THE LIMITATION ACT, 1963

                                                  TABLE OF CONTENTS

             Chapters                                                                                Page Nos.

1. Introduction and salient features

of the Limitation Act

1. Scheme of the Act
2. Preliminary
3. Definitions
4. Limitation of Suits, Appeals & Applications
5. Disabilities of different kinds under the Act
6. Computation of period of

Limitation

1. Acquisition of Ownership by Possession
2. Adverse possession
3. Schedule of periods of Limitation

                                                           Chapter 1

INTRODUCTION & SALIENT FEATURES OF THE LIMITATION ACT

Introduction

The word limitation in its literal term means a restriction or the rule or circumstances which are limited. The law of limitation has been prescribed as the time limit which is given for different suits & proceedings to the aggrieved person within which they can approach the court for redress or justice. The basic concept of limitation is relating to fixing or prescribing of the time period for barring legal actions. According to Section 2 (j) of the Limitation Act, 1963, ‘period of limitation’ means the period of limitation prescribed for any suit, appeal or application by the Schedule, and ‘prescribed period’ means the period of limitation computed in accordance with the provisions of this Act.

According to Halsbury’s Laws of England, the Main Objects of the Law of Limitations are as follows:

• Long dormant claim has more of cruelty than justice in them.
• A defendant might have lost the evidence to dispute the State claim.
• A person with only good cause of actions should pursue them with.
• There are two major considerations on which the Doctrine of Limitation and Prescription are based on – firstly, the rights which are not exercised for a long time are said to be as non-existent and secondly, the rights which are related to property and rights which are in general should not be in a state of constant uncertainty, doubt and suspense.

The main object to limit any legal action is to give effect to the maxim ‘interest reipublicaeut sit finis litium’, which means that in the interest of the State is required that there should be a limit to litigation and also to prevent any kind of disturbance or deprivation of what may have been acquired in equity and justice or by way of long enjoyment or what may have been lost by a party’s own inaction, negligence or leaches (acquiescence). The intention in accepting the concept of limitation is that “controversies are restricted to a fixed period of time, lest they should become immortal while men are mortal.” This statutory restriction after a certain period of time gives a status to enforce an existing right. Simply, it neither creates any right in favour of any person nor does it define or create any cause of action against the particular person but it prescribes about the remedy. These remedies can be exercised only up to a certain period of time and not subsequently. The main object of the statute of the Limitation Act, 1963 is more over of a preventive kind and not to impose a statutory bar after a certain period of time and it gives a quietus to all the suit matters to enforce an existing right. The major purpose of the statute of the Limitation Act, 1963 is not to destroy or infringe the rights of an aggrieved person but to serve public in a better way and to save time. This statute is basically based on public policy for fixing a life span for the legal remedy which may be taken and to seek remedy in time with the purpose of general welfare. The object of providing a legal remedy is to repair the damage which is caused by reason of legal injury.

In the matter of B.B. & D. Mfg. Co. v. ESI Corporation, AIR 1972 SC 1935 it was observed by the Supreme Court that- “The object of the Statutes of Limitations to compel a person to exercise his rights of action within a reasonable time as also to discourage and suppress stale,

fake or fraudulent claims. While this is so, there are two aspects of the Statutes of Limitation

— the one concerns with the extinguishment of the right if a claim or action is not commenced within a particular time and the other merely bars the claim without affecting the right which either remains merely as a moral obligation or can be availed of to furnish the consideration for a fresh enforceable obligation. Where a statute prescribing the limitation extinguishes the right if affects substantive right while that which purely pertains to the commencement of action without touching the right is said to be procedural”.

In Balakrishnan M.A. Krishnamurthy (1998) 7 SCC 123, it was held by the Supreme Court “that the Limitation Act is based upon public policy which is used for fixing a life span of a legal remedy for the purpose of general welfare. It has been pointed out that the Law of Limitation are not only meant to destroy the rights of the parties but are meant to look to the parties who do not resort to the tactics but in general to seek remedy. It fixes the life span for legal injury suffered by the aggrieved person which has been enshrined in the maxim ‘interest reipublicaeut sit finis litium’ which means the Law of Limitation is for general welfare and that the period is to be put into litigation and not meant to destroy the rights of the person or parties who are seeking remedy. The idea with regards to this is that every legal remedy must be alive for a legislatively fixed period of time”.

The Law of Limitation is an adjective Law. It is lex fori. Thus, it can be said that the rules of the Law of Limitation are generally concerned with the rules of procedure and which do not create any rights in favour of any particular person nor do they define or create any cause of action. It has been simply prescribed that the remedy can be exercised only for a limited fixed period of time and not subsequently.

The rules of limitation are not meant to destroy the rights of the parties. They are meant to see that the plaintiff do not take dilatory tactics but seeks remedy within the period stipulated by the legislature. The rules of limitation thus will only bar the remedy but does not extinguish the right. The right continues to exist even through remedy is barred by limitation. Therefore, a debtor may pay the time barred debt and cannot claim it back on the plea that it was barred by limitation.

The Limitation Act is applicable to the suits brought by the plaintiff; they do not apply to a right setup by the defendant in defence. A defendant will not be precluded from setting up    a right by way in defence, even if he could not have done so as plaintiff by way of substantive claim. But the principle that limitation ordinarily does not bar the defence is not applicable    in the case of set off and counter claim. Any claim by way of set off or a counter claim shall be treated as a separate suit and shall be deemed to have been instituted in the case of set off, on the same day that as the suit in which the set off is claimed and in the case of counter-claim on date on which the counter claim is made in court.

