The Limitation Act, 1963
- What will be the effect of when prescribed period for any suit or appeal or application expires o the day when court is closed?
- Under what circumstances can delay be condoned in the filling of appeal and applications?
- Explain the doctrine of sufficient cause?
The Limitation Act, 1963
The Limitation Act is a Procedural or adjective law. It is lex fori. It is an artificial mode to determine the justiciable dispute and has to be construed strictly.
The Act prescribes periods after the expiry of which a suit cannot be maintained in a court of justice to enforce a right. 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 Courts of Law. The principle of the Act is not to enable suits to be bought within certain periods, but to forbid them being brought after certain periods.
Basically the laws of limitation are founded on public policy and expediency. The object of the Limitation Act, is to quiet long possession and extinguish stale demands i.e. to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by aparty’s own inaction or negligence (Rajender Singh v Santa Singh AIR 1973SC 2537). Thus, the object of the statute of limitation is preventive.
This principle is based on the maxim interest republicaeut sit finis litium i.e. the interest of the State requires that there should be an end to litigation. At the same time the laws of limitations are a means of ensuring private justice suppressing fraud and perjury, quickening diligence and preventing oppression (Motichand v Munshi AIR 1970 SC 898). They are meant to see that the parties do not resort to dilatory tactics but seek their remedy promptly [ChiranjiLal (Dr.) v Hari Das AIR 2005 SC 2564] because the idea is that every legal remedy must be alive for a legislatively fixed period of time.
“All Statutes of Limitation,” said Lord St. Leonards, “have for their object the prevention of the rearing up of claims at great distance of time when evidences are lost and in all well regulated countries the quieting of possession is held an important point of policy.” Lord Plunkett said: “Time holds in one hand a scythe; in the other an hour-glass. The scythe mows down the evidence of our rights, the hour-glass measures the period which renders that evidence superfluous.”
There are three different reasons supporting the existence of statutes of limitation, namely (Halsbury’s Laws of England),
- that long dormant claims have often more of cruelty than justice in them (it is unfair that a defendant should have a claim hanging over him for an indefinite period),
- that a defendant might have lost the evidence to dispute the stale claim (e.g. loss or destruction of documents, fading of memory, death of parties and witnesses),
- that persons with good causes of action should pursue them with reasonable diligence (it relates to the conduct of plaintiff, a person who does not promptly act to enforce his rights should lose them).
The doctrine of limitation is based on two broad considerations: First, there is the presumption that a right not exercised for a long time is non-existent. Laws come to the assistance of the vigilant and not of the sleepy (Vigilantibus non dormeientibus jura subveniunt). The laws of limitation and prescription are based upon the principle that the law aids the diligent and not the indolent.
Second, an unlimited and perpetual threat of litigation creates insecurity and uncertainty; some kind of limitation is essential for public order and peace. A constant dread of judicial process and a feeling of insecurity retard the growth and prosperity of a nation. Thus, the statutes of limitation are known as ‘statutes of repose’ or ‘statutes of peace.’ It is one of repose because it extinguishes stale demands and quiets title. It secures peace as it ensures security of rights. Abbot, C.J. in Bettley vFaulkner, 3 B & A1 288, said: “The statute of limitation was intended for relief and quiet of the defendants and to prevent persons from being harassed, at a distant period of time after the committing of the injury complaint of.”
An opinion is sometimes expressed that the plea of limitation is a dishonest one, and that though a debt may be irrecoverable in court, it nevertheless continues to be binding on the debtor in foroconscientiae (in the forum of the conscience). However, considering the object with which these laws have been framed and their utility in the interest of the community in general, it cannot be said that it is unjust to raise the plea which the law has expressly provided for the encouragement of diligence, and particularly, where the defendant has altered his position during the interval of time. In India, the question of morality of the plea is of less consequence: for, whether the defendant takes up the plea or not, and even though he confesses judgment, the court is bound, under Sec. 3 of the Limitation Act, to dismiss a suit if out of time.
DIFFERENCE BETWEEN LIMITATION, PRESCRIPTION AND LACHES
Limitation and Prescription
- That Indian Limitation Act deals with law of prescription as well as law of limitation. A law of prescription prescribes the period at the expiry of which not only the judicial remedy is barred but a substantive right is acquired or extinguished. A law of limitation limits the time after which a suit etc., cannot be maintained in court. It simply bars the judicial remedy. It does not destroy the primary and substantive right itself but put an end to the accessory right of action. Thus, law of limitation is a kind/ species of prescription or ‘imperfect prescription’.
- Law of limitation is an adjective or procedural law; rules of limitation being rules of procedure do not create any right in favour of any person. The law of prescription, as affecting the substance of the right itself (i.e. affecting the substance of conflicting rights between the rival claimants), is a substantive law.
- Prescription is the acquisition of title by possession of property for the prescribed period provided that possession was neither forcible nor hidden, nor permissive. The reason behind is that those who had interest in the property have allowed the’ rights to get barred by not caring to pursue their remedies within the time allowed by law to enforce those remedies. A prescription confers a right, it is affirmative or positive. On the other hand, limitation is negative in its operation depriving a person of a power which he possessed before.
- In ancient India, there was only a law of prescription and no law of limitation as such. For the acquisition of title by prescription, a period of 20 years was laid down by certain Smriti writers, though others differed regarding the length of period. As the main occupation of the people being agriculture, the prescription was concentrated more on land and the rights therein.
The term ‘prescription’ as used in the Limitation Act, excludes, and is opposed to limitation. A person’s right is extinguished by prescription when he cannot assert it either judicially or extra-judicially. It perishes so far as he is concerned. But since a mode of losing rights is also often a mode of acquiring them the right is virtually, though not expressly or directly, transferred to the person who claims it by prescription. Where prescription extinguishes the substantive right itself, the remedy is necessarily lost or barred. A prescription such as that dealt with by Sec. 27 is an extinctive prescription. Where prescription not only bars the remedy, and extinguishes the right of the original holder, but directly transfers his right, to the opposing claimant, the latter acquires a title against all the world. Such a prescription is called acquisitive prescription. A prescription such as that referred to in Sec. 25 belongs to this class.
When the right is conditioned by prescription, the person subject to the corresponding obligation or duty has a freedom from the liability to be sued or proceeded against in a court of law. This kind of restrictive prescription or limitation has sometime been described as exonerative or exemptive prescription.
Prescription should be distinguished from mere occupation. A thing which has no owner known in law as res nullius may be acquired by simple occupation which is to be distinguished from prescription. No length of time is necessary to complete the title to a thing not owned by anybody and there is or can be no question of competing claims or of adverse possession in such circumstances.
Limitation and Laches
Laches means slackness or negligence, and hence wilful negligence in asserting one’s right. The doctrine of laches is based on the principle, delay defeats equity. Delay in seeking equitable remedy is technically known as laches. To constitute delay there should not be any disability or ignorance or other circumstances which prevent a person from suing in time. Equity does not fix a specific limit but considers the circumstances of each case in determining whether there has been such delay as to amount to laches.
The points of distinction between the laches and limitation are as follows:
- The doctrine of limitation is based upon public policy and utility and rests upon express law thus its rules are inﬂexible. The doctrine of laches is based on equitable consideration and depends upon general principles of justice and fair play.A positive rule of limitation cannot depend whether there is laches or not.
- Thus, before the expiry of the limitation period, no relief can be denied to a claimant on the ground of laches. A mere delay as such is not a bar to legal remedy unless is amounts to waiver or abandonment. To operate as a part of relief, the delay should be such that it could be said that the plaintiff has given up (waived) his right by acquiescence or where by his conduct or neglect he has put the other party in a situation which it would not be reasonable to place him. Under these circumstances, the laches would deny relief to the claimant even thought the period of limitation has not expired. Further, the writ petitions are expected to be fled without any laches.
There are certain kinds of reliefs where no statute has fixed a period of limitation and the matter is left to the discretion of the court. In these cases the doctrine of laches plays an important role. Illustrative of such as relief are: relief by way of a writ under the Constitution, the relief given under the Specific Relief Act, relief sought in matrimonial suits and interlocutory relief (relief pending the hearing and final disposal of the suit), etc. In these cases the general principle is that “delay defeats equity”. In such cases, if it is proved that the plaintiff has shown negligence and delay in asking for the relief the courts will not grant the relief. Whether it is such delay as would necessitate the denial of the right is a question of fact and a question of discretion of the court.
- The basis of the doctrine of laches is the same as that of the law of limitation. In the latter case, however a suit is dismissed if not brought within the given time and no other matters are taken into consideration. In the case of laches, on the other hand, there is no fixed period of time; the court will look into facts of each particular case to see (a) whether there was an unreasonable delay on the plaintiff’s part; Whether the plaintiff’s delay has resulted in loss or destruction of evidence; and (c) whether the plaintiff has, by his delay or omission, induced the defendant to incur an expense or to alter his position.
- Another point of distinction is that in the case of limitation, the ignorance or knowledge of the plaintiff with respect to his right is, in most cases, immaterial. On the other hand, in order to defeat a claim on the ground of laches, it would ordinarily be necessary to show that the plaintiff had a sufficient knowledge of the facts, constituting his title to the relief, and that he knowingly ………….. to assert his rights.
- Laches may be pleaded either against the plaintiff or the defendant, while limitation can be pleaded generally against the plaintiff (normally defendant must plead the bar of limitation).
Laches, Limitation and Acquiescence– Laches is merely passive, while acquiescence implies almost active consent. Acquiescence is a different thing; it means more than laches. If a party who could object, does not do so and knowingly permits another to incur an expense in doing an act under a belief that it would not be objected to, a kind of permission maybe said to have been given to another to alter his condition, and he maybe said to acquiesce. A person acquiescing must be fully cognizant of his right to dispute the claim, he must be under no disability and lastly must be free from all undue inﬂuence or pressure.
Mere delay is not, by itself, fatal to a suit but delay which amount to a waiver of the plaintiff’s right by acquiescence or conduct inducing a party to place himself in a position in which he would not otherwise have placed, may be sufficient to disqualify a plaintiff from asserting rights which are not actually barred by limitation.
Limitation and Estoppel
Limitation and estoppel are different things, though the operation of eachis to prevent a party from asserting his right at law, in the one case by shutting out a suit, and in the other case by shutting out evidence.
- Limitation is a rule of law. It comes into operation merely because of the passivity of the plaintiff in not asserting his rights quickly enough. It is not necessary, in order to avail oneself of this defence, that there should have been any acts or representations done or made by the other party. Estoppel is a rule of evidence; it arises by reason of some act, statement or omission intentionally made by a party.
- Again, estoppel may apply to either party; a defendant may be estopped from raising a particular defence, as much as a plaintiff may be estopped from setting up a particular case. Limitation, however, does not apply in a matter of defence.
Limitation Bars Remedy but Not the Right
The rule of limitation is a rule of procedure, a. branch of the adjective law. It does not either create or extinguish rights (an aspect of substantive law), except in the case of acquisition of title to immovable property by prescription under Sec. 27 of the Limitation Act. A law of limitation affects the remedy merely; it does not touch the right of a person to the debt, damage, goods, person, property, etc.
“The statute of limitation bars the remedy but does not extinguish the right. Lapse of time does not extinguish the right of a person” (Bombay Dyeing & Manufacturing Co. v State of Bombay AIR 1958 SC 328), which either remains merely as a moral obligation or can be availed of to furnish the consideration for a fresh enforceable obligation (B.B. & D. Mfg. Co. v ESI Corpn., AIR. 1972 SC 1935). An extinction of a remedy, as contemplated by the provisions of the Limitation Act, prima facie would be attracted in all types of suits [Prem Singh v Birbal (2006) 5 SCC 353].
The rules for limitation are not meant to destroy the rights of the parties [Babua Ram v State of U.P. (1995) 2 SCC 689]. They are meant to see that the plaintiff does not take a dilatory (delaying) tactics but seeks remedy within the period stipulated by the legislature. The right continues to exist even though the remedy is barred by limitation (Hariraj Singh v Sanchalak AIR 1968 All. 246). It is only the remedy ‘by way of a suit’ that is barred, but the right itself continues to exist; and if there is some other remedy or lawful means by which that right can be enforced, the Limitation Act cannot come in the way. The concept ‘time-barred’ can not be extended to proceedings outside the law courts.
So a right to the debt does not cease to exist only because its recovery is barred by the stature of limitation. A debtor may pay the ‘time barred debt’ and cannot claim it back on the plea that it was barred by limitation. Similarly, when a debtor has several debts due to a creditor and he makes payment without any speciﬁcation, then the creditor can adjust it towards any of the debts even if recovery of such debt is barred by time. A barred debt may constitute a valid consideration for a fresh contract.
But although the existence of the right is not affected by the remedy becoming barred by limitation, the fact that remedy is barred may prevent the right being availed of in some other way also. However, in what ways the right can be availed of or whether the availability of the right in a particular manner is preserved by the suit being barred by limitation depends upon other branches of law and not to be looked into in the statute of limitation. If a barred debt cart be recovered by any other means than suit, the Limitation Act does not prevent anybody from recovering such debt(First National Bank v Seth SantLal AIR 1959 Punj. 238).
Since limitation bars a suit for the enforcement of a right, but does not destroy the right itself, a defendant in a suit can set up a ‘right in defence’ though he could not have enforced the right by a suit. There is no limitation against a defence.
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 limitation period not only the remedy but the right also, is extinguished under Sec. 27. In such circumstances a defendant cannot also set up such an extinguished right by way of a defence.
APPLICABILITY OF LIMITATION ACT
- The Act applies to all suits and appeals and certain applications specified in the Articles of the Act (Applications include the petition), The provisions of the Limitation Act are applicable only in relation to certain applications and not all applications despite the fact that the words “other proceedings” were added in the long title of the Act in 1963.
Thus, the following applications are not covered by the Act: (i) an application for a succession certificate to collect the debts due to the estate of a deceased person (Janaki v Kesavulu, 8 Mad. 207); (ii) an application for probate or letters of administration (Kalinath v NagendraNath AIR 1959Cal. 81); (iii) an application to a court to exercise the functions of aministerial character e.g. an application for the grant of a sale certificate(Lakshmibai v Tukaram AIR 1930 Nag. 206); (iv) an application invoking the inherent powers of court (Beeravu Kathiyamma AIR 1973 Ker. 226);(v) an application to a court to do what the court is bound to do (Darbov Kesho, 9 All. 364). There is no bar of limitation to invoke the jurisdiction of the courts under Sec. 151 of the Civil Procedure Code for correction of accidental slip or omission in judgments, orders or decrees for clerical errors.
The Limitation Act applies only to such application as a party is bound to make to obtain the relief he seeks but does not apply where the application relates to action which the court ought to take suo motu irrespective of whether the parties applied for it or not (Union of India v Kiroo Mal AIR 1952 Punj. 423).
- Limitation only applies to institution of proceedings not to their continuation– The bar does not apply to steps which constitute a mere continuation of pending proceeding. Where a suit is validly instituted, but the plaint is returned for some purpose and re-presented, such re-presentation is only a continuation of the suit and does not affect the question of limitation.
An application for a final decree in a suit for partition is not governed by any provision of Limitation Act as the final decree proceeding is a continuation of the suit (Sudarshan Panda v LakshmidharPande AIR 1983Ori. 132).
- Limitation and criminal proceedings– The Limitation Act does not apply to criminal proceedings unless it is made applicable to them by express provision (e.g. period of limitation have been provided for appeals under the Criminal Procedure Code in Arts. 114 and 115; Art. 131 of Limitation Act applies to application of criminal revision). The reason is that it is undesirable that persons who have been guilty of serious crimes should be free form the reach of the long arms of the law after a few years time (thus, criminals would hide themselves for a few years in order to become immune from prosecution).
There is no limitation generally for filing a complaint of a criminal offence unless a penal law creating the offence prescribes any period within which the complaint has to be made in respect thereof (Villuri v Rama Rao AIR 1925 Mad. 186).
- Applicability to fundamental rights and writ petition– The Supreme Court has made it clear that no period of limitation can be prescribed for a person aggrieved by the State action challenging such an action as violating fundamental rights and ﬁling a petition under Art. 32 of the Constitution. Such principle of limitation period would have the effect of putting curbs in the way of enforcement of fundamental rights. However, there should not be any undue delay (i.e. laches) on the part of the aggrieved party (Moti Chand v Munshi AIR 1970 SC 898).
The Supreme Court held improper the dismissal of writ petition by High Court on the ground that it was not filed within 90 days of the date on which impugned order was passed by the executive authority, as no limitation is prescribed for the purpose of filing a writ petition against an executive action (Vijai Raje Scindia v State of U.P.AIR 1986 SC 756).
- Applicability to arbitration proceedings– By Sec. 43 of the Arbitration Act, all the provisions of ‘the Limitation Act have been made to apply to arbitrations as they apply to proceeding in Court.
- Applicability to other proceedings- The provisions of the Limitation Act are not applicable to proceedings before bodies other then courts, such as a quasi-judicial tribunal or even an executive authority [S. Synthetics Ltd. v Fairgrowth Financial Services Ltd.(2004) 11 SCC 456]. The Act has no application to a departmental proceeding (T Laxman v State of Madras AIR 1968 SC 1489).
The Limitation Act is not applicable to a proceeding under Sec. 33(C)(2)of the Industrial Disputes Act, 1947 (Town Municipal Council v Presiding Officer, Labour Court AIR 1969 SC 1335). The Act does not apply to election petition in as much as the Representation of People Act, 1951 is a complete and self-contained code which does not admit the introduction of the provisions of the Limitation Act (Venkateswara Rao v Narasimha Raddy AIR 1969 SC 872). In practice, the bankers do not set up the statute of limitation against their customers or their legal representatives (UCO Bank v H.C.Sarkar AIR 1990 SC 1329).
- Limitation bars suit, not defence– The Limitation Act is applicable to suit brought by the plaintiff; it does not apply to a right setup by the defendant in defence. Thus the defendant can plead that the instrument is voidable even if his suit to set it aside on the ground of its void ability is barred by limitation. Even if a wit for setting aside a decree on the ground of fraud is barred by limitation, the defendant can still impeach such decree as fraudulent. Likewise, the mortgagee can set up in defence a time-barred mortgage deed.
The plea of limitation can be raised only as against the plaintiff, and not an against the defendant. The object of the Limitation Act is to prevent a person from seeking to enforce a stale demand, and not to prevent a person from raising any defence that he likes. A ground of defence cannot become stale or barred by limitation, and it would therefore be open to a defendant to put forward a defence though such defence as a claim made by him may be barred on the date it is put forward.
But where a suit by a defendant would have been barred under Sec.25 or Sec. 27 of the Act, the defendant can not set up his right by way of defence (Mahadev v Sadashiv, 22 Bom. L.R. 1082) Similarly, a claim by way of set-off or counter-claim cannot be pleaded, unless such claim is within the period of limitation [Sec. 3(2)(b)].
- Contract curtailing the period of limitation– The parties cannot by consent or agreement curtail, extend or alter the period of limitation(Harshad Cooperative v United India F&G Insurance AIR 1992 Bom.341). A person cannot contract himself out of the statute of limitation, nor is he estopped from pleading the statute of limitation.
A contract which provides that a suit should be brought for the breach of any terms of the contract within a time shorter than the period of limitation prescribed by the law of limitation is void so far as the term is concerned. Such a term is void because it absolutely restricts the parties from enforcing their rights after the expiration of a period stipulated though such suit may be within the period of limitation prescribed under this Act. Such agreement will be void under Sec. 28 of the Contract Act resulting in ‘restraint of legal proceedings.’
An agreement, or a clause in an agreement, not to sue for sometime is invalid if its effect is to enlarge the period of limitation. The court cannot recognize any such arrangement between the parties. Such an agreement is void under Sec. 23 of the Contract Act, as being of such a nature that, if permitted, it would ‘defeat the provisions of the law.’
- Applicability to ultra vires Acts– The periods of limitation prescribed by the Limitation Act do not apply to ultra vires Acts. Question of limitation does not arise if the impugned order is void.
Bar of Limitation- “Subject to the provisions contained in Sections 4 to 24, 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.”
Expiry of prescribed period when court is closed– 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- A court shall be deemed to be 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.
Sec. 4 deals with extension of time over that period during which a person is delayed by the court’s action and not by any act on his own. Sec. 4 gives expression to the maxims: (i) the law does not compel a man to do that which he cannot possibly perform, and, (ii) an act of the court shall not prejudice any party.
The word “Court” means the proper court in which the application ought to have been made. Thus if an application is filed in a wrong court, no benefit under Sec. 4 will be available (Amar Chand v Union of India AIR 1973 SC 313) if the proper court where one ought to have filed the suit was, at that time, open.
When no period of limitation is prescribed for ﬁling of an application for certified copy of judgment and decree by a party and the party can do it any time, then Sec. 4 is not attracted to the filing of such application (KannaiahLal v Ram Kishen AIR 1996 M.P. 340). Sec. 4 applies where a certain period has been prescribed by a statute, and has no application to a case where a certain date has been fixed for payment by agreement of parties.
Sec. 4 provides an exception to the general rule in Sec. 3. Further, there is a difference between Sec. 4 and Sec. 14; while the latter provides for the exclusion of certain periods in computing limitation the former has nothing to do with computing, its effect is merely to relieve the hardship.
Sec. 4 has nothing to do with period of limitation. It does not add to the period of limitation. It merely permits the filing of the suit, etc. on a date beyond the period of limitation i.e. what all it signifies is that where the period of limitation expires on a day when the court is closed, notwithstanding that fact, application may be made on the day when the court reopens (Maqbul Ahmed v OnkarPratap Singh AIR 1935 PC 35).
The provisions of Sec. 4 is a privilege given to the plaintiff or appellant or the applicant. When the period of limitation expires on a gazetted holiday, and the plaint is presented on the day the court reopens, it is not necessary to state that fact in the plaint.
Court-when closed: Whether the court is closed on an authorized holiday or on a working day is immaterial; it is sufficient that the court is, in fact, closed (Venkataswami v Anna Malai AIR 1964 Mad. 474). A court is said to be closed even though the judge holds court on a gazetted holiday (Boyamma v Balajee, 20 Mad. 4697). Further, where the court remained open on a particular day, it does not matter in the least whether any court work was transacted or not (Dwarka Prasad v Union of India 1954 236).
Though the court offices may be actually open during the vacation for other work, if there is no one lawfully required to be present for the purpose of receiving a plaint or application, the court will be held to be closed (AkhtariBibi v Rajalakshmi Debi, 59 CWN 634). But if the offices of the court are open during the holidays and there is also a judge or an officer or clerk of the court at hand for the purpose of attending to plaints, appeals and applications, the court cannot be said to be closed [Jagputh v Krishnaji (1957) 2 An. WR 217]. Mere absence of Presiding Officer on leave is not tantamount to the court being closed, when office is open (Bajranglal v Suraj, 1966 Raj.LW 614).
Explanation to Sec. 4 takes note of circumstances in which the court is not officially declared closed but when during any part of its normal working day, it remains closed. According to the Explanation, if a court remains closed only for a few hours (e.g. due to strike), it will be treated as closed on that day (Ram v SumitraBai AIR 1979 Bom. 14).When due to picketing neither the Presiding Officer of the court nor any other officer authorized to receive plaint was present in the court on the specified day the court would be deemed to be closed (Basanta Kumar vLaksha Mani AIR 1968 Ass. 57).
It has been held by the Supreme Court that considering the Saturday to be a “half-“working day”, the delay in not filing the suit on that day is covered by the Explanation to Sec. 4 [Gopal v RanuBala (1994) 10 SCC258]. It should be noted that Saturday is a Court working day although the Judges are not sitting on that day.
Extension of prescribed period in certain cases– Any appeal or application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisﬁed the court that he had sufficient cause for not preferring the appeal or making application within such period.
Explanation– The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
Scope of Sec. 5
Sec. 5 is an exception to the general rule contained in Sec. 3 (bar of limitation) and would dilute the rigour of Sec. 3. Sec. 5 does not apply to suits i.e. to the original cause of action. The reason is that the period prescribed for most of the suits extends from three to twelve years, while the periods prescribed for appeals and applications mentioned in this section do not exceed six months; some concession has, therefore, been allowed in respect of these appeals and applications. Sec. 5 also does not apply to execution applications (Order XXI, C.P.C.).
Sec. 5 has no application where the appeal itself is preferred in time, but there is an irregularity in presenting it. The provisions of Sec.5 apply to courts only but not appeals or applications to be presented to any tribunals or other authorities. But relevant statute may confer power upon the tribunal (viz. Income Tax Tribunal) to condone the delay.
Sec. 5 is attracted to appeals filed under the Criminal Procedure Code, in view of the fact that the said Code did not specifically exclude the operation of Sec. 5 of the Limitation Act (Kaushalya Rani v GopalSingh AIR 1964 SC 260). Under the Criminal Procedure Code, the delay in filing appeal against acquittal can be condoned by invoking Sec. 5 (Ajit v State AIR 1981 SC 733).
It is the duty of the court to record the reasons for extending the time under Sec. 5. In P.K. Ramachandran v State of Kerala (AIR 1998 SC2276), the Supreme Court reversed the High Court’s order which condoned the delay, on the ground that there was no recording of satisfaction of reasonable or satisfactory explanation for inordinate delay by the High Court. Hence it was not proper and judicious.
It may be noted that Sec. 5 does not provide that an application in writing must be filed before relief under the said provision can be granted. Delay can be condoned even when no written application is filed. In Mahabir Singh v Chief, Army Staff [(1990) SCC (Cri.) 625], the Supreme Court has accepted oral prayer of the counsel for condonation of delay. However as the petitioner has to satisfy the court as regards the sufficient cause it is desirable that he would file a formal application. But only on the ground that written application has not been filed the prayer for condoning the delay should not be refused.
