Limitation ActFrequently Asked Questions on Limitation Act
"Law thus limiting suits are founded in the noblest policy. They are statutes of repose, to quiet titles, to suppress frauds and to supply deficiency of proofs arising from the ambiguity or obscurity or the antiquity of transactions. They proceed upon the presumption that claims are extinguished or ought to be held extinguished, whenever they are not litigated in the proper forum (court) within the prescribed period. They take away all solid grounds of the complaint because they rest on the negligence or neglect of the party himself. They quicken diligence by making it in some measure, equivalent to right. They discourage litigation by bringing in one common receptacle all the accumulations of past times which are unexplained, and have now, from lapsed of time, become inapplicable."
"Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence."Law of limitation is based on well known maxim "Interest republica ut sit finis litum" i.e. It is in the interest of the State that there should be an end to litigative process. The law of limitation is based on the principle that the law aids the diligent and not the indolent, that a man who has negligently slept over his rights for an undue length of time will not be allowed to litigate in respect of them. In Livi v. Raingi 3 Bom 207, it was observed that the object of the Act is not to create or define causes of action but simply to prescribe the period within which existing rights can be enforced in Court of Law. The Limitation Act thus prescribes period within which various suits, appeals or applications for respective claims can be instituted in courts of law. If a party or claimant fails to do so, it cannot claim any further remedy, at law. The rule of limitation is a rule of procedure. It does not either create or extinguish a right. In the words of Sir Richard Couch in Harrynath v. Mather, 20 I.A. 188: "The intention of the law of limitation is not to give right where there is none nor to extinguish a right where there is one but to interpose a bar after a certain period to a suit to enforce an existing right." Limitation thus simply bars the judicial remedy, without extinguishing the right. For example, where the recovery of a debt has become time barred by the lapse of prescribed time, the right to the debt is not extinguished and if the debtor without being aware of the money due to him on the ground that his claim for recovery of the debt had become time barred. In Punjab National Bank and other v. Surendera Prasad Sinha, AIR 1992 SC 1815 Section 3 of Limitation Act bars the remedy but does not destroy the right to which the remedy relates to. Right to debt continues to exist notwithstanding remedy is barred. Right can be exercised in any other manner than by means of suit. It is settled law that the creditor would be entitled to adjust, from payment of sum by debtor towards time barred debt. It is also equally settled law that creditor when he is in possession of adequate security debt due could be adjusted from security in his possession. Law of Limitation is an absolute law and the parties cannot evade it by way of private agreement. Thus under Section 28 of the Contract Act, an agreement which limits the time within which any party thereto may enforce his rights by the usual legal proceedings in ordinary tribunals is void. Similarly, an agreement between the parties that defendant will not plead the law of limitation in a suit brought against him by the other is void. However, there is one exception to rule that law of limitation bars the remedy but not the right. This has been incorporated in Section 27 of the Act. The Section provides:
"At the determination of the period hereby limited to any person for instituting a suit for possession of any property his right to such property shall be extinguished." In First National Bank Ltd. v. Seth Santlal, AIR 1954 Punjab 328 It was observed : "Section 27 of the Limitation Act is, however, an exception to the general rule that in personal actions, the Limitation Act bars only the remedy and does not extinguish the right. In a suit for possession of any property on the determination of the period of limitation not only the remedy but the right also, is extinguished under Section 27. But a debt does not cease to be due, because it cannot be recovered after the expiration of the period of limitation provided for instituting a suit for its recovery. After a debt becomes barred a person is still deemed to owe."
1. The law of limitation is a part of `adjective law' being barring the remedy after expiry of the period of limitation, while the law of prescription is a part of the substantive law and it effects the substantive right of a person;
2. The Limitation Act prescribes the period after the expiry of which a suit cannot be filed in the court, while a right through prescription arises after the expiry of definite period of time.