The law relating to Law of Limitation in India is the Limitation Act, 1859 and subsequently Limitation Act, 1963 which was enacted on 5th of October, 1963 and which came into force from 1st of January, 1964 for the purpose of consolidating and amending the legal principles relating to limitation of suits and other legal proceedings.

Salient Features of the Limitation Act:

1. The Limitation Act contains 32 Sections and 137 Articles. The Articles have been divided into 10 parts.

The first part is relating to accounts, the second part is relating to contracts, the third part is relating to declaration, the fourth part is relating to decrees and instrument, the fifth part   is relating to immovable property, the sixth part is relating to movable property, the seventh part is relating to torts, the eighth part is relating to trusts and trust property, the ninth part   is relating to miscellaneous matters and the last part is relating to suits for which there is no prescribed period.

2. There is no uniform pattern of limitation for the suits under which the classifications has

been attempted.

3. The limitation period is reduced from a period of 60 years to 30 years in the case of suit by the mortgagor for the redemption or recovery of possession of the immovable property mortgaged, or in case of a mortgages for the foreclosure or suits by or on the behalf of Central Government or any State Government including the State of Jammu and Kashmir.

4. Whereas a longer period of 12 years has been prescribed for different kinds of suits relating to immovable property, trusts and endowments, a period of 3 years has been prescribed for the suits relating to accounts, contracts and declarations, suits relating to decrees and instruments and as well as suits relating to movable property.

5. A period varying from 1 to 3 years has been prescribed for suits relating to torts  and miscellaneous matters and for suits for which no period of limitation has been provided elsewhere in the Schedule to the Act.

6. It is to be taken as the minimum period of seven days of the Act for the appeal against the death sentence passed by the High Court or the Court of Session in the exercise of the original jurisdiction which has been raised to 30 days from the date of sentence given.

7. One of the main salient feature of the Limitation Act, 1963 is that it has to avoid the illustration on the suggestion given by the Third Report of the Law Commission on the Limitation Act of 1908 as the illustration which are given are most of the time unnecessary and are often misleading.

8. The Limitation Act, 1963 has a very wide range considerably to include almost all the Court proceedings. The definition of ‘application’ has been extended to include any petition, original or otherwise. The change in the language of Section 2 and Section 5 of the Limitation act, 1963 includes all the petition and also application under special laws.

9. The new Act has been enlarged with the definition of ‘application’, ‘plaintiff’ and ‘defendant’ as to not only include a person from whom the application is received, Plaintiff or defendant as the case may be derives his title but also a person whose estate is represented by an executor, administrator or other representatives.

10. Sections 86 and Section 87 of the Civil Procedure Code, requires the consent of the Central Government before suing foreign rulers, ambassadors and envoys. The Limitation Act, 1963 provides that when the time obtained for obtaining such consent shall be excluded for computing the period of limitation for filing such suits.

11. The Limitation Act, 1963 with its new law signifies that it does not make any racial or class distinction since both Hindu and Muslim Law are now available under the law of limitation as per the existing statute book. In the matter of Syndicate Bank v. Prabha D. Naik, (AIR 2001 SC 1968) the Supreme Court has observed that the law of limitation under the Limitation Act, 1963 does not make any racial or class distinction while making or indulging any law to any particular person.

Salient features as to the construction –

(a) The Act will not however effect applications to amend a decree for clerical errors, application by  an assignee to be substituted in a pending suit, an application in a matter in which the court has discretion to refuse or where it pertains to the exercise of functions of a ministerial character.

(b-i) The purpose of Limitation Act is not to destroy the rights but it is founded on public policy fixing a life span for the legal remedy for the general welfare.

(b-ii) The Limitation Act bars remedy and not the right but the equitable considerations are out of  place in any provision of law limiting the period for filing the suits or legal proceedings.

(b-iii) The primary function of a Court is to adjudicate the disputes between the parties and to  advance substantial justice. The time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into good cause. The object of providing legal remedy is to repair the damage caused by reason of legal injury.

(b-iv) There is no such thing as any inherent power of Court to condone delay in filing a proceeding before Court/Authority concerned, unless the law warrants and permits it, since it has a tendency to alter the rights accrued to one or the other partly under the statute concerned.

(b-v) The Court cannot extend the time of limitation by bringing a case under the principle “interests of justice” and by passing the mandatory provisions of the Limitation Act.

(b-vi) The period of limitation statutorily prescribed has to be strictly adhered to and cannot be relaxed or departed, for equitable considerations. The State is not above the law of limitation, State and its officers do not enjoy sacrosanct immunity from the provisions of the Limitation Act. A welfare State should not indulge in a frivolous litigation and in particular in defending a rightful claim on technicalities particularly when even on such technicality it has no case at all.

(b-vii) The primary function of a Court is to adjudicate the disputes between the contesting parties and to advance substantial justice. The rules of limitation are not made to harm the valuable rights of the parties.

(b-viii) Where the Statute fixes no limitation period, it not open to the Court or an authority to import a fixed and inflexible period of limitation.