Conditions/Principles for Condonation of Delay under Sec. 5
In the matter of condonation of delay two important matters arc relevant, namely:
- the right to the respondent accrued to him by lapse of time should not be disturbed light-heartedly; and
- that if sufficient cause is proved by the appellant/applicant he does not acquire automatically the right to have the delay condoned but Sec. 5 vests in the court with the discretion to condone the delay.
Some general conditions or principles for condonation of delay under Sec. 5 could be summarized as below:
- The party seeking relief has to satisfy the court that he had sufficient cause for not preferring the appeal, etc. within the prescribed time. If the party fails to show such sufficient cause, the cause shown for the later period may not be relevant (State of Manipur v All Manipur R.P.V.S Teachers’ Asson. AIR 1996 Gau. 1).
- The explanation has to cover the entire period of delay i.e. delay made after the last day of limitation day to day till the actual date of filing the application (Rewa Coalfield’ case). The event or circumstance accounting for the delay “must arise” before the expiry of limitation period; no event or circumstance arising after the expiry of limitation can constitute sufficient cause, though it may further delay the filing of appeal or application.
- The proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court under Sec. 5. The court have discretion to admit or refuse to admit the proceeding, even if sufficient cause is shown, as is made clear by the words “may be admitted” used in the section. The extension of time is thus a matter of concession to the applicant and cannot be claimed by him as a matter of absolute right. However, the litigant has a right to wait till the last day of limitation [Manohar joshi v Nitin Bhaurao Patil (1996) 1 SCC 169].
- The discretion conferred on the court is a judicial and not arbitrary discretion, and must be exercised to advance substantial justice. The court must carefully weigh the claims of the two parties. The scope of enquiry must be limited to the facts which are relevant. The court has to bear in mind that a litigant should not be easily permitted to take away a right which has accrued to his adversary by lapse of time. Thus, only in proper case, the court has to exercise its discretion in favour of the applicant. It is not a sound exercise of judicial discretion to extend time in favour of a person, who appears to have no substantial point to argue.
- The true guide for a court in the exercise of the discretion under Sec. 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. The period for preferring an appeal must not be extended simply because the appellant’s case is hard and calls for sympathy (Chunilal Basu v Chief Justice AIR 1974 Cal.326). The court has no power to extend the period of limitation on equitable grounds.
- In exercising discretion under Sec. 5, the courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case, the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The court has to keep in mind that in construing the expression “sufficient cause”, the principle of advancing substantial justice is of prime importance (Vedabai v ShantaramPatil AIR 2001 SC 2582).
- Each case will have to be considered on the particularities of its own special facts. However, the expression “sufficient cause” in Sec. 5 must receive a liberal construction so as to advance substantial justice and generally delays in bringing appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona ﬁdes is imputable to the party seeking condonation of delay (Sandhya Rani v Sudha Rani AIR 1978 SC 537).
The expression “sufficient cause” has to be construed liberally so as to advance the cause of justice and not the cause of technicalities. The court should make a justice oriented approach and decide a case on its merits (G. Ramegowda v Land Acquisition Officer AIR 1988 SC 897). A slow movement on the part of the appellant cannot lead to the inference of want of bonafides or inaction or negligence (Sunder Lal v BhanwarLal AIR 1984 Raj. 74).
The Supreme Court has observed in State of West Bengal v The Administrator, Howarh Municipality (AIR1972 SC 749) that expression “sufficiency” cannot be construed too liberally merely because the party in question is Government. Sec. 5 makes no distinction between the State and the private individual or institution.
- In Collector, Land Acquisition, Anantnag v. Mst. Katiji(AIR 1987 SC1353), held that the expression “sufficient cause” is adequately elastic to enable the courts to apply the law in a meaningful manner which sub-serve the ends of justice. A liberal approach is adopted in principle as it is realized that:-
- Refusing to condone delay can result in 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.
- ‘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. Mathematical accuracy is not justified.
- 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 because of a non-deliberate delay.
- There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to beneﬁt by resorting to delay. In fact he runs a serious risk.
In every case of delay there can be some lapses on the part of the litigant concerned but that alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides nor is it put forth as a part of dilatory strategy, the court must show utmost consideration to the suitor to condone the delay [Lal Singh v State of Haryana 2003 (1) ICC 535 (P&H)].
- In Municipal Corpn., of Ahmedabad v Voltas Ltd. (AIR 1995 Guj.29), the full bench of the Gujarat High Court made some important clariﬁcation regarding Sec. 5:
- The ‘sufficient cause’ is a question of fact and not a question of principle. The phrase pertains to establishment of appropriate facts before the court to which the court can apply its mind and arrive at a conclusion regarding sufficiency of cause or otherwise. The sufficient cause depends only on the facts pleaded by the applicant before the court. The principle in law only is that the courts are required to take a liberal view while considering the facts constituting sufficiency of cause.
- Mere plea that the delay was due to ‘administrative reasons cannot by itself sufficient to establish sufficient cause; precise factual reasons needed.
- The merits of substantive matter have no relevance in the determination of condonation.
- The test to determine sufficiency of explanation for delay is whether the factual statement made was probable and acceptable [Punjab Small Industries G Export Corpn., v Union of India (1995)Supp (4) SCC 681]. The duration or length of delay is insignificant; the court has to take into account whether there is acceptable or probable explanation as sufficient cause [ Bala Krishnan v M.Krishanamurthy (1998) 7 SCC 123].
- In Union of India v R.P. Builders (AIR 1995 Del. 57), the Delhi High Court held that while State cannot be treated differently from any other litigant in the matter of condoning delay, the court is “bound” to take into consideration the following factors: Red-tapism in‘ Government; delays in correspondence; habitual indifference of government ofﬁcials/government pleaders as distinct from the usual diligence of ordinary litigants or lawyers for private parties; collusion/negligence or fraud by government officials or government pleaders; damages to public interest or to public funds or State interest; and, need to render substantial justice on merits. Thus, if at a particular table, there is a delay of a few days, it need not be inferred that it amounted to inaction or negligence.
The expression “sufficient cause” is not defined in the Act but is has been held that it must mean a cause which is beyond the control of the party invoking.
Therefore, a cause for delay which a party could have avoided by the exercise of due care and caution cannot be a’ sufficient cause.
The Privy Council in Krishna v Chattappan (1889) ILR 13M 269, said that the considerations for determining sufficient cause are:
- it must be a cause which is beyond the control of the party;
- the party must not be shown to be negligent, inactive or lacking in bona fides.
The following are some of the examples of what is and what is not “sufficient cause”:-
- Illness– It may be a sufficient cause, but it must be proved that the man was utterly disabled to attend to any duty (Gouri Shankarv Kashinath AIR 1934 All 367). Illness of pleader, and the client’s ignorance of it, might be a sufficient cause. Illness in the family and subsequent‘ delay in making arrangements for the appeal or application is not sufficient cause (except under exceptional circumstances). Delay due to accident was accepted as sufficient cause.
- Imprisonment– Imprisonment may be considered as a sufficient cause in certain circumstances, and the time spent in jail may be deducted (MaharajNarain v Banoji, 21 PR 1904), but ordinarily it is not so.
- Illiteracy, poverty, minority, widowhood and parda– All these are not sufficient cause under Sec. 5. Hardship is no ground for condonation. The poverty of the appellant in consequence of which he was not able to pay court fee in time is not a sufficient cause for admitting an appeal out of time (Krishnaswamy v Ramaswamy, 19 MLJ 209). Special provisions have been made in Art. 130 of the Act for poor, people, thus no further indulgence can be granted under Sec. 5 on the ground of poverty.
However, the courts are somewhat liberal in exercising power to condone delay when interest of minors is involved. When the next friend of or the guardian of minor has, for his own advantage or by negligence, allowed time for appeal to mil out, the court may enlarge time for appeal in minor’s favour.
The mere fact of the appellant being a pardanashin lady is not a sufficient cause unless she was thereby actually prevented from appealing herself or engaging a counsel for that purpose.
- Mistake of counsel– There is no general principle saving the party from all mistakes of its counsel. The mistaken advice of counsel is not sufficient to justify extension of time under Sec. 5 unless the advice was given in good faith i.e. there was no negligence or misconduct or lack of reasonable skill on the part of the lawyer (Mohanlal v Tejsingh Thakur AIR 1958 M.P. 69). Even where a counsel acted in honest manner but was negligent, no condonation was granted. The mistake should be such as a skilled person might make [Highton v Treherne (1978) LJK 167]. It is always a question whether the mistake was bona fide or an attempt to save limitation in an underhand Way.
The mistake must be one which might have easily occurred even if reasonable due care and attention has been exercised by the pleader. Thus, in Karalicharan v Apurba (48 Cal. 549), the papers for an appeal were handed over to the appellant’s advocate in the morning on the last day of filing. The advocate, through pressure of urgent work, did not look into the papers till the evening of the day, when he found that it was the last day. In the circumstances, it was held that this was a sufficient cause to grant the appellant the extension of a day under Sec. 5.
Mistaken legal advice as to procedure to be adopted by the client based, upon a bona fide and honest but earnest opinion as to law which is neither clear nor settled, relying upon which the appeal is filed beyond time can be shown and accepted as sufficient cause (State of Orissa v Govind Choudhary, 1971 I.G.W.R. 754).
It has been held by the Supreme Court in Punjabi University v Acharya Swami Ganesh (AIR 1972 SC 1973) that a bona fide mistake of counsel in computation of a limitation for appeal against the compensation award under Section 18, Land Acquisition Act was a sufficient cause for condonation of delay.
However, it is held by the Delhi High Court that the plaintiff cannot be made to suffer because of the negligence of his lawyer when it is proved that he was diligently prosecuting the suit [Yogesh ProsadSetiv Ram Narayan AIR 2003 NOC 546 (Del.)]. This is also supported by the following cases:
Applicant acting on the mistaken advice of his counsel was reasonably led into the mistaken belief that the valuation of suit was such that an appeal lay to the High Court and not to the District Court. This is so even though the mistaken advice given by the lawyer was careless or negligent and the lawyer did not act in good faith, provided the appellant acted with due care and attention (Kesharibai v BaiLilabati AIR 1963 Guj. 119).
There was delay of 1418 days in filing appeal and the appellant took the plea that he was kept under a wrong impression by his counsel that the appeal was pending in High Court even though no appeal was actually filed. Held that (though delay was extraordinarily long, cause shown by the appellant was sufficient to condone the delay [Radha Krishna Rai v Allahabad Bank (2000) 9 SCC 733].
A wrong entry in lawyer’s diary has been held to be a sufficient cause. Delay due to non-supply of information to party by counsel in exparte decree has been held to be a sufficient cause for condonation of delay.
- Mistake or ignorance of fact– A bona fide mistake of fact on the part of the party or his agent will be a sufficient case (Birbal v Harilal AIR 1953 Punj. 252). However, where the party acts without due care and caution relying on his agent he failed to prove sufficient cause. An honest mistake made by the applicant upon incorrect advice of the lawyer is a sufficient cause.
Ignorance of the fact of the death of a party whose legal representatives have to be brought on record constitutes a sufficient cause, for excusing the delay in seeking to set aside abatement unless the party seeking condonation was negligent.
- Mistake or ignorance of law– Ignorance of law can never be an excuse while a mistake sometimes (if bona fide) may claim condonation (State of Maharashtra v Hirachand, 1976 Cr.L.J. 1850).Before a mistake of law can be accepted as sufficient cause, it is necessary to satisfy the court not only that the mistake was honestly made, but also that is was made despite due care and attention on the part of the appellant or his pleader.
Ignorance of law arising from not taking any advice is not a sufficient cause (Pokarmal v Sagarmal AIR 1972 Cal. 430). Ignorance of law resulting in inaction on the part of the litigant to assert his rights of which he has no knowledge as a result of such ignorance does not constitute sufficient cause. However, delay due to conflicting decisions misleading the party in filing appeal is a good ground for condoning delay (Krishnappa v RamachandraAIR 1973 Mys. 234).
When the applicants are pardanashin ladies and are ignorant of law, delay in filing application for setting aside abatement was allowed even though ordinarily ignorance of law is no excuse (Radha v Ramesh AIR1988 All. 262).
- Wrong proceedings taken in good faith– If a person bona fide takes some other proceedings instead of appealing, the time taken for such proceedings may be a sufficient cause for condoning the delay. For example, if a person instead of going in an appeal files a writ petition, the time consumed in a writ petition proceeding may be condoned by the court (Bhansati v State of Madras AIR 1968 Mad. 373).
Where a person bona fide thinking that it was the proper course filed a suit instead of appealing from a decree, and soon after found out the error and preferred the appeal, it was a sufficient cause (Ghulam v Shahbaz 162 PR 1888).
- Proceedings in wrong court through bonaﬁde mistake– Where an appellant preferred an appeal to a wrong court, believing bona fide that the appeal lay there, the appellant is entitled to condonation. He is entitled to deduct the time during which the appeal was pending in the wrong court (Balbir Singh v Bhog Singh AIR 1974 SC 650).
- Amendment decree- If the grounds on which the appeal is based are intimately connected with the amendment of the decree, the court should hold that there was sufficient cause.
Where a decree which is wrongly drawn up is amended by the court after the expiration of the time prescribed for appeal against the original decree, the party affected by the amendment can appeal against the decree as amended, and the delay will be excused under Sec. 5 (Viswanathanv Ramanathan, 24 Mad. 646).
In the case of a decree, which is amended generally, the time should be taken to have run from the date of the decree on which the original decree was drawn up. However, in certain cases, time may be considered to have run from the date of amendment for purpose of admitting an appeal. However, it must be noted that for the purpose of execution of a decree, under Article 136, time runs from the date of the amendment. The date of amendment means the date of the judgment ordering the amendment.
- Alteration or amendment of law– When one make a delay in preferring appeal on the account of a new exposition of law favorable to his case, the delay will not be excused. Even if anamendment in the law may be a sufficient cause, it is necessary that the applicant should apply for review of judgment immediately after the passing of amendment.
- Defective vakalatnama/inability to get stamps- These are sufficient cause. Delay in filing an appeal due to inability to get stamps has been held excusable in Kesho Prosad v Barbans, 37 IC 211).
Where the pleader’s name is not mentioned in the vakalatnama by pure mistake (inadvertence and accident) and do not proceed from any dishonest intention, there is sufficient cause for accepting a fresh vakalatnama complete in every respect after the expiry of the limitation period for appeal (Lokenath v Sheo Saran AIR 1927 All. 816).
- Negligence of servant/counsel’s clerk/agent– It is generally not a sufficient cause (Jahar v Pritchand, 52 I.C. 225). However, deliberate fraud of the counsel’s clerk is a sufficient cause (Allah Wadhayav Haji Mohammad AIR 1934 Lah. 986). If the party is not negligent and the delay occurred due to the fault of the counsel’s clerk, the delay ought to be condoned ( SantoshKumari v KewalKrishanSabharwal AIR 1985 Del. 393).
- Mistake of court- It is sufficient cause to condone the delay.
- Other causes– Delay in getting certiﬁed copy of the judgment and decree is held to be sufficient cause to condone the delay in appeal.Exigencies of military service is considered as sufficient cause.
Illustrative Cases – where Delay Condoned
- Applicant suffering from fever (Bhkhu Bhai v State AIR 1989Guj. 8); Illness of a party for which he was advised bed rest[A.O. v Chief Officer 1984 NOC 69 (Gau.)]; Party suffering from T.B. (Farooque v Ahmedabad Municipality AIR 1985 Guj.115). In one case, high fever, attended with delirium, as a consequence of which the application was delayed by four days was held to be a sufficient cause for excusing the delay (Gauri Shanker v Kashinath AIR 1934 All. 367)
- Applicant suffering from mental shock because of son’s death and also because of his wife’s illness (Lata Balmukund v LajwantiAIR 1975 SC 1089).
- Appellants were old people and minor girl and were unable to contact their counsel regularly for knowing the suit’s progress (Devi v S.S. Chand AIR 1986 HP 67).
- When after service of summons (by substituted service) in a matrimonial suit the ex parte decree was passed, the wife’s (illiterate lady) delay in filing application under Order IX, Rule 13 of the Civil Procedure Code, should be condoned (Yallawwa v SantavaAIR 1997 SC 35).
- Illiterate farmer made delay in filing the appeal by being misled with respect to the date of hearing of his case [Chameli v Financial Corpn. AIR 1988 NOC as (Del.)].
- Where the period of filing the appeal expired during the vacation, but the appeal was filed seven days after the court’s opening, and the delay was due to the fact that the court fee paid on the application for copy of the decree was deﬁcient, but the appellant received the information of deficiency later and as soon as he knew it he took necessary steps in all haste, it was held that the delay should be condoned [Heemanshu Traders v Delhi Electricals (1976) 7s Punj. LR 113].
- Delay was caused due to official reason and also due to delay caused by the Assistant Government Pleader [State of Maharashtra v Mastanod (1990) 2 CLJ 335].
- Delay was caused due to wrong statement of law in Government publication; Government publication failed to incorporate the latest amendment reducing the original period of limitation (Kusumchand v Kanhaiya lal AIR 1974 Raj. 63).
- A bona fide miscalculation of the period of limitation by the counsel (State of WB. v Howrah Municipality AIR 1972 SC 749; Central Bank of India v Devdatt Shukla AIR 1995 M.P. 215).
- Where copies had already been given to the lawyer in time but they were mislaid and were found out after 5 days search and the appellant who was businessman returned form outstation only on the last day of limitation and there was delay of 6 days in ﬁling appeal (Banwarilal Boid v Neelakanthan AIR 1970 Ori. 33).
- When there was delay of one day in filing the appeal on the account of appellant’s son and grandson in false and frivolous case requiring attendance (of appellant) in the other court (NandSingh v Estate Ofﬁcer AIR 1993 Del. 38). In this case, the court granted the condonation even on an oral prayer.
Illustrative Cases – Delay Not Condoned
- Delay due to routine and leisurely inter-departmental consultations of the appellant Insurance company (National Insurance Co. v Monoranjan AIR 1986 Ori. 212).
- Delay caused because the petitioner had to collect money from amongst a large number of petitioners who were interested in the case (Banarsi Das v State AIR 1956 SC 570).
- Inability of the appellant to collect a certified copy for about 3 months after it is ready to his knowledge because he had to arrange for money to pay the costs of copy is no ground for condonation (Gurmukh Singh v State of Punjab AIR 1970 Punj. 282).
- Where a party contended that he remained “engrossed in his marriage” and did not take steps to obtain the copies or to present the appeal (Rupeswar Saikia v Aniram Saikia AIR 1980Gau. 60).
- Where the explanation for the delay was that at the relevant time the Advocate General’s office was fed up with so many arbitration matters pending consideration, it was held to be unsatisfactory and hence the delay was not condoned (K.Ramachandranv State of Kerala AIR 1988 SC 2276).
- Absence of counsel is not a sufficient cause. Also, lack of reasonable skill of lawyer is not sufficient cause.
- Late discovery of evidence is not a sufficient cause.
LEADING CASE: N. BALAKRISHNAN v M. KRISHANMURTHY
(AIR 1998 SC 3222)
In this case, a declaration suit ﬁled by the respondent was decreed ex-parte on 28-10-1991. The appellant moved an application to set it aside which was dismissed for default on 17-2-1993. The appellant filed an application on 19-8-1995 (for setting aside the order) for which a delay of 883 days was noted. He also filed application to condone the delay by offering an explanation of advocate’s professional misconduct (viz. failure of advocate to inform the appellant as well as his failure to take action) for which he got compensation from the District Consumer Dispute Redressal Forum. Trial court accepted the explanation and condoned the delay. The High Court on revision set aside the order of trial court. Now appeal before this court. The Apex Court agreed with the trial court.
The court observed that condonation of delay is a matter of discretion of the court. Sec. 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is Within a certain limit. Length of delay is no matter, acceptability of explanation is the only criterion. The court has to take into account whether there is acceptable or probable explanation as sufficient cause. Sometimes delay of the shortest range may be uncondonable due to a Want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned, as the explanation thereof satisfactory.
The court further observed: Once the court accepts the explanation as sufficient, it is the” result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
The court reasoned:
- The primary function of a count is to adjudicate the dispute between the parties and to advance substantial justice.
- The time limit fixed for approaching the court indifferent situations is not because on expiry of such time a bad cause would transform into a good cause.
- In every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him.
- If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor.
- The court also should not forget the opposite party while condoning the delay. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.
STATE OF NAGALAND V LIPOK AO [(2005) 3 SCC 752]
Facts and Issue- In this case, the State of Nagaland questions correctness of the judgment rendered by learned Single Judge of the Gauhati Court, refusing to condone the delay by rejecting the application filed u/ s. 5 of the limitation Act, 1963.
In support of the application for condonation of delay, it was submitted that the aspects highlighted clearly indicated that the authorities were acting bona fide and various decisions of this court were pressed into service to seek condonation of delay. The High Court, however, refused to condone the delay of 57 days on the ground that it is the duty of the litigant to file an appeal before the expiry of the limitation period. Merely because the Additional Advocate General did not file an appeal in spite of the instructions issued to him, did not constitute“ sufficient cause” and further the fact that the records were purportedly missing was not a valid ground. The appellant relied on the cases State of Haryana v Chandra Mani (1996) 3 SCC132, and, Special Tehsildar, Land Acquisitions v K.V. Ayisumma (1996)10 SCC 634. It was noted that adoption of strict standard of proof sometimes fails to protect (sic) public justice, and it would result in public mischief by skilful management of delay in the process of filing an appeal.
Observations and Decision- The court observed: Proof by sufficient cause is a condition precedent for exercise of the extra ordinary discretion vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. What constitutes sufficient cause cannot be laid down by hard-and-fast rules.
The expression “sufficient cause” should be considered with pragmatism in a justice-oriented approach rather than the technical detection of sufficient cause for explaining every day’s delay. Having regard to considerable delay of procedural red-tape in the decision-making process of the Government, certain amount of latitude is permissible. The State is an impersonal machinery working through its officers or servants. Hence, it cannot be put on the same footing as an individual. Public interest suffers if appeals by the State are lost because of such default. It is for the court to decide the matters on merits unless the case is hopelessly without merit. The State should constitute legal cells to examine whether cases involve legal principles for decision by court or require adjustment at governmental level. The officer concerned should be made personally responsible for the delay in filing the appeal.
The Supreme Court held that when the factual background is considered in the light of legal principles as noted above, the inevitable conclusion is that the delay of 57 days deserved condonation. Therefore, the order of the High Court refusing to condone the delay is set aside.
In case of appeal filed by State or institutions, the decision is required to be taken at various levels which causes delay and therefore, the courts should consider this aspect while deciding whether delay should be condoned or not [State of U.P. v Heera N. Gurnani (2004) 13 SCC 582]. In State of Rajasthan v Nav Bharat Construction Co. (AIR 2005 SC 2795), the appellant State stated that delay was due to long strike of government employees. However, there was no mention as to the date of commencement or termination of strike. It was held that the application for condonation of delay was completely vague.
Where serious questions of laws require adjudication, the liberal view need to be taken and the delay ought to be condoned [Divisional Manager, Plantation Division v Munnu Barrick (2005) 2 SCC 237].
The Limitation Act, 1963
- Section 4 of Limitation Act applies to
(b) appeal & applications at
(c) both (a) and (b)
(d) none of the above.
- Section 5, Limitation Act, is
(a) applicable to the proceedings under section 34, Arbitration and Conciliation Act, 1996 and the time limit prescribed under section 34 can be extended generally
(b) not applicable to the proceedings under section 34, Arbitration & Conciliation Act, 1996 and the time limit prescribed under section 34 is absolute and unextendable
(c) applicable to the proceedings under section 34,-Arbitration and Conciliation Act, 1996 and time limit prescribed under section 34 can be extended only in exceptional circumstances
(d) not applicable to the proceedings under section 34 Arbitration and Conciliation Act, 1996-however, the time limit prescribed under section 34 can be extended under inherent powers of the court.
- Section 4, Limitation Act, 1963 applies where the case is governed by
(a) the Limitation Act, 1963
(b) any local law
(c) any special law
(d) either (a) or (b) or (c).
- An application for leave to contest the eviction proceedings before the Rent Controller attracts
(a) section 4, Limitation Act, 1963
(b) section 10, General Clauses Act, 1897
(c) both (a) and (b)
(d) either (a) or (b).
- Section 4, Limitation Act, 1963 applies
(a) where a certain period has been prescribed by a statute
(b) where a certain period is fixed by agreement of parties
(c) where a certain date is fixed by agreement of parties
(d) all the above
- In order to attract section 4, Limitation Act, 1963
(a) the court should be closed for the whole of the day
(b) it is not necessary that the court should be closed for the whole day and it is sufficient if the court is closed during any part of its normal working hours
(c) the court should be closed for substantial part of the day if not for the whole of the day
(d) the court should be closed for more than half of the normal working hours.
- The extension of time granted by section 4, Limitation Act ,1963
(a) can be combined with section 5, Limitation Act
(b) can be combined with section 12, Limitation Act
(c) can be combined with section 5 and section 12, Limitation Act
(d) cannot be combined with section 5 and section 12, Limitation Act.
- Section 5 of Limitation Act applies to
(b) Appeal & application
(d) All the above.
- Section 5 of Limitation Act applies to
(b) execution of a decree
(c) both (a) and (b)
(d) none of the above.
- Section 5 of Limitation Act applies to
(c) Election petitions
(d) None of the above
- In matters of condonation of delay under section 5, Limitation Act the Government, has to be accorded
(a) treatment similar to a private citizen and no latitude is permissible
(b) treatment stricter than a private citizen as the Government is supposed to act in a more responsible manner
(c) treatment similar to a private citizen, however, certain amount of latitude is not impermissible
(d) either (a) or (b).