3. The law of limitation imposes restrictions only on the judicial remedies and not on extra judicial remedies, while a right extinguished due to prescriptions can not be enforced by any judicial or extra judicial method.(ii) Limitation and laches : The differences between limitation and laches are as under: 1. In case of limitation, the knowledge of the ignorance of the plaintiff, with reference to his right, is deemed immaterial, while the knowledge of the plaintiff about right if proved, defeats the claim due to laches. The term laches here means, negligence or slackness. The doctrine of laches is based on the principle that `delay defeats equity.' In Roop Chand v. Madan Mohan AIR 1960 Cal. 351 it was observed that the basis of doctrine of limitation is public policy while basis of the doctrine of laches is `equity'. Laches like limitation no doubt deprive plaintiff of his remedy but it depends upon general principles of justice and fair play while limitation depends upon express law. A positive rule of limitation cannot be depended whether there is laches or not and except in the case of discretionary order, the defence of laches or acquiescence cannot prevail when a statutory period of limitation is prescribed for action. 2. Limitation prescribes a period of time within which a suit must be filed in the court, whereas period time is not fixed for laches. In case of laches, it is the duty of a court to see (a) Whether the evidences of the case have been lost or destroyed due to the delay caused by plaintiff (b) Whether the plaintiff caused unreasonable delay and (c) Whether the defendant has been induced by the plaintiff by causing delay or commission to alter his position or to incur an expense. The doctrine of laches is applied in India in the following cases:
(i) Cases relating to the Specific Relief Act;
(ii) Cases of temporary injunction;
(iii) Cases of interlocutory orders;
(iv) Cases relating to marriage and divorce;
(v) Cases relating to limitation.3. The law of limitation is based on public policy and general utility while laches is based on equity. 4. The law of limitation is based on expression while laches is based on the doctrine of impartial judicial behaviour. 5. The plea of limitation is raised by the defendant against the plaintiff while the plea of laches can be raised against both i.e. plaintiff or defendant. (iii) Limitation and Acquiescence : Acquiescence implies an active consent of a party. It widely differs from limitation particularly on the following points:
1. Limitation indicates towards the provision against which a suit cannot be filed in a court after the expiry of the prescribed time. While acquiescence refers to a position in which an objection is not raised by person against an act done by another person having a right to do so; provided that it is not inconsistent with the right of the former.
2. The right of a person to file a suit or initiate a proceeding is extinguished after the expiry of period of time while acquiescence is most wide in comparison to that because a consent is involved in it.
3. The acquiescence can either be direct or indirect but it is not so in case of limitation.
4. The acquiescence is based on knowledge and conduct of the concerning party while it is not so in case of limitation.
5. When acquiscence is proved a person who did so loses his right to file a suit in the court irrespective of the fact that the time for filing a suit has since expired or not.
"Mere reading of Section 3 of the Act shows that it is mandatory and absolute in nature. It enjoins upon the court to dismiss any suit instituted, appeal preferred or application made after the prescribed period of limitation, although limitation has not been set up as a defence. Courts have no discretion or inherent powers to condone the delay if the suit is filed beyond the prescribed period of limitation, rather a duty is cast on the court to dismiss the suit, appeal or application if the same is barred by limitation unless matter is covered by Sections 4 to 24 of the Act."So it becomes clear that provisions of Section 3 of the Act are mandatory in nature. Section 3 enjoins a court to dismiss every suit; appeal or application which is not within the prescribed period. Gateways from the peremptory provisions of Section 3 are provided by Sections 4 to 24. In other words, the court has no power, apart from the provisions of Sections 4 to 24, to relieve a litigant from the bar of limitation even on equitable consideration or on grounds of hardship or in exercise of its inherent powers. Section 4 of the Act provides that where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens. Then Section 5 of the Act provides that an appeal or any application other than the application under any of the provisions of Order 21 of the Code of Civil Procedure may be admitted after the prescribed period, if the appellant or applicant satisfied the Court that he had sufficient cause for not preferring an appeal or making the application within such period. Sections 6 to 8 of the Act extend the period of limitation in cases where the limitation expires before the cessation of disability, i.e. minority, insanity or idiocy. Sections 12 to 15 of the Act provide for excluding certain periods in computing the period of limitation. Then Sections 16 to 24 of the Act provide for the effect of death, fraud, mistake, acknowledgement in writing, part payment, addition or substitution of new plaintiffs or defendants, and continuous wrong. In such cases, the Act provides the date from which the fresh period of limitation shall begin to run.
Q. 7 A suit is held in a court and decree is passed in favour of the plaintiff. No objection on the point of limitation has been raised by defendant or any one else, can the plea of Limitation be based for the first time :-
(i) In the first appeal
(ii) In the second appeal ?
If so, under what conditions and by whom ?