(b-ix) The Law of Limitation only bars the plaintiff/s remedy in a Court of law, but does not apply to a defence taken by the defendant in a Court of law.

(b-x) The litigant has a right to avail litigation upto the last day and explain his inability to present his suit/petition on the last day of limitation and each day thereafter till it is actually presented.

(b-xi) The Court should not come to the aid of a party where there has been unwarrantable delay  in seeking the statutory remedy. Any remedy must be sought with reasonable promptitude having regard to the circumstances.

(b-xii) It is well-settled that the law of limitation limits the time after which a suit or other  proceeding cannot be entertained in a Court of justice or before appropriate authority, though it does not affect the substantive rights of the parties. Once the limitation begins to run, it runs in its full course until its running is interdicted by an order of the Court.

(b-xiii) When a power is conferred by statute without mentioning the period within which it could be invoked, the same has to be done within reasonable period, as all powers must be exercised reasonably, and exercise of the same within reasonable period would be a facet of reasonableness.

(b-xiv) When the statute lays down the period of limitation for passing an order that requirement is fulfilled as soon as an order is passed within that period. If the order is set aside on appeal and the appellate order directs a fresh order to be passed then there is no requirement of law that the consequential order to give effect to the appellate order must also be passed within the statutory period of limitation.

(c) The Act creates no right, it only prescribes limitation within which a right can be enforced. The right which is barred cannot be revised by new enactment. The statutes of limitation are retrospective in so far as they apply to all legal proceedings brought for enforcing cause of action accrued earlier. All matters pending on date on which limitation gets extended by amendment of statute get benefit of extended period.

(d) Periods of limitation prescribed by Limitation Act do not strictly apply to application under Article 226.

(e) The statute which seeks to take away or restrict the right to take legal action must be viewed strictly with a leaning in favour of the litigant particularly when the language of the provision is ambiguous.

(f) Similar words and expressions occurring in statutes. Pari materia may well be given the same meaning e.g., Limitation Act and the Code of Civil Procedure. But it is subject to exception.

(g) It is the language of an Indian enactment that is paramount. It is fallacious to ascertain its meaning from any previous enactment or analogous English Law on which the law was based.

(h) True nature is gathered from the substance and not from the language of the statute and courts

do not go behind the words, of an enactment if it can be found in Act itself.

(i) The plain language of a provision is interpreted ignoring the consequences of any future event

(j) Limitation statutes are given a fair and liberal rather than a technical construction. To place a safe construction, strict grammatical construction is given which is inflexible and equitable.

Despite the rigours of section 3, the provisions thereof are required to be construed in a broadbased and liberal manner.

(k) Where two articles of the schedule are found applicable to the same cause of action, it is necessary for the court to choose the article that keeps alive the remedy than the one which bars the remedy.

(l) The long title of the statute which indicates the purpose of the enactment can in no way control the express provision.

(m) Limitation laws being technical by their very nature, there can be no invocation of any equitable or ethical consideration to get over them.

(n) If a provision is susceptible of two possible constructions, it is not obligatory on the court to adopt the more harsh construction. For, it is not the practice to construe in any exceptional manner completely divorced from well-settled principles of interpretation and healthy principles of law.

(o) The scheme of the Act, the intendment of the various provisions ascertained by reading them together is absolutely necessary. That construction of a provision which also fits in with construction of the other provisions in a harmonious manner should be adopted.

(p) It is the language employed in the Article that matters, irrespective of similar language in other Articles.

(q) If the language of the section is too clear, headings prefixed to the groups of sections can be no guide for interpreting.

(r) The basis of determination of limitation is the form and substance of the plaint, and not the defence set up.

(s) Where the language of the Act is clear the principle has to be disregarded. Full effect has to be given to the words of the section even if they traverse beyond the terms of the Preamble.

(t) There is no room for the introduction of equitable principles in the administration of the law of limitation. There is no sanction in law to invoke in aid principles of equity to enlarge the period of limitation by excluding some time in computing the period of limitation, for which no authority is to be found within the four corners of the Limitation Act. When the law is clear, it is the duty of the court to give effect to it irrespective of the fact that the result leads to some injustice to one party or the other. In another case, the Supreme Court sought to discover some inherent power in the court to bar a writ remedy when no rule enunciated any such prohibition.

(u) Where the statute does not provide to a series of cases one cannot seek to impose a bar of limitation by inference.

(v) When the language of the provision is not clear and is dubious, a construction that leans towards the right to sue than that which bars the right will be salutary.

(w) The law of Limitation must be applied stringently even if it operates harshly or unjustly in some cases. No exceptions can be formulated when the words of the Article are clear. The Judge cannot, on equitable grounds, postpone its operation or introduce exceptions not recognised by it.

