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Civil Procedure Code-II
Law of Limitation & Registration
It’s a procedural Law?
No limitation in suit means No Barred to file ?.
◦ (A.S.K. Krishnappa v. S.V.V. Somiah AIR 1964 sc. 227, p.232.)
Limitation applies in Cr.P.C. & Economic (Offences inapplicability of
limitation)Act, 1974?
Passed on 5th October, 1963 and Came into force 1 January 1964
Re adjust and re shaped of law
Basic Notion
It Grants Rights?
Its application to Motor Vehicle Act , TP act, Rent act, Land
Revenue, accounts, declarations, injunctions, tort, trusts, personal
laws (Hindu law), etc.?
Where no such period of limitation then?
(Part X , 3 years will be applicable.)
Contd…
Time of Smriti: No limitation, only law of prescription.
Some shadows of 20 years of limitation was there.
Before 1523 –’ James Statutes ‘ applied & was same Position in
England
India- till 1858 – two system of law of limitation i.e. Royal Charter
& Mofussil Courts (original jurisdiction)
First attempt of Uniform Law of Limitation Act, 1859 (Royal
Charter) came in to operation-1862
Olden times…
Regulation IX in 1871 (Decision of the courts)
Regulation XV in 1877 (made some alteration)
Decision of Privy Council in Vasudava v. Srinivasa, I.L.R. 30 Mad,
326 , Resulted in Act, 1908.
Amended in 1924-25 by civil Justice Committee
Contd..
Limitation: Statute of Repose, peace & justice
Act, 1908: – 30 sections, 183 Articles, V Parts
Preliminary, limitation of suits, appeals and applications,
computation of period, acquisition of ownership by possession and
contains savings
Contd..
Articles-1-149 suits,
150-157 appeals,
158 to 183 with applications.
Period - Ranges : 30 days to 60 years.
Appeals 7 days to 6 months.
Applications 10 days to 12 years
Contd….
Act, 1963- : Some Changes:
31 sections
137 articles in the schedules.
Maximum period of limitation is 30 years-(only three kinds of
suits)
longest period is 12 years in immovable property & trusts and
endowments,
Contd…..
Three years in accounts-contracts - Declaratory suits
One to three years in torts-misc.
If no period of limitation is provided in schedules - minimum
period is 10 days, i.e. leave to appear in summary procedures
Appeal 60 days & 30 days accordingly.
Contd…..
Suits relating to Accounts, Contracts, Declarations, Decrees and
instruments, Immovable property, Movable property, Tort, Trusts
and Trusts Property, Misc. matters, No prescribed period, Appeals,
Applications,
Different Titles, Suits, Appeals etc.
To prevent disturbance in equity and justice
Long enjoyment
(Rights)-Lost by own inaction and negligence…
(Rajendra singh v. santa singh AIR-1973, SC 2537,p.
2542,)
It is interest of the state to end of litigation.
(Boota Mal v. UNI, AIR 1962 SC 1716,)
Object(s)
Grammatical meaning of the words is the only safe guide in
interpretation the statute of limitation.
Interpretation
To the suits and other proceedings which filed in courts (Hari Raj
Singh vs. U.P. Government, AIR 1968 All. 246.)
To the civil proceedings and some special criminal proceedings
unless governed by section 29(2).
No application to Election petitions and self contained code.
Applicability
To all appeals to all courts and certain applications. (Dharma
chand roy vs. Nabin Manda;, AIR 1963 cal. 253 p 254)
Code and Limitation Act read together
(Vidyachandaran v. Khubachand, AIR, 1964 SC 1099 p 1107)
It cannot be applicable in plea taken in defence taken by
defendant.
Contd..
There is no provision for recovery of possession by suit.
Rent act is silent and therefore article 67 applies.
◦ (i.e by a landlord to recover possession from a tenant. : 12
years and when the tenancy is determined.)
(Shakuntala Tiwari v. Hem Chand, AIR, 1987 SC 232 P 1825)
Applicability to Ejectment , suit by landlord against tenant
under the Rent Act
Subsequent changes in period of limitation do not affect the
previous cases.
(S.C. Prashar v. Vesantsen Dwarka Das, AIR 1963 SC 1356 P 1892)
Statute of Repose
Each article has its own phraseology for fixing the time from which
the limitation begins to run.
Courts have only determined the date by the language of the
article and sections
Cases of Default
It is retrospective in operation?.
( Ram Prasad Ram Narain, AIR 1966, CAL. 488)
- If nothing contained in the new act..
1. It was not time barred on the date when new limitation act came in to force,
(……new act time period is shorter…..) previous act will applicable….
2. It was not time barred on the date when new limitation act came in to force,
(…..But in new act time period is not shorter (longer), new act will
applicable…..).
The limitation act can not be applied retrospectively.
(Kotha Transport limited v. state of Rajasthan, AIR 1966 Raj. 136 p 140)
Retrospective operation of the Act
Not applicable to the Art. 226 and 227 except to borrow the
doctrine of laches.
(Badurka Collgge v. State of A.P. 1997)
Laches essentially alleges prejudicial delay and unfairness in the
context of a particular situation.
Another way:
Laches can sometimes be applied even in a situation where a
lawsuit / petitions has been commenced and any delays would
otherwise be reasonable. (In favour of petitioner)
Applicability of limitation in constitution of India
Legislative changes:
In sub-section (1) Word ‘Indian’ has been omitted.
Word ‘and’ is omitted at the end of the sub-sections.
Part I, Preliminary
Time having commenced to run, will not stop
The bar of the statute must be opposed by the debtor
The law of limitation as a part of lex fori:( law of place of action..
not place where contract made..)
Principles on which law is founded
It is bar the remedies not extinguishing the rights.
Rules of limitation
Courts are bound to follow the limitation act –
(Indu Bhusan De v. State of W.B. AIR 1972 cal. 160 p. 171)
Courts are bound to follow the limitation act
The rule of limitation applicable for execution of a decree of a
foreign court…..
Law of limitation is mixed question of law and fact?
( Dilwati Devi vs. Central Colafields Ltd. ).
Foreign court decree and execution
Legislative Changes:
Old act: ‘contained in section 4 to 25 inclusive’
New act: ‘contained in sections 4 to 24 inclusive’
Old act: ‘period of limitation prescribed therefore by the first
scheduled’
New act: ‘prescribed period’
Part II – Section 3
It is a duty of the court to look the limitation though there should
not be a ground raised by the defendant.
Ground of Limitation….
Section 3 places a statutory obligation on the courts to examine
whether the suit is filed within limitation or not.
(Syed Quadri v. M/s. Tara pharmacy, AIR 1966 A.P. 136 p 137)
Time barred suit
Dismiss time – barred proceedings even though it has not been
set up as defence.
If inferior court decided and higher forum came to know some
adverse plea, case may be send back to the inferior forum to
decide again.
(P.R. Seetharaman v. Government of Tamil Nadu,AIR 1988, Mad. 45
p. 48, 49)
Uniform view of the courts
Section 3 - it is statutory provision so it can take as a preliminary
issue.
But if it (Limitation period) depends on the oral evidence of the
parties then it is preferable not to take as preliminary issue.
(Serual Central Waqf Board v. Gopal Vishrad, 1991, All. L.J., 190 p
196)
Statutory Bar to file suit
Limitation may be a ground for rejecting a suit already instituted,
and appeal preferred.
(Essar Consturction v. N.P. Ramakrishna Reddy, 2000, (6), SCC 94
p 101)
Question of limitation in Appeal
If pure question of Law, it can be raised in appeal.