"Subject to provisions contained in Sections 4 to 24 (inclusive) every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence."So from hare provision it is evident that any suit, appeal or application filled after prescribed period shall be dismissed although limitation has not been taken up as defence by other party provided case of plaintiff comes in any of exceptions as contemplated in Sections 4 to 24, but general rule is suit, appeal or application after the expiry of prescribed period is barred by Limitation. Word "Shall" used in Section 3 makes it clear that even if point of limitation may not be raised by other party, court is duty bound to see whether the suit, appeal or application is within limitation or not and if it is not and neither comes in any exceptions as incorporated in Sections 4 to 24 then court has no option but to dismiss it. So court is bound to take notice of point of limitation if it appears from facts enshrined in plaint or in other word court can not escape from taking note of defect of limitation, when it is purely a question of law capable of determination on the facts on the face of plaint. But situation is different when it is a complicated and mixed question of law as well of facts which in some situations is incapable of being determined in present facts and circumstances Plea of Limitation in Courts of First or Second Appeal In Hanuta Ram v. (sic) Ram, AIR 1971 SC 2831 it was observed that a question of Limitation can be raised in appeal though the same was not raised in Trial Court. Reference may be made of K.V. Rao v. D.V. Rao, 1956 Andhra H.R. 1956). Similarly in Kashi Ram v. Kundan Lal, AIR 1955 All. 660 it was held that where the claim is time barred on allegations contained in plaint itself, there is no reason why the plea of limitation should not be upheld if raised in appellate court. In Banarsi Das v. Kanshi Ram, A.I.R. 1963 S.C. 1165, it has been held that a new plea of limitation which is not one purely of law but is a mixed question of fact and law should not be allowed to be raised for the first time in second appeal (more so, by defendants who have not filed a written statement in the case). Even if the High Court feels inclined, in view of Section 3 of the Limitation Act to allow the plea to be raised in such a case, it should at least give an opportunity to the parties which supported the decree of the Trial Court to meet the plea of limitation by amending their pleadings, and after the pleadings are amended, the High Court should frame an issue and remit it for a finding to the Trial Court. When it cannot be raised ? The plea of limitation for the first time in the Appellate Court can be taken only when the fact necessary to determine the question of limitation are admitted or are apparent on the face to pleading. Thus, where the suit is not on face of it obviously barred by limitation, the Appellate Court should not take up the question of limitation on its own initiative. The Appellate or second Appellate Court is justified in refusing to entertain a plea of limitation which was not taken in the first Court in the ground of appeal in the Appellate Court but is urged for the first time in the latter Court where the plea for its proper decision involves further enquiry into facts.
"Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens."Explanation added to Section 4 of the Act says:
"A court shall be deemed to be closed on any day within the meaning of this Section if during any part of its normal hours it remains closed on that day."Section of the Act is based on well know maxims "Lax noncogit ad impossibilia" i.e. law does not compel a man to do impossible act. "Actus Curiae neminem gravabit" An act of the court shall prejudice no man. Section 4 of the Act does not extend the period of limitation, it merely embodies a rule of elementary justice that if the time allowed by statute to do an act or to take a proceeding expires on a day when the court is closed, it may be done on the next sitting of the Court. Their Lordships of the Privy Council observed in Maqbool Ahmad v. Onkar Pratap, A.I.R. 1935 P.C. 85 that what the Section provides is that where the period prescribed expires on a day when the court is closed, notwithstanding that fact, the application may be made on the day that the court reopens, so that there is nothing in the Section which alters the length of the prescribed period".
1. Ordinarily a litigant does not stand to benefit by lodging on appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence; or on account of mala fides. A litigant does not stand to benefit by resorting to delay.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and it is expected to do so.It was pointed out that the Courts should adopt liberal approach in the matter of condonation of delay keeping in view the above principles.
(a) obtaining a copy of the order or decree of a court and such delay was caused by the officer of the court.
(b) by the court itself in issuing orders.
(c) due to the method wrongly adopted in procuring the copy of the decree or order of the court.Such delay shall be deemed as sufficient cause for granting benefit of Section 5 of this Act. In Collector of Land Acquisition v. Mst. Katiji AIR 1987 SC 1353 Supreme Court laid down following principles for dealing the application under Section 5:
(i) Ordinarily a litigant does not stand to benefit by lodging an appeal late.
(ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
(iii) "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner.
(iv) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done of a non-deliberate delay.
(v) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence; or on account of mala fides. A litigant does not stand to benefit by resorting to delay.
(vi) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and it is expected to do so.It was pointed out that the Courts should adopt liberal approach in the matter of condonation of delay keeping in view the above principles.
Q. 12 `Y' the appellant handed over some papers to his advocate `K' in the morning of the last day for filing the appeal. Through pressure of urgent work, the advocate did not look into the papers till the evening of that day when he found that, that was the last day. The appeal was filed on next day. Is there sufficient cause to grant the appellant an extension of a day under Section 5 of Limitation Act ? Decide with the help of case law.
"(1) Where a person entitled to institute a suit or make an application for the execution of decree is at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the schedule.
(2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make application within the same period after both disabilities have ceased as would otherwise has been allowed from the time so specified.
(3) Where the disability continues upto the death of that person his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified.
(4) Where the legal representative referred to in sub- section (3) is at the death of person to whom he represents, affected by any of such disability, the rules contained in sub-sections (1) and (2) shall apply.