(x) You cannot extend the time as to whether an appeal is barred as you are bound by the clear language of the Article which postulates the legislative intent. Strict grammatical meaning of the words should be adhered to and in that process equities should not be imported

(y) Interpretation should only be by construction which cannot be extended by analogy or on principle

Limitation Bars the Remedy but not the Right –

It is well-known that the Limitation Act, with regard to personal actions, bars the remedy without extinguishing the rights. It is only in the case of a suit for possession of any property that on the determination of the period of limitation not only the remedy, but the right also is extinguished under section 28 of the Limitation Act. But a debt does not cease to be due, because it cannot be recovered after the expiration of the period of limitation provided for instituting a suit for its recovery. In all personal actions the right subsists although the remedy is no longer available. If, therefore, a creditor, whose debt becomes statute-barred, has any means of realising and enforcing claim by any method except by a suit, the Limitation Act does not prevent him from recovering his debt by such means. After debt becomes barred, a person is still deemed to owe.( First National Bank Ltd v Sant Lal, AIR 1959 Punj 328 (330) : ILR 1958 Punj 2356 : (1958) 28 Com Cas 402) The Limitation Act applies only to an action in a civil court by way of suit or an application for relief. The Limitation Act is a statute of repose and is enacted not on the basis of any equitable consideration but only on the basis of public policy not to keep alive claims to be made to a court indefinitely. The Limitation Act does not extinguish the debt but only bars the remedy. The Limitation Act cannot be applied when a person does not approach the civil court for relief by way of a suit or by way of an application under the Code or under any other special enactment providing for relief through the Civil Court.

Limitation in Writ Petition –

The provisions of Limitation Act, 1963 or the rules of limitation are not applicable to the proceedings under Articles 226 and 227 of the Constitution in dealing with the delay proceedings thereunder except to borrow any such law or the provisions, in addition to applying the doctrine therein and further subject to the restrictions. (Secretary, Badruka College of Commerce & Arts v State of Andhra Pradesh, AIR 1997 AP 179 (186) (FB) 1998 AIHC 9) There is no period of limitation prescribed by any law for filing a writ petition under Article 226 of the Constitution. It is in fact doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt that no such period of limitation can be laid down either under rules made by the High Court or by practice. In every case, it would have to be decided on the facts and circumstances, whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as a period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner. Therefore, the order of High Court was set aside and the case remanded to the High Court so that the High Court may dispose it on merits in accordance with law.

Applicability of the Limitation Act to criminal Proceedings

The general rule of criminal justice is that “a crime never dies”. The principle is reflected in the well-known maxim nullum tempus aut locus occurrit regi (lapse of time is no bar to Crown in proceeding against offenders). The Limitation Act, 1963 does not apply to criminal proceedings unless there are express or specific provisions to that effect for instance sections 114, 115, 131 and 132 of the Act. It is settled law that a criminal offence is considered as wrong against the State and the society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of law has no power to throw away prosecution solely on the ground of delay. Mere delay in approaching a court of law would not by itself afford a ground for dismissing the case though it may be a relevant circumstance in reaching a final verdict. (Japani Sahoo v Chandra Sekhar Mohanty, (2007) 7 SCC 394 : AIR 2007 SC 2762 : 2007 Cr LJ 4068 : JT 2007 (9) SC 471 : 2007 (9) SCALE 400) The provisions as to limitation have been inserted by Parliament in the larger interest of administration of criminal justice keeping in view two conflicting considerations: (i) the interest of persons sought to be prosecuted (accused); (ii) and organs of State (prosecuting agencies).( Japani Sahoo v Chandra Sekhar Mohanty, (2007) 7 SCC 394 : AIR 2007 SC 2762 : 2007 Cr LJ 4068 : JT 2007 (9) SC 471 : 2007 (9) SCALE 400) The provision of Limitation Act, 1963 is applicable in computing period of limitation under other statutes.

Principles on which Law of Limitation is Based

The following are some of the principles on which law of limitation is founded:—

(a) Time having commenced to run will not stop.—One of the most important and universal rules is that time, when it has once commenced to run in any case will not cease to do so by reason of any subsequent event which may be within the saving of the statute.

(b) The bar of the statute must be opposed by the diligence of the debtor.—Another general rule of great practical importance, which it is necessary to bear in mind, is that the bar of the statute must be opposed by the diligence of the debtor and as early as possible and usually on the pleadings previously to the hearing, and that it will not be raised by the Court unsolicited; and also that the protection afforded by the statute may be waived by the debtor, the best possible proof of such waiver being a payment.

(c) The Law of Limitation is part of Lex-fori.—It is a rule equally well-settled, that remedies on contracts are to be regulated and pursued according to the • law of the place where the action is instituted and not by the law of the place of the contract.

(d) Omnia recte Proesumuntur.—A fourth and somewhat subordinate rule may be mentioned, namely, that a man is presumed to have acted lawfully according to the legal maxim Omnia recte Proesumuntur. Thus, wherever an act could have been done lawfully, the doer is not allowed to say that it was done wrongfully, so as to cause time to run from the date of the Act.

(e) The Law of Limitation is a procedural law and the provisions existing on the date of the suit shall apply to it. (C Beepathuma v Velasari Shankararnarayana Kadambolithaya, AIR 1965 SC 241 (245) : (1964) 5 SCR 836; Hazna (Smt) v Prabhulal, 2004 (2) Raj LW 800 (801) (Raj).)