Plea of limitation
Appeal under HM Act, though no time limitation in the said act,
limitation would be apply under sec. 3 of the Limitation, Act.
(Debatable, General Clause of 3 years)
Limitation in HM
Plaint is filed in the court of principal civil jurisdiction with
application for transfer to subordinate court… and there after it is
transferred to the sub ordinate court and registered….. the date of
presentation of the plaint to the court of principal jurisdiction is to
be taken in consideration?
Date of Presentation of Plaint
Amendment must be refused, where plaintiff seeks to amend, by
setting up a fresh claim, in respect of a cause of action…Become
barred by limitation. (can not change cause of action on later
stage)
(Pingonda patil v. Kalgonda shidgonada patil, AIR, 1957, SC 363, P
366)
Amendment be refused
When the receipt of the judgment is actually received, from that
date the time for limitation will be started.
( Rajindra Ram v. Coal india Limited, AIR 1997 cal. 289 p. 295)
Date of Receipt is the date of filing the appeal
Where there was a delay in filing an appeal---- –Reason was
collection of money from large numbers of petitioners interested
in filing the appeal----this is not a reasonable ground.
( Benarsi Das v. State of U.P. 1956 SC 520 P 522)
When no sufficient ground
Application of sec. 3 when sec. 6 (Legal Disability) - inapplicable.
(Lalchand Dhanalal v. Dharamchand, AIR, 1965, M.P. 102, P 107)
Sec. 3 and Sec. 6
Distinction between two classes of cases:
1. Court decides a question of law pertaining to the jurisdiction.
&
2. It decide a question within its jurisdiction.
(Manindra Land and Building corporation LTd. Vs. Bhutnath
Benerjee, AIR 1964 SC 1336, P 1938-39.)
Jurisdiction …..
Amendment must be refused where it effect to the cause of action
-
(Pingoda H. Patil vs. Kalgonda Patil, AIR 1957 SC 363 P. 366)
But, if amendment does not constitute any new cause of action
amendment would be allowed even after the limitation period.
(Goa Cancer Society vs. Dr. Vital Kamat, 2000(4)Bom.,C.R. 445 p.
446.)
Amendment Allowed or Refused
Generally court will allowed plea of limitation in second appeal.
.
Plea of limitation in lower court and higher court (in second
appeal)
May dismiss the matter, though not pleaded by defendant.
Unless matter is covered by section 4 to 24.
(Ashok Khurana vs. steelman industry, AIR 2000, Del. 336 P 339.)
Second appeal will not operate as res-judicata.
(dismissal of appeal… by reason of only Limitation)
(shivarama bhat vs. thimma poojary, AIR 2003,kant.455 p 455.)
Duty of court when plea of limitation is not raised
Plea of limitation should be raised at the first available opportunity
but that does not mean and imply that the party can not raising it
after that. .. not barred in appeal….
(Municipal Council, Ahmednagar vs. Shah Hyder Being, 2000 (2)
scc 48, p 52.)
Contd..
It is the duty of the court.
It can not be find only by submission of the parties.
If suit is barred by limitation, court has no jurisdiction to entertain
it.
Party can not confer jurisdiction by consent.
(Mahboob Pasha vs. Syed Zaheeruddin, AIR 1988 Knt. 83 p. 86.)
Determination of plea of the limitation
Time of institution of the suit by the plaintiff should take in to
consideration and not the time when the counter claim is made in
the written statement.
If time of suit is not time barred, automatically claim by defendant
will be consider in limitation.
Claim of defendant (counter claim)
when not barred by limitation
The statute of limitation only bars the remedy and does not
extinguish the debt (amount). Lapse of time does not extinguish
the right of a person.
(Bombay Dyeing vs. state of Bombay, AIR 1958 SC 328, P. 335)
Time barred applicability
Closed on any day within the meaning of this section, if during any
part of its normal working hours it remains closed on that day.
SECTION – 4
Expire of prescribed period when court is closed
Old Act:
“where court is closed when period expires”
“period of limitation prescribed”
“that”
New Act:
“expire of prescribed period when court is closed.”
“prescribed period”
“on the day” and “court re-opens”.
Legislative changes
This provision does not pertaining to the computation of the period of
limitation.
Section 4 is pertaining to the period of limitation. It also deals with a
plaint filed in a wrong court.
The reference to “court” in section 4 is the proper court having
jurisdiction and unless the case filed in a proper court, sec.4 will not be
applicable to it.
(S.N. jayarama vs. S. Rajgopalan,AIR 1965 Mad. 459 p. 460.)
Scope and Applicability of Section 4
Lex non cogit ad impossibilia, i.e. the law does not compel a man
to do that which he cannot possibly perform.
(Ladulal vs. Keshavdas, AIR 1969 Raj. 112, p. 114.)
Basis of sec. 4
Dictionary meaning of the word closed is not open. Open means
ready to receive or transact business with members of the public.
“A day when court is closed”
This section (sec.4 old and new) provides that where the period of
limitation prescribed for any suit expires on a day when the court
is closed, the suit may be instituted on the day the court re-opens.
(Privey Council in Maqbal Amad vs. Pratap Narain Singh, 62 Ind.
App. 80, AIR 1935 P.C. 85.)
Period of Limitation When court is closed – Bare Text
This section does not extend period of limitation but saves
limitation, if the suit or appeal or application is filed on the day of
the re-opening of the court.
(Report of the law commission on limitation at p. 13)
Sec. 4 does not extend period of limitation.
If Appellant misled by any order of the court in ascertaining or
computing the prescribed period may be sufficient cause within
the meaning of this section.
Section 5
Extension of prescribed period in certain cases.
Old Act:
“extension of period in certain cases”
New Act:
“extension of prescribed period in certain cases”
Legislative changes in sec. 5.
Two important changes:
1. That it applies to all applications except those under order XXI of
CPC.; (it s of Execution)
2. That it applies to all local and special enactments unless
specifically excluded by any of them.
Contd.
Court should not exercised arbitrary power.
Power should be exercised based on the fact and circumstances
only.
In some bonafide circumstances only the court can grant the
condonation of delay.
(Laxmi Devivs. Uttar pradesh state, AIR 1988 ALL. 133 at P. 135.)
Condonation of delay -
General principal
State and private individual both stand on the same footing and
should be treated alike.
Party which seeks condonation must also bear the burden of
showing that despite all necessary steps being taken to file the
appeal within time, it failed due to cause beyond its control.
Absence of negligence.
No strait jacket formula can be prescribed.
(state of U.P. vs. phota, 1991 )
General Principles
Section 5 has not been extended to application for execution of
decrees. Without such a specific extension, a decree holder cannot
have recourse (remedy) to section 5.
General Note
It decide on Affidavits.
Oral evidence generally not permissible.
Application of Sec. 5
Delay in filing the revision could be condoned even on oral request
by the counsel concerned, by stating the reasons for the delay.
(K.G. Mal vs. Sham Bihari Mal,1994)
Condonation of delay on oral request
Two important considerations:
Expiration of period of limitation gives a right in favor of the
decree-holder.
If sufficient cause to excuse delay is shown, the court can
condone delay and admit the appeal.
Scope of Section - 5
This may applicable to the appeals, applications & application of
leave to appeal too.
Condonation is only that applicant satisfies the court that he had
sufficient cause for not making the application within such period.
(S. Raringsui vs. yamgmaso, AIR 1963,Manipur 17.)
Applicability of sec. 5
When Board of Revenue functions as Revenue Courts,
sec. 5 applies.
Opinion of the Court:
Despite the limit of 30 days and despite the finality attributed to the order of
the commissioner, the revision would be entertainable under section 219
read with amended Para 911 of the Revenue Manual and as such the revision
would not only be entertainable by the board of revenue, but since the board
of revenue would function as a revenue court provisions of sec. 5 of act
would apply.