(5) Where a person under disability, dies after the disability ceases but within the period allowed to him under this Section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died.Explanation :- For the purposes of this Section `minor' includes a child in the womb." So Section 6 does not prevent running of limitation but only extends the period of limitation on the ground of disability of person entitled to sue or apply. Section 6 excuses an insane person, minor and an idiot to file a suit or make an application for the execution of a decree within the time prescribed by law and enables him to file the suit or make an application after the disability has ceased, counting the period of time from the date on which the disability ceased. If one disability supervenes on another disability or one disability is followed by another without leaving a gap the suit or application for execution may be filed after both disabilities have ceased to exist. If the disability or disabilities continue till the person's death then the legal representative of the deceased on whom the title devolves is allowed to file a suit or make an application for execution within the time allowed by law counting it from the death of the person entitled. The mere fact that there is a guardian for the person under disability does not deprive such person of the indulgence granted by Section 6. In Akhtar Hussain v. Qudrat Ali AIR 1923 Oudh. 31 it was observed that Section 6 of Limitation Act has no application in case of appeals. Legal disability is inability to sue owing to minority, lunacy or idiocy. The effect of legal disability is that it extends the period of limitation but it does not prevent the period from running. Some times a situation arises when one of the several persons jointly entitled to institute a suit or to execute a decree is under disability. In this connection Section 7 of Act says that if one of the several persons jointly entitled to institute a suit or make an application for the execution of a decree, is under any such disability and a discharge can be given without the concurrence of such person, the time will run against all of them. However, if such discharge cannot be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the other or until the disability has ceased. So Section 7 of Limitation Act would apply when the right to sue is joint irrespective of whether the substantive right is joint or not. Section 8 of Indian Limitation Act makes it clear that Rules contained in Sections 6 and 7 are subject to the following conditions:
1. They cannot be applied to the suits to enforce rights of preemption.
2. They cannot be applied to any of the cases in which extension of period of limitation for more than three years from the cesation of disability or the death of a person as the case may be, is sought for.
Q. 14 (i) `A' incurs a debt to a firm of which `B', `C', `D' are partners. B is insane and C is minor. D can give discharge of the debt without concurrence of B and C. When will time run against `B', `C' and `D'? (ii) A right to sue accrues to `Z' during his minority. After the accrual but while `Z' is still a minor he becomes insane. When will the period begins to run ?
"Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability and a discharge can be given without the concurrence of such person, time will run against them all. But where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased."In the case in hand `B', `C' and `D' are partners. Every partner being an agent of every other partner for purposes of firm's business can give a valid discharge for debts of Partnership. Here B and C are under disability and can not give a valid discharge in respect of debt due to firm. But `D' can give a discharge without the concurrence of B and C, hence time would run against all of them. (ii) Section 6(1) of Act says "Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application, within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule." Sub-Section (2) to Section 6 is relevant for the case in hand and reads as under:
"Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule."Therefore in view of Section 6(1) and (2) time of limitation for Z will begin to run when his both the disabilities i.e. minority and insanity will cease.
"Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it."
Provided that, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of a limitation for a suit to recover the debt shall be suspended while administration continues."This Section applies not only to suits but to applications as well. This has not been expressly provided in the Section. If at the date on which the cause of action arose the plaintiff was under no disability, or inability, then time will naturally begin to run against him because there is no reason why the ordinary law should not have full operation. Section 9 says that once time has begun to run, no subsequent disability or inability to sue can stop its running. This applies to a person himself as well as to his representatives-in-interest after his death. The Section contemplates a case of subsequent and not of initial disability, that is, it contemplates those cases where the disability occurred after the accrual of the cause of action; whereas cases of initial disability have been provided for by Section 6. Disability or inability to sue. Disability has been defined as the want of legal qualification to act and inability of the physical person to act. Thus according to Calcutta High Court in Pooran Chandra v. Sasson, AIR 1919 Cal. 1018, disability is the state of being minor, insane or idiot, whereas illness, poverty etc. are instances of inability. In Union of India v. Tata Engineering and Locomotive Co. Ltd. AIR 1989 Pat. 272 it was observed "true it is that in terms of Section 9 when time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it but Section 9 does not provide for a computation of period of limitation. Exceptions :- The principle of Section 9 is strictly applied and no exceptions other than those which the Act itself prescribes can be recognised. Thus the running of time is suspended in following eight cases: (1) The proviso to Section 9 contains exception to the general rule that once time begins to run, no subsequent disability or inability to sue can stop it. The proviso lays down that when the administration of an estate has been given to a debtor of the deceased, no time will run against such a debtor until the administration of estate which has been entrusted to him has been finished. In such cases, the law prevents the duty of properly administering the estate to come into conflict with the right of the person to sue for the debt, the hand to give and the hand to receive is the same. (2) The time spent in obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded while computing the period of limitation prescribed for an appeal or an application for leave to application and an application for review of judgment. In the same way the time spent in obtaining the copy of the award shall be excluded, while computing the period of limitation to file an application to set aside an award (Section 12). (3) The time taken for prosecuting an application for leave is to be excluded if leave is necessary while computing the period of limitation for a suit or appeal (Section 13). (4) If the defendant is absent from India or in the territories beyond India, under the administration of the Central Government, the time upto which he has been absent shall be excluded while computing the period of limitation (Section 15(5)). (5) When the plaintiff has been prosecuting with due diligence another same proceedings the time spent in it shall be excluded while computing the period of limitation (Section 14). (6) When an injunction or order has been obtained to stay the institution of suit, the time spent in obtaining injunction or order shall be excluded while computing the period of limitation (Section 15(1)). (7) When notice is served before the institution of a suit, the limitation shall be suspended during the period of notice (Section 15(1)). (8) The period of limitation shall be suspended during the time for which the proceedings to set aside the sale has been prosecuted in a suit for possession by purchaser at an execution sale (Section 15(4)).
