the State of Swat, in case be held that the Wali of Swat was a Ruling Chief. The amended plaint was tiled on the 1st March, 1943, and was supported by the consent orders of the Central Government. The question for decision in this appeal is whether the suit is barred by time, and on .this point, the decision of the trial Court and the lower appellate Court were as follows. It was held that the Wali of Swat was a Ruling Chief within .the meaning, of section 86 C. P. C.' The period of limitation in the opinion of the trial. Judge was six years under Article 120, and not one year under Article

10. He purports to draw this conclusion by. a process of argument from the judgments of two Judges of the Bombay High Court in the case Mahuraj Gaikwar of Baroda v. Modhavrao Ragunathrao Dhavale 53 Bom. 12, it is not surprising that both the argument as well as the conclusion, suffer from obscurity. For Article 10 is so clearly addressed to the enforcement of rights of pre‑emption that it is difficult conceive of circumstances which would take a case of pre‑emption out of this Article and bring it within Article

120. In the present case, the trial Judge appears to have thought that this was possible because of the special nature of the immunity enjoyed by a Ruling Chief, but it seems entirely impossible to accept his view, In the lower appellate Court, it was agreed between counsel for the parties that Article .10 applied, and that Court held that time began to run from the date of registration of the sale‑deed, viz., the 20th December, 1941. That is the basis on which the argument has. proceeded in this Court, and we are of opinion that it is clearly the correct basis in law. Having found that limitation was six years under Article 120, the trial Judge was not concerned to examine the legal. possibilities of extension of time, but the question. Arose sharply for decision before the learned Judicial Commissioner. The original plaint was clearly within time, but was not supported by the Central Government's consent. 1t was held that the consent "was a condition precedent, that without such previous consent, the suit could not be maintained", and that the. consent issued on the 10th February 1942 "would not validate the institution of the suit." The argument was then raised that the suit should be deemed to have been instituted on the Ist March, 1943, when the amended plaint was .filed. It was rejected by the learned Judicial Commis sioner, who observed as follows :‑ "This argument is entirely fallacious and devoid of substance . . . it is well‑established that the representa tion of the plaint after amendment is not a fresh institution of the suit." . The trial Judge had decreed the claim, but on the above finding regarding limitation, the lower appellate Court reversed his judgment and decree, and dismissed the suit. The plain tiffs have presented their appeal, on a certificate, through Mr. Bashir Ahmad, whose argument may conveniently be dealt with in four parts, viz. :‑ (1) that limitation is saved under section 13, Limita tion Act ; (2) that extension should be allowed . under section 14, Limitation Act ; (3) that the time spent in procuring the Central Gover nments consent should be allowed by way of exten sion ; and (4) in the last resort, that the consent orders might be regarded as operating retrospectively, so as to validate the original plaint. Section 13 of the Limitation Act, 1908, in its original form, provides that in computing a period of Limitation "the time during which the defendant has been absent from British India and from the territories beyond British India under the administration of Government, shall be excluded." (The references to "British India" are appropriate, as the relevant events all occurred prior to the Partition of the sub‑continent). It was contended that as the Wali of Swat lived mostly in the State of Swat, which was not part of British India, nor was it a territory beyond British India under the administration of the then Central Government, consequently enlargement of time for the whole period from the date of sale up to the date of suit should be allowed. The argument is based on a fal lacy. By section 87 C. P. C , it is provided that a suit brought in a domestic Court against a Ruling Chief shall be brought in the name of the State, i.e , such suit is legally to be regarded as a suit in which the defendant is the State itself. Obviously such a defendant is incapable of being either present in or absent , from British India" or indeed any other territory, The wording of section 13 of the Limitation Act makes it clear that it has no application ‑ to an entity which could neither be present in nor absent from the territory specified. In order that extension should become necessary, it is obviously also necessary that time should have started to run ; and again, the terminal date of the period of extension may perhaps coincide with the date of suit, but the commencing date must be fixed by the point of time at which the defendant became absent, which . postulates that he was previously present. The State of Swat could not ever, either physically or notionally, be present in "British India." In support of his argument, Mr. Bashir Ahmad relied upon certain observations in the case Maharaj Gaikwar of Barada v. Madhavrao Ragunathrao Dhavale (cited above) contained in the judgment of Fawcett A. C. J., to the effect that the Gaikwar of Baroda who was the defendant in the case was not absent from British India within the meaning of section 13, as he carried on business through representatives in British India. Consequently, extension under section 13 was, refused by this learned Judge, but the other Judge in the case, Murphy J. preferred to base his conclusion to the same effect, on the ground that, if the argument were allowed; the effect would be to extend limitation in the relevant case indefinitely, and thus to nullify the operation of the residuary Article of the Limitation Act viz.; Article