(Jagdish Narain vs. State, 1990, P.20)
Application to
The Revenue Courts
Under sec. 5, the applicant has to show sufficient cause for not
preferring the appeal or making the application, as the case may
be -
It is requirement in the section itself.
(krushna chandra vs. state of orissa, 2003, O.L.R. 306, p. 309.)
Contd.
Observation of court in the case of
(s. Fakhroddin vs. A.L.D. Mohammad, 1994, B.C.J. 409) :
Word ‘within’ is followed by the words ‘ten days’ from the date of
publication. There fore, obviously the time of ten days would begin
excluding the date of publication.
The word ‘within’-Meaning of.
Observation of court:
Court agreed with the view of the learned judge that the
expression “prescribed period” is now defined to mean the period
of limitation prescribed by the schedule and computed according
to the section in the act.
Prescribed period-Meaning of
By the limitation act a period which is required to be excluded
under the provisions of some other act in computing, the period of
limitation cannot be treated as a ‘prescribed period’.
(Govinda padayachi vs. Uthandi padayachi, 1994 (2), civil L.J. 40
at p. 42(Mad.))
Contd..
Sec.5 would not be attracted to a case where an appeal or
objection has been initially filed within the prescribed period of
limitation and the same does not suffer from any infirmity of the
vital nature.
BUT
Delay in refiling the appeal after removing the defects as pointed
out by the court require to be condoned.
(Parvati, Smt. Vs sh. Anand Prakash, AIR 1987 Delhi 90 at p. 96.)
Applicability to
‘Re-Filing’ of appeal
Section 5 of the act does not apply to the original cause of action
(Suit).
(Mahboob pasha vs. syed Zaheeruddin, AIR 1988, Knt. 83,at p.
86.)
Applicability to suits S.-5
“One of the first and highest duty of all courts is to take care that
the act of the court does not make injury to any of the applicants.”
(Rodger vs. Comptoir d’ Escompte de paris, (1871 (3) P.C. 465 at
p. 475.)
Duty of court in condone the delay
Court observation:
It was necessary at the stage to call upon the appellant to produce
affidavit and evidence to adjudicate the matter.
(Sthaneshwar Handmade Papers pvt.ltd. Vs state, 1994 (94) ,165
at p. 167, 168.)
Duty of the court..
Disposal of an application under sec. 5 is itself an independent act
on the part of the court and the order passed by the court gives a
fresh cause of action of the party.
(Eswaraiah vs. S.A. Gaffoor, 1998)
Appeal against condonation of delay - Survival
Once the application rejected for non payment of court fee, the
second application made after expiry of time cannot be revived
and the time spent cannot be considered to be sufficient and
reasonable ground to condone the delay.
(kanthamma,smt. Vs. The special Land Acquisition officer, 2003(2)
Karnataka law journal)
Lack of cogent grounds
The decision in similar matters is no ground for condoning the
delay in filing the appeals.
(surjit singh vs. state of punjab,1991 C.L.J.)
Decision in similar matters is no ground
Illustrative guidelines:
Refusal to CD –
1. Whether is likely to defeat the meritorious matter and the cause
of justice.?
2. Whether the approach of the court would be considered as
highly technical view in the matter under consideration?
3. When a substantial justice versus other technical consideration
are pitted against each other, the cause for substantial justice
deserves to be preferred.
Number of aspects
Whether it is practicable for the court to condone the delay by
awarding reasonable amount of costs ?
Contd.
1. Whether the petitioner has satisfactorily proved “sufficient cause”
for the delay for not filing the petition in time?
2. Was there any negligence or inaction on the part of the petitioner?
3. Whether a valuable right that has accrued to the other party,
which will be likely to be defeated by condoning the delay?
4. Whether the petitioners have arguable points on facts and law.?
(sankaralingam vs. V. Rahuraman, 2002)
In sec. 5 the court has to examine the following aspects
Circumstance …..
The production of medical certificate coupled with the fact that he
had applied immediately for certified copies of judgment and
decree ipso facto would go to show that he wanted to challenge
the eviction decree by filing an appeal.
(Jivamal Jethamal vs. Mohmad Allabdulla, 1991(1) Guj. L.H. p.
376.)
Production of medical certificate-CD
There can be no dispute with proposition that expression
“sufficient cause” used in the statute is required to be interpreted
liberally.
(Union of india vs. swaran singh, A.I.R. 1994, j&k 15)
Sufficient cause - Interpretation
A cause for delay, which, by due care and attention …… if the
party could avoid…… cannot be sufficient cause.
(State Health and Engineering Department vs. District Forum,
Bikaner 1991)
Test for determining Sufficient Cause
It has been repeatedly held by courts that a mistake by a lawyer is
a ground for condoning the delay in filing the appeal. Appeal will
be allowed to file.
(State of W.B. vs. Administrator, A.I.R. 1972 SC 749)
Sufficient cause –
delay in filing appeal due to mistake of the counsel in calculation
The sufficiency of the cause and reality of the cause are two
different things.
In case where the court is called to adjudicate upon the sufficiency
of the cause, it may take liberal view in the matter.
BUT
Where the court is called upon to adjudicate on the truthfulness of
the cause, may be not benefited to the party.
Sufficiency of cause and reality of cause - Difference
Here the assistant director declined to condone the delay on the
ground that the cause shown on behalf of the petitioners was not
believable. (though it was true).
(Kedar vs. assistant director , 1987, )
Contd.
When in the application there is no allegation that the appellant
was prevented from moving the application within the prescribed
period of limitation it will not be permissible for the court, in
exercise of inherent jurisdiction to condone delay.
(Bala Ram vs. State of H.P. 1993)
CD - Inherent Power
If the appeal had, in fact been presented within time and there
has been some delay in making up the deficiency in court-fees on
account of reasons beyond the control of the appellant, an
applicant deserves to be delay condoned.
(State of Punjab vs. Anand Kishore, AIR 1966)
Delay in supplying Court Fee deserves to be condoned
If no prayer of condonation of delay in the appeal or application
there is no option with the court except dismiss the appeal.
(Kailash Dist. Co.op. markiting Ltd, vs. Sher Singh Mehta, A.I.R.
1988 H.P. , p.2)
Absence of prayer for CD
Mere ignorance of the period of limitation prescribed, i.e
ignorance of law, per se is no ground to condone the delay.
(Thakur Dass vs. Aflatoon, 1991)
Ignorance of law, per se,
No ground to condone delay
Where a ground has been urged on behalf of the appellant for
extending the period of limitation prescribed for preferring an
appeal and the court entertains the appeal without making a
specific order, it will be assumed that the court was satisfied
that there was sufficient cause for the delay.
(Balmukund Sharma vs. Board of Revenue, 1967)
Presumption, if no specific order of the court condoning delay
The court has a power to grant time to file petition for setting
aside an award or for remitting the award for reconsideration.
Court has also the power to condone the delay in filing such a
petition. In the instant case as the court granted time to file such
a petition it was held that it implied that the delay was condoned.
(State of Kerala vs. Madhusudan Pillai, 1994 K.L.T. 268,p. 270)
Implied CD
Where it has been averred in the application that the petitioners
under a mistaken advice of the lower court counsel filed an appeal
against the order of the executing court before the first appellate
court and that the same has been dismissed on the ground of non
maintainability the time spent by the petitioner before a wrong
forum it has been prayed, be condoned.