1. There must be property which has become vested in a person in trust for a specific purpose.
2. The suit must be against such person or his legal representative or assign (not being assign for valuable consideration).
3. The suit must be for the purpose of falling in the hands of such person the trust property or its proceeds or for an account of such property or proceeds.
(a) the rule has extinguished the contract; and
(b) the parties were domiciled in that State in the foreign country during the period prescribed by such rule."The rules which apply to the case of contract made in one country and put in suit in court of another country are the following :-
(A) The interpretation of the contract is governed by the law of the country where the contract was made.
(B) The mode and the time limit within which the action relating to any contract, must be brought and is governed by law of country where the action is brought. Thus, the mere fact that a suit on foreign contracts is not barred under the foreign law will not enable the plaintiff to bring the suit on the claim barred in this country, because the person suing in this country should in matters of procedure take the law as he finds it there. Even where a suit has been dismissed (not extinguished) in a foreign country on the ground of limitation, a fresh suit can be brought in this country within the period prescribed by Indian Limitation Act.In Ganga Prasad v. Ganesh Lal, AIR 1924 All. 161, it was observed that where the plaintiff obtains a judgment in a foreign court on a claim which though not barred under the foreign law would be barred under the Limitation Act and brings a suit on the judgment in an Indian Court, it would be no defence to rely on the plea of the limitation as the foreign judgment is valid according to the let for and is conclusive. It could be impugned only on any of the grounds enumerated in Section 13 of the Code of Civil Procedure. The result would be the same even if the contract had been made originally in India.
(a) the day from which period is to be reckoned.
(b) the day on which judgement complained of was pronounced.
(c) time requisite for obtaining a copy of decree, sentence or order appealed from or sought to be revised or reviewed.
(d) time requisite for obtaining the copy of judgment on which decree or order is founded.
(e) time requisite for obtaining a copy of award shall be excluded.In Parthasarthy v. State of A.P. AIR 1966 SC 38, it was observed that in computing or calculating the period of limitation from a particular point, Section 12 enables the exclusion of a time from that period caused by an event that intervened between the commencement and termination of said period. Section 13 of the Act lays down that the time during which the applicant has applied for leave to sue as `pauper' shall be excluded. According to this Section, application must have been made for permission to sue as pauper in a suit and same is rejected. Such time which the applicant has spent in good faith for obtaining permission, shall be excluded in computing prescribed period upon payment of court fees. Section 14 of the Act then provides : In computing the period of limitation prescribed for suit or application, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, should be excluded. The proceeding in such a case should have been founded upon the same cause of action and is prosecuted in good faith in court which, from defect of jurisdiction or other cause of like nature, is unable to entertain it. In Madhav Rao Narayan Rao Patwardhan v. R.K. Govind Bhanu AIR 1958 SC 767 It was observed that "the essential requisites for application of Section 14 of the Act are that the party seeking the benefit of Section 14 had to affirmatively show (i) that he had been prosecuting the previous suit with due diligence (ii) that the matter in issue in the previous suit and new suit are the same (iii) that the previous suit was prosecuted in good faith (iv) that the court was unable to entertain that suit on account of defect of jurisdiction or other cause of a like nature." Then Section 15 of the Act provides:
1. In computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn is to be excluded.
2. In computing the period of limitation for any suit of which notice has been given or for which the previous consent or sanction of the government or any other authority is required in accordance with the requirements of any law for the time being in force, the period of such notice or as the case may be, the time required for obtaining such consent or sanction is to be excluded.
3. In computing the period of limitation for any suit or application for execution of a decree by any receiver or `interim receiver' appointed in proceedings for the adjudication of a person as or an insolvent or by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company, the period beginning with the date of institution of such proceedings and ending with the date of institution of such proceedings and ending with the expiry of three months from the date of appointment of such receiver or liquidator, as the case may be, is to be excluded.
