The Court delivered the following judgments:—
Maclean, C.J:— I had the advantage of hearing this case argued before the Division Bench of which I was a member, and I have had the further advantage now of having heard the case reargued by the learned Advocate-General, but the later arguments have not shaken the view I entertained and expressed when the case was before us on the previous occasion. The facts in this case have been found in the reference, and the short question we have to decided is, whether or not having regard to sec. 13 of the Limitation Act, and to the fact found in the reference that all the partners in the Defendant's firm were absent from British India from Feb. to Nov. 1896, the time of such absence is to be excluded in computing the period of limitation prescribed for the suit. It is conceded by the Defendants that, if such time be excluded, the suit has been instituted within the prescribed period, and is not barred by the statute.
It is found as a fact in the case that the Defendants had a place of business—I assume, in Calcutta—which was carried, on by a manager, to the knowledge of the Plaintiffs, and that the Defendants'; manager held a power of attorney which-authorized him to institute and defend: suits.
It is contended for the Defendants that, sec. 13 only applies to cases where the jurisdiction is founded upon residence, and that it does not apply to cases in which the carrying on of a business in, Calcutta is the basis of the jurisdiction in other words, that the section does not apply, and could not have been intended, to apply, when the Defendants to the knowledge of the Plaintiffs' have a place, of business in Calcutta carried on by a manager, who is authorized to institute and defend suits, and when, in fact, the Defendants, to the knowledge of the Plaintiffs, are represented in British India by a duly authorized agent. In support, of this contention the case of Harrington v. Gonesh Roy is strongly relied on by the Defendants. I doubt, however, whether, having regard to the clear, and precise language of sec. 13, that decision is well founded, for it seems to me that whatever may be the common sense of the decision, it can only be arrived at by interpolating into the section words that are not there, words to the effect that the time of absence is not to be excluded if the Defendants are, during the period of personal absence, represented by a duly constituted agent in British India. Although we have been referred to the case, of Hawkins v. Gathercole as to the manner in which statutes are to be construed, I do not see my way to put the construction upon the section for which the Defendants contend for, if we did so I think we should be rather legislating than adjudicating upon the section as it stands. It may well be that it would be expedient not to allow the time of absence from British India to be excluded, if the Defendants be carrying on business in British India and be represented by a duly authorized agent during such absence but if this change is to be made it must be made by the Legislature. Reading the language of sec. 13—a section, be it remembered, in a Limitation Act, the provisions of which must be construed strictly and which when set up as a defence, must not be extended to cases which are not strictly within the enactment, whilst exceptions or an exemption from its operation are to be construed liberally, see per Lord Crawnworth in Roddam v. Morley (3), reading, I say, that section according to the ordinary significance of the words used I think we are not warranted in holding that the section does not apply to cases where the Defendants are, during the period of absence, carrying on business in British India through an authorized agent. In other words, I do not see my way to getting over the clear and precise language of the section, feeling, as I do, that the words of the section are too strong against the view contended for by the Defendants and that we could only support that view by the interpolation of words to the effect I have stated above. This I do not think; we are justified in doing. My opinion is supported by the case of Atul Kristo Bose v. Lyons & Co. , in which decision, notwithstanding the able criticism of the Advocate-General upon it, I concur and is strengthened by the consideration that the words in the corresponding section of Act IX of 1871 as to service of a summons to appear and answer in the suit have been omitted in the present section.
With reference to the further argument which has been addressed to us to day that sec. 9 of the Limitation Act must be read in conjunction with sec. 13 of the same Act, it is no doubt a cardinal rule of construction that, in construing any Act of Parliament, one may look at the whole Act to ascertain what the for intention of the Legislature was but to my mind, notwithstanding the decision to which our attention has been called in Narranji Bhimji v. Mugniram Chandaji , I am unable to see how sec. 9, even if read with sec. 13, can assist the Defendants in the present case. Sec. 9 only says that “when once the period of limitation has commenced to run in any case, it will not cease to do so by reason of any subsequent disability or inability to sue.” I do not see the application on that section to the present case. Here there is neither sub-sequent disability or, in my judgment, inability to sue. What disability or inability is suggested? None, so far as I have heard. In his work on the Law of Limitation by Babu Upendra Nath Mitter, the author at page 240, gives this definition of disability and inability. “Disability,” he says, is “want of legal qualifications to act.” “Inability” is “want of a physical power to act.” I do not say these definitions are exhaustive: few definitions are but so far as they go I am not prepared to dissent from them. It is perhaps unnecessary to prosecute this matter further, for I am unable to see where, in this case, the disability or inability existed I think, therefore, that the Chief Judge of the Court of Small Causes was right in holding that the case came within sec. 13 of the Limitation Act, and that the Plaintiff's have brought their suit within time.
O'Kinealy, J.:— I agree in thinking that the suit has been brought within time, and that the view taken by the Chief Justice of sec. 13 of the Limitation Act is correct.
Trevelyan, J.:— I agree entirely with what has fallen from the learned Chief Justice.
Ghosh, J.:— and so do I.
Ameer Ali, J.:— I also agree with the learned Chief Justice.