(pannalal vs. Deputy director , varanasi, 1991)
Lack of knowledge and wrong legal advice-sufficient cause
Sec. 5 of limitation act applies where the limitation has been
prescribed under the limitation act itself and since the limitation of
three months for filing an application for setting aside in arbitral
award has been prescribed under sub-section (3) of sec. 34 of the
arbitration act and not under the limitation act, sec. 5 of limitation
act has no applicability and even no “sufficient cause” being
shown by the applicant.
(Jyoti Motors vs. ICDS Ltd., 2002)
Limitation act is not applicable when another act provides a
period of limitation
A pending application on the 1st January, 1963, would be governed
by the provisions of the limitation act as it stood before and not
the amended provisions of sec. 5 which has liberalized the scope
of the application of that section.
(Kachhcha Uraon vs. Chhotan Uraon, A.I.R. 1966, pat. 381 at p.
383)
Applicability of New Limitation Act to pending application
Art. 116 makes it clear that the period of 30 days runs from the
date of the decree. There is no provision in the article that in case
of amendment, time would run from the date on which
amendment is allowed.
Of course in case the appeal is filed against the amendment
decree and related the matters arising out of amendment , the
court would always condone the delay in filing the appeal under
section 5.
(Mohammad Ferozi vs. Mst. Shafquan, AIR 1966 punj. 531)
The date from which time begins to run under art. 116
Section 5 is unavailable to the decree-holder as this section has
not been extended to application for execution of decrees.
Without such a specific extension, the decree holder cannot have
recourse to sec. 5.
(G. Ramchandraian vs. state of Andhra, AIR 1964A.P. 13)
A Decree Holder cannot claim any relief under sec. 5
When the application u/s 33 challenging the validity of the award
was filed long after the expiry of 30 days from the date of service
of the notice. The application is therefore clearly barred by time.
Limitation cannot even be saved under section 5 of limitation act
which is not applicable to an application filed to set aside an
award under sec. 33 of the act.
(Ganesh Chandra Mishra vs. Artatrana Mishra, AIR 1965, orissa
17.)
Limitation Act is not available to set aside an award u/s 33 of
arbitration Act
The scheme of the Indian limitation act is that it only deals with
the application pending before the courts. The word court in sec 5
of the limitation act signifies a “court” in stricto sensu. The quasi-
judicial tribunal and executive authority are not “courts”.
(Prabhakar kandalkar vs. Tahsildar, 2002, Mh.L.J.881)
Quasi-judicial Tribunal
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 there for in the third column
of the Schedule.
Section 6 (1)
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 times so specified.
Section 6 (2)
Where the disability continues up to 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.
Section 6 (3)
Where the legal representative referred to in sub-section (3) is, at
the date of the death of the person whom he represents, affected
by any such disability, the rules contained in sub-sections (1) and
(2) shall apply.
Section 6 (4)
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.
Section 6 (5)
In the case of disabled person, sec. 6-8 of limitation act only
applies when the disability is in existence at the time when the
limitation begins to run but time is not saved where disability does
not exist at the point on which limitation begins to run.
Scope of sec. 6
If the limitation once starts, it never stops despite subsequent
disability.
(Devkoo vs. Rama Dogra 1993 civil.L.J. 745)
Contd.
Where one of several persons jointly entitled to institute a suit or
make 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 all.
But – If no such discharge can be given – time will not run- until
one of them becomes capable of giving such discharge.
Section 7 only supplements sec. 6 of the act.
Sec. 6, 7 and 8
English common law:
1. The rights of minors were specifically protected, and time will
not run against minors.
2. They (minors) were allowed to institute a suit within a specified
time after the impediment of minority was removed.
Sec. 6 and Minor
Section 6 will be applicable to the motor accident claim tribunal to
condone delay.
MACT and sec. 6
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.
7. Disability of one of several persons
Merely because two or more persons are permitted to join
together as plaintiffs under order 1, rule 1, and institute a suit,
they are not persons jointly entitled to institute a suit within the
meaning of sec. 7 of the act.
The court had occasion to consider this question and there was
held that sec. 7 applies only to cases of persons whose
substantive right is joint, and not to persons whose substantive
rights are several,..
Applicability of Section 7
.. though they may join together under order 1, rule 1, c.p.c. , for
the purpose of instituting a suit.
(Muhammed vs Alikutty, 1953 ker.L.J. 536)
Contd.
Under sec. 7 the capacity or incapacity to give a discharge is
intended to relate to legal capacity or incapacity.
If there is any physical circumstance which the law takes into
consideration as involving legal incapacity, then certainly it is
contemplated under this section, for instance , lunacy, minority or
some such thing.
Capacity to give discharge
For example:
An application filed after three years, after the attainment of
majority by the elder brother who was the manager of the family
would be barred by limitation under sec. 7 of the limitation act,
even though the suit was filed within three years of the
attainment of majority of the younger brother.
Hindu Joint Family -
Only Managing Member can give “Discharge”
Nothing in section 6 or in section 7 applies to suits, to
enforce rights of pre-emption, or shall be deemed to extend
for more than three years from the cessation of the
disability or the death of the person affected thereby, the
period of limitation for any suit or application.
Section – 8 Special exceptions
Suit by person under disability:-
From a reading of these sections 6 and 8, it would be evident that
if the minor has, at the date of his attaining the majority, a larger
period than that of three years as provided under the law of
limitation for filing a suit , he can file that suit within the original
period of limitation though it may, in some cases, be of more than
three years.
(Nannekhan vs. Ganpati, AIR 1954, Hyd. 45 at p. 46 (F.B.))
Section 8 Special exceptions
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 creditor have been granted to his debtor, the running of
the period of limitation for a suit to recover the debt shall be
suspended while the administration continues.
9. Continuous running of time
This section is based on general principle that once a right to sue
has accrued and time has started running, it could not stop unless
there was some direct obstruction to the remedy itself, or unless
the case fell within some of the exceptions provided in the
limitation act.
Scope of sec. 9
The fundamental principle is that limitation always implied an
existing cause of action and that unless the cause of action for a
suit has arisen, limitation for such a suit cannot begin to run.
Applicability
Notwithstanding anything contained in the foregoing
provisions of this Act, no suit against a person in whom
property has become vested in trust for any specific
purpose, or against his legal representatives or assigns
(not being assigns for valuable consideration), for the
purpose of following in his or their hands such property, or
the proceeds thereof, or for an account of such property
or proceeds, shall be barred by any length of time.
10. Suits against trustees and their representatives
The reason behind this section is that an express trust ought not
to suffer by the misfeasance or nonfeasance of a trustee.
Scope of sec.10
Section 10 is inapplicable to transfers and conveyance for
valuable consideration.
(Kakumani Rathiah vs. Pathan Asha Bibi, AIR 1964, A.P. 393)
It applies only to a case of property which has become vested in
“trust for a specific purpose”.
(Ramhandra kanago vs. laxman naik, AIR 1945, P.C. 54)
Contd.
Time never runs in favor of a trustee.
(Beliram and Brothers Chaudri Mohammad Afzal, AIR 1948 1969
Mad. 401)
Trustee or Mutawlli-
Time if runs in his favor
This word include the legal representative of the assigns as well.
The word “assign” is sufficiently wide to cover a lessee as well.
(smt.Chandrawati vs. Sivaji Maharaj, AIR 1969, All.72)
‘Assign’-Meaning of in sec. 10
(1) Suits instituted in the territories to which
this Act extends on contracts entered into in
the State of Jammu and Kashmir or in a
foreign country shall be subject to the rules
of limitation contained in this Act.