4. In computing the period of limitation for a suit for possession by a purchaser `at a sale in execution of a decree' the time during which a proceeding to set aside the sale has been prosecuted is to be excluded.
5. In computing the period of limitation for any suit the time during which the defendant has absented from India and from the territories outside India under the administration of the Central Government is to be excluded (Section 15).
"In computing the period of limitation for any suit the time during which the defendant has been absent from India and from territories outside India under the administration of the Central Government, shall be excluded." In AIR 1961 Mad. 199 it was observed that "When it has to be ascertained whether a suit is in time or not, 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 Sub-section (5) of Section 15 of Act. If resultant period does not exceed the time specified in column 3 of schedule to the Act, the suit would be in time.In the case in hand defendant was out of India from 1-1-1984 to 1-1-1986. This period will be excluded while computing the period of limitation for filing present suit. Therefore suit is within the period of limitation.
"(1) Where a person who would, if he were living, have right to institute a suit or right to make application, dies before such right accrues or where right to institute suit or make application assures only on the death of a person, the period of limitation shall be computed from the time when there is a legal representative of deceased capable of instituting such suit or making such application.
(2) Where a person against whom, if he were living, a right to institute suit or make application would have accrued, dies before such right accrues or where right to institute a suit or make application against any person accrues only on death of such person, the period of limitation shall be computed from the time when there is legal representative of deceased against whom plaintiff may institute such suit or make such application." Section 17 of Indian Limitation Act deals with the effect of `fraud' or `mistake' on period of limitation prescribed by the Act. According to Section 17: The limitation shall be computed from the time when the fraud became known to the person defrauded. Therefore, if any person by the exercise of fraud has kept away other persons from the knowledge that he has a right to file a suit, limitation will be computed from the time when such fraud became known to the person so defrauded.Where any document necessary to establish such right has been fraudulently concealed from him or where the suit or application is for the relief from the consequence of a mistake, limitation shall be computed from the time when he first has the means of producing the document or compelling its production and in latter case when the plaintiff or the applicant has discovered the mistake or could have discovered it. It should be from the date of the discovery of the document. The following are the essential conditions for getting the advantage of the above Section:
(1) The cause of action of plaintiff has been concealed from him by fraud.
(1) The fraud has been done by the defendant or a person through him or who claims under him.
(3) The plaint is in time since the discovery of the fraud.Exceptions :- The following, however, are exceptions to the rule laid down above: "Nothing in this Section shall enable any suit to be instituted, application to be made to recover or enforce and charge against or set aside any transaction affecting and property, which,
(i) In the case of fraud, it has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed, or
(ii) in the case of mistake, it has been purchased for valuable consideration subsequently to the transaction in which the mistake was made by a person who did not know, or have reason to believe, that the mistake had been made, or
(iii) in the case of a concealed document, it has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know or have reason to believe that document has been concealed."The main object of this Section to keep the right of a person to sue suspended so long as he is not made aware of the fraud to be committed against him. Such a period is excluded from the prescribed period of limitation. It is based on the principle that a person should not be deprived from his legal right to sue simply because the period of limitation expired and he could not have knowledge of fraud done with him or likely to be done with him. According to Section 17(1) where the execution of a decree or order within the period of limitation has been prevented by fraud or force of the judgment debtor, the court may on the application of judgment creditor made after the expiry of period of limitation, extend the period for the execution of decree or order. But such an application must be made by the judgment creditor within one year from the date of discovery of fraud or the cession of force as the case may be.
"(1) Where before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed.
(2) Where the writing containing the acknowledgement is undated oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872, oral evidence of its contents shall not be received."Explanation (a) added to Section 18 says "an acknowledgement may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to setoff, or is addressed to a person other than a person entitled, to the property or right." So where prescribed period for suit or application in respect of some property or right has begun to run but has not expired, an acknowledgement in writing of such right has been made, a fresh period of limitation should be computed from the time when the acknowledgement was so signed. In Hindustan Apparel Industries v. Fair Deal Corp. New Delhi AIR 2000 Guj 261 it was held that "the payment of cheque which is dishonoured would amount to acknowledgement of debt and liability and by necessary consequence there will be saving of limitation as envisaged by Section 18 of Limitation Act. A cheque would prima facie amount to an admission of debt unless contrary intention has been expressed by the person issuing the cheque." The principle on which Section 18 is based is that the bar of limitation should not be allowed to operate in cases in which the existence of a claim is acknowledged by persons who are under the liability. In Tilak Ram v. Nathu AIR 1967 SC 935 it was pointed out that the Section requires (i) an admission or acknowledgement (ii) such acknowledgement must be of a liability in respect of property or right (iii) it must be made before the expiry of period of limitation (iv) it should be in writing and signed by the party against whom such property or right is claimed.
"Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens."Section 4 of the Act contains enabling provision and simply provides that suit, appeal or application may be instituted, preferred or made as the case may be, on the reopening day of the Court notwithstanding that prescribed period had expired on a day when the court was closed. Section 4 of the Act does not in any way extend the period of limitation. In Maqbur Ahmed v. Onkar Pratap Narain Singh, AIR 1935 P.C. 85, while considering the true scope and effect of this Section , the Privy Council made the following observations:
"What the Section provides is that, where the period prescribed expires on a day when the Court is closed, notwithstanding that fact, the application may be made on the day when the court reopens; so there is nothing in the Section which alters the length of the prescribed period." It follows that the acknowledgement made on the reopening day of the Court cannot be said to be made `before the expiration of the prescribed period' and cannot give a fresh period of limitation under Section 18 of the Act.In view of the above discussion, B should file the suit immediately on Monday itself, otherwise it would become time-barred.
Explanation : (I) Where mortgaged land is in the possession of the mortgagee, in receipt of the rent or produce of such land shall be deemed to be a payment:
(II) Debt, dues not include money payable under a decree or order of a court (Section 19).Underlying principle of Section 19 of the Act is that such payment implies an admission of a right and an acknowledgement of the corresponding liability. It would be clear from the language of the Section that to attract its operations two conditions are essential: first, the payment must be made within the prescribed period of limitation and secondly, it must be acknowledged by some form of writing either in the handwriting of the payer himself or signed by him. In Sant Lal Mohton v. Kamla Prasad AIR 1951 SC 477, it was observed: "It is the payment which really extends the period of limitation under this Section , but the payment has got to be proved in a particular way and for reasons of policy the legislature insists on a written or signed acknowledgement as the only proof of payment and excludes oral testimony. Unless, therefore, there is acknowledgement in the required form, the payment by itself is of no avail."
Provided that save in the case of payment of interest made before the Ist day of January 1928, an acknowledgement of the payment appears in the handwriting of or in a writing signed by, the person making the payment."In the case in hand, B has paid Rs. 200/- towards the pronote before the expiry of limitation. But another essential condition to invoke Section 19 of the Act is missing i.e. the payment of Rs. 200 by B does not appear in the handwriting of B or in a writing signed by B. Therefore this payment will not avail `A' of fresh period of limitation as provided by Section 19 of the Act.
Q. 26 The defendant had taken a loan in sum of Rs. 5000 from the plaintiff on 3-5-1977. The plaintiff sent a notice of demand to defendant who received it on 27-4-1980. Vide reply dated 6-5-1980, the defendant admitted the liability but requested the plaintiff to give him time till 30-6-1980. After waiting till 3-7-1980, the plaintiff filed the suit for recovery of the amount on 4-7-1980. The defendant contested the suit only on the ground that he had repaid the amount to plaintiff but had not insisted for the receipt at the time of paying the amount on 29-6-1980. Trial Court however dismissed the suit holding that the same is barred by time. The plaintiff has come in appeal and has contended that the suit is within time and further that the plea of limitation was not taken by defendant at any time. How will you decide ?
(1) An acknowledgement signed by or by the agent of a Hindu widow or other limited owner under the Hindu Law, shall be binding on the reversioner.
(2) An acknowledgement signed by or by the agent of the manager or the karta of joint Hindu family shall be binding upon the whole family provided the acknowledgement is in respect of a liability incurred by or on behalf of the whole family.
(i) it must be a suit for compensation.
(ii) The cause of action should lie, not in any specific act or omission but in the resulting damage.Where the act of the defendant itself constitutes a legal injury, this section has no application and the mere fact that the plaintiff suffers damage, subsequently will not enable him to compute the period of limitation for compensation in respect of such act from the date of the damage. This section does not extend or restrict any period of limitation but alters the date or time from which limitation has to be computed.
(1) Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for twenty years, and where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for twenty years, the right to such access and use of light or air, way, watercourse, use of water, or other easement shall be absolute and indefeasible.
(2) Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
(3) Where the property over which a right is claimed under sub-section (1) belongs to the Government that sub-section shall be read as if for the words "twenty years" the words "thirty years" were substituted.Explanation. - Nothing is an interruption within the meaning of this section, unless where there is an actual discontinuance of the possession of enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made." Section 25 provides as to the acquisition of easements by prescription. Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right without interruption, and for twenty years, the right to such access and use of light or air shall be absolute and indefeasible. Sub-section (2) of Section 25 lays down the period of 20 years required for creating a right of easement shall be taken to be a period ending within 2 years next before the institution of the suit, wherein the claim to which such period relates is contested. The maxim of Law that the enjoyment of an easement must be "nic vi, nec calm, nec precario" indicates that the enjoyment of easement pleaded to be the basis for acquisition of ownership must be without violence or force, without stealth. It must not also be permissive or by leave or licence. There are following pre-requisites of the Section 25 :
1. Peaceably. - The enjoyment of an easement must not be by violence or force.
2. Openly except in case of light and air. - The enjoyment must have from the very beginning been visible and manifest, not secret or clandestine.