- For condonation of delay under section 5, Limitation Act, 1963
(a) length of delay is the only criterion
(b) length of delay is no matter, acceptability of the explanation is the only criterion
(c) length of delay certainly matters apart from the acceptability of the explanation
(d) either (a) or (c).
- In the matters of condonation of delay under section 5, Limitation Act 1963, relating to Government
(a) strict proof of everyday’s delay by the Government should not be insisted upon
(b) strict proof of everyday’s delay by the Government should be insisted upon
(c) strict proof of everyday’s delay by the Government may not be insisted upon
(d) strict proof of everyday’s delay by the Government may be insisted upon.
- In the matters of condonation of delay under section 5, Limitation Act, 1963, public institutions like banks should
(a) be treated at par with private individuals
(b) be treated at par with private institutions
(c) be treated at par with corporate body
(d) neither be treated at par with (a), nor (b), nor (c).
- Section 5, Limitation Act 1963, can
(a) be availed of for the purposes of extending the period of limitation prescribed by any local law unless such Local law excludes the applicability of section 5
(b) be availed of for the purposes of extending the period of limitation prescribed by any special law unless such special law excludes the applicability of section 5
(c) not be availed for the purposes of extending the period of limitation prescribed by any local or special law unless such local or special law expressly makes section 5, Limitation Act applicable
(d) (a) and (b) both.
- What is legal disability? To what extent such disability extends the period of limitation under the Indian limitation act.
Legal disability – (1) 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 in the Schedule.
According to clause (2), where such, a person is affected by two such disabilities, or where one disability followed by another without leaving the gap, then suit or application may be filed after both disabilities have ceased.
According to clause (3), 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. According to clause (4), where such legal representative is affected by any such disability, the rules contained in clauses (1) and (2) shall apply.
According to clause (5), where, a person under disability dies after disability ceases but within the period allowed to him under this section, his legal representative may file the suit or 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.
Scope and Application
Generally, limitation begins to run from the date of accrual of the cause of the action. Sec. 6 is one of the exceptions to the general rule. In this and similar cases, the period of limitation does not run from the date of the accrual of the cause of action, but runs from a subsequent date i.e. the date on which the disabilities cease. The object of the section is not to place minors or lunatics under special concession in their favour. The section merely means that no limitation will apply to a case in which the person suing was disqualified at the time when the cause of action a rose provided the suit is brought within three years of the time when the disqualification ceases.
‘Legal disability’ is inability to sue owing to minority, lunacy or idiocy. The burden of proving the disability is on the plaintiff. Thus, Sec.6 is not applicable when disability due to lunacy is not proved.
- 6 does not provide for a fresh starting point of limitation. The section does not prevent running of limitation but only extends the period of limitation. Further, the circumstances under which and the extent to which limitation will be extended are dealt with not only in this section but also in Secs. 7 and 8.
- The reason why persons under disability are not subjected to the ordinary rule of limitation is that the law considers them in capable of forming a proper judgment as to bringing suits or otherwise managing their own affairs.
- 6 does not apply to appeals and pre-emption suits, to a suit for recovery of possession based on title. This section is limited only to suits and applications for execution of decrees. It does not operate in favour of an appellant under disability. But infancy may under certain circumstances, enlarge time for appeal (See Sec. 5).
- 6 only applies to suits, etc. brought by and not against persons under disability. A plaintiff himself under no disability is not entitled to the benefit of the section merely because the defendant is under a disability.
- No disqualifications other than those mentioned in the Act (viz. minority, lunacy or idiocy) save limitation. War and rebellion, for instance, do not check limitation. The disabilities in respect of which provision is made in this section are exhaustive, and therefore, any other disability, does not come under this section. Likewise, insolvency is not a disability within the meaning of this section [Sirul v Mythili 1931 (61) ML] 688].
An ‘idol’ is, no doubt in position of an infant as it cannot act himself but has to act through a shebait or manager. However, an idol is as much subject to the law of limitation as a natural person and cannot claim exemption like an infant.
- A person who was not entitled to sue or apply at the commencement of the limitation but becomes entitled to do so later cannot get benefit of Sec. 6. The section applies only where the person is already under a disability when the right to sue (or cause of action) accrues. In other words, Sec. 6 applies only when the disability is in existence at the time when the limitation begins to run. If a disability supervenes subsequently, then the benefit of this section cannot be taken. This is made clear by Sec. 9 which says that where once time has begun to run, no subsequent disability or inability to sue stops it.
Illustration– A sells and delivers goods to B on the 1stApril 1987. Time for a suit for the price of goods commences to run from that date. If, later on, A becomes a lunatic, he is not entitled to deduct the time taken up his mental illness and time will continue to run notwithstanding A slunacy. If later on A dies, leaving C, a minor as his legal representative, the duration of C’s minority cannot be allowed to be deducted, and limitation will continue to run notwithstanding C’s minority. This is because A (“a person entitled to institute the suit”) was not, on the 1stApril 1987, (i.e. at the time from which period of limitation is to be reckoned) under a disability. Hence, the benefit of Sec. 6 cannot be enjoyed in such a case.
Thus, ‘disability must be continuous.’ The plaintiff can claim an exemption only if there is a continuous disability. If a person entitled to file a suit is a minor and before he attains majority, he becomes insane, time would be extended. Again, if he died during his insanity, and his legal representative is minor, the extension of time would be allowed both to the minor and his legal representative. But the disabilities must over lapeach other. If there is any interval, however short, between the termination of the first disability, and the supervening disability, time will begin to run on the termination of the first disability and the second disability would have no effect. If, for instance, the minor becomes insane even two days after he attained majority, he would lose the benefit of this section.
If several disabilities co-exist concurrently in the plaintiff, time does not commence to run against him till all have ceased. If the plaintiff is under one disability at the time the action accrues, and afterwards (and while the first disability continues), he comes under another disability, time will not commence to run till the last of the disabilities has ceased.
- ‘Minor’ means a person who has not completed the age of 18 years (21 years in case of a guardian appointed for a minor). In computing the period of limitation for a minor, the date on which he attains majority must be excluded from calculation.
- The general principle is that time does not run against a minor, and the fact that a guardian or next friend might have maintained a suit on behalf of a minor does not take away from the minor the privilege of the section (Jai Kishan v KalicharanILR 1957 M.P. 3). Since Sec. 6 is an enabling provision it does not bar an action being brought during the continuance of the disability. The minor can bring a suit, etc. during his minority by his guardian or next friend and can claim the benefit of this section. That is, this section will save such suit from the bar of limitation, even though instituted after the ordinary period prescribed for the suit. When the guardian has not brought any suit on the minor’s behalf, the minor may, after the cessation of the minority, bring a suit within the time allowed under Secs. 6 and 8 of the Act.
- A state of great mental weakness on account of serious bodily injury is not a state of insanity within the meaning of Sec. 6 (Abdulla v Abdulla AIR 1924 Bom. 290). When insanity is once proved to have existed, it is presumed to continue until it is proved to have ceased; and a very strict burden of proof lies on the party who alleges recovery. A temporary cessation of lunacy (lucid interval) cannot be treated as a recovery unless it is of sufficient length of time to enable the person to do an intended rational act.
Benefit of Sec. 6 is Personal
Sec. 6 applies only to cases in which one person, who is entitled in his own right to institute a suit or make an application, is under a disability. The privilege which this section allows is entirely personal and can be claimed only by a person under disability or his representative after his death. The benefit of this section can be claimed by a person suing in a representative capacity e.g. shebait of an idol. The right of action is vested in the shebait, not in the idol, therefore, if at the time when the cause of action or suit recovering possession of property dedicated to an idol accrued, the shebait is a minor, he can bring such suit within three years after attaining majority.
But neither purchasers nor assignees can take the benefit there of; time runs against them from the ordinary starting point of limitations, as if the transferor or assignor had never been under a legal disability. If a guardian lends money out of minor’s estate and takes a pro-note in his own name, limitation runs against the guardian and the minor, not being the payee or holder. The guardian cannot claim exemption under this section. If, during the minority of a person, or if, after attaining majority and within three years thereof, such a person assigns all his rights and interests to a third party, who is sui juris, the latter cannot claim exemption accorded to the minor by this section, but is subject to the ordinary law of limitation, governing suits in which relief of the same nature is claimed.
A minor adopted by a Widow after her husband’s death under an authority from the husband is entitled to the benefit it of this section. The right of the adopted son accrues from the date of adoption (Lakshamana v Lakshmi, 4 Mad. 160).But where after the death of an adopted son after attaining majority, another son is adopted, his right to bring a suit is barred, if the right of the former adopted son was barred by limitation (Annu Bajaba v Dadu AIR 1941 Bom. 1947).
Disability of one of several persons– 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.
Explanation I– This section applies to a discharge from every kind of liability, including a liability in respect of any immovable property.
Explanation II– For the purposes of this section, the manager of a Hindu undivided family governed by the Mitakshara Law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property.
Illustrations (a)- A incurs a debt to a firm of which B, C and D are partners. B is insane, and C is a minor. D can give a discharge of the debt without the concurrence of B and C. Time runs against B, C and D.
(b) – A incurs a debt to a firm of which E, F and G are partners. E and F are insane, and G is a minor. Time will not run against any of the muntil either E or F becomes sane, or G attains majority.
Relationship with Sec. 6
Secs. 6 and 7 are not mutually exclusive. Sec. 7 supplements Sec. 6; it is an extension to the general principle enunciated by Sec. 6. It has been held that Sec. 7 is a proviso to Sec. 6. Sec. 6 is an enabling section enabling persons under disability to exercise their legal rights within a certain time. It must be construed liberally. While Sec. 7 is a disabling section and in so far as it takes away the right conferred by Sec. 6 it has to be strictly construed. Sec. 6 contains the general rule regarding the person under disability while Sec. 7 give a special rule for some of these cases and if a case falls within the ambit of Sec. 7 then the special rule of Sec. 7 will apply.
Sec. 6 contemplates cases where there is either one plaintiff or applicant and he is a minor or an idiot or insane or where there are several plaintiffs and they all labour under the disability. While extension of limitation under Sec. 7 does not take place with reference to the person under disability alone but with reference to the entire body of persons jointly entitled to sue or apply.
As per Sec. 7, when the legal relation to each other of the several persons jointly entitled to institute a suit or make an application for the execution of a decree is such that one or some of them (if free from disability) can give a full discharge of the whole debt or claim without the concurrence of the other (whether all or some of these other are laboring under or are free from disability) time will run against all, and the minority, insanity or idiocy of any of those several persons shall not entitle him or his co-plaintiffs to any extension of time under Sec. 6. But when the legal relation of the several persons to each other is such that one or some of them cannot give a full discharge of the whole debt or claim without the concurrence of the others, the minority, insanity or idiocy of any of them will entitle all to an extension of time under Soc.6. In this second class of cases, time will not run as against any of them until one of them becomes capable of giving such a discharge without the concurrence of the other or until the disability has ceased.
Both Secs. 6 and 7 do not give a fresh period of limitation. The ‘disability’ under both sections include only minority, idiocy or insanity. Both sections are inapplicable to appeals and pre-emption suits. Both sections apply only if the disability exists at the time when the limitation is to be reckoned and not when disability supervenes later.
Scope and Application
- 7 deals with cases where there are several persons jointly entitled to institute a suit or make an application for the execution of a decree, and some only or even one of them is under a legal disability, while the rest are not. Sec. 7 contemplates a legal capacity to give discharge without the concurrence of the person under disability. Familiar instances of such legal capacities are those of a partner and the Karta of a joint Hindu family.
The principle of this section is that, if there are some persons in existence who are adults and who could have safeguarded the common rights of themselves and of others similarly situated, the failure of the persons who are sui juris to litigate the right will start the cause of action not only against themselves but also against persons in similar circumstances. another words, the principle of Sec. 7 is that when one of the several persons jointly entitled to sue is under a disability, if any other person can validly give discharge without the concurrence of the person under disability, the time will begin to run when the person competent to give a discharge can institute the suit.
Where no such discharge can be given, time will not commence to run against any of them until the disability ceases or until the person under disability loses (either by death or assignment) his interest in the subject-matter of the suit or in the decree. The test adopted is whether a full discharge or quittance can be given without the concurrence of the person under disability.
- The second part of Sec. 7 would apply when in the matter of joint decree holders the major decree-holders cannot give valid discharge in respect of the Whole decree on behalf of the minor decree-holders. So the time for filing execution would stand extended till the disability of the minor decree-holders ceased.
- The words “any such disability” include only minority, idiocy or insanity but do not include the disability of the group to give a discharge. The word “discharge” does not mean merely a discharge of pecuniary (money) liability but has a wider significance and includes release of rights in immovable property or a release of other rights e.g. a right to file a suit. The word ‘discharge’ has reference to transactions which are required to be avoided and has no application to void transactions.
- Joint right of suit– One partner can give valid discharge in respect of the debt due to the partnership firm. This is based on the principle that a partner has implied authority to do everything necessary and usual in the course of the partnership business. Similarly, the Kana or managing member of a joint Hindu family has an implied authority to bind all the members by a discharge given by him without their concurrence, even though they may be minors, and therefore time will run against them all. An example of second part of Sec. 7: Where a labourer killed by a motor accident leaves behind his widow and two minor sons, time for filing the petition for compensation under the Motor Vehicles Act shall not run against any of the claimants until both the minor sons have ceased to be minor, because a discharge cannot be given by the mother without the concurrence of the minors.
One of several co-trustees can give a valid discharge without the concurrence of others. Therefore, where an adult joint trustee takes no steps to protect the trust, and his right to take steps becomes barred, the rights of other joint trustees, even though minors, become barred.
- 7 when do not apply– Sec. 7 contemplates a case where more than one individual possesses the same identical substantive right. Persons whose rights are distinct and different but who are permitted to enforce such separate rights by one judicial process to which all are parties, or by a process instituted by one on behalf of all are not comprehended by this section. Thus, each of the sons, who is a coparcener of a joint family is entitled to question alienation made by the father (if it is not binding on the family) has an independent right of his own; it is not a joint right of all the sons which cannot be enforced unless all of them join so that the minority of one son could enlarge the period of limitation.
The right to redeem is an indivisible right, and one mortgagor cannot give a valid discharge without the concurrence of the other co-mortgagors.
Special exceptions– “Nothing in Sec. 6 or in Sec. 7 applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than 3 years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application.”
Sec. 8 lays down that the rules contained in Sec. 6 and Sec. 7:
- do not apply to suits to enforce rights of pre-emption; and
- do not, in any case, extend the period of limitation for more than three years from the cessation of the disability or the death of a person, as the case may be.
The effect of Sec. 8 is that a person under disability may sue after the cessation of the disability within the same period as he would otherwise have been allowed under the Schedule; and the present section adds a proviso that in no case can the period be extended to anything beyond three years from the cessation of the disability (Vasudeva v Magunt 24 Mad. 387).
Relationship between Secs. 6, 7 and 8
Secs. 6, 7 and 8 have to be read together (Bailochan Karan v Basant Kumari Naik AIR 1999 SC 876). Sec. 8 is ancillary to and restrictive of the concessions granted in Secs. 6 and 7, and did not confer any substantial privilege. This section is in the nature of a proviso to Secs. 6 and 7 (Darshan Singh v Gurdev Singh AIR 1995 SC 75). Sec. 6 should be read specially with Sec. 8 which controls it.
Sec. 8 imposes a limitation on the concessions provided by Secs. 6 and 7 to a person under disability to a maximum of 3 years from the cessation of disability. In no case can the period be extended to anything beyond 3 years from the cessation of the disability. It is important to note that under Sec. 8, the period can be extended up to an extent of 3 years, if under the ordinary law out of the period of limitation prescribed, there’re mains a period of less than 3 years for bringing the suit. But if the period remaining is more than 3 years, no extension can be granted (Ponnamma v Padmanbhan AIR 1969 Ker. 163).
The period of limitation shall be computed from the cessation of disability or death of the person affected by the disability. The plaintiff has therefore to prove that he attained majority within 3 years of the filing of the suit. The benefit of Secs. 6- 8 cannot be availed of by the partner or assignee of the person in disability.
The law allows the maximum 3 years from statutable cause of action or the full period from the ordinary starting point of limitation, whichever is longer or which is more advantageous to the plaintiff. The combined effect of Sections 6, 7 and 8 may be discussed with reference to the following propositions:-
- Expiry of ordinary period more than 3 years after the cessation of disability– No extension will be allowed under Secs. 6-8, but the plaintiff will be entitled to ordinary period (though longer than 3 years). For example, a right to sue accrues to A who at the time is insane. Six years after, A recovers his reason. The ordinary limitation period is 12 years. A has (12-6) 6years, under the ordinary law, from the date when his insanity ceased within which to institute a suit. No extension of time will be given to him under Secs. 6-8. But A will be entitled to the ordinary period of 6 years.
- Expiry of ordinary period at the end of 3 years from the cessation of disability– No extension can be allowed under Secs. 6-8.However, the ordinary period in such a case is 3 years.
- Expiry of ordinary period before the cessation of disability– In such a case (a) if the ordinary period was 3 years or more, the plaintiff has 3 years from the cessation of disability, as Sec. 8 operates here; (b) if the ordinary period was less than3 years, the plaintiff has only the ordinary period, and not a period of 3 years, from the date of cessation of disability.
- Expiry of ordinary period after the cessation of disability, but before the end of 3 years form cessation of disability– In such a case (a) if the ordinary period is 3 years or more, the plaintiff will got 3 years by virtue of Sec. 8; if the ordinary period is less than 3 years, the plaintiff has only that ordinary period.
For example, A, to whom a right to sue for the legacy has accrued during is minority, attains majority 11 years after such accrual. A has, under the ordinary law, only 1 year remaining within which to sue (the ordinary period is 12 years). But under Secs. 6 and 8, an extension of 2 years will be allowed to him, making in all a period of 3 years from the date of his attaining majority, within which he may bring his suit. If the ordinary period had expired completely before his attaining majority, than a period of 3 years will be allowed to him (by virtue of Secs. 6 and 8).
A right to sue as a landlord to recover possession from a tenant accrues to A, who is an idiot. A dies three years after the accrual, his idiocy continuing up to the date of his death. A’s representative-in-interest has, under the ordinary law, nine years from the date of A’s death within which to bring a suit. Sec. 6 read with Sec. 8 does not extend that time, except where the representative is himself under disability when there presentation devolves upon him.
Under Sec. 8, the period can be extended up to the extent of three years if under the ordinary law out of the period of limitation prescribed, there remains a period of less than three years for bringing the suit. But if the period remaining is more than three years, no extension can be granted (Lok Nath v Rohlu AIR 1951 J&K 25).
This section must be read together with each article in Schedule 1,and when the period prescribed by the latter is three years or more, and expires within three years from the date of attainment of majority, the intention is that the minor should have the full term of three years; but when the prescribed period is less than three years and the minor gets the period (according to Sec. 6) from the date of the majority, the prescribed period is not to be enlarged to three years (Subramanya v Shiva Subramanya, 17 Mad. 316).
In Alarakshi Bibi v UjalaBibi (AIR 1966 Ori. 49), held that if a proceeding under Sec. 145, Cr.P.C. against a minor terminates in June,1952, and the minor attains majority in 1954, a suit by the minor for declaration and possession filed in April, 1958 is barred.
In Ponnamma v Padmanabhan (AIR 1969 Ker. 163), it was held that where during the minority of two brothers A and B belonging to a Hindu joint family, properties are sold by their guardians, a suit by A on attaining majority along with B still a minor to recover those properties must be brought within 3 years of A’s attaining majority [See also Kolandavel v Chinnapan AIR 1965 Mad. 541 in the Questions Section].
In Haripada Ghosh v Fektoo Bibi 87 CWN 290, the plaintiff was dispossessed since 1950 and he attained majority in June, 1960, he had to bring the suit either within 12 years of dispossession i.e. within 1962 or within 3 years of his attaining majority i.e. within June, 1963. But he filed the suit on 16th December, 1963. So, the suit was barred.
In Darshan Singh v Gurdev Singh (AIR 1995 SC 75), the respondent was a minor at the time of his father’s death. He attained majority on17th April 1977 and thereafter a suit for possession of the property was filed on 4th November, 1982 which was within 12 years under Art. 65 of the Limitation Act, but was after expiry of the period of three years of his attaining majority. The plea was made by the appellant that the suit, ought to have been filed within three years of his attaining majority. Held that the period of limitation as provided in Art. 65 expired when the respondent was 16 years of age and consequently he ought to have filed the suit within three years of his attaining majority and his suit is barred by limitation.
LEADING CASE: BAILOCHAN KARAN V BASANT KUMARI NAIK
(AIR 1999 SC 876)
In this case, a widow executed a will in favour of her daughter, P. The latter sold it on 6-2-1953 to the respondent, who came into possession from that date. A suit was filed by the respondent alleging that appellant, an illegitimate son of P, forcibly trespassed in 1971. Trial court held that the appellant was a legitimate son of P, born in 1945 and dismissed the suit on the ground that the sale deed of respondent was void as the sale in favour of the vendor’s mother was itself void. The High Court remanded the matter for ascertaining the date of majority of the appellant. It decreed the suit in favour of the respondent.
The Supreme Court, on appeal, observed that in present case the maximum period of limitation available to the appellant was only 3 years from the date of his attaining majority, in other words, cessation of the disability. This position has been considered by this court in Darshan Singh v Gurdev Singh (1994) 6 SCC 585.It is clearly laid down that Sec. 8 is a proviso to Sec. 6 or Sec.7. The main effect of Sec. 8 on Secs. 6 and 7 is that in no case can the period be ‘extended’ beyond 3 years after the cessation of disability. In other words, the litigant is entitled to a fresh starting period of limitation from the date of cessation of disability subject to the condition that in no case the period extended by this process under Sec. 6 or Sec. 7 shall exceed three years from the date of cessation of the disability.
A combined effect of Sec. 6 and Sec. 8 read with the third column of the appropriate Article of the Schedule would be that a person under disability may sue after cessation of disability within the same period as would be allowed from the time specified in the third column of the Schedule. But such extended period would not be beyond 3 years from the date of cessation of the disability. So, in the present case, the right to file a suit to the appellant got expired at the end of 3 years from the date of attaining majority, whether it was 1963 or 1966. The plaintiffs (respondents), therefore, perfected their title by virtue of Sec. 27 of the Limitation Act.]
Continuous running of time– “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 limitation for a suit to recover the debt shall be suspended while the administration continues.”
The rule as to the continuous running of time is one of the fundamental principles of the law of limitation. This rule lays down that where once time has begun to run, it runs continuously and without any breaks or interruptions until the entire prescribed period has run out, and no disability or inability to sue occurring subsequently to the commencement will stop its running. This fundamental principle is embodied in Sec. 9 of the Act, which applies to suits as well as applications, although the word sused are “inability to sue.”
Scope and Application
- The principle underlying Sec. 9 is the same as that under the English law. Sec. 9 is based on the principle that “time which has once begun to run will as a general rule continue to do so even though subsequent events occur which make it impossible that an action should be brought.” 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.
The principle may seem a little hard at times, as it may be impossible to file a suit during the last few days of the period by reason, for instance, of the plaintiff falling severely ill, or becoming insane or being called away elsewhere on some pressing business, or by reason of circumstances which may be beyond the control of the plaintiff, such as a declaration of war with the country of which the plaintiff is a subject, or the sudden death of the defendant and the non-appointment (before the period is over) of a legal representative who could be sued. But the plea of limitation, being devised for promoting diligence and discouraging laches or indolence of any sort, requires that a person should be diligent and file a suit in respect of his right as quickly as possible, and not allow matters to slide until a dangerously late hour when the prescribed period is on the point of running out. If he does so procrastinate, he runs the risk of something or other happening at the last moment which may prevent him from filing his suit before period has actually run out. The principle of Sec. 9 will, therefore, be strictly applied, and no exceptions (other than those which the Act itself prescribes) can be recognized or allowed to be made by any court.
- 9 applies to a person (plaintiff) himself as well as to his representatives-in-interest after his death. The inability referred to in Sec. 9 must be held to be a personal inability affecting the plaintiff himself.
- The section contemplates a case of subsequent and not of initial disability i.e. 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 Sec. 6.
- Disability or inability to sue includes disability to make an application for execution as well. ‘Disability’ is want of legal qualification to act; ‘inability’ is want of physical power to act. For the purpose of limitation, a disability is the state of being a minor, insane or an idiot; whereas illness, poverty, etc. are instances of inability. In Hanmatram v Bowles (8 Bom. 561), it has been held that absence from India would not constitute an ‘inability’ under Sec. 9. In Balkrishna v Dhanraj (AIR 1956 Nag. 200), it was held that in ability does not cover the case of obstacles, such as, stay of execution by the court’s order.
- When time runs- Times runs when the cause of action accrues, and it accrues when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed.
- Any subsequent disability in favour of a person in whom right to sue does not vest at the starting time cannot extend the period of limitation. For example, where the father of a joint Hindu family alienated the family property, time began to run from the date of the alienation, and a son who was born after such date could not get an extension of time under Sec. 6. Sec. 9 applied, and the subsequent birth and minority of the after-born son could not stop the running of time (Dhanraj v Ram Naresh AIR1924 All. 912.)
Similarly, a decree-holder after making various applications for execution of a decree, each of which was within time died. His son, a minor, made an application for execution of the decree within three years after his father’s death but more than three years after the date of the deceased father’s last application. It was held that the minor’s application for execution was time-barred (K. Venkatraman v K. Krishna Murthy AIR 1977 A.P. 95).