11. Suits on contracts entered into outside the territories to which the Act extends
(2) No rule of limitation in force in the State of Jammu and
Kashmir or in a foreign country shall be a defense to a suit
instituted in the said territories on a contract entered into
in that State or in a foreign country unless-
(a) the rule has extinguished the contract; and
(b) the parties were domiciled in that State or in the
foreign country during the period prescribed by such rule.
The effect of sec. 11(1) is to apply the rule of
limitation of this country from the date when the
cause of a action arose and not from the time
when the right to institute an action in a foreign
court begins to run.
(Ramanathan Chettiar vs. Soma Sundaram
Chettiar, AIR 1964, Mad. 527 at p. 528)
Scope and Applicability
Procedure only is governed by the law of the country in which the
actions brought - not by foreign law.
Section 11 is plain recognition of this principle. Though the proper
law of contract determines most matters relating to the formation,
validity and substance of the contract by virtue of sec. 11 , no
foreign law of limitation is defense to a suit in India, unless that
law has extinguished the contract and the parties were domiciled
in such country during the prescribed period.
Contd.
(1) In computing the period of limitation for
any suit, appeal or application, the day from
which such period is to be reckoned, shall
be excluded.
12. Exclusion of time in legal proceedings
(2) In computing the period of limitation for an
appeal or an application for leave to appeal or for
revision or for review of a judgment, the day on
which judgment complained of was pronounced
and the time requisite for obtaining a copy of the
decree, sentence or order appealed from or sought
to be revised or reviewed shall be excluded.
(3) Where a decree or order is appealed
from or sought to be revised or reviewed, or
where an application is made for leave to
appeal from a decree or order, the time
requisite for obtaining a copy of the
judgment 2[***] shall also be excluded.
(4) In computing the period of limitation for
an application to set aside an award, the
time requisite for obtaining a copy of the
award shall be excluded.
Explanation: In computing under this
section the time requisite for obtaining a
copy of a decree or an order, any time
taken by the court to prepare the decree or
order before an application for a copy
thereof is made shall not be excluded.
It is not possible to prefer an application for leave to appeal,
unless the appellant or the applicant has a copy of the judgment
on which the decree is based. (generally, along with appeal memo
it is required)
As a matter of practice some courts are allowing the time taken
for obtaining a copy of the judgment. This practice has been
legalized by inserting sec. 12 of the act.
General Note
Some courts have taken the view that the delay in drafting the
decree, before an application for a copy is made, should be
deducted as “time requisite”. But a delay of the office before the
application for a copy is made should not count in favour of the
party.
(Devkishin fatechand vs. Bai Mariambai, AIR 1963, Guj. 255)
Contd.
This section includes applications for revision within its scope.
The election petition may be treated as an application within the
schedule of the limitation act so as to attract the provisions of sec.
12(1) read with sec. 29 of the limitation act.
(Bhogilal Pandya vs. Maharawal Singh, AIR 1968 Raj. 145)
Scope of sec. 12
There is no definition of the expression “time requisite” in
limitation act.
Judicial committee of the privy council in Surty vs. Chettyar,
pointed out:
“the word ’requisite’ is a strong word; it may be regarded as
meaning something more than the word ‘required’. It means
‘properly required’, and, it is obligation of the counsel for the
appellant to explain, no part of the delay beyond the prescribed
period is due to his negligence.
Word “Requisite”
Meaning of
In the case of : Dalipram vs. Chhabiram, AIR 1964, M.P. 233 at p.
233:
As regards the expression “a copy of the judgment on which it is
founded”
In civil appeal - judgment or decree.
For both sec. 12 will be applicable.
Contd.
In case where the judgment on which the decree is based, is
pronounced on the last working day before the vacations, and
where the application for a copy is presented on the day the court
reopens, it would come within the ambit of the “time requisite for
obtaining a copy” because no application could be filed, during
that period and hence it will be granted.
(Amar chand vs. Bach Raj, AIR 1966 ,111)
“time requisite’ for obtaining a copy
The plain language of section 12(2) suggests that the said
provision is not attracted to the execution proceedings.
It is not mentioned as one of the categories covered by the said
section 12(2)
There is no scope for equity, and language cannot be stretched to
include execution proceedings within the ambit of the said
provision.
Applicability to Execution Proceedings
An application for leave to appeal to the Supreme Court, the time
requisite for obtaining copy of the decree as well as the judgment
should be excluded under sec 12 (2) and sec 12 (3) of the
limitation act.
Application for Leave to Appeal to SC
Limitation period according to Negotiable Instrument Act -
Time period of Notice - 30 days…..
To lodge a complain – within 15 days….
NI Act
Matter of construction of sub sections 2 and 3 of sec. 12 and as a
matter of principle, the time taken for obtaining the copy of the
judgment should be excluded in computing the period of limitation
for an application of leave to appeal in forma pauperis.
(Bhanumathi Amma vs. Nani Amma, AIR 1964 Ker. 173.)
Application for Leave to Appeal in forma pauperis
A requisition for drawing up of an order cannot amount to an
application for a certified copy of an order.
There is a clear distinction between requisitation of the drawing
up of the order and application for certified copy of the order.
Application for Certified Copy of an Order
The limitation act 1963 has made certain changes, as a result
whereof, it is necessary to make an application for certified copy
of an order, without such application, the time required for
obtaining certified copies of the order is not excluded from the
period prescribed for limitation.
Contd.
It obligatory to have certified copies of the order for the purpose
of computation of the prescribed period of limitation.
( Shaikh Mohd vs. Khan Bhadur)
Certified copy is essential
Legislative changes:
newly introduced.
Section 13-
Exclusion of Time in cases where Leave to Sue or Appeal as a
Pauper is applied for.
In computing the period of limitation prescribed for any suit
or appeal in any case where an application for leave to sue
or appeal as a pauper has been made and rejected, the
time during which the applicant has been prosecuting in
good faith his application for such leave shall be excluded,
and the court may, on payment of the court fees prescribed
for such suit or appeal, treat the suit or appeal as having
the same force and effect as if the court fees had been paid
in the first instance.
13. Exclusion of time in cases where leave to sue or appeal as a pauper is applied for
Where a pauper application was pending on this date and it was
disposed of only on the 18th January, 1964 it was held that the law
to be applied in respect of the pauper application was the law as it
stood under the provisions of the old limitation act, 1908 (if
provision is in old act) and not the new law as cl. (b) of sec. 31,
which expressly says that any application which may be pending
at the commencement of the act will not be affected by the
provisions of the act.
(Ramashrey Roy vs. Pashupati Pathak, AIR 1968 pat. 1)
Contd.
Application to sue as a pauper…
Application rejected…. ( on expire of the period of limitation)
Which date should be taken in to the consideration?
( Bibi Basiran vs. Lal Mohammad, AIR 1962 SC 941)
Date of the Suit or Appeal
The joint committee on the limitation bill, 1962 , felt that in a
case, when an application for leave to sue or appeal as a pauper
has been made and rejected, the time taken in prosecuting in
good faith such application should be excluded in computing the
periods of limitation prescribed. This clause accordingly, provides
for the exclusion of such period.
Scope of Sec. 13
(1) In computing the period of limitation for any suit the
time during which the plaintiff has been prosecuting
with due diligence another civil proceeding, whether in a
court of first instance or of appeal or revision, against
the defendant shall be excluded, where the proceeding
relates to the same matter in issue and is prosecuted in
good faith in a court which, from defect of jurisdiction or
other cause of a like nature, is unable to entertain it.