(f) Where no time limit is prescribed for the exercise of power under a statute, it does not mean that it can be exercised at any time, such power has to be exercised within a reasonable time. (Mohammad Kavi Mohammad Amin v Fatimabai Ibrahim, 1997 All CJ 1291 : (1997) 6 SCC 71 (72) : (1998) 1 MPWN (SN) 26; Ram Chand v UOI, (1994) 1 SCC 44 : 1993 AIR SCW 3479)

The purpose of Limitation Act is not to destroy the rights but it is an Act founded on public policy fixing a life span for the legal remedy for the general welfare. The Limitation Act bars remedy and not the right but the equitable considerations are out of place in any provision of law limiting the period for filing the suits or legal proceedings. (Mandas v State of Madhya Pradesh, 1999 AIHC 3318 (3319) (MP)) The primary function of a Court is to adjudicate the disputes between the parties and to advance substantial justice. The time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into good cause. The object of providing legal remedy is to repair the damage caused by reason of legal injury. (N Balakrishnan v M Krishamurthy, AIR 1998 SC 3222 : (1998) 7 SCC 123 : 1998 AIR SCW 3139; Food Corporation of India v Jugal Kishore Agrawal, AIR 2001 Ori 158 (160) : (2001) 2 Ori LR 98 : 2001 (4) Civ LJ 470) There is no such thing as any inherent power of Court to condone delay in filing a proceeding before Court/Authority concerned, unless the law warrants and permits it, since it has a tendency to alter the rights accrued to one or the other partly under the statute concerned. (Prakash H Jain v Marie Fernandas, AIR 2003 SC 4591 (4594) : (2003) 8 SCC 431 : 2003 AIR SCW 5378; Sanghamitra Jena v Director of Higher Education, Orissa, 94 (2002) CLT 280 (285, 286) (Ori).) The Court cannot extend the time of limitation by bringing a case under the principle “interests of justice” and bypassing the mandatory provisions of the Limitation Act. (Dev Bala Sehgal v Devinder Pal Singh, (2001) 1 Punj LR 775 (777) (P&H) : 2002 (1) Civil Court Cases 32) The period of limitation statutorily prescribed has to be strictly adhered to and cannot be relaxed or departed from for equitable considerations.

The State is not above the law of limitation, State and its officers do not enjoy sacrosanct immunity from the provision of the Limitation Act. A welfare state should not indulge in a frivolous litigation and in particular in defending a rightful claim on technicalities particularly when even on such technicality it has no case at all. The primary function of a Court is to adjudicate the disputes between the contesting parties and to advance substantial justice. The rules of limitation are not made to harm the valuable rights of the parties. In the case of N Balakrishnan v Krishna Murthy, the Supreme Court has observed that, the rules of limitation are not meant to destroy the rights of the parties. They are meant to see that the parties do not resort to dilatory tactics. The aggrieved party can seek the remedy of appeal and revision only in accordance with law. If the provisions prescribe a period of limitation, the aggrieved person has to approach the Court within that time. A relaxation can be allowed within the parameters, if any, laid down in the statute or only when a sufficient cause for condonation of delay is made out. The party cannot wait for years and then insist upon the condonation of delay by furnishing a filmsy explanation.

The statute of limitation being procedural is always retrospective is not a complete statement. Statute of limitation may be prescribed as procedural or substantive. In English law as well as in Indian law, there are provisions, which make it clear that at the expiration of the period prescribed for any person to bring an action to recover land, the title of that person to the lands is extinguished. Such a limitation therefore goes to the cause of action itself. But, in most cases, the statute of limitation only takes away the remedies by action or by set off. It goes only to the conduct of the particular action. It leaves the claimant's right otherwise untouched in theory so that in the case of a debt, if the statute barred, creditor has any means of enforcing his claim other than by action or set off, the Act does not prevent his recovery by those means. Where the Statute fixes no limitation period, it is not open to the Court or an authority to import a fixed and inflexible period of limitation; Ram Kukhiya v State of Bihar, (2003) 1 BLJR 307 (308). Any law or stipulation prescribing a period of limitation to do or not to do a thing after the expiry of period so stipulated has the consequence of creation and destruction of rights, and therefore, must be specifically enacted and prescribed therefor. It is not for the Courts to import any specific period of limitation by implication, where there is really none, though Courts may always hold when any such exercise of power had the effect of disturbing rights of a citizen that it should be exercised within a reasonable period. This is, however, not to say that in matter where the Statute does not fix a period of limitation, it is open to a person seeking relief to approach the Court authority on his own sweet will and a long time after the cause of action had risen. Relief can be denied to a person on grounds of laches and unexplained delay in approaching a Court. Even in matters where there is no limitation fixed by the Statute, it is incumbent upon the person seeking relief to approach the Court expeditiously and without any undue delay and as soon as may be practicably possible since the arising of the cause of action. A case may be thrown out on grounds of unexplained delay, even though filed within a period of much less than six months and in case the delay is explained satisfactorily, a claim may be entertained even after a year or more. A statute of limitation being a statute of peace and justice, cannot be used to induce injustice.

The law of limitation is not meant to be an aid to unconscionable conduct, though if a claim is clearly barred, the Court must unhesitatingly dismiss the suit. Even so, the Court must lean against limitation and in favour of the subsistence of the right where, two views are clearly possible. The law of limitation is an artificial mode to terminate the justiciable disputes and has to be construed strictly always leaning on benefits to the suit. It is the fundamental principle of the law of limitation that the purpose of the rules of limitation is to induce the claimants to be prompt in claiming relief.

Unexplained delay or laches on the part of those who are expected to be aware and conscious of the legal position and who have facilities for proper legal assistance can hardly be encouraged or countenanced. The mere filing of the appeal unless stay has been granted would not stop the running of the limitation period. The suit filed after the expiry of limitation period from the date when the cause of action arises would be dismissed as barred by limitation. The parties who seek to uphold their legal rights should be vigilant, and if necessary are advised to consult legal experts. They cannot sleep over the matter and at a later stage seek to enforce their rights which is likely to cause prejudice to the other parties. This is precisely why the reason why periods of limitation has been prescribed in many statutes.