Thus, Sec. 9 contemplates a case of subsequent and not of initial disability. A simple example is: A right to sue accrues to P, when he is under no disability, but subsequently he becomes insane. Time runs against P as usual, form the date of accrual of the right and his subsequent disability (viz. insanity) is no bar to the running of time. Another example is: A right to sue accrues to P during his minority. P dies only one day after attaining majority and is succeeded by his son K who is a minor. Time begins to run against K from the death of P and K’s minority is of no use.
- Joint effect of Secs. 6-9- If one is to take advantage of two disabilities, they must so overlap each other as to leave no gap of normal period between them i.e. period which is free from all disabilities because as soon as an interval occurs, time begins to run and subsequent disability is powerless to stop its running.
Running of Time when can be Stopped (Exceptions to Sec. 9)
Sec. 9 can apply only where the cause of action continues to exist and not when it is cancelled by subsequent events or where it disappears or is otherwise discharged. Such cancellation etc., of the cause of action wipes out the time which has run and a fresh limitation period starts on the revival of the cause of action from the date of revival. Thus, even though the right to execute the decree arises on the date of passing of decree by trial court but if the appeal is preferred the decree-holder can get fresh starting point from the date of the appellate court’s decree(Rajendra v Board of Revenue AIR 1972 All. 417). When the mortgage-deed provides for right in the mortgagee to recover possession of mortgaged property on default of payment of interest, the mortgagor made default but paid interest subsequently which was accepted, then the said default must be deemed to have been waived. So the suit brought within 12 years of the default subsequent to the default waived will be within time (Sri Nivas v Baleswar AIR 1950 All. 506).
The principle laid down in Sec. 9 is subject to certain exceptions, besides the proviso laid down in the Sec. 9 itself. The running of time can be stopped or the period of limitation can be extended in three classes of cases viz., where in justice has been caused by an act of Court, (2) where the cause of action was satisfied, and (3) where the cause of action was cancelled. Once the right to sue accrues and time starts running it cannot stop unless there is some direct obstruction to the remedy itself or unless the case falls within some of the exceptions provided in the Limitation Act [Midnapore Zamindary Co. v Naba Kumar AIR 1950 Cal. 298; Babua Ram v State of U.P. (1995) 2 SCC 689]. Secs.12-15 of the Limitation Act (discussed later) provide exceptions to Sec. 9.
Proviso to Sec. 9
The principle of the proviso is this: When the right to sue and the right to be sued vest and unite by the act of law in the same person i.e. when the same person becomes the hand to receive and the hand to pay, the running of the statute is suspended during such union of rights. When letters of administration to the estate of the deceased creditor have been granted to his debtor, the time between the grant of the letters of administration and the completion of the administration for the estate is excluded in computing the period of limitation for a suit to recover the debt.
This exception has been introduced lest the debtor administrator intentionally might omit to pay or sue for the debt. It might make the statute a cloak for his own fraud. The proviso applies only to an administrator under the grant of letters where he is a debtor of the deceased. It does not apply to a case where there has been a fusion for the interest of the mortgagor and the mortgagee in the same person.
Where letters of administration to the estate of a creditor have been granted to his debtor, the running of time in favour of such debtor is suspended for so long as the administration continues. This is in order to prevent an administrator from taking advantage of his office in delaying the payment of a debt he himself owes to the estate, till the prescribed period has expired.
LEADING CASE: SHANKAR LAL v SHADI RAM
(1971 DLT 311)
In this case, in 1955, a decree was passed against the petitioner tenant in favour of the landlord directing the payment of rent arrears by certain date and in default, the petitioner was liable to eviction. Eventually the tenant defaulted. The respondent-owner moved an application for eviction of tenant in 1964 which was met with plea that the same was barred by limitation (Three year’s time for execution of a decree under the Act). The respondent urged that the execution was within time as steps in aid of execution had been taken and the execution applications had been filed on account of Sec. 19 of the Slum Areas Act, 1956 under which the permission of Competent Authority is required for the execution of decree, whether the decree obtained already before the Act.
The trial court held that the application was within limitation and not barred by time. The petitioner attacked the said order on the following grounds: The time during which the Slum Areas Act was in force and the decree was not executed, could not be excluded as the Act came into force after the decree had become executable and, therefore, under Sec. 9 of Limitation Act, no subsequent disability or inability could stop the running of time. (2) The applications were not steps in aid of execution in accordance with law.
The Court observed: For the applicability of Sec. 9, it is essential that the cause of action or the right to move the application must continue to exist and subsist on the date the particular application ought to have been moved; and if it be found on the date that the right itself had been taken away by subsequent events like prohibition contained in the enforcement of Slum Areas Act, no question of subsequent disability or the bar of limitation will arise, as the starting point of limitation for the particular application will be deemed not to have commenced. The decree sought to be enforced must have been made in such form as to render it capable in the circumstances of being enforced.
If during the period of embargo placed by Sec. 19 of the Slum Areas Act, the decree-holder does not file any application for execution he is met with the plea that he has run out of time while on the other hand, if he filed one to save limitation or otherwise, he is told that his application was not step in aid according to law and so he has again run out of time. In the nature of things it is impossible for the decree-holder to obtain permission within the period of three years from the date of the decree.
The ﬁrst application for execution was filed in 1956 which was dismissed as unsatisfied. The second application filed in1958 was incorrectly dismissed as in fructuous on account of Slum Areas Act. Since the dismissal was illegal it is possible to hold that the application is in law still pending and the subsequent applications would only amount to revival of the same. The mere fact that the assignee did not succeed in obtaining Warrant of possession from the executing court will not turn applications being not according to law. The assignee obtained permission of the Competent Authority (Slum) and filed his application for execution within three years of the last order on the application which is according to law.]
- Section 6 of Limitation Act applies to
(b) execution of a decree
(c) both (a) and (b)
(d) none of the above.
- Section 6 of Limitation Act does not apply to
(b) execution of a decree
(d) all the above.
- Section 6 of Limitation Act can be availed by
(c) both (a) and (b)
(d) none of the above.
- Legal disabilities are
(d) all the above.
- Section 6 of Limitation Act does not apply to
- Section 6 of Limitation Act does not apply to
(b) execution of a decree
(c) suits to enforce rights of pre-emption
(d) none of the above.
- Period of limitation stands extended, by virtue of section 6 of Limitation Act for a maximum period of
(a) 1 year
(b) 3 years
(c) 6 years
(d) 12 years.
- Can a plea of limitation be
(a) waived by a party
(b) ignored by the court
(c) waived by both the parties by consent
(d) none of the above.
- Time which has begun to run can be stopped in case of
(d) none of the above.
- Section 6 of Limitation Act does apply in cases of
(d) none of the above.
- What is legal disability? To what extent such disability extends the period of limitation under the Indian limitation act.
- What are the days which could be excluded while computing the period of limitation?
Computation of Period of Limitation
Sections, 12 to 24 of the Limitation Act deals with the computation of periods of limitation. What days or periods have to be excluded from calculation of period of limitation is pointed out by the above sections. No prayer or application is needed on the part of a party for the exclusion of the time is by the section itself and it is the duty of the court to exclude such time.
The rules as to computation of period of limitation laid down in the Act are not intended by the legislature to apply only to periods of limitations prescribed by the Schedule, but apply also to periods of limitation provided for by other enactments (Durag v PanchaPancham AIR 1939 All. 483).
Exclusion of time in legal proceedings– (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.
(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 the judgment 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 on which the decree or order is founded 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 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.”
This section is the first of the sections providing for exclusion of time in computing“ the period of limitation given in the Schedule to the Act. This section applies to suits, appeals and applications. A decree holder does not have the benefit of exclusion of the time taken for obtaining the certified copy of decree; it is the appellant who have such benefit.
In computing the period of limitation for any suit, the day from which the period begins to run shall be excluded. If a pronote is executed on 5th June, 1945, the last day‘ for filing the suit will be 5th June, 1948, and not 4thJune, 1948. Therefore, according to Sec. 12(1), when time is to be computed from the date of cause of action, ‘the day on which such cause of action arises is to be excluded. In M/s Saketh India Ltd. v M/s. India Securities Ltd.(AIR 1999 SC 1090), held that ordinarily in computing the time, the rule observed is to exclude the first day and to include the last day.
In computing the period of limitation for an appeal, application for revision/review or for leave to appeal, the following periods shall be excluded:-
- the day on which the period begins to run,
- the day on which the judgment was pronounced,
- the time requisite for obtaining a copy of the decree, sentence or order
- the time requisite for obtaining a copy of judgment.
In computing the period of limitation prescribed for any other application, only the day on which the time begins to run shall be excluded. Sec. 12(2)is inapplicable to execution petition. The period of limitation for execution of decree under Art. 136 of the Limitation Act runs from the date of the decree and not from the date when the decree is actually drawn up and signed by the judge (W.B. Essential Commodities Supply Corporation v Swadesh Agro Farming & Storage Ltd. AIR 1999 SC 3421).
The true effect of Sec,-12, is that the periods referred to in the various sub-sections have to be added to the period of limitation for ascertaining the last date for filing the appeal, etc. There need not be any prayer or application by the party for the exclusion-of time under Sec.12 (India House v Kishan N. Lalwani AIR 2003 SC 2084). This section confers a substantive right upon a party and it is the duty of the court to exclude the time when the case comes under the purview of any of the sub-sections of Sec. 12.
However, an application should have been made for certified copies of decree, judgment, etc. to avail of the benefit under Sec. 12. For applicability of Sec. 12 it is not at all necessary that the filing of the certified copies should be mandatory (Commr. Of Sales Tax v Madanlal AIR 1977 SC 523).Thus, even if there are no rules requiring such copies to be filed along with the appeal, the time taken in obtaining of such copies will be excluded.
Time Requisite for Copy
The delay caused by the carelessness or negligence of the party in applying for a copy or in paying the money required for making the copy cannot be excluded from computation (Paravati v Bhola, 12 All 79). The word ‘requisite’ means ‘properly required,’ and it throws upon the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default (J.N. Surty vChetiar AIR 1928 PC 103). But for that time which is taken by his opponent in drawing up the decree or by the court’s official in preparing and issuing the documents, he is not responsible (Jijibhoy v T.S. Chetiar AIR 1928 PC 103).
In cases where the period of limitation for filing the appeal is a very short one, the appellant ought to be very diligent in applying for copies of the judgment and decree. The words ‘requisite’ and obtaining’ mean that some definite step should be taken by the appellant or the applicant himself towards the attainment of the copy. Any failure in reasonable diligence which produces, unnecessary delay at one or more of the several stages in obtaining a copy of the decree, etc. will disentitle the appellant to claim the whole of the time actually spent in obtaining the copy. The time unnecessarily occupied is not time ‘requisite’ within the meaning of Sec.‘ 12 (Sarat Chandra v Upendra Nath AIR 1927 Cal. 623).
Time requisite is a question of fact to be determined on the basis of the facts of each particular case. No time limit is fixed for making an application for the certified copy. But such application should have been made within the period of limitation prescribed for the appeal, etc. (for which such copies are required) if the appellant is to, avail the beneﬁt of Sec. 12.An application made after the period is over will not be of any avail to the defendant in exclusion of time under Sec. 12 (N.D. Parthsarthy v State of A.P.AIR 197 7 A.P. 37). However, in India House v Kishan L. Lalwani (AIR 2003SC 2084), it was held that it does not make any difference whether the application for certified copy ‘Was made within prescribed period of limitation or beyond it. The period was liable to be excluded in all cases and not depending on whether there is sufficient cause or not.
Time requisite cannot refer to any period antecedent to the applicant applying for copy of decree, etc. (i.e. the time taken by the court to prepare the decree or order itself) and subsequent to the period of the copy being’ ready for delivery. Thus the time in between the date when the copy was ready and the date when the delivery was taken cannot be excluded under Sec. 12, because under sub-sec. (2) what is material is not the date of, delivery of copy but the date when the copy was ready for delivery (Mahabir v 4thADJAIR 1982 All. 8). The date on which it was ready is important, not the date of collection by the counsel.
The time taken in the preparation of a copy anywhere except in the copying department cannot be treated as time requisite for obtaining a copy of decree. If a judgment is pronounced on such a date the day or days following it are holidays, during which the appellant cannot apply for a copy, then in computing the period of limitation prescribed for appeal such holidays should be excluded (Lalta Pd. v Shaym mohan AIR 1961 M.P; 244).
‘Time requisite for obtaining copy of judgment or decree’ starts from ‘date of application and ends when the copy is ready for delivery. ’Where the original application filed for certified copies was struck off by the trial court but it was restored by a subsequent application, the date for computing the period of limitation is not the date on which the second application is filed, but the date when the original application was filed. In other words; where dismissal of an application for certified copy is cured by its restoration, the starting of “exclusion period” also is thereby restored (Iqbal Singh v A.V. Subbarao AIR 1973 A.P. 193).
Non-signing of Decree
The date of the decree is, for the purposes of this Act, the date of the judgment. But if the decree appealed against is signed on a date, subsequent to the date of delivery of judgment, the period between the date of judgment and the date of the signing of the decree is not to be excluded, unless the appellant has applied for a copy of the decree before it is signed and has been delayed by reason of the decree not having been signed (Parvati v Bhola,21 All. 9) The principle is that “the time requisite for copy” does not begin until an application for a copy has been made, and the period during which the decree remained unsigned cannot be excluded unless the application for copy of the decree has been made before it is signed.
Where a decree is not drawn up immediately or soon after judgment is pronounced and certified copies of the judgment and the decree applied for on the pronouncement of the judgment and before drawing up of the decree, the “time requisite ‘for obtaining a copy of the decree” must necessarily include the time taken by» the officer or the court in drawing up the decree after the application for the copy (JagatDhish v JawaharLal AIR 1961 SC 832).
LEADING CASE: STATE OF U.P. v MAHARAJ NARAIN
(AIR 1968 so 960)
In this case, the court examined the true scope of the expression ‘time requisite for copy’ under Sec. 12(2). The memorandum of appeal was filed on March 29, 1963. The order appealed from had been delivered on Nov. 10, 1962. The appeal was within time, excluding the time requisite in obtaining certified copy viz, from Nov. 15 to Jan. 3. But the contention of the respondent was that the appeal was out of time in view of the fact that the appellant had applied for and obtained two other copies of the order appealed from and if time is calculated on the basis of those copies the appeal was beyond time. The point for consideration is whether the obtaining of those copies has any relevance in the matter of computing the period of limitation for appeal.
The Supreme Court observed: “The expression ‘time requisite’ under Sec. 12(2) cannot be understood as the time absolutely necessary for obtaining the copy or the minimum time within which a copy could be obtained. The appellant is not required to apply for a copy immediately after the order is pronounced; he could have applied it at the end of limitation period. That section lays no obligation on the appellant to be prompt and diligent in his application for a copy of the order. A plain reading of Sec. 12(2) shows that in computing the limitation period prescribed for an appeal, the day on which the judgment or order complained was pronounced and the time taken by the court to make available the copy applied for, have to be excluded. There is no justification for restricting the scope of that provision.”
The Supreme Court, in support of its observations, cited the following two decisions. In Jijibhoy v T.V.S. Chettyar(AIR1928 PC 103), the court observed that the word ‘requisite’ is a strong word and means ‘properly required’ and it throws upon the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his fault.
In P. Thirumala v Anavemareddy (AIR1934 Mad. 306), the court laid down that in Sec. 12 the words ‘time requisite for copy’ mean the time beyond the party’s control occupied in obtaining the copy which is filed with the memorandum of appeal and not an ideal lesser period which might have been occupied if the application for copy had been” filed on some other late. In this case, the appellant at first applied for a copy of the decree and then before the expiry of the period of limitation applied again for another copy of the decree. He filed the appeal with the second copy. The court was of the view that the second application being a reasonable and proper one, as it was made within the period of limitation, the appellant was entitled to deduct the time taken in preparing a copy of the decree upon such application.
The Supreme Court further observed: If the courts are required to ﬁnd out in every appeal filed the minimum time required for obtaining copy of the order appealed from, it would be unworkable. In that event every time an appeal is filed, the court not only will have to see whether the appeal is in time on the basis of information available from the copy of the order filed along with appeal, but it must go further and hold an enquiry whether the other copy had been made available to the appellant and if so, what was the time taken by the court to make available that copy. This would lead to a great deal of confusion and enquiries into the alleged laches or delays in respect not of copies produced with the appeal but about other copies which he might have got and used for other purposes with which the court has nothing to do.
The Supreme Court, thus, held that the time requisite for obtaining a copy is to be ascertained from the copy actually filed along with the appeal. The obtaining of ‘other copies’ by the appellant is not decisive of the matter under Sec. 12(2).]
LEADING CASE: COMMR. OF SALES TAX, U.P. V M/S. MADAN LAL DAS & SONS
(AIR 1977SC 523)
In the year 1960-61 (assessment year), an appeal filed by the respondent dealer, against the order of Sales Tax Officer, which was disposed of by the Additional Commissioner (judicial) Sales Tax. The copy of the appellate order was served on the respondent on Aug.. 22, 1963, which was lost by him, and he made an application on 15th June, 1966 for another copy of the order. Copy was ready on Aug. 17, 1967 and delivered to the respondent on Aug. 18, 1967.
A revision under Sec.10 of the U.P. Sales Tax Act was ﬁled by the respondent on 9th Sept. 1967. Sub-sec. 3-B of Sec.10 prescribes the period of limitation for filing a revision within one year from the date of service of the order and the revising authority may on proof of sufficient cause entertain it within a further period of 6 months. The respondent claimed under Sec.12 (2) of the Limitation Act, 1963, exclusion of period in computing the period of limitation for filing of revision, and his claim was accepted by the Revision Judge, who allowed the revision petition. On appeal, the High Court favoured the respondent and so does the Apex Court. The question before the Supreme Court was applicability of Sec. 12 (2) of the Limitation Act, 1963 in U.P. Sales Tax Act disputes.
The Supreme Court observed that U.P. Sales Tax Act answers to the description of a special or local law. According to Sec. 29(2) of the Limitation Act, for determining any period of limitation prescribed for any application by any special/ local law, the provisions contain in Sec. 12 (2) shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law. There is nothing in U.P. Sales Tax Act expressly excluding the application of Sec. 12 (2) of Limitation Act for determining the period of limitation prescribed for revision application.
There is nothing in the language of Sec. 12 (2) to justify the inference that the time spent for obtaining copy of the order sought to be revised can be excluded only if such a copy is required to be filed along with the revision application. In a number of cases the court considered the application of Sec. 12(2) of the Limitation Act because it helps in giving right judicial decisions (Additional Collector of Customs, Calcutta v M/s. Best &Co. AIR 1966 SC 1713).
The provisions of Sec. 12 (2) would apply even though the copy mentioned in that sub-section is not required to be ﬁled along with the memorandum of appeal. The same position should hold good in case of revision petition ever since Limitation Act of1963 came into force. In State of Uttar Pradesh v .Maharaj Narain AIR 1968 SC960, the court observed that what is deductible under Sec. 12 (2) is not the minimum time within which a copy of the order appealed against could have been obtained.
If that be the position of law in a case where there was no allegation of the loss of any copy, a fortiori it would follow that where as in the present case the copy served upon a party is lost and there is no alternative‘ for that party except to apply for afresh copy in order to be in a position to file revision petition, the time spent in obtaining that copy would necessarily have to be excluded under Sec. 12 (2) of the Limitation Act, 1963.
LEADING CASE: GOBIND RAM AND OTHERS v HARNAM DASS
(AIR 1981 Del. 184)
In this case, the short question is whether appeal is barred by time. Appeal was filed u/ s. 39 of DRC, 1958 (which provide60days from the date of the order of the Tribunal for appeal in this court). The impugned judgment and order was passed on11thAug. 1980. Application was made on 6thOct. 1980 for obtaining the copy. The copying department directed the appellant to visit the agency for collection of the copy on 14thOct. 1980.The appellant collected it on 15thOct. 1980. And appeal was filed on 16th Oct. 1980.
The Delhi High Court observed that the appellant is entitled to exclude the time requisite for obtaining the copies of the judgment and order. The words ‘time requisite’ used in the Sec.12 have not been defined. The question what is the time requisite in a particular case is one of fact and must be determined with reference to the facts and circumstances of that case and in the light of the rules and also the practice of the court. When there has been no mistake, inaction or want of bonafides on the part of the applicant or his counsel and there is a delay in giving copies due to the negligence or rules of the copying department, the period spent by an applicant in obtaining the certified copy should be regarded as ‘time requisite.
In the present case, the appellant is entitled to exclude the entire period from6thOct.’80 to 14th Oct.’80 as ‘time requisite’. The appellant actually collected the copy on 15thOct. but he is not entitled to exclude this day i.e. 15thOct. The appellant did not apply for certiﬁed copies till 6th Oct. though order was passed on 11thAug., from this it could not be said that he was not pursuing the matter diligently. The party is entitled to apply for copies before the expiry period of the limitation fixed for ﬁling of an appeal.]
Appeal by Prisoner
The time taken in forwarding an application for a copy on behalf of an appellant in jail and in transmission of such copy to the jail, as well as the time taken in the actual preparation of his application and ending on the date when the copy is delivered to him in jail is to be excluded.
Section 5 and Section 12
Sec. 5 of the Limitation Act cannot be applied in making the computation of time provided for under Sec. 12, and does not become applicable until after such computation has been made. In computing the time requisite for obtaining copies, no allowance can be made for delay caused by inability by reason of poverty, to pay the estimated cost of copies. But if the stamps are not procurable, or the office is not open to receive payment of estimated cost, allowance may be made for the delay so caused. These and similar cause of delay may be considered under Sec.5 after computation has been made under the other sections.
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 prescribed court fees, for such suit or appeal, treat the suit or appeal as having the same force and effect as if court fees had been paid in the first instance.
This is, a new section. As observed by the joint committee this section provides for exclusion of the time taken in prosecuting in good faith an application of leave to sue or appeal as a pauper (forma pauperis) when such application has been made and rejected. Pauper means a beggar, one who has no income.
No time-limit has been set out in Sec. 13 and the court can extend time (for payment of court fee) at its discretion to whatever extent it thinks fit. But it must be proved that the applicant acted in good faith when he presented the application as pauper (P. Sreedevi v P. Appu AIR 1991 Ker. 76).
Exclusion of time of proceeding bona fide in Court without jurisdiction– (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 relate 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. Sub-sec. (2) similarly provides for an application.
It is also provided that notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908, the provisions of sub-sec. (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of the Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in jurisdiction of the court or other cause of a like nature [Sec. 14(3)].
[If a suit application is withdrawn under Order XXIII on grounds similar to those specified in Sec. 14, the time spent in prosecuting such proceeding shall be excluded, 4as it is felt that there is no jurisdiction for denying a litigant this-right when the grounds of withdrawal are those contemplated by this section and to this extent Order XXIII, rule 2 requires to be superseded. Sec. 14(3) is in the nature of a proviso to Order XXIII].
Explanation– For the purposes of this section,
- in excluding the time during which a formal civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
- a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
- mis joinder of parties or of causes of action shall be deemed to be a cause of a like ‘nature with defect of jurisdiction.
Sec. 14 provides for circumstances for computing the period of limitation for a suit, where 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 same party for the same, relief in a court. The principle of Sec. 14 is the protection against the ‘bar of limitation to a person honestly doing his best to get his case tried on the merits, but failing through the court being unable to give him such a trial. The expression “is unable to entertain” means “is unable to go into the merits of the case.”
The effect of Sec. 14 is not to render the suit after re-filing in the proper court a continuation of the original suit, and consequently the limitation period has to be determined as if it Was a new suit, and the period will be that which was prescribed for the original suit, but excluding the period during which the suit was being prosecuted bona fide in a wrong court. For example: If the order returning the plaint is passed on the 4thMay and the plaintiff is given time till the 30th June for presentation in the proper court, the period between 4thMay and 29th June is to be excluded under Sec. 14.
A plaintiff can claim the benefit of this section only where the previous proceeding has been brought by himself or by some person through whom he derives title to sue (Baroda kant v Sookmoy, 1 W.R. 29).Where the plaintiff and another person had brought the suit in one capacity, and the plaintiff alone brought the other suit in another capacity, no deduction of the time spent in the previous suit could be made(Hussein v Asha Bibi AIR 1924 Rang. 123). The defendant must be the same in both the proceedings. Where there are several defendants in the second suit, and the former suit was instituted against only one of them, no exclusion of time will be allowed (Nilamadhab v Kristodoss, 5 W.R. 281).
It is not necessary that plaintiff must have been prosecuting the previous proceeding as a plaintiff. He is entitled to a deduction of the period of pendency of a former suit in which he as defendant was urging the same claim as he afterwards prefers as plaintiff. All that is required of a plaintiff to prove is that he prosecuted the previous civil proceedings in good faith [Madhav das v Jan Mahomed AIR 1942 Sind 37; Aildas v Sobhomal AIR 1938 Sind 50].
Sec. 14 will not be attracted when the plaint is filed in a Wrong court out of time i.e. not within the limitation period. This section applies to suits and applications only, and not to appeals. The section does not give discretion to the court, but the litigant is entitled as a matter of right to exclude the period spent in in fructuous proceedings provided the following requisite conditions are satisfied by the plaintiff:
- that he had been prosecuting the previous suit with due diligence and in good faith,
- that the matter in issue in the previous suit and the new suit are the same, and
(iii) that the court was unable to entertain that suit on account of defect of jurisdiction or other cause of a like nature(Madhavrao N.Patwardhan v Ram Krishna AIR 1958 SC 767).