14. Exclusion of time of proceeding bona fide in court without jurisdiction
(2) In computing the period of limitation for any
application, the time during which the applicant has been
prosecuting with due diligence another civil proceeding,
whether in a court of first instance or of appeal or
revision, against the same party for the same relief shall
be excluded, where such proceeding is prosecuted in
good faith in a court which, from defect of jurisdiction or
other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of
Order XXIII of the Code of Civil Procedure, 1908 (5 of
1908), the provisions of sub-section (1) shall apply in
relation to a fresh suit instituted on permission granted
by the court under rule 1 of that Order, where such
permission is granted on the ground that the first suit
must fail by reason of a defect in the jurisdiction of the
court or other cause of a like nature.
(a) in excluding the time during which a
former civil proceeding was pending, the
day on which that proceeding was instituted
and the day on which it ended shall both be
counted;
Explanation: For the purposes of this section-
(b) a plaintiff or an applicant resisting an
appeal shall be deemed to be prosecuting a
proceeding;
(c) misjoinder of parties or of causes of action
shall be deemed to be a cause of a like
nature with defect of jurisdiction.
The object is to give relief to a person, who institutes proceedings
and due to technical defect, it should not be barred by limitation.
Object of the Section 14
To give benefit to the plaintiff u/s 14 of the act, on account of
mistakes committed by his or her legal adviser, the conduct of the
lawyer must be examined and scrutinized carefully.
If it is found that the conduct of the lawyer was palpably negligent
and the view taken by him was unreasonable, the plaintiff has to
suffer for the conduct of her or his counsel.
(Rabeyya Khatun vs. Official Liquidator, 1968 Cut. L.T. 830)
Lawyer’s Mistake..
Where appeal instead of revision was filed due to mistake of the
counsel……
It should be converted in to revision….
Time taken by the court in conversation should be excluded…
(Babl chhabra vs. Ginirani Chhabra, 1994)
Conversion of Appeal in revision
The legal position makes it crystal clear that the period from the
date of return of the plaint by the wrong court till the date of
presentation to the proper court cannot be excluded for the
purpose of computation of limitation and the court which returned
the plaint has no power to grant time.
Computation of Limitation-
when cannot be Excluded
(1) In computing the period of limitation of 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, shall
be excluded.
15. Exclusion of time in certain other cases
(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 shall be excluded.
Explanation: In excluding the time required for
obtaining the consent or sanction of the
government or any other authority, the date
on which the application was made for
obtaining the consent or sanction and the date
of receipt of the order of the government or
other authority shall both be counted.
(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 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 proceeding and ending with the expiry of three months
from the date of appointment of such receiver or liquidator, as
the case may be, shall 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 shall be excluded.
(5) In computing the period of limitation for
any suit the time during which the
defendant has been absent from India and
from the territories outside India under the
administration of the Central Government,
shall be excluded.
The scope of this provision is confined only to an absolute stay
granted by courts or by the provision law.
The principle underlying this section is apparent.
Scope of sec. 15
A decree, which has been stayed cannot obviously be executed.
So under this section the period covered by the stay order is
allowed to be excluded, from the period of limitation.
(Cherakuru Barhmiah vs. Cheelavapilla setti, AIR, 1964 A.P. 439)
Contd.
In another case, where a plaintiff in a suit against the government,
is required to give notice to the government u/s 80 of c.p.c., he
(the officer) would be entitled to exclude the period of notice, i.e.
two months, in computing the period of limitation.
(Commrs., port of Calcutta vs. Gneral Trading corp. AIR 1964, Cal.
290)
Cotd.
The section does not speak of absolute or partial stays, and it
seems clear that, if there is a stay at all it would be correct to say
that execution of the decree has been stayed, no matter that the
stay is restricted to one particular mode of execution and
execution in other modes is open.
Stay of Execution Proceedings and Attachment of Decree etc.
(1) Where a person who would, if he were living,
have a right to institute a suit or make an application
dies before the right accrues, or where a right to
institute a suit or make an application accrues only
on the death of a person, the period of limitation
shall be computed from the time when there is a
legal representative of the deceased capable of
instituting such suit or making such application.
16. Effect of death on or before the accrual of the right to sue
(2) Where a person against whom, if he were living, a right to
institute a suit or make an application would have accrued
dies before the right accrues, or where a right to institute a
suit or make an application against any person accrues on
the death of such person, the period of limitation shall be
computed from the time when there is a legal representative
of the deceased against whom the plaintiff may institute
such suit or making such application.
(3) Nothing in sub-section (1) or sub-section
(2) applies to suits to enforce rights of pre-
emption or to suits for the possession of
immovable property or of a hereditary
office.
This section is based on the general principle that there can be no
cause of action until there is a party capable of suing and until
there is a cause of action, there can be no question of the law of
limitation, coming into operation.
(Murry vs. East India co. 1821)
Principle of section 16
This section is confined to rights of action occurring after death.
There is no reason to restrict the section in this manner. The privy
council observed in Meyappa vs. Subramanya, that when the
cause of action arises in favor of the deceased person before his
death, time will at once begin to run.
Scope of sec. 16
(1) Where, in the case of any suit or
application for which a period of limitation is
prescribed by this Act-
(a) the suit or application is based upon the
fraud of the defendant or respondent or his
agent; or
17. Effect of fraud or mistake
(b) the knowledge of the right or title on which
suit or application is founded is concealed by the
fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the
consequences of a mistake; or
(d) where any document necessary to establish the right of the
plaintiff or applicant has been fraudulently concealed from
him; the period of limitation shall not begin to run until the
plaintiff or applicant has discovered the fraud or the mistake or
could, with reasonable diligence, have discovered it; or in the
case of a concealed document, until the plaintiff or the
applicant first had the means of producing the concealed
document or compelling its production:
PROVIDED that nothing in this section shall enable any suit to
be instituted or application to be made to recover or enforce
any charge against, or set aside any transaction affecting, any
property which-
(i) in the case of fraud, 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, 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 concealed document, 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 the document had been concealed.
(2) Where a judgments-debtor has, by fraud
or force, prevented the execution of a decree
or order with the period of limitation, the
court may, on the application of the
judgment-creditor made after the expiry of
the said period extend the period for
execution of the decree or order:
PROVIDED that such application is made
within one year from the date of the
discovery of the fraud or the cessation of
force, as the case may be.
If plaintiff desires to invoke the aid of sec. 17 , he must establish
that there has been fraud and that by means of such fraud, he has
been kept away from the knowledge of his right to sue or of the
title whereon it is founded.
(Syed Shah vs. Syed Shah Qadri, AIR 1971 SC 2184)
Scope of sec. 17
When computation of a period is to be made from a particular
date, that date is excluded from such computation.
(Baikunath Misra vs. Dessar Kali Kuer, AIR 1969 pat. 160)
Computation of period u/s 17
Sec. 17 relates to effect of fraud or mistake vis-à-vis initiation of
the suit beyond the period of limitation. Section 17 (c) saves the
period of limitation a case where the suit or application is filed for
relief from the consequence of a mistake. The period of limitation
shall not begin to run until the plaintiff or applicant has discovered
the fraud or the mistake with reasonable diligence.
Contd.
(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.
18. Effect of acknowledgement in writing
The contents and the scope of sec. 18, are no longer in doubt.
In Tilak ram vs. Nathu, AIR 1967 SC 935- Supreme Court pointed
out that the section requires :
1. An admission or acknowledgment
2. That such acknowledgment must be in respect of a liability in
respect of a property or right.
3. That it must be made before the expiry of the period of
limitation
Scope
4. That it should be in writing and signed by the party, against whom
such property or right is claimed.
Contd.
Two essential requirements:
There should be an acknowledgment of liability in respect of the
property or the right in question
It should be (by) the party against whom such property or right is
claimed.