Difference between Limitation and Prescription - The Indian Limitation Act deals with the Law of Prescription as well the 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 or other proceeding cannot be maintained in a Court of Justice. It simply bars the judicial remedy but it neither affects the extrajudicial remedies nor the substantive right itself.

Prescription is the acquisition of title by possession of property for the prescribed period provided that possession was neither forcible nor clandestine (hidden) nor permissive. Such possession acquires its title chiefly on account of the fact that those who had interest in the property have allowed their rights to get barred by not caring to pursue their remedies within the time allowed by law to enforce those remedies.

The following are some of the main differences of the law of limitation:

1. The law of limitation is a part of `adjective law' being barring the remedy after expiry of the period of limitation, while the law of prescription is a part of the substantive law and it effects the substantive right of a person;

2. The Limitation Act prescribes the period after the expiry of which a suit cannot be filed in the court, while a right through prescription arises after the expiry of definite period of time.

3. The law of limitation imposes restrictions only on the judicial remedies and not on extra judicial remedies, while a right extinguished due to prescriptions can not be enforced by any judicial or extra judicial method.

Limitation and laches: The differences between limitation and laches are as under:

1. In case of limitation, the knowledge of the ignorance of the plaintiff, with reference to his right, is deemed immaterial, while the knowledge of the plaintiff about right if proved, defeats the claim due to laches. The term laches here means, negligence or slackness. The doctrine of laches is based on the principle that `delay defeats equity.'

In Roop Chand v. Madan Mohan AIR 1960 Cal. 351 it was observed that the basis of doctrine of limitation is public policy while basis of the doctrine of laches is `equity'. Laches like limitation no doubt deprive plaintiff of his remedy but it depends upon general principles of justice and fair play while limitation depends upon express law. A positive rule of limitation cannot be depended whether there is laches or not and except in the case of discretionary order, the defence of laches or acquiescence cannot prevail when a statutory period of limitation is prescribed for action.

2. Limitation prescribes a period of time within which a suit must be filed in the court, whereas period time is not fixed for laches. In case of laches, it is the duty of a court to see (a) Whether the evidences of the case have been lost or destroyed due to the delay caused by plaintiff (b) Whether the plaintiff caused unreasonable delay and (c) Whether the defendant has been induced by the plaintiff by causing delay or commission to alter his position or to incur an expense.

The doctrine of laches is applied in India in the following cases:

(i) Cases relating to the Specific Relief Act;

(ii) Cases of temporary injunction;

(iii) Cases of interlocutory orders;

(iv) Cases relating to marriage and divorce;

(v) Cases relating to limitation.

3. The law of limitation is based on public policy and general utility while laches is based on equity.

4. The law of limitation is based on expression while laches is based on the doctrine of impartial judicial behaviour.

5. The plea of limitation is raised by the defendant against the plaintiff while the plea of laches can be raised against both i.e. plaintiff or defendant.

Limitation and Acquiescence: Acquiescence implies an active consent of a party. It widely differs from limitation particularly on the following points:

1. Limitation indicates towards the provision against which a suit cannot be filed in a court after the expiry of the prescribed time. While acquiescence refers to a position in which an objection is not raised by person against an act done by another person having a right to do so; provided that it is not inconsistent with the right of the former.

2. The right of a person to file a suit or initiate a proceeding is extinguished after the expiry of period of time while acquiescence is most wide in comparison to that because a consent is involved in it.

3. The acquiescence can either be direct or indirect but it is not so in case of limitation.

4. The acquiescence is based on knowledge and conduct of the concerning party while it is not so in case of limitation.

5. When acquiscence is proved a person who did so loses his right to file a suit in the court irrespective of the fact that the time for filing a suit has since expired or not.

                                                   Chapter 2

                                       SCHEME OF THE ACT

The Limitation Act contains 32 Sections (Section 32 repealed) and 137Articles.

Scheme of the Articles is as follows:

First Division : Suits

Part I Suits Relating to Accounts Articles 1 to 5

Part II Suits Relating to Contracts Articles 6 to 55

Part III Suits Relating to Declarations Articles 56 to 58

Part IV Suits Relating to Decrees and Instruments Articles 59 to 60

Part V Suits Relating to Immovable Property Articles 61 to 67

Part VI Suits Relating to Movable Property Articles 68 to 71

Part VII Suits Relating to Tort Articles 72 to 91

Part VIII Suits Relating to Trust and Trust Property Articles 92 to 96

Part IX Suits Relating to Miscellaneous Matters Articles 97 to 112

Part X Suits for which there is no prescribed period  Articles 113

Second Division: Appeals Articles 114 to 117

Third Division: Applications

Part I Specified cases Articles 118 to 136

Part II Other applications Article 137

                                                            Chapter 3

                                                PRELIMINARY (PART I)

[Section 1]

• The Limitation Act received the assent of the President on the 5th October, 1963 and was published in the Gaz. of India, Extra., Part II, S. 1 dated October 5, 1963, pp. 319-347.