Due diligence and Good faith
Sec. 14 (based on justice, equity and good conscience) has to be liberally construed, but not in disregard of the express words of the section. Unless there is sufficient material to come to the ﬁnding that plaintiff has acted dishonestly and with lack of good faith he cannot be denied the benefit of Sec. 14; The expression ‘good faith’ qualifies prosecuting the, proceeding in the court which ultimately is found to have no jurisdiction. Failure to pay to requisite court fee found deficient on a contention being raised or the error of judgment in valuing a suit filed before a court which was ultimately found to have no jurisdiction has absolutely nothing to do with the question of good faith in prosecuting the suit as provided in Sec. 14 (Vijay Kumar v Diwan Devi AIR 1985 SC 1669).
It is for plaintiff to prove that his case fell within the ambit of Sec.14, and the burden of proof cannot shift to the defendant. For proving absence of ‘good faith’ it is not necessary to establish that the plaintiff was dishonest in filing the suit before the wrong court or that he did it malaﬁde. If there is a lack of due care and attention on the part of the plaintiff then the plaintiff cannot be said to be acting in good faith. So, a plaintiff who was careless will not get the time before a wrong court excluded in computing the limitation period.
A person who has resisted to the objection regarding non-joinder of parties at the initial stage and also at the revisional stage and run the risk of proceeding with the suit without impleading the necessary parties; cannot be said to act in good faith because he cannot be said to have acted with due care and attention. Consequently, such person will not be entitled to benefit of Sec. 14 for excluding the time spent by him in that proceeding in a fresh suit (AIR 1972 SC 730).
Ignorance of law by the plaintiff, which led to his filing the previous suit in a wrong court is not an excuse and would disentitle the plaintiff to the protection under Sec. 14. A distinction is made between bonafide mistake of law and ignorance of law. In the first case, indulgence is given under this section. The fact that a litigant acted on the mistaken advice of a pleader will not entitle him to get the benefit of the provision of this section, if the error made is so patent that it could have been avoided with the exercise of due care (Ram Shau v Imdad, 51 I.C. 590). Proceedings in a wrong court through the bona fide mistake of the counsel may be excused under Sec. 14, where the party has throughout prosecuted his case with due diligence.
In Ghasi Ram v Chait Ram Saini (AIR 1998 SC 2476), the Apex Court observed: Does the interest of justice demand that plaintiff should be refused the benefit of Sec. 14 on account of the negligence on the part of his counsel, ill-advising him to file a revision instead of filing afresh suit? An illiterate litigant cannot be made to suffer when he is ill advised by his counsel.
It has been held by the Supreme Court in Ravindranath Samuel Dawsonv Sivakami (AIR 1979 SC 730) that proceedings contrary to a clearly expressed provision of law cannot be regarded as proceedings in good faith. It has also been held that when the party had no right to prosecute another proceeding, the prosecution of such proceeding cannot be said to be in good faith [Ram Bhawan Singh v Jagdish (1990) 4 SCC 311].
Even where plaint itself shows that the court at which it was filed had no jurisdiction, Sec. 14 can be invoked if good faith is proved (Moken v Rajappan AIR 1984 Ker. 91).
Sec. 14 applies to Civil Proceedings Only
Sec. 14 applies to civil and not criminal proceedings. This section makes no distinction between a Civil and Revenue Court/Collector’s Court. As the insolvency proceeding before an Official Assignee is a civil proceeding this section applies. An application for mutation of names is not a civil proceeding. It has been held that a proceeding before an arbitrator is a civil proceeding, and in computing the period of limitation, an arbitrator should exclude the time spent on prosecuting in good faith the same claim before another arbitrator without jurisdiction (Ram Ditt Ram Kissen v E.D. Sassoon & Co. AIR 1929 PC 103). In this case, Sec. 14 was applied by analogy.
Matter in Issue should be Same
When the matter in issue (in the previous and new suit) is not the same, Sec. 14 is not attracted. In Ajab Enterprises v Jayant Vogoiles & Chemicals(AIR 1991 Bom. 35), the plaintiff filed a winding up petition before the company court. The time taken to prosecute such proceeding cannot be excluded in computing the period of limitation for a suit against a company for recovery of debt because the matter in issue in the suit; and the winding up proceedings is not the same.
In Jai Prakashv Sat Narain Singh(1994) 1 Supp. SCC 153, the court observed that U.P Land Revenue Act indicates that its scope and application are confined to proceedings ir1 respect of land revenue and the jurisdiction of the Revenue officers in this connection, and do not embrace any dispute relating to title or possession of specific plots of land. The subject-matter‘ of proceeding under the U.P. Land Revenue Act in the present case which remained pending from 1931 to 1952 was entirely different form the dispute in suit relating to the suit land.
The exclusion of time under Sec. 14 is available only where the earlier proceeding related to the same, matter that is in issue in the suit and not otherwise. In the present case, the matter in issue in the proceeding under the U.P. Land Revenue Act was distinctly different from that in the suit. The High Court was not justified in excluding the period from 1948to 1951 while computing the period of limitation for the suit.
Defect of Jurisdiction
The court in which the previous proceeding was prosecuted must have been unable to entertain it by reason of “defect of jurisdiction or other cause of a like nature.” As seen above, it is expressly clarified that mis-joinder of parties or causes of action is to be considered to be a ‘cause of a like nature’ with ‘defect of jurisdiction’. Misjoinder would include non-joinder.
Where a previous proceeding has been dismissed on the ground that the plaintiff or applicant had misconceived his remedy, the plaintiff or applicant cannot take advantage of this section, because the failure of his suit or application cannot be attributed to anything connected with the jurisdiction of the court, and the same holds good where the plaintiff is litigating against the wrong party. The words “other cause of a like nature” with defect of jurisdiction means something incidental to the court itself, and not connected with the default, negligence or laches of the plaintiff. And therefore, where the previous suit was dismissed on the merits, or on the ground of limitation or resjudicata, or because the plaint did not disclose a cause of action, or was badly framed, Sec. 14 cannot be availed of. Similarly, Sec. 14 does not cover such mistakes as the presentation and prosecution of an appeal which did not lie in any court.
The expression “other cause of like nature” must be so interpreted as to convey something analogous to the preceding words “from defect of jurisdiction” (Zafar Khan v Board of Revenue AIR 1985 SC 39). Where the respondents were found to have in good faith pursued their claim before the Court of Civil Judge, Allahabad, which was found to have no jurisdiction to entertain the suit by reason of a clause in the contract of carriage which conferred exclusive jurisdiction on the Court in the city of Jaipur, it was held that the period during which they prosecuted their suit before the Court of the Civil judge, Allahabad would be liable to be excluded in computing the period of limitation for filing the suit in the appropriate Court in Jaipur [Globe Transport Corporation v Triveni Engineering Works (1984) 86 PLR 259 SC].
Sec. 14 does not apply where the previous suit or application was voluntarily abandoned or withdrawn by the plaintiff or applicant. When the previous suit has been terminated not by any action of the Court butby the act of the plaintiff, he cannot claim the benefit of this section(Arunachalam v Lakshman, 39 Mad. 939). It is only when the suit was withdrawn with the leave of court, Sec. 14 would apply.
When the suit was rightly ﬁled in the Munsif’s Court but subsequently there was change of forum resulting in the plaint being returned forpresentation to District Court then no question of invocation of Sec. 14arises and the suit should be deemed to be continuing from its firspresentation [Union of India v Abdul Khadir ILR (1964) 1 Ker. 355].
When the writ petition has been filed by the plaintiff to decide contractual obligation and the High Court directed the matter to be decided by Civil Court then the plaintiff in filing civil suit shall get the benefit of Sec. 14 to exclude the time taken for prosecuting the writ petition [W.K.Deshmukh v P.B. Deshmukh (1998) 7 SCC 447].
Comparison with Sec. 5- Sec. 14 confers a right on the applicant, while Sec.5 confers discretion on the court. Sec. 14 and Sec. 5, though independent, are not mutually exclusive. Even in case where Sec. 14, applies, Sec. 5 is not excluded. Under Sec. 5, the court may condone the delay in filing an appeal in the correct court if the requirements of Sec. 14 appear to have been satisfied and they are held to constitute a sufficient cause under Sec.5. The considerations of good faith and due diligence are more rigidly applicable under Sec. 14 than Sec. 5.
The reason why Sec. 14 is limited to courts of original jurisdiction is merely, because the earlier section (Sec. 5) gives a large and more unfettered power in the same behalf to Appellate Courts. The reasonable principle of this section, therefore, may be applied to appeals.
Difference between Secs. 4, 12 and 14 – Sec. 4 provides that despite the fact that limitation has expired on a day when the court was closed, the suit, appeal, etc. may be instituted on the day on which the court re-opens. Sec.4 does not extend or enlarge the period of limitation. The language of Secs.12 and 14 however, clearly provides for the extension of the limitation period and, therefore, if after the addition of period contemplated by Secs.12 and 14 limitation expires on a day when the court is closed, the suit maybe filed on the re-opening day. If the application for certified copy under Sec.“ 12 is made after the expiry of limitation period, notwithstanding the fact that the right to file the appeal still subsists in view of the provisions of Sec. 4, the time taken in obtaining copies cannot be excluded.
Where a plaint presented within time in a wrong court was returned to the plaintiff on a date after limitation had expired, and the next three days being holidays, it was presented before the proper court on the fourth day, it was held that in the circumstances the suit was not barred by limitation, as the plaintiff could not present the plaint to the proper court before the date on which he did, owing to the holidays of that court(Harkubai v Shankerbhai, 45 Bom. LR 1014).
Case-Law: Sec. 14
LEADING CASE: THE COMMISSIONER OF SALES TAX, LUCKNOW, V
M/S. PARSONYTOOLS & PLANTS, KANPUR(AIR 1975 SC 1039)
In this case, the moot question was whether principles of general statute (Limitation Act) can be imported into special statute (U.P.Sales Tax. Act, 1948). The court observed that provisions of the Limitation Act cannot be imported into the U.P. Sales Tax Act even by analogy. An enactment being the will of the legislature the paramount rule of interpretation which overrides all others is that a statute is to be expounded according to the intent of them that made it.
If the legislature in a special statute prescribes a certain period of limitation for filing a particular application and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only up to a specified time limit and no further, then the tribunal concerned has no jurisdiction to treat within limitation, an application ﬁled before it beyond such maximum time limit specified in the statute, by excluding the time spent in prosecuting in good faith and with due diligence any prior proceeding on the analogy of Sec. 14(2) of the Limitation Act.
The Appellate Authority and the judge (Revision) under the U.P. Sales Tax Act are not courts but merely Administrative Tribunals. Sec. 14(2) of the Limitation Act does not in terms apply to proceedings before them. The scheme of Sec. 10 of the Act (Sales Tax Act, 1948) shows three noteworthy features:-
- No limitation prescribed for the suo motu exercise of jurisdiction by Revising Authority.
- Period of 1 year prescribed as limitation for filing an application for revision by the aggrieved party.
- Revising Authority has no discretion to extend this period beyond a further period of 6 months even on sufficient cause shown.
The three stark features of the scheme and language of the provision, unmistakably show that the legislature has deliberately excluded the application of the principles underlying Secs.5 and14 of the Limitation Act. Delay in disposal of revenue matters adversely affects the steady inflow of revenues and financial stability of the State. Sec. 10 of the U.P. Act is designed to ensure speedy and final determinations of fiscal matters within a reasonably certain time-schedule.
LEADING CASE: RAMESHWAR LAL v MUNICIPAL COUNCIL, TONK
[(1996) 6 SCC 100]
In this case, the petitioner filed a writ petition in the High Court for salary amount for the period 10-9-1987 to 18-8-1988. Held that since it is a claim recoverable in civil action, the discretionary power u/Art. 226 of the Constitution is not exercisable and. The petition dismissed. Division Bench of the High Court also on 6-5-1996 came to the same conclusion. The Supreme Court held that it is axiomatic that the exercise of the power under Art. 226being discretionary, the High Court has not exercised the same.
The court observed: Since the limitation has run out to file a civil suit which was not on the date of filing of writ petition, the civil court is required to exclude under Sec. 14 of the Limitation Act, 1963, the entire time taken by the High Court in disposing of the matter. Normally for the application of Sec. 14, the court dealing with the matter in the first instance, which is the subject of the issue in the later case, must be found to have lack of jurisdiction or other cause of like nature to entertain the matter.
LEADING CASE: STATE BANK OF HYDERABAD V JOINT FAMILY OF
MUKUNDAS RAJA BHAGWAN DAS[(1995) Supp (2) SCC 544]
In this case, the respondent-Jagirdar executed a promissory note (dated 20-5-1953) and paid some amount up to 3-9-1959. He later filed an application in March 1960, under the A.P. Jagirdar Settlement Act, 1952, for scaling down the debt. Under the A.P. Act, the Board (authority under the Act), on 25-10-1967, held that it has no jurisdiction to entertain the claim for scaling down the debt. The appellant-creditor bank, filed the suit on 10-2-1970 in the city civil court to recover the debt. The court dismissed it on the ground of being barred by limitation. Similarly, High Court held in appeal. Now, SLP before this court, on the question of limitation.
The Apex Court observed that A.P. Act, 1952 is a complete code for determination of liability of debt due by a Jagirdar to the creditors. It is true that the benefit of Sec. 14 of Limitation Act would be extended only to the plaintiff who has instituted the suit in a wrong forum and had prosecuted the proceeding in good faith in that court which ultimately found to have defect of jurisdiction or other cause of like nature. The period during which such proceedings were prosecuted would be excluded in computing limitation.
The court held: The scheme of the A.P. Act would indicate that all claims relating to debt involving jagirdars are to be considered and adjudicated upon by the authorities including the Board constituted under the Act. However, for purpose of Sec.14, Limitation Act, the position of creditor would, notwithstanding that the proceedings were initiated under the A.P. Act on an application made by the jagirdar, would be that of a plaintiff in a civil suit. The creditor had no right to file suit (civil) until the proceedings are determined under the A.P. Act (Sec. 25), and this bar removed only after declaration of non-maintainability of application by the Board on 25-10-1967. So, the suit was clearly within limitation when it was laid on 10-2-1970.
LEADING CASE: DEENA (DEAD) THROUGH LRS. V BHARAT SINGH(DEAD) THROUGH LRS.
(AIR 2002 SC 2758)
In this case, a suit decreed by the trial court was challenged in appeal by the defendant. During pendency of the suit, the plaintiff withdrew the suit with permission to ﬁle fresh suit. Thereafter the present suit was field on 24-2-1982 seeking declaration that they were owners of suit property and that order passed by the Collector was void and inoperative. In written statement, the defendant took the plea that the suit was bated by limitation. The trial court answered in favour of the defendant holding that the plaintiff did not pursue the proceeding of the previous suit with due diligence and good faith. The first appellate court similarly held.
The High Court, however, held: “The order passed by the Collector is dated 29-2-1980. The first suit for declaring order of Collector as void was filed on 23-3-1980, which was decreed by the trial court. The defendant-respondent filed appeal and on15-2-1982 the plaintiff-appellants were allowed to withdraw the suit which was decreed in their favour by the trial court with permission to file fresh one on the same cause of action. Fresh suit was filed on 24-2-1982. After hearing counsel for the parties I hold that the suit ﬁled by the appellants is within time and they are entitled to the exclusion of time from 23-3-1980 to 15-2-1982. The ﬁndings of the lower courts are set aside and the suit filed by the plaintiff-appellants is decreed.”
The Supreme Court observed: In O.23, R.2, C.P.C., it is provided that any fresh suit instituted on permission granted underR.1, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. Sec. 14(3)is in the nature of a proviso to 0.23, R.2. The non-obstante clause provides that notwithstanding anything contained in O.23, R.2, the provisions of Sec. 14 (1) shall apply in relation to a fresh suit instituted on permission granted by the court under O.23, R.1.
For applicability of the provision in sub-sec. (3) of Sec. 14, certain conditions are to be satisfied. Before Sec. 14 can be pressed into service the conditions to be satisfied are:
- both the prior and subsequent proceedings are civil proceedings prosecuted by the same party,
- the prior proceeding had been prosecuted with due diligence and good faith,
- the failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature,
- the earlier proceeding and the later proceeding must relate to the same matter in issue, and
- both the proceedings are in a court.
The main factor which would influence the court in extending the benefit of Sec. 14 to a litigant is whether the prior proceeding had been prosecuted with due diligence and good faith. The expression “good faith” means, “exercise of due care and attention.” In the context of Sec. 14, the expression “good faith” qualiﬁes prosecuting the proceeding in the court which ultimately is found to have no jurisdiction. The findings as to good faith or the absence of it is a finding of fact.
In the present case, the previous suit ﬁled by the respondents was decreed by trial court, and the defendant had filed appeal against the judgment and decree of the trial court. It does not appear from the discussions in the impugned judgment that there was any finding of the court in the previous suit holding the suit to be not entertainable on any ground. The ground on which withdrawal of the suit was sought was that one of the mortgagors, had not been impleaded in the suit, it is not the case of plaintiffs that the court had found the suit to be not maintainable on that ground. Non-impleadment of a necessary party in the suit was a clear case of laches on the part of the plaintiffs. In such circumstances it could not be said that the plaintiffs were prosecuting the previous suit in good faith.
The trial court and the ﬁrst appellate court based their ﬁndings on the question of good faith on the evidence led by the parties and the law laid down in RabindraNath Samuel Damon (AIR 1972 SC730) in which it was held that a person who has registered the objection regarding non-joinder of parties at the initial stage and also at the revisional stage and takes the risk of proceeding with the suit without impleading the necessary parties cannot be said to have acted in good faith taking due care and attention and such person will not be entitled to the benefit of Sec. 14 of the Act for excluding the time spent by him in that proceeding in a fresh suit.
In the present case, the objection regarding non-impleadment of necessary party was taken in Written Statement. Despite such objection, the plaintiffs chose to prosecute the suit. They succeeded in trial court and the matter was pending before the ﬁrst appellate court when the petition u/O.23 seeking withdrawal of the suit with permission to file a fresh suit for the same relief was ﬁled by them. Therefore, the trial court and the first appellate court were right in holding that the plaintiffs were not entitled to exclusion of the time u/ 5.14 of the Act as claimed and that the suit was barred by limitation.]
Exclusion of Time in Certain Other Cases
Section 15“ provides for exclusion of time where there has been an injunction, or notice has to be given, or the previous sanction of the Government has to be obtained, or where a liquidator has been appointed Five rules are laid down in this connection, as under:-
- When a suit or execution proceedings are stayed by injunction or order: Sec. 15(1).
- When notice to Government or any other authority is necessary the period of notice: Sec. 15(2).
- When receiver in insolvency or liquidator in winding up is appointed: Sec. 15(3).
- When proceedings to set aside sale has been prosecuted: Sec. 15(4).
- When the defendant has been absent from India: Sec. 15(5).
According to Sec. 15(1), where the institution of a suit or the execution of a decree has been stayed by an injunction or order, the period during which such injunction or order is in force can be excluded in computing the period of limitation for such suit or application. The day on which such injunction or order was issued or made and the day on which it was withdrawn, shall also be excluded.
The object of Sec. 15(1) is to safeguard the interest of the person who is precluded by an injunction or order of court from exercising aright of suit or execution of a decree passed in his favour against his being injured or damnified on that account.
The words ‘stayed by injunction or order’ have reference to order of courts and not to a disability to sue or to apply arising from other circumstances such as declaration of war. The execution must have been stayed by an express injunction or order [Akkayya v Appayya, ILR (1947) Mad. 661], and not by an implied order or a collateral litigation. In order to attract Sec. 15(1), it is only the order of stay passed by the court that is necessary and not that the order is proper or valid.
A party seeking to take advantage of Sec. 15(1) must show that he was earlier restrained by an order from making the prayer which he is now making. But if he could have done earlier what he is trying to do now, Sec. 15(1) will not be attracted to his case. In Jurawan v Mahabir (40All. 198), it was held that an order merely giving time to the judgment debtor for payment is not an order staying execution or an injunction, and Sec. 15 does not apply.
An order of adjudication adjudging the defendant as an insolvent is not an order staying suit against the defendant because its effect is not to stay proceedings against the defendant insolvent, but merely to impose on the plaintiff the necessity of obtaining from the court leave to sue under Sec. 16(2) of the Provincial Insolvency Act. Therefore, the period during which the insolvency proceedings were pending cannot be excluded (Ramaswami v Gobindswami, 42 Mad. 319).
According to Sec. 15(2), if law requires that a notice should be given or consent or sanction of the government or any other authority should be obtained before a suit is instituted, then the period of such notice or the time required for obtaining such consent or sanction shall be excluded in computing the period of limitation for such suit.
(It is clariﬁed that in excluding the time required for obtaining the consent or sanction of the Government or any other authority, the day 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 are both to be counted.)
Sec. 15(2) is intended for cases in which the plaintiff is under a statutory obligation to give a notice before he can institute a suit. When it is necessary under the law to give the person intended to be sued notice of such intention the period between the service of the notice and the expiry of the time prescribed for the notice is excluded in computing the period of limitation for it e.g. Sec. 80 of the C.P.C., 1908, which provides that no officer, etc., could be sued until the expiration of two months next after the notice in writing has been given. But, where no notice under Sec. 80 of the C.P.C. is necessary to be given (i.e. not strictly needed), the fact that it has been given will entitle the plaintiff to exclude the period of such notice (T.P.K. Nair v Union of India AIR 1999 Ker. 80).
Under Sec. 15(2), the notice must be a notice of suit and the enactment requiring the notice to be given must prescribe the period of notice before the expiry of which the claimant cannot institute a suit (Premlata v Lakshman AIR 1970 SC 1525). Sec. 15(2) will not be attracted where the plaintiff has no cause of action against the Government. Where the notice under Sec. 80, C.P.C. was issued before the accrual of cause of action, the period of notice will not be excluded under Sec. 15(2).
According to Sec. 15(3), in respect of suits on behalf of an insolvent or a company in liquidation, the period between the date of the filing of the petition for adjudication or winding up and the appointment of receiver, liquidator, etc. and period of three months thereafter shall be excluded in computing the period of limitation for suits by or on behalf of an insolvent’s estate or the company.
It is common knowledge that by the time a receiver or liquidator is appointed in insolvency or liquidation proceedings, and the receiver or liquidator after getting information about the assets and liabilities of the estate gets down to the task of realizing the assets of the estate, claims in favour of such estate or company get barred to the detriment of the persons entitled to the benefits of the assets. To avoid this hardship, it is provided that the period between the filing of the petition for winding up or adjudication and the appointment of the receiver (including interim receiver) or liquidator (including provisional liquidator) and a period of three months thereafter (to enable him to acquaint himself with the affairs of the estate) should be excluded.
According to Sec. 15(4), if a purchaser at a sale in execution has to file a suit to recover possession of the property purchased by him, the time during which the application to set aside the sale was being fought out (i.e. prosecuted) will be excluded from computation.
According to Sec. 15(5), if a defendant has gone out of India i.e. has gone to some foreign country/ from the territories outside India under the administration of the Central Government, the time during which here mains outside will be excluded from computation.
The words “absent from India” do not necessarily imply that the defendant was present in India at the time the cause of action accrued or the period of limitation commenced to run. The sub-section will apply equally to cases where the defendant was absent altogether from India at the time of the accrual of cause of action, as to cases where he leaves India after the period of limitation [Atul Kristo Bose v Lyon & Co. (1887) 14 Cal. 457].
In Sec. 15(5), the defendant is one who was at one time present in India and later has been absent from India. A person who has never been in India cannot be considered as having been ‘absent from India.’ In P.J. Johnson v Astrofied Armadorn [AIR 1999 Ker. 53 (F.B.)], it was held that in a suit for recovery of money for goods and services supplied to the ship of a foreign corporation, the foreign corporation was never present in India and necessarily, therefore, was never absent from India and Sec. 15(5) cannot, therefore, be attracted while computing the period of limitation for a suit filed in India against such corporation.
Sec. 15(5) has reference only to the absence of the defendant from the realm, not to that of the plaintiff. A plaintiff out of the realm may prosecute a suit by his attorney. Further, the plaintiff’s voluntary or involuntary absence in a foreign country cannot bar the operation of limitation. The onus is upon the plaintiff to prove that the” defendant has been absent from India.
The defendant includes ‘any person from or through whom the defendant derives his liability to be sued.’ In Turner Morrison Co. Ltd. V Hungerford Investment Trust Ltd. (AIR 1972 SC 1311), a foreign company, was carrying on business through a local company. It was in arrears of income-tax. The local company paid those arrears of the foreign company. The suit was brought after the limitation period of three years. The local company which was the plaintiff tried to claim the benefit of Sec. 15(5).Held that a company is resident where it carries on its business and the foreign company was carrying on its business in India and therefore it was not absent from India. Consequently the benefit of Sec. 15(5) could not be given to the local company.
In a suit against partners, where one of the partners is absent from India, it has been held that the fact of his absence entitles the plaintiff to deduct the time not against all the defendants, but against the absentee defendant only (Muthukanni v Andappa AIR 1955 Mad. 96 (F.B.)].
Effect of Death on or before the Accrual of the Right to Sue
Sec. 16(1) provides that 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, etc. 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 deceased capable of instituting such suit, etc.
Sub-sec. (2) relates to cases in which such cause of action accrues against the estate of the deceased or accrues on the death of a person(i.e. when there is a legal representative of the deceased against whom the plaintiff may institute such suit or make such application).
Sec. 16 adopts the general principle that limitation cannot run unless there be a person who can sue or who can be sued. In other words, a complete cause of action cannot exist unless there is somebody who maybe sued (SeetiKuti v KunhiPathunma, 40 Mad. 1040). The words “a person capable of instituting such suit” in this section means a person not under such disabilities as are mentioned in Sec. 6. The expression “capable of suing” is the equivalent of “not under legal disability to sue.” Thus, the mere existence of a legal representative of the deceased is not sufficient for the purpose of Sec. 16.