Conditions which constituted valid acknowledgment
An acknowledgment u/s 18 , must be of a liability. It must relate to
some existing debt or other obligation to some property or right.
The liability must be existing on the date of acknowledgment.
It must be in writing and signed by the person against whom such
property or right is to be claimed or by some person through
whom he derives his title or liability.
Essential Conditions for a Valid Acknowledgment
The acknowledgment must be before the expiry of the period
prescribed for a suit or application in respect of such property or
right.
(Bank of India vs. James Fernandez, AIR, 1988 ker. At p. 89)
Contd.
The word “acknowledgement” appearing in sec. 18, can only
mean an admission of the truth of one’s own liability.
Such admission may be express or implied.
“Acknowledgment” in sec. 18
Section 18 of the act, makes a provision about the effect of
acknowledgment in writing.
An acknowledgment under sec. 18 must be of a liability.
Thus, the liability must be alive or in existence on the date of the
acknowledgment.
It must be in writing and signed by the person against whom such
writing is claimed.
Effect of Acknowledgment
The acknowledgment, therefore, must be before the expiry of the
period prescribed for a suit or application, in respect of such
property or right.
(Shivam Construction Co. vs. Vijaya Bank, Ahmedabad, AIR 1997
Guj. At pp.29, 30)
Contd.
Sec. 18 (2) permits proof of evidence regarding time of signing the
acknowledgment in writing, when it is undated.
From that a corollary may follow that if the acknowledgment is in
writing and signed and is dated, oral evidence regarding the date
is prohibited by implication.
Evidence regarding the Time of Signing the Acknowledgment
is Permissible
BUT every rule has its exception. Intention of sec. 18(2) is to find
out the real date of the written and signed acknowledgment for
the purpose of saving limitation and to exclude fraudulent
testimony. Vitiating factors could always be proved.
The very purpose of the existence of court is dispensation of
justice between parties by finding out the truth legally and notice
of their contentions and not to deny justice on technical grounds.
(Craft centre vs. Koncherry Coir Factories ,1991)
Cont.
An acknowledgment to take the case out of the statute of
limitation must be either one from which an absolute promise to
pay can be inferred or, secondly, an unconditional promise to pay
the specific debt, or thirdly, there must be a conditional promise
to pay the debt and evidence that the condition has been
performed.
(Bibhuti Bhusan Bose vs. National Coal Trading co. AIR 1966, pat.
346)
Un conditional Acknowledgment implies a Promise to Pay
It follows, therefore, that whatever may be the case with regard to
the other partners, the legal representatives of deceased partner
and also some other specifically referred to in the proviso stand on
a different footing in relation to the acts done by any of the
partners after the dissolution of the firm whether or not public
notice is given of the dissolution.
Legal Representative of Deceased Partner when cannot be
bound by any Acknowledgment
That being the case (previous slide’s situation), the legal
representatives of a deceased partner cannot be bound by any
acknowledgment or payment made towards the debts,
subsequent to the death of the partner, even though it may be
said that the partner as the agent of the firm had implied
authority under section 47 of the partnership act, to acknowledge
a debt.
(K. Venkatasubbamma vs. K. Subba Rao, AIR 1964, A.P. 1964 462
at p. 463)
Contd.
In the case of Kittunni Gupthan vs. M.C. Kuttikrishna Gupthan:
“The plaintiff relied on an acknowledgment of the plaint’s claim
contained in Ex.-4, the reply notice issued by the defendants
through their advocate. The point of discussion is only, whether
this reply notice contained an acknowledgment of a subsisting
liability of the defendants under the note and whether that
acknowledgment is binding on the defendants.
Acknowledgement contained in an advocate’s letter may save
limitation
The further fact that both the defendants joined together and
issued a reply notice through their advocate strengthens the
conclusion that the plaintiff demanded the amounts due under
both notes. Therefore, it is clear that the acknowledgment, in the
reply notice is also for the liability, under the note which is the
subject matter of the suit in this case.
Contd.
Acknowledgment in a pleader’s letter, may suffice to save
limitation against the client, it being assumed that (until the
contrary is proved) the letter was written under instructions.”
Contd.
In the case of Oriental Bank of Commerce vs. Dile Ram, 1991 Bank
J. 523 at p. 524:
“The well settled principal is that the surety can appoint the
principal debtor as his agent for the part payment of debt
acknowledgment liability in relation to the applicability of sec. 18
to 20 of the limitation act.
Part payment of loan and actionable want of liability by
principal debtor
when may be deemed on behalf of surety also
Evidently, in such an eventuality, the principal debtor while
making the acknowledgment or part payment would not only be
binding himself alone, but also the surety because the
acknowledgment or payment, then would be deemed to have
been made on behalf of the surety as well.
Contd.
Where payment on account of a debt or of
interest on a legacy is made before the
expiration of the prescribed period by the
person liable to pay the debt or legacy or by
his agent duly authorized in this behalf, a fresh
period of limitation shall be computed from the
time when the payment was made:
19. Effect of payment on account of debt or of interest on legacy
PROVIDED that, save in the case of
payment of interest made before the 1st
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.
Explanation: For the purposes of this section -
(a) where mortgaged land is in the possession of the
mortgagee, the receipt of the rent or produce of such
land shall be deemed to be a payment;
(b) "debt" does not include money payable under a
decree or order of a court.
The payment which really extends the period of limitation under
the section should be written or signed acknowledgment as the
only proof of payment and exclude oral testimony.
The section requires that the payment should be made within the
period of limitation.
Scope – Sec.-19
It does not require that the acknowledgment should also be made
within the period but it is essential that such acknowledgment
whether made before or after the period of limitation must be in
existence prior to the institution of suit.
(Sant Lal Mahton vs. Kamla Prasad AIR 1951 sc 477 at p. 479)
Contd.
In another case: “ if a cheque bears a date prior to the date of the
delivery of cheque, the creditor can present the same for
collection only after it is delivered to him.
In such a case it is the date of delivery of the cheque rather than
the date which the cheque before, would be the date for
computing the period of limitation.
(Ashok Khurana vs. Steelam Industries, AIR 2000 Delhi 336 at p.
339)
Contd.
The words “a person liable to pay” in sec. 19(1)(New), 20(1)(old)
of limitation act are words of wide import, not confined to a
person who is personally liable to pay the debt. The words are
wide enough, to cover property liability also.
“A person Liable to Pay”
(1) The expression "agent duly authorized in
this behalf" in sections 18 and 19 shall, in the
case of a person under disability, include his
lawful guardian, committee or manager or an
agent duly authorized by such guardian,
committee or manager to sign the
acknowledgement or make the payment.
20. Effect of acknowledgement or payment by another person
(2) Nothing in the said sections renders one
of several joint contractors, partners,
executors or mortgagees chargeable by
reason only of a written acknowledgement
signed by, or of a payment made by, or by
the agent of, any other or others of them.
(3) For the purposes of the said sections,-
(a) an acknowledgement signed or a payment made
in respect of any liability by or by the duly authorized
agent of, any limited owner of property who is
governed by Hindu law, shall be a valid
acknowledgement or payment, as the case may be,
against a reversioner succeeding to such liability; and
(b) where a liability has been incurred by or
on behalf of a Hindu undivided family as
such, an acknowledgement or payment
made by, or by the duly authorized agent
of, the manager of the family for the time
being shall be deemed to have been made
on behalf of the whole family.
From the language of sec. 20, it appears that two conditions are
essential:
1. The payment must be made within the prescribed period of
limitation and,
2. It must be acknowledged by some form of writing either in the
handwriting of the payer himself or signed by him.