• Date of enforcement: The Act was brought into force w.e.f. January 1, 1964 [vide notification No. S.O. 3118, dated October 29, 1963]

[Section 1] Scope and Applicability

1. Unless there is a distinct provision to the contrary, the law of limitation applicable to a suit or  proceeding is the law in force at the date of the institution of the suit or proceeding.

2. Indian Limitation Act, 1963 does not make any racial or class distinction since both Hindus and Muslims are amenable to the law of limitation.

3.  The law of limitation must be rigidly applied to the case and the Courts of law cannot deviate from the law on the ground of equity or supposed misjustice unless it be found that thereby the party shall be divested of his rights to seek remedy before a Court or authority.

4. Where a question of payment of salaries and allowances to a reinstated Government servant by Government arises and a plea of  limitation is raised by Government, it has been held that in such matter the Government has a limited scope of Limitation.

5. The Act does not apply to disputes between members of Garo Tribe who are included amongst Scheduled Tribes. Adverse possession cannot therefore be applied.

6. The notification barring applicability of the Act to erstwhile Mizo district of Assam would have no application after the reorganisation of Union territories of Mizoram any State of Mizoram from erstwhile Assam.

7. There is no period of limitation prescribed by any law within which alone the Government should exercise its prerogative of imposing assessment on land liable to be assessed with public revenue.

8. The Limitation Act, 1963 applies to proceedings under the UP Urban Buildings (Regulation, Letting and Eviction) Act, 1972. Similarly it also applies to Special Laws.

9. Consumer Protection Act (68 of 1986) - One of the main and vital challenges in every adjudication is the period of 'limitation'. It is pertinent to state that Section 24A of the Consumer Protection Act, 1986, defines the limitation period for filing the complaints under the Consumer Protection Act, 1986. As per the definition, the complaint can be filed with District Forum, State or National Commission within 2 years from the date of cause of action having been arisen. However, sub-clause (2) of the said provision states that a complaint filed beyond the prescribed period would be entertained if the complainant satisfies the Forums, State and National Commissions with sufficient reason that prevented him from filing within the prescribed period. A provision is also given mandating the Forum, State Commission, and National commission to record the reasons for condoning the delay and proceed to entertain such delayed complaint.

For the sake of reference, the operative part of Section 24A is reproduced herein below:

Section 24A in the Consumer Protection Act, 1986

[24A. Limitation period.—

(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in subsection (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period; Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay].

Hence, in view of the aforesaid, the time period for filing a complaint for a consumer from the date of violation of a right is 2 years. The law in this regard is laid down in Sec24-A of the Consumer Protection Act, 1986. However, the Hon'ble Supreme Court of India, in a landmark judgement, on 07.04.2017 in the matter of National Insurance Company Ltd. vs. Hindustan Safety Glass Works Ltd. (MANU/SC/0390/2017), has held that where a supplier is responsible for causing a delay in the settlement of the consumer's claim, the consumer shall be entitled under law to file a complaint in the Consumer Court even after the expiry of the period of two years.

Brief Facts of the Case & Analysis of the Judgment Passed by the Hon'ble Supreme Court of India - Hindustan Safety Glass Works Ltd. (i.e. insured) i.e. Respondent, had taken out two policies with the appellant National Insurance Company, both dated August 29, 1990, for a period of one year which were subsequently renewed for another year. The first policy was for an amount of Rs. 4.9 lakhs to cover the risks on office building, residential quarters and canteen etc. in Calcutta. The second policy was for an amount of about Rs. 5.7 crores to cover the risks on building, machinery, finished and semi-finished stocks, store, furniture, wiring and fittings etc. in its factory/works in Calcutta, wherein both the policies included damage or loss due to flood and inundation.

On August 06, 1992, there was heavy incessant rain in Calcutta resulting in heavy accumulation of rain water inside and around the factory/works of the insured, which the respondent claimed had caused considerable damage to raw materials, stocks and goods, furniture etc. As a result of the damage suffered by the insured and in terms of the two policies taken out with National Insurance, claims were filed by the insured on August 07 and 08, 1992, claiming a total amount of about Rs. 52 lakhs.

Pursuant to claims, National Insurance carried out two surveys wherein the reports were submitted on November 11, 1993, and the second report was given on November 23, 1994, assessing the loss/damage suffered by the insured.

In spite of the two survey reports quantifying the loss or damage suffered at about Rs. 24 lakhs, nothing was paid to the insured by National Insurance. Pursuant to the same, notices were served upon the insurer. However, to the utter shock and disappointment, there was no response from the National Insurance. Hence, in view of such circumstances, insured filed a complaint with the National Commission under the provisions of the Consumer Protection Act, 1986 (for short 'the Act') claiming an amount of Rs. 52.32 lakhs, along with an amount of about Rs.1.81 lakhs being the expenses incurred for the purpose of loss minimization, further interest at 18% per annum was also claimed by the insured with effect from December 06, 1992 i.e. four months after the occurrence of the flood or inundation.

There were various objections raised by the National Commission as follows, wherein one of the major objection, which is subject matter of the present article, is regarding the complaint being barred by condition No. 6(ii) of the policies i.e Complaint was barred by limitation as it was filed on August 13, 1996, while the loss/damage to the insured properties had taken place in August, 1992.