The section applies to suits and applications but not to appeals. The section also does not apply to suits to enforce rights of pre-emption and to suits for possession of immovable property or of a hereditary office [Sec. 16(3)], because the application of this section to such cases would tend to create insecurity of title. Sec. 16(3) ensures security of title. Sec.16 (1) does not apply to suits for possession in view of Sec. 16(3).
Sec. 16 is not applicable to cases where death occurs after right to sue accrues. Where a cause of action has accrued to or against a person during his life-time, time continues to run under statute, notwithstanding his death, whether or not a legal representative is in. existence who could sue or be sued (See Section 9).
Legal representative includes an heir, administrator or an executor. In all cases where there is an executor he can, sue or be sued on behalf of the estate even before obtaining probate of the will. Consequently, in such cases, there will be no postponement of limitation under Sec. 16;An administrator derives his title solely under his grant, and cannot sue before he gets the letters of administration.
- In computing the period of limitation for appeal, review or revision, the time requisite for obtaining a copy of the decree or order appealed shall be excluded under
(a) Section 12(1)
(b) Section 12(2)
(c) Section 13(3)
(d) Section 14(4).
- in computing the period of limitation for application to set aside an award, the time requisite in obtaining a copy of the award shall be excluded under
(a) section 12(1)
(b) section 12(2)
(c) section 12(3)
(d) section 12(4).
- Limitation for filing an appeal commences from
(a) the date of judgment
(b) the date of signing of the decree
(c) the date of application for copy of the judgment
(d) the date of availability of copy of the judgment.
- ‘Time requisite’ under section 12(2) of Limitation Act means
(a) Minimum time
(b) Maximum time
(c) Actual time taken
(d) Absolutely necessary time.
- Time excluded has to be considered on the basis of
(a) information available from the copy of judgment/ decree placed on record
(b) information as to copies obtained by the parties for court purposes
(c) information as to copies obtained by the parties for other purposes
(d) information as to copies not placed on record but made available to the court.
- Section 13 of Limitation Act applies to
(a) suit filed in forma pauperis
(b) appeal filed in forma pauperies
(c) both (a) and (b)
(d) none of the above.
- Under section 13 of Limitation Act, the time is excluded
(a) if the application for leave to sue or appeal as a pauper is allowed
(b) if the application for leave to sue or appeal as a pauper is rejected
(c) in both the cases
(d) in none of the case.
- Section 14 8: section 5 of Limitation Act are
(a) Independent of each other
(b) Mutually exclusive of each other
(c) Both independent & mutually exclusive
(d) Neither independent nor mutually exclusive.
- Under section 14 defect in jurisdiction must relate to
(a) Territorial jurisdiction
(b) Pecuniary jurisdiction
(c) Subject matter jurisdiction
(d) Either (a) or (b) or (c).
- Section 15 excludes from computation of limitation
(a) period of notice
(b) time taken in granting previous consent
(c) time taken in grant of sanction
(d) all the above.
- What is the effect of the payment made before the expiry of the limitation?
- Examine the effect of fraud or mistake on the period of the limitation?
EFFECT OF FRAUD on MISTAKE (Section 17)
(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,-
- the suit or application is based upon the fraud of the defendant or respondent or his agent; or
- the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or
- the suit or application is for relief from the consequences of a mistake; or
- 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-
- 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
- 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
- in the case of a 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 judgment-debtor has, by fraud or force, prevented the execution of a decree or order within 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.
Analysis of section 17
Section 17 of the Act deals with the effect of ‘fraud’ or ‘mistake’ on period of limitation. As per this section, 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 person 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 consequences 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. The main object of this section is to keep the right of a person to sue suspended so long as he is not made aware of the fraud committed against him. Such a period is excluded from the period of limitation. Section 17 of the Limitation Act is an enabling section which postpones the starting point of limitation for suit and application.
Principle of section 17
This section is based on the principle that the right of a party defrauded cannot be affected by lapse of time or by anything else done or omitted to be done by him so long as he remains without any fault of his own, in ignorance of the fraud which has been committed. But as soon as the circumstances constituting the fraud become known to him, subsequent lapse of time will operate as a bar.
In Pallav Seth v. Custodian and others, AIR 2001 SC 2763, Court observed that the provisions of section 17 embody fundamental ‘principles of Justice and equity, viz., that a party should not be penalised for failing to adopt legal proceedings when the facts or material necessary for him to do so have been wilfully concealed from him and also that a party who has acted fraudulently should not gain the beneﬁt of limitation running in his favour by virtue of such fraud.
Scope of section 17
This section applies to suits and applications but does not apply to appeals. It is an enabling section as it postpones the starting point of limitation for suits and applications.
The section applies to the following classes of suits and applications:
- Where they are based upon the fraud of the defendant or respondent or his agent.
- Where the knowledge of the right or title is concealed.
- Where they are for relief from consequences of mistake.
- Where any document necessary to establish such right has been fraudulently concealed.
In the ﬁrst three cases, the period of limitation begins to run from the time the fraud or mistake is discovered or could have been discovered with reasonable diligence. In the cases of fourth class i.e., concealment of documents, the time begins to run when the plaintiff or the applicant ﬁrst had the means of producing the concealed document or compelling its production. However, the rights of a bona fide purchaser for value without notice of fraud, mistake or concealment are protected.
Essential Features of the section
In re Marappa Goundar, AIR 1959 Mad 26, Court observed that a person desiring to invoke the aid of this section must establish three things:-
- that there has been fraud;
- that by means of such fraud he was kept away from the knowledge of his right to sue or apply or of the title on which such right is founded, and
- time will be extended under the section only as against the person guilty of fraud or who is accessory thereto who claims through the person guilty of fraud otherwise than in good faith and for valuable consideration.
So, this section will be attracted only if it is proved that the plaintiff by means, of fraud has been kept away from the knowledge of his right to sue, and if there is no fraud on the part of the defendant, the plaintiff can’t get beneﬁt of the section.
In Swarnamoyee Dasi v. Prabodh Chandra Sarkar, AIR 1933 Cal.253, it was observed by the court that to constitute a fraud there should be an abuse of conﬁdential position, some intentional imposition, some deliberate concealment of facts. A designed fraud, by which a party knowing to whom the right belongs conceals the facts and circumstances giving that right.
In order to plead the fraud there must be existence of the following ingredients:—
- a promise made without any intention of performing it;
- any such act or omission as the law speciﬁcally declares to be fraudulent;
- the suggestion, as a fact, of that which is not true, by one who does not believe it to be true.
- any other act ﬁtted to deceive, and
- the active concealment of a fact by one having knowledge or belief of the fact.
So, according to this section, the fraud must have been committed by the defendant or respondent or his agent. The section does not apply unless there has been fraudulent concealment by the defendant of the plaintiff’s right to sue.
Section 17(2) of Limitation Act provides that 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 the judgment-creditor made after the expiry of the period of limitation, extend the period for the execution of the decree or order. But, such an application must be made by the judgment-creditor within one year from the date of the discovery of the fraud or the cessation of force, as the case may be.
LEADING CASE LAW
Mahabir Kishore v. State of M.P.
AIR 1990 SC 313
Facts: A registered ﬁrm (appellant) was alloted contracts for manufacture and sale of liquor for the calendar year 1959 and for the subsequent period from January 1, 1960 to March 31, 1961 in auction by the Government of Madhya Pradesh who also charged 71/2% over the auction money as mahua and fuel cess. A writ petition challenging the Government right to charge this cess was pending in the Madhya Pradesh High Court. In 1959, the High Court declared the collection of 71/2% as illegal, and despite this decision, Government continued to charge cess. Government only came to know of this decision in appellant’s case, the court served notice on Government under Section 80 of C.P.C., 1908. Government resisted the suit on ground of limitation. The Trial Court and High Court held that suit is barred by limitation, and appellant petition for leave to appeal was also rejected, so a writ petition was ﬁled in Supreme Court.
(1) Which provision of Limitation Act will apply to a suit for refund of money paid under mistake of law?
(2) Whether in application under Article 226 of the Constitution the court should have refused refund on the ground of laches and delay?
Decision: The apex court observed that money realized by the Government was under a mistake and without authority of law. The principle of unjust enrichment requires, ﬁrst, that the defendant has been ‘enriched’ by the receipt of a ‘benefit’, secondly, that this enrichment is “at the expense of the plaintiff” and thirdly, that the retention of the enrichment be unjust. This justifies restitution. Enrichment may take a form of direct addition to the recipient’s wealth as such of the receipt of money or indirect for instance, inevitable expense has been suffered.
Though there is no Constitutionally provided period of limitation for petitions under Article 226, the period of limitation for such suits has been accepted as the guidelines, though little more latitude is available in civil suit. It is a settled law that in a suit for refund of money paid by mistake of law, section 72 of the Contact Act is applicable and the period of limitation is 3 years as prescribed by Article 113 of the Schedule to the Limitation Act, and the provisions of Section 17(1)(c) will be applicable so that the period will begin to run from the date of knowledge of the particular law.
Section 17(1)(c) provides that in the case of a suit for relief on the ground of mistake, the period of limitation does not begin to run until the plaintiff had discovered the mistake or could with reasonable diligence, have discovered it. In a case where payment has been made under a mistake of law as contrasted with a mistake of fact, generally, the mistake becomes known to the party only when a Court makes a declaration as to the invalidity of the law. Though a party could, with reasonable diligence, discover a mistake of fact even before a Court makes a pronouncement, it is seldom that a person can, even with reasonable diligence, discuss a mistake of law before a judgment adjudging the validity of the law.
In the present case, the ﬁnal decision of the government as stated in the letter dated October 17, 1961 was purely an internal communication of the government which was never communicated to the appellants. So there is no question of limitation starting that date. Even with reasonable diligence as envisaged in section 17(1)(c) of the Act the appellant would have taken at least a week to know about it. In the result, court set aside the judgment of the High Court, and allowed appeal and remanded the suit. The records will be set down forthwith to the trial court to decide the suit on merit in accordance with law, expeditiously.
EFFECT OF ACKNOWLEDGEMENT IN WRITING (Section 18)
(1) Where, before the expiration of 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 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– For the purposes of this Section-
- 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 set-off, or is addressed to a person other than a person entitled to the property or right,
- the word “signed” means signed either personally or by an agent duly authorised in this behalf; and
- an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.
Acknowledgement means a deﬁnite, clear admission of existing liability. It is not necessary that there should be a promise to pay; the simple admission of a debt is sufﬁcient. An acknowledgement does not create any new right of action, but only enlarges the time and has the effect of making a new period run from the date of the acknowledgement. An acknowledgement of a barred debt cannot give fresh period of limitation in favour of creditors. Under this section, an acknowledgement is not limited in respect of a debt only, it may be in respect of “any property or right” which is the subject-matter of the suit, e.g., the taking of account of a dissolved partnership. An acknowledgement of a conditioned liability will not give a fresh start so long as the condition remains unfulfilled. There must be an unqualified admission, or an admission qualified by a condition which is fulfilled. An unqualified admission and an admission qualified by a condition which is fulfilled stand precisely upon the same footing, and both are within Section 18.
What constitutes acknowledgement
An acknowledgement is not limited in respect of a debt only, it may be in respect of ‘any property or tight which is the subject-matter of the suit.
In Prahhakaran v. M. AzhagiriPillai, AIR 2006 SC 1567, Supreme Court pointed out that it would be erroneous to proceed on the assumption that an acknowledgement that would fall within the ambit of section 18 of the Act can be made only by a debtor and there is no question of a ‘creditor’ making an acknowledgement. To say so would be to ignore the purport and scope of Section 18. This is because section 18 deals with the acknowledgement with reference to all suits involving properties or rights for which a limitation is prescribed under the Act and that it sets out the circumstances in which fresh period of limitation can be computed for a suit. It is made clear in regard to mortgages, the Transfer of Property Act,1882 has created and recognized rights as well as obligations both in mortgagor and mortgagee and that an acknowledgement under Section 18can be only by a mortgagee and such acknowledgement will extend the limitation for a suit against the mortgagee by the mortgagor in respect of the property or right claimed against him.
Ingredients of section 18 and essentials of a valid acknowledgement
To constitute a valid acknowledgement and thus to give a fresh period of limitation under this section, the following conditions must be satisfied:
(1) The acknowledgement must have been made before the expiration of the prescribed period. In order to fall within the provisions of section 18the acknowledgement, if any, has to be made prior to the expiration of the prescribed period for ﬁling the suit. Once prescribed period has expired, it cannot revive under this section. It is only during subsistence of a prescribed period, if any, such document is executed, that the limitation would be revived afresh from the date of acknowledgement. (Sampuran Singh v.NiranjanKaur, AIR 1999 SC 1047).
(2) The acknowledgement must have been made by the party against whom the right is then claimed or by any person through whom he derives his title or liability. An acknowledgement by a person not liable at the time of acknowledgement does not amount to acknowledgement in law.
(3) The acknowledgement must be in writing; however, if the acknowledgement is undated, oral evidence may be given of the time when it was signed. But Section 18(2) clearly prohibits, subject to the provisions of the Evidence Act, receiving of oral evidence of contents of the acknowledgement.
(4) Such acknowledgement must have been signed by the party, his agent or the party against whom the right is then claimed or by any person through whom he derives his title or liability.
(5) The acknowledgement must be an acknowledgement of liability. It is not necessary that the acknowledgement must also contain or import a promise to pay; a simple admission that debt is due, is quite sufficient under the Indian law. It is otherwise under the English law, under which an acknowledgement to be effective must also contain or import a promise to pay. Under the Indian law, it is not necessary that the writing containing the acknowledgement of same right or property should specify exactly what the right is or the exact nature of the property (e.g., exact sum due). Again and this is really extraordinary—an acknowledgement will be sufficient for the purposes of the section, even though it is coupled with a refusal to pay, or with a claim to set-off, or with a statement that time for payment has not yet arrived. But all the same it must be an admission of liability; a statement by the debtor implying that there is no liability does not amount to an acknowledgement.
An acknowledgement or liability need not be express; it may be by implication. (Bhagwan v. Madhav, 46 Bom. 1000). The acknowledgementmust distinctly and deﬁnitely relate to the liability in respect of the rightclaimed. (GopalRao v. Harilal, 9 Bom. L.R. 715).
(6) The acknowledgement is not required to be made to the creditor orthe person entitled to the right or the property. It may be made to anyperson, even to one who has no connection with the creditor.
ILLUSTRATIONS OF SUFFICIENT ACKNOWLEDGEMENTOF LIABILITY
(1) “I am ashamed that the account has stood so long.”
(2) “Please send in the account made up to Christmas last”.
(3) “The promissory note which I gave is unstamped and I will not payit”.
(4) “I cannot afford to pay my new debts much less the old debt I oweyou.”
(5) “I admit the existence of a running account…My representativeswill compare accounts and pay what may be found to be due…..”.
(6) “I am willing to pay you the sum due by instalments.”
(7) “As we have informed your client, we are quite willing to pay himthe rent due if he can show a title to give us a good receipt for it that willsatisfy our lawyers. If he is unable to produce a perfect title, we are stillwilling to pay him the rent on his giving substantial indemnity.”
ILLUSTRATIONS OF INSUFFICIENTACKNOWLEDGEMENTS
(1) A letter “enclosing a remittance of Rs.100 to old account” does notshow that a further sum is due.
(2) “I wish to look to your accounts; in my own account I do not seeany amount due to you. Please, therefore, send the account.”
(3) “I admit the loan, but I have since repaid the amount.”
(4) A letter written by a railway company to the plaintiff informing thelatter that the goods have been delivered to a third party under an indemnitybond, and that the plaintiff cannot be entertained is not an acknowledgement of liability.
(5) The plaintiff consigned some bags to be delivered to the consigneebut they were not delivered, and the railway company wrote a letter to theplaintiff informing that the bags were lying at a certain place and that theplaintiff might take delivery if he liked. The letter did not amount to anacknowledgement.
Duly authorised agent [Explanation (b) to section 18]
According to Section 18, acknowledgement can be with respect toproperty or right or the liability. Further, an acknowledgement of liabilityhas to be made in writing signed by the party against whom such propertyor right is claimed or by any person through whom he derives title orliability. In Explanation (b) to section 18 of the Act, it is further said thatthe word ‘signed’ means signed either personally or by an agent dulyauthorised in this behalf. An acknowledgement by the guardian, committeeor manager of a person under disability, by an agent duly authorised bysuch guardian, etc., is within this section. The manager of a joint Hindufamily has the same authority to make an acknowledgement as he has tocreate debts on behalf of the joint Hindu family.
An acknowledgement by a legal practitioner will be validacknowledgement to bind his clients. An attorney is a duly authorised agentand an admission made by him in a letter to the attorney of the oppositeparty is a sufﬁcient acknowledgement.
The Ofﬁcial Assignee is not the agent of the insolvent. Therefore, anacknowledgement made by him does not save limitation under this section.An Ofﬁcial Receiver is an officer appointed to administer the estate of aninsolvent, under the Provincial Insolvency Act, 1920. He is not technicallyan agent of the insolvent.
DIFFERENCE BETWEEN SECTION 18 OF LIMITATION ACT AND SECTION 25(3) OF INDIAN CONTRACT ACT
The distinction between an ‘acknowledgement’ under section 18 of the Limitation Act and a ‘promise’ under section 25 of the Contract Act, 1872 is of great importance. Both must be in writing signed by the party or his agent duly authorised in that behalf, and both create a fresh starting point of Limitation. But while an acknowledgement under the Limitation Act is required to be made before the expiration of the prescribed period, a promise under section 25 of the Contract Act, 1872 may be made after the prescribed period. If a debt is time-barred, there can be no acknowledgement of the debt; there can only be a promise to pay that sum. Such a promise would amount to a new contract. It is open to the borrower to make a promise in writing, signed by himself, to pay a debt of which his creditor might have enforced payment but for the law of limitation of the suit. This is recognized by section 25(3) of the Contract Act, 1872.
New period of limitation
A new period of limitation is to be computed from the time of the acknowledgement, i.e., from the time when it was signed. It is the true date of acknowledgement from which a new period starts. Oral evidence is permissible to show that the writing bears awrong date by mistake. The date of delivery of the acknowledgement is not the starting point. The date of acknowledgement is to be excluded in computing the new period (vide section 12 and General Clauses Act).
COMPARISON BETWEEN SECTIONS 6, 12, 14, 18 AND 19
The plaintiff’s disability, or the defendant’s fraud (sections 6 and 12) prevents the operation of the limitation. Abortive proceedings by the plaintiff or the defendant’s absence from India (section 14 & 15) suspend the running of time. Acknowledgement of liability or payments by the defendant (Sections 18 and 19) interrupt limitation, i.e., cancel the already elapsed portion of the period of limitation and allow a fresh period of limitation from the date of such interruption.
LEADING CASE LAWS
State of Kerala v. T.M. Chacko,
2000 (9) SCC 722
Facts: The Forest Department auctioned the forest produce in different coupes. The respondent was the highest bidder of coupe and his bid was accepted on 15.1.1974. The respondent paid Rs.60,125/- towards the bidamount. The respondent was to collect and remove the whole forest produceof the said coupe on or before 31.3.1974. Part of it only was collected andremoved by him before 21.2.1974, when unfortunately ﬁre broke out in thereserved forest which also destroyed the remaining forest produce of therespondent’s coupe. The respondent made representations to the ForestDepartment seeking reduction of the bid amount on the ground that hiscoupe was destroyed by the wild ﬁre. On 27.6.1974, the Department insteadof reducing the bid amount thought it ﬁt to grant further time of forty-ﬁvedays to enable him to remove the forest produce. The respondent neitherpaid the balance of the bid amount nor removed the forest produce in hiscoupe. On 19.9.1974, the Department intimated to the respondent that as hefailed to satisfy the conditions of the contract and remit the amount due tothe Government, it was cancelled and the produce left on the site wasconfiscated and ordered to be auctioned at the risk and loss of the respondent.The respondent claimed the compensation. The appellant denied that it wasliable for payment of any compensation and pleaded, inter alia, that the suitwas barred by limitation. The trial court came to the conclusion that as theappellant acknowledged the liability both under Exhibits B-4 and A-8, thesuit was not barred by limitation and thus decreed the suit on 19.7.1980.The appellant carried the matter in appeal before the High Court whichconfirmed the judgment of the trial court and dismissed the appeal. Afterthis, appeal was made to Supreme Court.
Issue: Whether Exhibits B-4 and A-8 formed the acknowledgement?
Decision: Supreme Court held that the effect of an acknowledgementis that a fresh period of limitation has to be computed from the time whenthe acknowledgement was so signed. Section 18(2) permits giving of oralevidence at the trial of the suit where he acknowledgement is undated butit prohibits, subject to the provisions of the Evidence Act, 1872 receivingof oral evidence of contents of the acknowledgement. Clause (a) of theExplanation appended to section 18 says that an acknowledgement may besufficient for purposes of section 18 even though,
- it omits to specify the exact nature of the property or right;
- it avers that the time for payment, delivery, performance orenjoyment has not yet come;
- it is accompanied by refusal to pay, deliver, perform or permit toenjoy;
- it is coupled with a claim to set off, or
- it is addressed to a person other than a person entitled to the propertyor right.
Clause (b) of the Explanation deﬁnes the word ‘signed’ to mean signedeither personally or by an agent duly authorised in that behalf. It may benoted that for treating a writing signed by the party as an acknowledgement,the person acknowledging must be conscious of his liability and thecommitment should be made towards that liability. It need not be specificbut if necessary facts, which constitute the liability, are admitted anacknowledgement may be inferred from such an admission.
Court then referred the Exhibit 8 and held that Exhibit A-8 is a copyof the proceedings of the Divisional Forest Officer intimating to therespondent that as he failed to remit the balance of the bid amount and didnot remove the forest produce in terms of the order of the Government,Exhibit B-4, the unremoved forest produce was confiscated and would beauctioned at the risk and loss of the respondent. On a careful reading of thisletter, it is clear that the claim of refund of bid amount by the respondentwas not the subject of consideration nor can we infer any acknowledgementof liability of that claim by the authority concerned.
Court then referred the case of Shapoor Freedom Mazda v. DurgaPrasadChamaria, [AIR 1961 SC 1236], where this Court while interpretingsection 19 of the Limitation Act, 1908 (under 1963 Act, now section 19 issection 18) pointed out the essentials of acknowledgement thereunder andobserved that acknowledgement as prescribed by section 19 was a mereacknowledgement of the liability in respect of the right in question and thatit need not be accompanied by a promise to pay either expressly or byimplication. The statement on which a plea of acknowledgement was based must relate to a present subsisting liability though the exact nature or thespecific character of the said liability might not be indicated in words; ifwords used in the acknowledgement indicated the existence of juralrelationship between the parties, such as that of debtor or creditor and thestatement was made with the express intention to admit suchjural relationshipor if such intention could be inferred by implication from the nature of theadmission, the acknowledgement of liability would follow.
Finally Court held that, in this case neither was the claim of refund of bid amount under consideration of the appellant nor can Exhibit A-4 or Exhibit A-8 be treated as acknowledgement of the liability of that claim of the respondent. Therefore, section 18 of the Limitation Act cannot be called in aid to compute fresh limitation from the date of Exhibit A-8 i.e. 19-9-1974. That being the position, the suit is clearly barred by limitation and is liable to be dismissed and the judgment of the High Court and Trial Court is set aside.
Tilak Ram v. Nathu
AIR 1967 SC 935
Facts: The appellants ﬁled a suit for the redemption and possession of certain mortgaged lands. Respondents prayed/argued that as sixty year which is the period of limitation for redemption of mortgages had already expired since the date of the said mortgages, the suit was barred by limitationand the appellants were not entitled to redeem the said lands. But the appellants contended that the suit was within the period of limitation. Theyrelied on four statements which they alleged were acknowledgement withinthe meaning of section 19 of the Limitation Act, 1908 (now Section 18 under new Act). These statements were in following documents:
- The written statement, in a suit of 1903 that Parmeshwar (son of the mortgagee) held the said lands as the mortgagee thereof underthe said mortgages.
- A plaint wherein reference was made of Parmeshwar havingexecuted the said sub-mortgage.
- A sale deed executed by Parmeshwar thereby selling his mortgagerights in favour of the predecessors in title of the respondent.
- Deed of sub-mortgage executed by Parmeshwar in 1970.
The trial court passed a preliminary decree, for possession on conditionthat the appellants paid Rs. 8,839/- within four months. Accordingly theappellants deposited the said amount in court. The respondents then filedan appeal challenging the said judgment and decree before District Judge.District Judge then dismissed the said appeal and conﬁrmed the preliminarydecree holding that the suit was within time as the statements in the aforesaiddocuments constituted acknowledgement within the meaning of section 19of 1908 Act. The respondents than took the matter to the High Court byway of second appeal. The learned single judge of the High Court allowedthe appeal holding that the said statements were not sufﬁcient and, therefore,the suit was barred by limitation and dismissed it. Thereafter appellants filed a Letter patent appeal which was also dismissed. Then they challengedthe correctness of the judgment of High Court and its decree before SupremeCourt.
Issue: Whether the High Court was justiﬁed in holding that the suitwas barred by limitation on the ground that the said documents were notsufﬁcient to constitute acknowledgment within the meaning of section 18?
Decision: Supreme Court observed that where the statement is reliedon as expression of jural relationship it must be fairly clear that it was madewith the intention of admittingjural relationship subsisting at the time when it was as made. Where a statement setting out jural relationship is made clearly without intending to admit its existence, an intention to admit cannot be imposed on its maker by an involved or a farfetched process of reasoning.