Applicability
The word “payment” for the purpose of saving the limitation
assume importance. Now whether the date of cheque as such
should be taken as the date of payment or the date on which
actually the amount had been realized should be taken as the
date of payment – was in dispute.
Decide…
Reckoning the period of Limitation-
The court was of the considered opinion that the facts are
distinguishable and as far as the facts available as on record in
the case for reckoning the period of limitation it is the payment
which is to be taken into consideration and the payment should be
taken as the date on which amount was realized .
(Syndicate Bank vs. Vijayarama Rao, 2002)
Contd.
(1) Where after the institution of a suit, a
new plaintiff or, defendant is substituted or
added, the suit shall, as regards him, be
deemed to have been instituted when he
was so made a party:
21. Effect of substituting or adding new plaintiff or defendant
PROVIDED that where the court is satisfied
that the omission to include a new plaintiff
or defendant was due to a mistake made in
good faith it may direct that the suit as
regards such plaintiff or defendant shall be
deemed to have been instituted on any
earlier date.
(2) Nothing in sub-section (1) shall apply to
a case where a party is added or
substituted owing to assignment or
devolution of any interest during the
pendency of a suit or where a plaintiff is
made a defendant or a defendant is made a
plaintiff.
Sub-section(1) of sec. 21… the proviso is specific that after the
institution of the suit, if a new plaintiff or defendant is substituted
or added, the suit shall, as regards, it deemed to have been
instituted when he was made a party.
Applicability
Failure to joint a person who is proper but not a necessary party
does not affect the maintainability of the suit nor does it invite the
applicability of the section.
( Devidas vs. Shrishailapa, AIR 1961 sc. 1277 at p. 1282)
Non-Joinder of parties, effect
In the case of a continuing breach of
contract or in the case of a continuing tort,
a fresh period of limitation begins to run at
every moment of the time during which the
breach or the tort, as the case may be,
continues.
22. Continuing breaches and torts
Court observed that: “ sec. 23(old) 22(new) refers not to a
continuing right, but to continuing wrong.
Essence of a continuing wrong, that it is an act which creates a
continuing source of injury ….
the doer of the act as being responsible and liable for continuance
of the said injury….
Applicability of Sec.22
If the wrongful act causes an injury which is complete, there is no
continuing wrong even though the damage resulting from the act
may continue….
If however a wrongful act is of such a character that the injury
caused by it, itself continues, then the act constitutes a continuing
wrong….
Contd.
In this connection, it is necessary to draw a distinction between
the injury caused by the wrongful act and that may describe as
the effect of the said injury.
It is only in regard to act which can be properly characterized as
continuing wrongs, that sec. 23 can be invoked.
(sheo Narayan Singh vs. Ambica Singh, AIR 1970 pat. 246 at. P.
251)
Contd.
Essence of continuing tort is an act which creates a continuing
source of injury and renders the doer of the act responsible and
liable for the continuance of the said injury….
Continuing Tort
In the case of a suit for compensation for an
act which does not give rise to a cause of
action unless some specific injury actually
results there from, the period of limitation
shall be computed from the time when the
injury results.
23. Suits for compensation for acts not actionable without special damage
Sec.23 merely affects the time from which the time would run.
In a suit for compensation for an act not actionable without
special damage, the period of limitation shall be computed, from
the time, when the injury results. Therefore, the effect, which this
section causes in the operation of the statute of limitation, is not
to extend or to restrict any period of limitation, but to modify the
date or time from which the cause of action arises.
Scope of sec.-23
That is to say, if a suit is for compensation for any malfeasance or
misfeasance independent of contract, the limitation will start, not
from the date of the malfeasance or misfeasance, but from the
time when the injury results.
( Jagannath marwari vs. kalidas raha)
Contd.
The provisions of sec. 23 apply to suits based on torts as well as
to suits based on contracts.
(Kedar Nath vs. Har Govind )
Applicability of Sec.23
All instruments shall for the purposes of this
Act be deemed to be made with reference
to the Gregorian calendar.
24. Computation of time mentioned in instruments
If a question of limitation arises, the instrument must be deemed
to have been made with reference to the Gregorian Calendar, the
intention of the parties being immaterial.
(Vishnu Bhatta vs. Domakkee, AIR 1958 ker. 326 at p. 330)
Scope and Applicability
(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.
PART IVACQUISITION OF OWNERSHIP BY POSSESSION25. Acquisition of easement by prescription
(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 with the
meaning of this section, unless where there is an
actual discontinuance of the possession or enjoyment
by reason of an obstruction by the act of some
person other than the claimant, and unless such
obstruction submitted to or acquiesced in for one
year after the claimant has notice thereof and of the
person making or authorizing the same to be made.
Where the case of the petitioner, is not about the right of
easement, but is about the public right over a public way, ….
Whether section 25 will apply?
( Aribam Tuleshwar Sarma vs. Irengbam Singh, AIR 1965 Manipur
39 at p. 42)
Claim of public right over public way
Where any land or water upon, over or from, which any
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 interests or term resisted
by the person entitled on such determination to the said land
or water.
26. Exclusion in favour of reversioner of
servient tenement
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.
27. Extinguishment of right to property
It is a well recognized general principle, that lapse of time bars
only the remedy, but does not extinguish the right. Thus reading
sec. 27 and 28 of the act, together the principle recognized, is
that where, for a suit for possession, the time expires, it will
automatically extinguish the right along with the remedy, to
recover the possession. In other words, both the right and the
remedy to get back the possession of the property, will be lost.
(Devboo vs. Rama Dogra, 1993)
scope
Sec. 28 Amendment of certain acts
(1) Nothing in this Act shall affect section 25 of the Indian
Contract Act, 1872 (9 of 1872).
29. Saving
(2) Where any special or local law prescribes for any suit, appeal or
application a period of limitation different from the period
prescribed by the Schedule, the provisions of s. 3 shall apply as if
such periods were the periods prescribed by the Schedule and for
the purpose of determining any period of limitation prescribed for
any suit, appeal or application by any special or local law, the
provisions contained in sections 4 to 24 (inclusive) shall apply only
in so far as, and to the extent to which, they are not expressly
excluded by such special or local law.
(3) Save as otherwise provided in any law
for the time being in force with respect to
marriage and divorce, nothing in this Act
shall apply to any suit or other proceeding
under any such law.
(4) Sections 25 and 26 and the definition of
"easement" in section 2 shall not apply to
cases arising in the territories to which the
Indian Easements Act, 1882 (5 of 1882),
may for the time being extend.
Sec. 30 provision for suits, etc. for which the prescribed period is
shorter than the period prescribed by the Indian limitation Act,
1908.
Section 30
Miscellaneous provisoins
Nothing in this Act shall-
(a) enable any suit, appeal or application to be instituted,
preferred or made, for which the period of limitation prescribed
by the Indian Limitation Act, 1908, expired before the
commencement of this Act; or
(b) affect any suit, appeal or application instituted, preferred or
made before, and pending at, such commencement.
Sec. 31 provisions as to barred or pending suits, etc.
Discussion with students….
Comments , if any
Old Sections New sections
1 1
2 2
3 3
4 4
5 5
6 6
7 7
Comparative Chart
Old sections New sections
8 8
9 9
10 10
11 11
12 12
13 15(5)
14 14
Contd.
Old sections New sections
15(1) 15(1)
15(2) 15(2)
16 15(4)
17 16
18 17
19 18
20 19
Contd.
Old sections New sections
21 20
22 21
23 22
24 23
25 24
26 25
27 26
Contd.
Old sections New sections
28 27
29 29
30, 31, 32 Repealed
137 articles ….
Contd.
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