3. As an easement. - The claimant must have enjoyed the right as an easement. If there had been any unity of possession and ownership he could not have enjoyed an easement. Where a person claims a site as owner, he cannot claim a right of way of user or watercourse over the same as an easement.
4. As of right (nec precario). - In order that an enjoyment should be as or right, the person claiming it must have exercised it without leave or licence form anyone.
5. Without interruption. - The enjoyment for the period of 20 years must be "without interruption" i.e., without any obstruction of prevention of the use of the easement by some person acting adversely to him. According to the explanation to this section itself, nothing is to be considered as interruption unless -
(a) there is an actual discontinuance of the possession or enjoyment;
(b) such discontinuance is by reason of the at of some person other than the claimant himself; and
(c) such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making.
6. For twenty years. - The enjoyment must be for 20 years, if the property belongs to the Government must be for 30 years.The enjoyment must be continued down to within two years of the date of suit in which the right is contested. That is to say, where a person is in the continuous enjoyment of an easement for more than 20 years and no obstruction is, thereafter made, he must bring his suit to establish his right within period of Limitation of 2 years from the date of obstruction. Section 25 of Act has to be read with Section 26 which lays down :-
"Where any land or water upon, over of from, which may easement has been enjoyed or derived has been held under or by virtue of any interest for life or in terms of years exceeding three years from the granting thereof, the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation of the period of twenty years in case the claim is, within three years next after the determination of such interest or term, resisted by the person entitled on such determination to the said land or water."
(i) Peaceably :- In order to establish a right of easement it is enough for the plaintiff to prove that he has been exercising the right peaceably and without any interruption, without express or implied permission of the owner of the servient tenement and without secrecy or stealth. The word "peaceably" means that the dominant owner has neither been obliged to resort to physical force himself at any time during the period of enjoyment, nor had he been prevented by the use of physical force by the defendant in his enjoyment of such right.
(ii) Openly :- Except in the case of light or air, the enjoyment must be open and manifest and not clandestine. The reason of the requirement that the user must be open lies in the fact that acquiescence lies at the root of all prescription, and where the enjoyment is not open it cannot be said that the owner of the servient tenement actually or constructively acquiesced in or consented to the easement.
(iii) Without interruption :- An "interruption" within the meaning of the Act is an actual discontinuance or cessation of enjoyment of user by reason of an obstruction submitted to or acquiesced in for a year, not by the mere voluntary act of the claimant of the right but in consequence of an obstructive act done by a person other than the claimant. But if a cessation of user takes place due to an accident or a voluntary act or omission of the claimant himself, then it does not amount to an interruption.
(iv) As an easement :- The claimant must have enjoyed the right as an easement. Where there is unity of possession or ownership in the same person of both the tenements there cannot be any enjoyment as an easement during the period of unity.
(a) the provisions contained in Sections 4 to 24 shall apply only in so far, as, and to the extent to which they are not expressly excluded by special or local law.
(b) the remaining provisions of this Act shall not apply.(3) Nothing in this Act shall apply to suits under the Indian Divorce Act. (4) Sections 26 and 27 and the definition of `easements' in Section 2 shall not apply to cases arising in territories to which the Indian Easements Act, 1802, may for the time being extend. (Section 29). All that Section 29(2) lays down is that where a special or local law prescribes a period of limitation the excluded portion of the Limitation Act shall not apply. It was held in Azizul Haque v. The State, AIR 1980 All 149 :
That Section 29(2) of the Limitation Act lays down that Sections 4 and 24 of the same Act would apply even in the case of a special or local law unless their application is expressly excluded by such special or local law.
(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of five years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier;
(b) any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian Limitation Act, 1908, whichever period expires earlier.In Trivikram v. Vithal Rao (AIR 1980 Bombay 1) it has been held that the effect of the provisions in clause (b) of Section 30 is to make a specific provision in a case where the limitation prescribed for an appeal or an application under the 1963 Act is shorter than the limitation prescribed by the 1908 Act. Where the limitation for an appeal or an application under the 1963 Act is shorter than the period of limitation prescribed by the 1908 Act; clause (b) requires that such appeal or application must be made within a period of 90 days after first April, 1964 or within the period prescribed by the 1908 Act, whichever period expires earlier. As the proviso contained in column 8 of Article 183 of 1908 Act is omitted in Article 186 of the 1963 Act, the period of limitation for making an application for execution under the 1963 Act is shorter and therefore, the provision of Section 30(b) of the 1963 Act will apply in such case.