The statement on which a plea of acknowledgment is based must relate to a subsisting liability. The words used in acknowledgment must indicate the jural relationship between the parties and it must appear that such a statement is made with the intention of admitting the jural relationship. Such an intention can be inferred by implication from the nature of the admission and need not be in express words. The Supreme Court also referred Green v. Humpheys (1984) 26 Ch D 474, where Fry L J. whiledealing with an admission of a debt observed that an acknowledgement would be an admission by the writer that there was a debt owing by him either to the receiver of a letter or some other person on whose behalf the letter was received but it was not enough that he referred to a debt as being due from somebody.
Court then pointed out that section 18 requires the following:
- an admission or acknowledgement.
- such acknowledgement must be in respect of a liability in respectof property or right. ‘
- it must be made before the expiry of period of limitation.
- it should be in writing and signed by the party against whom suchproperty or right is claimed.
In this case, the conditions are not fulfilled. So, finally Supreme Court confirmed the order of High Court and dismissed the appeal holding thatthe suit was barred by limitation as none of the documents relied upon bythe appellant can be said to be made with the intention of admitting thejural relationship with the mortgagor and none of the statements can beregarded as acknowledgment within the meaning of section 18.
Laxmi Rattan Cotton Mills Co. Ltd. v.The Aluminium Corporation of India Ltd.
AIR 1971 SC 1482
Facts: The appellant (Laxmi Rattan) filed suit against the respondent(Aluminium Corporation) for the recovery of Rs.3,53,207.96 and Rs.72,597.48 which the appellant claimed towards respondent. Respondentresisted the suit on the ground that the suit was barred by limitation. Theappellant contended that the suit was within time and was saved from beingbarred by limitation by a letter of acknowledgement addressed by oneSubramaniam, the Secretary-cum-Chief Accountant of the respondent Co.Butrespondent contended that the said claims were barred by limitationand that the said letter did not amount to an acknowledgement. Therespondent further contended that even if said letter did amount to anacknowledgement it was not binding on the corporation as the saidSubramaniam had no authority to make any such acknowledgement onbehalf of the company. The trial court came to the conclusion that the saidletter was an acknowledgement and was binding on the corporation. Thecourt thus held that the said claim were saved from being barred by limitationby the letter which amounted to acknowledgement within the meaning ofsection 18 of the Act. It was challenged before High Court where HighCourt held that the letter was merely explanatory and was not meant to bindthe corporation, that even if it did amount to some kind of acknowledgement,its author, the said Subramaniam had no authority to acknowledge any debtor liability on behalf of the corporation. Thus, the suit is barred by limitation.It was challenged before Supreme Court.
- Whether the said letter amounted to acknowledgement?
- If it did, whether it was an acknowledgement by the corporation, and
- Whether the said Subrarnaniam who addressed it had the authorityexpress or implied to acknowledge liability on behalf of the corporation soas to bind that corporation?
Decision: Supreme Court after considering the correspondence betweenthe parties and other circumstances came to the conclusion that the saidletter was an acknowledgement within the meaning of section 18 and wasnot merely explanatory. Subramaniam who signed the letter ofacknowledgement had authority to acknowledge liability on behalf of thecorporation and the acknowledgement was binding on the corporation. Thecourt accordingly held that the suit was not barred by limitation and allowedthe appeal. In deciding that the letter amounted to an acknowledgement, theSupreme Court relied on following facts:-
(1) At no time during the lengthy correspondence, the corporation deniedits liability to pay. What it did was to dispute the correctness of the amountclaimed by challenging certain items for which the appellant claimed credit.
(2) During the process of adjustment and reconciliation, some claimsof the appellant were allowed and some were rejected.
(3) The statement of accounts clearly stated that the balance showntherein were as shown in the ledger maintained by the corporation. The letters equally clearly stated that interest on such balances was being credited from time to time.
On the ground of these facts Supreme Court held that there was a subsisting account in the name of the appellant company in the books of corporation. The controversy between the parties was limited to the question of the correctness of the amounts claimed by the appellant and it would be impossible to say that the letter and the statement of accounts enclosed therewith were merely explanatory and did not amount to an admission ofthe jural relationship of debtor and creditor and of the liability to pay the amount found due at the foot of the account on ﬁnalisation.
Regarding the authority of Subramaniam to acknowledge liability on behalf of the corporation the court held that on a close examination of the correspondence together with the statement of accounts enclosed therewith it becomes clear that he was authorized to scrutinize the claim made by the appellant in respect of various items for which the appellant claimed credit and to reject some and what is important that he had such an authority is clear from the fact that in respect of such of the items which he allowed, credit was given to the appellant and necessary entries in its books of accounts were made. It is impossible to think that in course of ﬁnalizing the accounts, Subramaniam accorded his assent to various items claimed by the appellant without having been authorized to do so. Nor is it possible to say that on his passing those items necessary entries were made in the books of accounts of the corporation without his having so authorised. Further he would not have sent to the appellant statement of accounts showing the balance due to it as per the ledger unless he was authorized to finalise the account and arrive at the amount due and payable to the appellant company. He had implied authority to make the acknowledgement and wrote the said letter with the intention of doing so. The court accordingly allowed the appeal.
Sampuran Singh v. Smt. NiranjanKaur
AIR 1999 SC 1047
Facts: The appellant purchased immovable property in the year 1959 from the original mortgagor by sale deed. In 11thJanuary, 1960 the original mortgagee sold his right by a registered deed to the respondents because oral mortgage of said immovable property was executed in I893 in favour of respondent. The appellant ﬁled a suit in 1980 for the possession of said immovable property. The respondent contended that right to redeem accrued from the very first day of mortgage and under Limitation Act, 1908, it expired on 1953, so the suit ﬁled in 1980 was barred by Limitation. The appellant took the plea that under the Redemption of the Mortgages (Punjab) Act, 1913 in case of oral mortgage till the limitation Act, 1963 came intoforce, there was no period of limitation and right of redemption accruedonly after this Act came into force.
Issues: (i) Whether fresh period of limitation would revive from 11thJanuary, 1960, on which date the original mortgagee sold his mortgagee right by a registered deed to the respondent?
(ii) Whether suit for redemption is barred by time?
Decision: The Supreme Court did not accept the above plea. It was held that the Redemption of Mortgages (Punjab) Act has no correlation with the period of limitation in the case of redemption of mortgages and that even in any case when the period of limitation expired in 1953 and the suit filed in 1980 is barred by limitation. The right of redemption accrues from the very ﬁrst date unless restricted under the mortgage deed. When there is no restriction, the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. In this case, there was no such restriction, hence the right accrued from the date when oral mortgage was executed i.e. 1893.
The Supreme Court also clearly held that the acknowledgement of liability has to be made prior to the expiry of the period of limitation and if the limitation has already expired, it would not revive a suit under Section 18 of the Limitation Act. It is only during the subsistence of the period of limitation, if any document is executed acknowledging the dues, the limitation would be revived afresh from the said date of acknowledgement.
EFFECT OF PAYMENT ON ACCOUNT OF DEBT OR OF INTEREST ON LEGACY (Section 19)
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 authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:
Provided that, save in the case of payment of interest made before the 1stday 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 bea payment;
(b) “debt” does not include money payable under a decree or orderof a Court.
Ingredients of the section 19
This section provides that fresh period of limitation will be computedwhen a payment is made on account of a debt or of interest on a legacy provided that—
(a) it is paid before the expiry of the prescribed period.
(b) it is paid by the person liable to pay the debt or interest on legacy,or by his agent duly authorized in this behalf.
(c) an acknowledgement of the payment appears in the handwriting of,or in a writing signed by, the person making the same.
The section does not require that the acknowledgement should also bemade within the period of limitation but it is essential that suchacknowledgement whether made before or after the period of limitationmust be in existence prior to the institution of the suit.
Just as where an acknowledgement of liability is made under section 18of the Act, all the period that has run up to then is cancelled and a freshperiod commences so also, where payment is made on account of a debt orlegacy on interest under section 19 of the Act, a fresh starting point oflimitation is afforded to the creditor.
Section 19 is a special provision which enables a creditor to get a freshperiod of limitation when there is an acknowledgement in writing by thedebtor or his authorised agent. Further under this section, a payment maybe made not only in cash but in any other medium that the creditor maychoose to accept.
Meaning of some expressions used in section 19
(a) Prescribed period: The word ‘prescribed’ means the period provided in the ﬁrst Schedule, and not the period within which the plaintiff may bring his suit. Schedule l has to be read with section 12 of the Act and theday from which such period is to be reckoned has to be excluded. Apayment made after the expiry of the prescribed period will not be applicableto same limitation.
(b) Payment: To constitute payment it is not necessary that it shouldbe in cash or currency. Payment may be made in any form. It is necessarythat there must be something which is tantamount to payment. Section 19saves limitation from the date of payment and if the payment is made bya post-dated cheque, unless the cheque is accepted as payment it could notbe regarded as a payment before due date.
A payment is not a good payment unless it is made to the personentitled. Mere payment by the debtor would not attract section 19 unlessthis shows that there was an acknowledgement of the payment in thehandwriting of the debtor or under a writing signed by him.
(c) Computation of Fresh Period: Where a payment saves limitation,the fresh period is to be computed from the date of payment. In computingthe period of limitation, the date on which the payment was made must beexcluded by virtue of section 12(1).
In order to be covered by the limitation under this section paymentshould be made by a person liable to pay it. The expression “person liableto pay” is of wide connotation. It is not restricted to personal liability only.It will cover the property liability also.
DISTINCTION BETWEEN SECTIONS 18 AND 19
- Sections 18 and 19 are not mutually exclusive. A payment which, owing to some defect, does not fulfil the requirements of section 19 may nevertheless operate as acknowledgement of liability and as such save limitation under section 18, if the conditions of that Section are fulfilled.
- Section 18 applies to suits and applications in respect of any property or right, while section l9 applies only to suits on debts and legacies.
- An acknowledgement of liability under section 18 operates only against the person against whom such property or right, in respect of which the acknowledgement is made, is claimed. A payment of interest as such or a part payment of principal, on the other hand, operates against all persons liable to pay of the debt in respect of which the payment made and not merely against the person making the payment or those deriving title under him subsequent to such payment.
- An acknowledgement, under section 18 need not be addressed to theperson entitled to the property or right, but a payment under section 19must be made to the person entitled to payment.
- Under section 18, a mere writing containing an admission of liabilityin respect of the property or right claimed is enough. But under section 19,two things are necessary, viz., (a) a payment, and (b) a writing recordingsuch payment.
The difference between sections 18 and 19 has been succinctly set outin Parasuraman v. Purushottaman and Co., AIR. 1977 Ker. 132 in the following words-
“There is certainly a difference between section 18 and section 19. As in the case of an acknowledgement under section 18, a paymentunder section l9 is also required to be recorded in writing. But, undersection 18, the writing must contain within itself an admission ofexisting liability, while under section 19, it is sufﬁcient if the writingmerely records the fact of payment. An endorsement of payment neednot imply an acknowledgement of liability. Whereas anacknowledgement for the purpose of section 18 must be by the personagainst whom the property or right in question is claimed by someperson through whom he derives the title or liability, a payment forthe purpose of section 19 need only be by the person liable to pay thedebt. An acknowledgement under section 18 only operates against theperson who makes the acknowledgement and those claiming underhim, but subject to the provision of sub-section (2) of section 20, apayment under section 19 saves limitation against all the persons whoare liable for the debt.”
Rajesh Kumari v. Prem Chand Jain, AIR 1998 Del 80, Court heldthat in the cases of dishonour of cheque acknowledgement will still bedeemed from the date which the cheque bears and the fact that the chequehad bounced and therefore, no actual payment was made cannot be allowedto be taken the advantage of by the party who had made the chequebounced. He cannot be allowed to defeat the equitable right of the otherparty in whose favour the cheque has been issued.
In L.M.L.L. LakshmananChettiar v. V.A.R. AlagappaChettiar,AIR 1981 Madras 338, the difference between the two sections hasbeen stated in the following words: “Section 18 deals with the makingof an acknowledgement of liability before the expiration of the periodprescribed for a suit or application in respect of a property or right.Section 19 deals with payment on account of a debt or of interest ona legacy being made before the expiration of the prescribed period bythe person liable to pay the debt or legacy or by his agent duly authorisedin that behalf, and a flesh period of limitation being computed from thetime when the paymentwas made.
EFFECT OFACKNOWLEDGEMENT OR PAYMENT BY ANOTHERPERSON (Section 20)
(1) The expression “agent duly authorised in this behalf” in Sections 18 and 19 shall, in the case of a person under disability, include hislawful guardian, committee or manager or an agent duly authorised bysuch guardian, committee or manager to sign the acknowledgement ormake the payment.
(2) Nothing in the said sections renders one of several jointcontractors, partners, executors or mortgagees chargeable by reasononly of a written acknowledgement signed by, or of a payment madeby, or by the agent of, any other or others of them.
(3) For the purposes of the said sections;—
- an acknowledgement signed or a payment made in respect ofany liability by, or by the duly authorized agent of, any limitedowner of property who is governed by Hindu law, shall be avalid acknowledgement or payment, as the case may be, againsta reversioner succeeding to such liability; and
- where a liability has been incurred by, or on behalf of a Hinduundivided family as such, an acknowledgement or paymentmade by, or by the duly authorized agent of, the manager ofthe family for the time being, shall be deemed to have beenmade on behalf of the whole family.
Scope of section 20
Section 20 is an explanatory as well as supplementary of sections 18and 19 dealing with acknowledgement and payment respectively. It is notan exception to any one of these sections.
A mere acknowledgement by one joint-debtor cannot bind the otherdebtor merely because he is a partner of the former. The provisions in thissection are in the nature of the Explanation to sections 18 and 19. Thissection explains the meaningof the words ‘agent duly authorised’ as usedin sections 18 and 19.
Section 20(1) provides that the expression ‘agent duly authorised inthis behalf’ in sections 18 and 19, in respect of a person under disability includes the following:-
- his lawful guardian, committee or manager, or
- an agent duly authorised by such guardian, committee or a manager,to sign the acknowledgement or make the payment.
The expression ‘lawful guardian’ is not limited to a guardian appointed by the Court. It means any person who is entitled to act as guardian under the personal law of the minor. (Bechu v. Baldeo, AIR 1933 Oudh 132).
So, section 20(1) is meant to protect those creditors who accept an acknowledgement from a guardian and refrain from a suit; it would beunfair for the minor afterwards to tum round and say that the creditor’s remedy is barred.
Partners and Co-partner [Section 20(2)]
Section 20(2) provides the effect of acknowledgement or payment byperson under joint liability (e.g., joint contractor, joint partner, jointmortgagees, co-contractors, co-debtors). Section 20(2) provides that merewriting or signing of an acknowledgement by one partner does not necessarilyof itself bind his co-partners, but it must also be shown that he had authority,express or implied to make the acknowledgement on behalf of himself and his partners.
Limited owner [Section 20(3)(a)]
It says that acknowledgement or payment made by the widow or limitedowner is a valid acknowledgement or payment as against a reversioner.
Manager of a joint family [Section 20(3)(h)]
This sub-section lays down two conditions in order that the act of amember of ajoint Hindu family speciﬁed in sections 18, and 19 may extendthe period of limitation against all the members. These conditions are:
- that the loan must have been incurred by or on behalf of the jointfamily, and
- that speciﬁed acts must be the acts not of any member of the familybut must be the act of the karta.
It is not, however, necessary that the document evidencing the loanmust on the face of it show that the loan has been incurred on behalf of thejoint family.
LEADING CASE LAWS
ChandradharGoswarni v. Gnuhati Bank Ltd.,
AIR 1967 SC 1058
Facts: The bank (respondents) brought a suit against the appellants for the recovery of Rs.40,000. The appellants had opened mutual and currentaccount with the bank. On March 1, 1947, a sum of Rs.15,956 was due to the bank from the appellants. In order to pay off that amount, a mortgage deed was executed by the appellants in favour of the bank and some land, a house, ﬁxed deposit and three policies were given as security thereunder. The case of the bank was that after the execution of the mortgage deed, a further sum of Rs.10,000 was borrowed by the appellants from the bank on March 19, 1947. Thereafter two amounts were paid in to the bank till Nov. 24, 1949. Nothing was paid thereafter and eventually on Oct. 31, 1952 the amount due to the bank was Rs.39,496. The suit was filed on April 9, 1953 and the usual prayer for the sale of the mortgaged properties was made. Appellants resisted the suit and contended that the allegations of the bank that any money was taken as loan after March 1, 1947 was incorrect. Trial court held that the total amount due to the bank excluding interest is Rs.32,000. Further on the question of limitation, the Trial Court held that the suit was within time. The High Court upheld the decision of Trial Court and dismissed the appeal. Thereupon the appellants appealed to Supreme Court.
(1) What was the amount due to the bank from the appellants?
(2) Whether the suit was within limitation?
Decision: The Apex Court while examining the question of limitation held that the suit is clearly within time in so far as the liability for sale under the mortgage-deed is concerned as it was ﬁled within 12 years of the execution of the mortgage. As to the personal liability under this deed, that is beyond time as the suit was ﬁled more than six years after the execution of mortgage. The entry of payment of Rs.100 in the accounts cannot help the bank in this behalf. That entry was of no value under section 19 or section 20 of the Limitation Act for neither signed by the appellants nor an acknowledgement of payment in the handwriting of the appellants or in a writing signed by them has been proved. It was held that the bank cannot get a decree fixing personal liability of the appellants and is only entitledto a decree for sale of mortgaged property.
SantLal v. Kamla Prasad
AIR 1951 SC 477
Facts: Appellants were the ﬁrst party defendants in a suit commenced by the plaintiff respondents, for enforcement of a simple mortgage bond by sale of the mortgaged property. The trial judge while deciding all the otherissues in favour of the plaintiffs held on the evidence that the bond sued upon was not legally attested and thus could not rank as a mortgage bond.On his finding he refused to make a decree for sale in favour of plaintiffand passed a money decree for the amount due on bond against the defendant.According to the subordinate judge although the suit was instituted more than 6 years alter the date ﬁxed for payment in the bond, yet the claim forpersonal relief against the mortgagors did not become time barred by reason of the fact that there were several payments made by the defendants towardsthe satisfaction of the debt. This attracted the operation of section 20 of Limitation Act, 1908. Against this decision an appeal was taken by defendantmortgagors to the High Court of Patna.
The argument put forward by appellants was that the suit, as one forpersonal relief against the debtors, were barred on the expiry of 6 yearsfrom the date for repayment mentioned in the bond and the part paymentsrelied upon by the plaintiffs in their plaint were ineffectual for the purposeof extending the period of limitation under section 20 of Limitation Act.The High Court held that as the bond could be treated as a mortgage bond,the suit, as one for enforcement of a mortgage, quite within time, and it wasnot necessary in these circumstances to call in aid the provisions of section 20, Limitation Act, 1908 for the purpose of extending the period oflimitation. Thus the decree made by the trial Judge was affirmed.
An appeal was made in the apex court. Contention of appellant was that no decree for money could be passed against the defendants personallyunless the suit was instituted within the period prescribed by Article 116,Limitation Act and on the point of limitation the decision of the SubordinateJudge was wrong, and as the payments relied upon section 20 of LimitationAct, no extension of time was permissible under the provisions of that Section.
Issue: Whether the trial court was wrong in holding that the plaintiffsclaim for personal decree was not barred by time?
Decision: The Supreme Court held that to claim exemption undersection 20 of Limitation Act, 1908, the plaintiff must be in a position to allege and prove not only that there was payment of interest on a debt orpart payment of the principal, but that such payment had been acknowledgedin writing in the manner contemplated by that section. The ground ofexception is not complete without this second element and unless boththese elements are proved to exist on the date of ﬁling of the plaint, the suitwould be held to be time barred. In the original plaint, the prayer was onlyfor a mortgage decree in the usual form which was an amendment allowedby the Court. In plaint, the cause of action was stated to arise from thedifferent payments made on different dates. These amendments must bedeemed in the eye of law to be a part of the original plaint and obviouslythere is neither any averment nor proof that any of these payments wasacknowledged in writing prior to the institution of suit. Thus the suit washeld to be time barred by Limitation. Thus, the judgment and decrees ofboth the Courts were set aside and the plaintiff’s suit was dismissed.
EFFECT 0F SUBSTITUTING OR ADDING NEW PLAINTIFF OR DEFENDANT (Section 21)
(1) Where after the institution of a suit, a new plaintiff or defendantis substituted or added, the suit shall, as regards him, be deemed tohave been instituted when he was so made a party:
Provided that where the court is satisﬁed that the omission toinclude a new plaintiff or defendant was due to a mistake made ingood faith, it may direct that the suit as regards such plaintiff ordefendant shall be deemed to have been instituted on any earlierdate.
(2) Nothing in sub-section (1) shall apply to a ease where a partyis added or substituted owing to assignment or devolution of any interestduring the pendency of a suit or where a plaintiff is made a defendantor a defendant is made a plaintiff.
Scope of section 21
Section 21 deals with the effect of substituting or adding new plaintiffor defendant in a suit. Section 21 applies only to suits. The word ‘suit’ inthis section includes only the stages of a suit down to its termination by thedecree of the trial court, and does not include an appellate stage orproceedings in execution of the decree made in the suit. Section 21 appliesto the case of all persons brought on record after the expiry of limitation.Section 21 refers only to parties subsequently.
Transposition of Parties
Section 21 of the Limitation Act does not govern the transposition ofparties and is confined only to cases of addition of parties.Order 1, Rule l0 of CPC bestows ample power to Court to ordertransposition of parties.
Object of section 21
In ChokalingamChetty v. SeethaiAchi, AIR 1927 PC 252, the Courtheld that the object of the Section is to safeguard rights which a personhave acquired against another by lapse of time in the matter of makingpersons parties.
Section 21(1) lays down a general rule regarding the effect of substitutionor addition of new parties to a suit. It provides that where after the institutionof the suit a new plaintiff or defendant is substituted or added, the suitshall, as regards him, be deemed to have been instituted when he was somade a party.
Sub-section (1) does not apply to cases in which the plaintiff is addedIn the course of the suit in consequence of assignment of interest from theoriginal plaintiff, it is conﬁned to eases where the new plaintiff is added orsubstituted in his own right, so that he may himself be considered to beinstituting a suit independently of the right of the original plaintiff. If theplaintiff is added in consequence of assignment of right from the originalplaintiff, the case will fall under section 21(2) and not under section 21(1).This Section is conﬁned to suits only, and does not apply to proceedingsin execution.
Proviso to section 21(1)
The proviso to Section 21(1) of the Limitation Act, 1963 provides thatwhere the court is satisﬁed that the omission to include a new plaintiff ordefendant was due to a mista.ke made in good faith it may direct that thesuit as regards such plaintiff or defendant shall be deemed to have beeninstituted on the earlier date.
In Chun Choudhary v. State of Bihar [AIR 1989 Pat. 34], it was heldby the Court that the proviso to section 21(1) clothes the Court with thediscretion to condone the delay in filling the application for addition ofparties after the period of limitation, provided the same is made bona fideand good cause is shown therefor.
In Ram Prasad Dagaduram v. Vijay Kumar, AIR 1967 SC 278,Supreme Court held that the proviso to section 21 of the Limitation Act, 1963, which enables the Court on being satisﬁed that the omission to include a new plaintiff or a new defendant was due to a mistake made in good faith to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier day.
So, from the above decision of Court it emerges that in order to get benefit of the proviso to section 21(1) of the Limitation Act, 1963, it isnecessary to prove that the non-impleadment of the necessary plaintiff or defendant was due to a mistake made in good faith otherwise the court may refuse to allow its discretion to order the impleadment of the party from any earlier date.
- Section 17 takes within its ambit
(d) all the above.
- Section 17, Limitation Act, 1963, does not apply to
(a) criminal proceedings
(b) civil proceedings
(c) execution proceedings
(d) both (a) and (c).
- The fraud contemplated by section 17, Limitation Act, 1963 is that of
(a) the plaintiff
(b) the defendant
(c) a third person
(d) either (a) or (b) or (c).
- Whether a plaintiff could with reasonable diligence have discovered the fraud or mistake under section 17, Limitation Act, is a
(a) question of fact to be decided on the basis of facts disclosed in each case
(b) question of law
(c) mixed question of fact and law
(d) substantial question of law.
- Under section 17, Limitation Act, 1963, the limitation starts running from
(a) the date of the mistake
(b) the date of discovery of mistake
(c) either (a) or (b), depending on the facts and circumstances of the case
(d) either (a) or (b), as per the discretion of the court.
- In case of mistake, under section 17, Limitation Act, 1963, the limitation shall start running from
(a) the date of the mistake
(b) the date when the mistake with due diligence could have been discovered
(c) either (a) or (b), whichever is earlier
(d) either (a) or (b), whichever is beneficial to the suitor.
- Section 17 applies to
(b) Execution proceedings
(c) Both suits and execution proceedings
(d) Neither to suits nor to execution proceeding.
- Section 17 does not take within its ambit
(c) execution application
(d) all the above.
- Under section 19, Limitation Act, 1963
(a) payment by cheque which is dishonoured on presentation amounts to part payment and shall save limitation
(b) payment by cheque which is dishonoured on presentation does not amount to part payment and will not save limitation
(c) mere handing over the cheque which is dishonoured on presentation amounts to acknowledgment
(d) either (a) or (c).
- Which of the following is not required for a valid acknowledgement
(a) in writing
(b) made before the expiration of period of limitation
(c) signed by the person concerned
(d) in the handwriting of the person concerned.
- Write a short note on adverse possession?