120. This, the learned Judge thought, could not be the intention of the Legislature. It is thus clear that this case is no authority for applying section 13 to the advantage of persons suing Ruling Chiefs. The argu ment of Mr. Bashir Ahmad appeared to be that if in the pre sence of an agent of a Ruling Chief within the municipal area, the Ruling Chief could not be deemed to be absent, then in a case like the present, where there was no agent, absence of the Ruling Chief must be held established. The defects of the argument is obvious. Section 13 of the ‑ Limita tion 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. Section 14 of the Limitation Act, provides for an allowance, by way of extension, of time spent "in prosecuting with due diligence another civil proceeding" where such a proceeding is "founded upon the same cause of action and is prosecuted in good faith in a Court, which from defect of jurisdiction, or other cause of alike nature, is unable to entertain it." Reliance was placed on this provision in the trial Court, without success, and the attempt was not repeated in the lower appellate Court. Mr. Bashir Ahmad touched upon this argument very briefly, and indeed there is no doubt that it i5 without validity, for this position, as respects the original plaint was that, without the consent of the Central Government, it was not competent in any‑ Court in "British India." This was not because of defect of jurisdic tion, or any similar reason ; it was because the Wali of Swat, as a Ruling Chief, enjoyed immunity from being sued at all, which immunity could only be taken away from him by the Central Government, in terms of section 86, C. P. C. Galkwar Baroda State Railway v. Hafiz Habibul Haq A I R 1938 P C 165 is clear authority for the proposition that in the absence of consent, such a suit is not maintainable at all. Consequently, A it is clear that the present suit does . not come within the terms of section

14. The argument that the plaintiffs were entitled‑ to deduct the time taken for procuring the consent of the Central Government may be shortly dealt with. The law of limitation contains no provision for extension on such a ground. No authority was produced in support, and in fact, the case Maharaj Gaikwar of Baroda v. Madhavrao Ragunathrao Dhavale (cited above) holds directly to the contrary. Moreover, as will be apparent from the dates already .mentioned, the period which was actually required for procuring the consent of the Government of India was just over two months as a maximum. The period of delay in suing was somewhat in excess of fourteen months, in relation to the plaint of the 1st March, 1943. The last argument, viz., that the consent saved the suit by retrospective operation in relation to, the original plaint of the 19th December, 1941, is plainly unacceptable‑ For here, the bar is raised on the immunity of the Wali of Swat from being sued, which the corollary is that, in the absence E of consent, the suit was not maintainable, and the Court was) not competent to deal with it at all. Mr. Bashir Ahmad relied on a case from the English Court of Chancery, Rendall v. Blair L R (1890) 45 Ch. D. 139., which does not, in fact, lend any support to his argument. There, absence of authorisation by a Board appointed under the Charitable Trusts Act, 1853, was pleaded in bar of a suit. The language of the statute requiring the authorisation was held by the Court of Appeal not to require that id the absence of authorisation, the suit should be dismissed, as it had been by the first Court. Two of the three Lords Justices went further and held that, having regard to the nature of the suit, no authorisation was necessary under the Act. The decision of the learned Judicial Commissioner reversing the judgment and decree of the trial Court and dismissing the plaintiffs' suit is, in our opinion, correct and we hereby dismiss this appeal with costs. A. H. Appeal dismissed.