Acquisition of Ownershipby Possession
Acquisition of Easements by Prescription
According to Sec. 2(f), Limitation Act, “Easement” includes a right notarising from contract, by which one person is entitled to remove andappropriate for his own profit any part of the soil belonging to anotheror anything growing in, or attached to, or subsisting upon, the land ofanother.
Sec. 25 of the Limitation Act provides that:
- Where the access and use of light or air to and for anybuilding have been- (i) peaceably enjoyed, (ii) as an easement,(iii) and as of right, (iv) without interruption, and (v) for 20 years (30 years in the case of property belonging to theGovernment), then such right to such access and use oflight or air becomes absolute and indefeasible.
- Where any Way or watercourse or the use of any water orany other easement (whether affirmative or negative), hasbeen (i) peaceably and openly enjoyed, (ii) by any personclaiming title thereto (iii) as an easement, (iv) and as of right,(v) without interruption, and (vi) for 20 years [30 years inthe case of property belonging to the Government, as laiddown in Sec. 25(3)], then the right to use such way,watercourse, use of water or other easement becomes absoluteand indefeasible [Sec. 25(1)].
It is also clarified that:
- The period of 20 (or 30, as the case may be) years is to be takento be a period ending within two years before the institution ofthe suit wherein the claim to which such period relates is contested[Sec. 25(2)].
- “Interruption” for the purpose of Sec. 25, means actualdiscontinuance of the possession or enjoyment by reason of anobstruction by the act of some person other than the Claimant,and such obstruction is submitted to or acquiesced in for oneyear after the claimant has notice thereof and the person makingor authorizing the same to be made [Explanation 25].
Illustration– A suit is brought in 1911 for obstructing a right of way. Thedefendant admits the obstruction, but denies the right of way. The plaintiffproves that the right was peaceably and openly enjoyed by him, claimingtitle thereto as an easement and as of right, without interruption from 1stJanuary, 1890 to 1stJanuary, 1910. The plaintiff is entitled to the easement.
If, in the above suit, the plaintiff shows that the right was peaceablyand openly enjoyed by him for 20 years, but the defendant proves thatthe plaintiff, on one occasion during the 20 years, has asked his leave toenjoy the right, the suit shall be dismissed.
The object of Sec. 25 is “to provide another and more convenientmode of acquiring such easement a mode independent of any legalﬁction and capable of easy proof in a court of law” (Delhi & LondonBank Ltd. v Hem LalDutt, 14 Cal. 839).
Easement is acquired by prescription. Prescription is the acquisitionof title to land or -to an easement or an interest in land, by long user orenjoyment against the will of the former owner, or in disregard of any other claim of title.
Sec. 25 is concerned only with the acquisition of the easement anddoes not purport to measure the extent of the right or to indicate theremedy by which a disturbance of the right is to be vindicated. Sec. 25will not apply to easements acquired otherwise than under the provisionsof Sec. 25, such as grant, express or implied, custom, etc.
The claim of public right over a public land is not a claim ofeasement governed by Sec. 25. Also, Sec. 25 does not apply to naturalrights. Further, customary right of way for all the villagers is not a right which can be acquired by prescription under Sec. 25 (Manindra v BalramAIR 1973 Cal. 145).
Analysis of Sec. 25
The word “peaceably” means that the plaintiff who claims to be thedominant owner has neither been obliged to resort to physical force himself at any time to exercise his right within 20 years nor had he beenprevented by the use of physical force by the defendant in his enjoymentof such right (MuthuGoundan v Anantha, 31 I.C. 528).
The maxim of the law is that the enjoyment of easement must benec vi, nee calm, necprecario, that is, it must be neither by violence or force,nor by stealth, nor must it be permissive or precarious (i.e. by leave andlicence; payment of any rent howsoever nominal). These three requirementsare embodied in Sec. 25 of the Limitation Act. The enjoyment must bepeaceable, that is neither by violence or force, on the one hand, norattended with hostile disturbances on the other.
If for 20 years light and air has come to the plaintiff’s building ina deﬁned channel by the same access, the conditions of the Sec. 25 arefulfilled (Jotindrav Probodh Kumar Dutta AIR 1932 Cal. 249). The onlyamount of light for a dwelling house which can be claimed by prescriptionor by length of enjoyment without an actual grant is such an amount asis reasonably necessary for the convenient and comfortable habitation of the house.
There is a difference between the mode of enjoyment of air andlight on the one hand, and of the other easements on the other hand. Itis sufficient if the air and light have been enjoyed peaceably, but the othereasements must have been enjoyed openly and peaceably. The reason forthis difference is that any one by simply looking at the condition of hisneighbour’s premises from the outside can see what light or air hisneighbour enjoys; there can be no question of a stealthy user. But theother easements may be used clandestinely viz. in the case of the use ofa way or of a watercourse.
The word “openly” means that the enjoyment has from the verybeginning, been visible and manifest, not furtive or secret (Ram Sarup vAbdul Haq AIR 1931 Lah. 395). It must at least be shown that the servient owner might be expected to have known of the assertion of the right of easement on the pan of the dominant owner (plaintiff).
The words ‘as of right’ connote that the person claiming the right must have exercised it as if he had been the true owner without permission or licence from anyone. Enjoyment of a right by a person really means that there must be an exercise of that right by that person (Gangaram vTribeniRai AIR 1973 All. 462).
As an Easement
A right of ownership and a right of easement are incompatible. If aperson claims a site as owner, he cannot claim a right of way or user ofwatercourse over the same as an easement (Cbunilal v Mangal Das, 16Bom. 592).
The words “as an easement” show that the acts relied upon asevidence of the existence, of a right must be done by one person uponthe land of the other. The acts must not be done by him upon his ownland or land in his possession. While unity of possession lasts, no questionof easement can arise (Anderson v juggoduamba, 6 C.L.R. 282). A personas a dominant owner cannot enjoy an easement against himself as servientowner (Madhoosoodun v Bissonauth, 15 B.L.R. 361). On this principle, aneasement is extinguished when ownership of the dominant and the servienttenements vests in the same person.
It is, of course, not the law that a person cannot acquire aneasement, unless during the whole prescriptive period he acts with consciousknowledge that is a case of dominant and servient tenement. Where aparty shows that for the statutory period he has openly exercised certainrights which are in themselves sufﬁcient to establish an easement, primafacie, he is entitled to the easement, and it is not necessary to show thatduring the whole of the prescriptive period, he was consciously assertinga right to an easement. A plaintiff may claim an easement and ownershipin the alternative in the same suit.
Easement is not a right to take earth from land of another personbut a profit a prendre in gross. ‘Profit a prendre’ is the right of taking soil,produce or minerals, and the like in which there is a supposable value fromthe land of another. The following are some of the rights of easement:
- A right of ﬁshing in another’s water (Lokenath v JahniaBibi,14 CLJ 572).
- The right to maintain a ferry over the property of another(Parmeshari v Mahomed, 6 Cal. 608).
- Where the roof of one person overhangs the land of anotherfor more than 30 years, such enjoyment will vest in theformer a proprietary right in the space covered by theoverhanging roof (Mohanlal v Amratlal, 3 Bom. 174).
- A tenant may have a right of pasturage on his landlord’swaste lands by immemorial user [Bholanath v MidnapurZamindary Co., 31 Cal. 503 (PC)].
- A right to discharge rain-water ﬂowing from the roofof theplaintiff’s house upon the roof of the defendant’s house can beacquired by prescription (Mohanlal vAmratlal, 3 Bom. 174).
- An easement of the supply of water from a natural streammay be acquired by 20 years’ user under Sec. 25 (AbdulRahman v MuhammadAlam, 57 PR 1918).
The expression “without interruption” means without any obstruction onthe part of the person against whom the easement is claimed. Mereprotests by the latter or mere verbal denials of the right claimed (RamSarup v Abdul Haq AIR 1931 Lah. 395), not followed by any act toprevent the user, do not constitute an interruption. On the other hand,ineffectual opposition to the exercise of what is claimed to be a right maybe evidence in support of the right rather than of its non-existence.
The term ‘interruption’ in Sec. 25 is altogether inapplicable to anyvoluntary discontinuance of the user by the claimant himself. An interruptionto be effective must result in actual discontinuance of the enjoyment ofthe right of the claimant. InRaghunathv Madan Mohan (1973) 39 Cut. LT1179, it has been held that there can be interruption only if in executionthe decree-holder takes possession of the property thereby physicallypreventing the other party from continuing in enjoyment of the right.
“Without interruption” does not imply that there must be a continuoususer. In the case of a “discontinuous easement” continuous use is, ofcourse, not possible. But even as to a “continuous easement” like rightto the uninterrupted flow of a stream, it is not necessary that the rightshould have been enjoyed at every moment; so that there may be a user“without interruption” although the stream remains dry for the greaterpart of the year. What is necessary is that the right must have beensubstantially enjoyed whenever occasion required. Mere non-user on thepart of person claiming the easement and at his own will, does notconstitute an interruption, unless there has been such an abandonmentthat intentional relinquishment can be presumed.
A title to easement is not complete merely upon the efflux of theperiod of twenty years. However long the period of actual enjoyment maybe, no absolute and indefeasible right can be acquired, until the right isbrought in question in some suit, and until it is so brought, the right isinchoate (incomplete) only; and in order to establish it when brought intoquestion, the enjoyment relied upon must be an enjoyment for twenty yearsup to ‘within two years of the institution of the suit.’ The right is perfectedonly by at least twenty years’enjoyment continuing up to within two years of the suitin which the right is litigated. Thus, where the twenty years’ enjoyment has been interrupted, and no suit is brought within two years from suchinterruption, the right cannot be established In other words, the period of20 years or more of enjoyment must end within two years before theinstitution of the suit otherwise the claimant cannot succeed.
InA. Sundar v S.N. Jaiswal (AIR 1988 Pat. 216), it has been heldthat in a suit for removal of obstruction of the easement right, thelimitation is 2 years from the date of obstruction otherwise the suit will be barred by limitation.
Enjoyment for 20 years must be proved. In case of Governmentproperty, the period is 30, instead of 20 years. The expression ‘belongsto the Government’ means that at the time the right is claimed in the suit,the servient tenement must belong to the Government. The word ‘belongs’has reference to ownership and not possession. If the Government isowner of the land on the date the claim of easement is made, a periodof 30 years is to be proved, even if the said property may be inpossession of a lessee or other person with a limited right.
In Dwarka v Patna City Municipality (AIR 1938 Pat. 423), it has beenheld that an interruption within the meaning of the Explanation to Sec.25 for more than a year will operate to prevent the claimant from addingthe period of his previous enjoyment of the right to any period ofenjoyment after such interruption so as together to make up the requisitetotal of 20 years, but will not, by itself, suffice to nullify any right thatmay have been already acquired by 20 years’ uninterrupted enjoyment,for the section entitled the claimant to sue within two years.
Exclusion in favour of Reversioner of Servient Tenement
Where any land or water upon, over or from, which any easement hasbeen enjoyed or derived has been held under or by virtue of any interestfor life or in terms of years exceeding three years from the grantingthereof, the time of the enjoyment of such easement during thecontinuance of such interest or term, is to be excluded in the computationof the period of twenty years in case the claim is, within three years nextafter the determination of such interest or term, resisted by the personentitled on such determination to the said land or water.
The following illustration is appended to Sec. 27 of the previousAct (of 1908) which corresponds to the Sec. 26 of the present Act (of1963).
Illustration– A sues for a declaration that he is entitled to a right of wayover B’s land. A proves that he has enjoyed the right for twenty-fiveyears; but B shows that during ten of these years C, a Hindu widow, hada life-interest in the land, that on C’ s death B became entitled to the land,and that within two years after C’s death, he contested A’s claim to theright. The suit must be dismissed, as A, with reference to the provisionof this section has only proved enjoyment for fifteen years.
Sec. 26 is entirely for the benefit of reversioners. The object of thesection is the prevention of easement being acquired under the Actagainst interested persons who are incapable of resistance. According toSec. 26, the time during which an infant, an insane person or a marriedWoman is the owner of the servient tenement, is excluded from theperiod during which a prescriptive right is in course of acquisition.
The section does not apply to a donee or transferee from a Hinduwidow by virtue of her powers as representing the estate, since in sucha case, the transferee succeeds the widow in her capacity as full ownerand not as upon the determination of her life interest.
When the period of twenty years was running and the servienttenement was held by a limited owner having only a life-interest in it, Sec.26 provides that the period during which the servient tenement has beenheld by a person with life-interest only, or with an interest limited only fora term of years (exceeding three years), is to be excluded in reckoningthe “twenty years” prescribed by Sec. 25 provided that the reversioner,within three years of his getting into the reversion, resists the claim to the easement.
When during the period of prescription the servient tenement hasbeen held by:
- a tenant for life, or
- a lessee under a lease for a term, the term of which exceededthree years, and the claim is contested within three yearsfrom the determination of the interest of the life-tenant orthe term of the lease, the period during which the servienttenement was held by the life-tenant or lessee is excluded incomputing the period for 20 years.
Extinguishment of Right to Property
Sec. 27 lays down that at the determination of the period hereby limitedto any person for instituting a suit for possession of any property, hisright to such property gets extinguished.
The Limitation Act lays down a rule of substantive law in Sec. 27.Sec. 27 is not merely procedural but substantial (Ramanathan v SomasundranAIR 1964 Mad. 327). It declares that after the lapse of the periodprovided by this enactment, the right itself is gone and the title ceases toexist, and not merely the remedy. If an owner, whose property isencroached upon, suffers his right to be barred by the law of limitationthe practical effect is the extinction of his title in favour of the party inpossession. It is of the utmost importance in India that the security whichlong possession affords should not be weakened.
The principle underlying Sec. 27 is one founded on public policyand expediency. The principle is of general application and is not confinedto suits or applications to which the period of limitation is prescribedunder the Limitation Act (Din Dayal v Rajaram AIR 1970 SC 1019). Theprinciple also applies in areas where the Limitation Act does not apply(Balwant v Ganpat, 1975 Mah. L.J. 9). However, neither Sec. 27 nor theprinciples thereof can be applied to a case where during the period of alleged adverse possession, no suit for possession could have been institutedin civil court because of some special enactment.
As between private owners contesting inter se the title to lands, the law has established a limitation of twelve years (Art. 65, Limitation Act);after that time it declares not simply that the remedy is barred, but thatthe title is extinct in favour of the true owner and vests in the possessor of the property.
Sec. 27 only applies to persons who are out of possession and seeksto recover possession, but not to the case of a person who is still in possession of the property. Sec. 27 applies to both movable and immovableproperty. Where no period of limitation is provided, then Sec. 27 doesnot apply (Bhura v Kala AIR 1950 Kutch 69).It may be noted that Sec.27 is not actually related to the law of limitation but to a law ofprescription which has to be distinguished from the law of limitation.
Under Sec. 27, not only the ownership to one person is extinguishedbut an absolute ownership is also acquired by the other person in adversepossession (Radhabai v Anantrao, 9Bom. 198). Twelve years’ adversepossession of land by a wrongdoer not only bars the remedy and extinguishes the title of the rightful owner, but confers a good title upon the wrongdoer (Fakirappa v Ningappa AIR 1949 Bom. 266).
Where a person goes out of India voluntarily or under compulsion, it is his duty to make some arrangement to look after his property left in India. When he does not do that and a person enters the land openly and continues to possess in assertion of his right and completes the requisite number of years, he acquires title by adverse possession under Sec. 27.
The title which is acquired by adverse possession is a new title in strictness of law,it is not old title which is transferred to the new owner, but only a title corresponding in quantity and quality to the old title. Therefore, if the property of which there has been adverse possession is a lease-hold subject to a rent and to covenants, the new owner is not liable as an assignee of the lessee to the rent or those covenants, but he is liable on the ground that the lessor’s right to the rent and his right also to re-enter under the proviso for re-entry are not prejudiced by the adverse possession which has only been between the lessee and the adverse possessor.
Limitation Bars the Remedy
It is a well-established rule of law, that in cases which are not governed by Sec. 27, limitation merely bars the remedy, but does not extinguish the title. Sec. 27 is an exception to this principle. Thus, this section is confined to suits for possession and does not apply to a suit by a mortgagee for recovery of the money due to him by sale of the mortgaged property. The mortgagee’s remedy may be barred if he omits to sue within the statutory period, but his right is not extinguished.
The Limitation Act mentions certain periods within which suits, appeals or applications for various claims should be instituted in a Court of law. If the proceeding is not thus instituted within the speciﬁed period,the only result is (in all cases except in suits for possession of property)that the remedy is barred. The claimant cannot go to a Court of law andinstitute a suit upon it; but though in such cases the remedy is barred, theright exists so that if the debtor pays money to a creditor he mayappropriate it to a time-barred debt; similarly, though an attorney’s remedyfor recovering his fees is barred by limitation, his right to get the fees isnot extinguished, so that if he has any form of lien upon property, hecan enforce that lien though he cannot sue.
Extinguishment of Right
But, in cases where the right claimed is that of ‘possession of property,’and the suit is not brought in time, it is not only the remedy that is barred,but also the right is extinguished. The result is that not only will the courtthrow out the suit, but also that if the plaintiff dispossesses the personin possession, he will be considered a trespasser. The principle is thatwhen the title is extinguished, it cannot be revived by re-entry (Ram Murtiv Puran Singh AIR 1963 Punj. 393).
The Limitation Act does not directly provide for the acquisition ofownership by possession; but it provides for the obverse case, where rightto property may become extinguished by non-possession for a length oftime. This is done by enacting that where a person’s right to institute asuit for the possession of any property has become barred by limitation,his right to the property itself shall be extinguished. In other words, itprovides that where the remedy by way of a suit for the possession ofany property is gone, the right to that property is also gone.
It should be noted that Sec. 27 applies only to suits, and not toapplications. Therefore, even though a period of limitation for an applicationis terminated, only the remedy of application is barred but the right isnot extinguished (Province of Bengal v Probash AIR 1955 Cal. 400).
In Zile Singh v Munshi (AIR 1990 P&H 50), it has been held thatwhen after the order of eviction was passed the tenant was continuingin possession for more than 12 years and the landlord did not file anyexecution for possession within the above period, the right to recoverpossession has been lost by lapse of time. However, it is a case in whichright may be subsisting but remedy lost.
In Ajit Chopra v Sadhuram (AIR 2000 SC 212), the Supreme Courthas made it clear that even if the execution of the decree for executionis barred by limitation that does not debar the landlord filing a suit forrecovery of possession based on title.
In Kalika Prasad v Chhatrapal Singh (AIR 1997 SC 1699), initiallypossession by respondent was permissible under Power of Attorney whichwas subsequently cancelled but thereafter no action was taken to havehim ejected from the lands in his possession. After the abolition of theestate, no attempt was made to have him ejected and he remained inuninterrupted possession well over 12 years and thereby he perfected histitle by prescription.
In Balkrishan v Satyaprakash (AIR 2001 SC 700), it has been heldthat mere passing of order of ejectment of the appellant which was notexecuted and not acted upon, neither causes his dispossession nordiscontinuation of his possession. Hence possession of appellant ripensinto adverse possession after statutory period.
Essentials of Adverse Possession
A person who claims adverse possession has to prove that he has remainedin uninterrupted possession of the property to the knowledge of the trueowner and has denied the title of the true owner and asserted his ownrights of ownership in the property to the exclusion of the true owner. Otherwise mere possession for any number of years cannot constitute adverse possession. Adverse possession implies that it commenced in wrong and is maintained against right.
‘Possession’ means effective physical control or occupation accompanied by intention. Any party claiming possession must give evidence about possession being exclusive, open and with hostile animus (VenkataChalaiah v Nanjundaiah AIR 1992 Karnt. 270). A squatter or trespasser who does not set up a claim as of right cannot plead adverse possession against the true owner. Unless there is a rightful claim to the office no person can set up title by adverse possession (Munaswami Cherry v Commr.H.R. & C.E. AIR 1993 Mad. 144).
The following are the essentials of adverse possession:
- The defendant must be in actual possession, mere entries inthe record of right of the defendant’s name are not sufficient.The possession necessary to ﬁnd a title by adverse possessionunder Sec. 27 is not different in character (though it may bein duration) from the possession required to prevent limitationunder Art. 64 or Art. 65. So, it is not necessary for theplaintiff to prove affirmatively physical possession of everybit of land. The only thing to be considered in such a caseis whether the acts of possession which have been provedwill legitimately show that the plaintiff had enjoyed suchdomination over the property in the manner in which suchdomination is normally exercised so as to acquire title underthis section (HarfizSwarup, 50 Born. L.R. 632).
- The possession must be adequate in continuity, in publicityand in extent to show that it is adverse on the owner. It isnot sufficient that some act of ownership have been done.The possession must be open, notorious, actual, exclusiveand adverse.
- There must be an intention to hold the property. If thedefendant believes that he is entitled only to a life estate, andremains in possession with that belief, his possession is notadverse to that of the plaintiff who shared his belief.
- Possession cannot be adverse if its commencement can bereferred to a lawful title. Thus, the possession of a managerof a family or a guardian does not become adverse until hehas distinctly repudiated his title. If a person enters thepossession with the permission of a true owner then theadverse possession can only start from the time when hedenies the title of the true owner and claims adversepossession.
- The possession does not become adverse to the plaintiffwhen there was no notice or knowledge, or circumstancesthat could have given notice or knowledge to the plaintiffthat the defendant’s possession was in displacement of hisright. But the knowledge may be presumed from an openand notorious act of possession. There is no law whichenjoins the duty on the person who asserts adverse possessionto bring the same to the notice of the competitor to prefecta title by adverse possession. It has to be seen whether underthe circumstances of each case, the competitor was in aposition to know, if he was vigilant, the actual positionregarding the property in question.
- Possession does not become adverse to the plaintiff until theplaintiff is entitled to immediate possession.
- Possession of a portion of the land cannot be held toconstitute constructive possession of the whole, so as to enable the possessor to obtain thereby title to the whole bylimitation. A wrongdoer gains title only to that portion of land which is actually held by him.
In Manmohan Service Station vMd. HaroonJapanwala 1994 Del. 337).it has been held that when a tenant encroached upon the portion of landlord’s property which is not part of his premise he cannot claimadverse possession in respect of such encroached land.
Burden of Proof
When the plaintiff has filed the suit for recovery of possession on thebasis of his title it is for the defendant claiming title by adverse possessionto prove dispossession of the plaintiff for a period of more than 12years. So the onus of proof is on the defendant. It has been held in J.Garnaik v S. Samal (AIR 1990 Ori. 124) that the plaintiff will succeedif the defendant has failed to prove dispossession for over 12 years.
To base a claim on adverse possession, it is not enough to allegethat one is in possession of land. Ingredients of adverse possession haveto be alleged (Seshmani vDeputy Director ofConsolidation, Distt. Basti; U.P.(AIR 2000 SC 979). Thus, adverse possession must be speciﬁcally pleadedand proved by the person who raises it.
It was held in Mst. Sultan Jehan Begum v Gul Mohammad (1972,M.P.LJ 769), that any suit brought before expiry of 12 years ofdispossession would avert the period of possession and a decree passedin his favour would relate back to the date of institution of suit, irrespective of time taken for prosecuting the suit and the execution.
Acquisitive and Extinctive Prescription
Hitherto, only the extinctive aspect of prescription, that is, prescription as extinguishing a right, has been considered. However, prescription has also anacquisitive aspect; it may also create rights i.e. by long enjoyment of a thing, one may get an absolute right and title to it. The same period of time which extinguishes one person’s right may create rights in favour of another person; rather, the operation of prescription is to transfer the rights of the former in favour of the latter. Sec. 27 of the Limitation Act mentions merely that the right of a person, who has been so long out of possession of a property that he is now unable to sue for the possession of it, shall be extinguished; it does not state that a new right is created in favour of another person who has been in possession defacto; but it has been held that this omission is immaterial, and that a good title is also conferred upon the person in possession de facto.
Apart from Sec. 27, there are other provisions of the law in India directly relating to ‘acquisitive prescription.’ The most important of these are Sec. 25 of the Limitation Act and Sec. 15 of the Indian Easements Acts, both relating to the acquisition of easements by long, uninterrupted andopen enjoyment (discussed earlier).
Acquisitive prescription i.e. cases in which a new right is created byefﬂux of time, is dealt with in Sec. 25. Extinctive prescription i.e. casesin which a right to property is extinguished by efﬂux of time, is dealt within Sec. 27.
The expression “right to property” includes the right to joint possessionand enjoyment. If a person entitled to joint possession fails to sue withinthe period of limitation his right to joint possession is extinguished (Jagatramv Pitai AIR 1930 Nag. 142).
Adverse possession against co-owner– A Muslim widow had inherited the rightand management of a Dargah. Her right as a co-sharer was not expresslydenied, nor was there any evidence of an open assertion of a hostile titleagainst her. It was held that her rights were not barred by non-possessionfor over twelve years as mere possession by other co-sharers was notenough to constitute her ouster and therefore her heirs could claim thatright after her death (Md. Zaimulabudeen v SyedAhmed Mahideen AIR 1990SC 507).
- Easementary rights under section 25 can be acquired by
(b) a co-owner
(c) both a tenant and a co-owner
(d) neither a tenant nor a co-owner.
- Section 27 of Limitation Act
(a) bars the remedy
(b) extinguishes the right
(c) both (a) & (b)
(d) neither (a) nor (b).
- Section 27 of Limitation Act applies to
(c) execution application
(d) all the above.
- Section 27 of Limitation Act does not extinguish the right in
(c) execution application
(d) all the above.
- Section 27 of Limitation Act does not apply to cases for recovery of possession
(a) where no limitation period has been prescribed
(b) where the limitation period has been prescribed
(c) both (a) & (b)
(d) neither (a) nor (b).