Reliance on condition number 6(ii) of the insurance policies it is necessary to first understand the scope of this condition which reads as follows:

In no case whatsoever, shall the company be liable for any loss or damage after the expiration of 12 months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration: it being expressly agreed and declared that if the company shall disclaim liability for any claim hereunder and such claim shall not within 12 calendar months from the date of the disclaimer have been made the subject matter of a suit in a court of law and the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder.

A reading of the aforesaid condition leads to the conclusion that National Insurance would not be liable for any loss or damage 12 months after the event that caused the loss or damage to the insured unless the claim is the subject matter of a pending action or arbitration. It was submitted by the learned Counsel for National Insurance that the expression 'pending action' must relate to action instituted in a court of law.

However, the Hon'ble Court held that when a claim is made by the insured, that itself is actionable, there is no question of requiring the insured to approach a court of law for adjudication of the claim and that this would amount to encouraging avoidable litigation, which certainly cannot be the intention of the insurance policies and which in no case in public interest.

However, the learned Counsel vehemently argued that in terms of Section 24A of the Act, the claim made by the insured was barred by limitation, since the complaint was filed with the National Commission on August 13, 1996, while the loss or damage had occurred on August 06, 1992. Therefore, the National Commission could not have admitted the complaint since it was filed beyond the stipulated period of two years from the date on which the cause of action had arisen.

The National Commission rejected all the contentions urged by National Insurance and by the impugned judgment and order, the insured was awarded an amount of Rs. 21,05,803.89 with interest at 9% per annum from May 11, 1995, i.e three months after the addendum issued by Seascan Services (WB) Pvt. Ltd. (the second surveyor), furthermore even costs of Rs. 20,000/- were also awarded to the insured.

Aggrieved by the impugned order, National insurance preferred appeals to the Hon'ble Supreme Court of India.

      JUDGMENT

The Hon'ble Supreme Court of India held that the event that caused the loss or damage to the insured occurred on August 06, 1992, was the heavy incessant rain in Calcutta in which the raw materials, stocks and goods, furniture etc. of the insured were damaged. It was observed that on the very next day, the insured lodged a claim with National Insurance. In response, National Insurance first appointed N.T. Kothari & Co. to assess the loss suffered by the insured and a report was given by this surveyor after more than one year. Thereafter, for reasons that are not at all clear, National Insurance appointed a second surveyor which also took about one year to submit its report, and eventually gave an addendum to that report thereby, crossing one year in completion of its report along with the addendum. It was observed and noted by the Hon'ble Court that National Insurance itself took more than two years in surveying or causing a survey of the loss or damage suffered by the insured and hence, the entire delay is attributable to National Insurance which cannot prejudice the claim of the insured, especially when the insured had lodged a claim well within time. Furthermore, to make matters worse, National Insurance actually repudiated the claim of the insured only on May 22, 2001, which was well after the complaint was filed with the National Commission.

The Hon'ble Court was of the view that in a dispute concerning a consumer, it is necessary for the courts to take a pragmatic view of the rights of the consumer principally since it is the consumer who is placed at a disadvantage vis-a-vis the supplier of services or goods. It was further held that the very purpose of a beneficent legislation, in the form of the Consumer Protection Act, is to overcome this disadvantage. The provision of limitation in the Act cannot be strictly construed to disadvantage a consumer in a case where a supplier of goods or services itself is instrumental in causing a delay in the settlement of the consumer's claim. The Court observed that this being the underlying principle, it had no hesitation in concluding that the National Commission was quite right in rejecting the contention of National Insurance in this regard.

Further, it was held that the contention urged was that the first survey report given by N.T. Kothari & Co. was not a bona fide report as the Central Glass and Ceramic Research Institute, Calcutta had not authorized that specific officer to give any report with regard to the damage or loss suffered by the insured. Further, the Hon'ble Court noticed that the second survey report was prepared in consultation with the Central Glass and Ceramic Research Institute, Calcutta, wherein another officer had been consulted. However, it was clearly held that the Insurance Company failed to provide any reason to remotely suggest that the second report was also tainted either because the officer consulted was not authorized to give a report or for any other justifiable reason.

The National Commission accepted the second survey report which was provided by Seascan Services (WB) Pvt. Ltd. as well as the addendum to it and the apex court did not see any reason to disagree with the findings arrived at in the absence of any material to discredit the surveyor or the report of the surveyor.

That the Hon'ble Court in the second appeal being Civil Appeal No. 1156 of 2008, further observed and held that the aforesaid appeal even concerns the interpretation, in the context of limitation, of condition number 6(ii) of the insurance policy taken out by the insured. That in view of the same, it was further observed by the Hon'ble Court that, the insured suffered a loss or damage to its goods in an incident that occurred on September 06, 1993. A claim was lodged by the insured on the next day. The claim was repudiated by National Insurance on December 27, 1999 while a complaint filed by the insured in the National Commission was pending since March 06, 1998. In view of these facts and in view of the discussion in the connected appeal it was held that there is no merit in the objection raised by learned Counsel that the complaint was barred by limitation in view of condition number 6(ii) of the insurance policy or Section 24-A of the Act. In any event, this contention was not strictly pressed by learned Counsel on the facts of this appeal.

Thus, the Hon'ble Supreme Court of India was of the view that National Insurance had not been able to make out a case for interference with the order passed by the National Commission and held that both appeals were without any merit and were accordingly dismissed.

      CONCLUSION

The result of this decision, now, is that in all other complaints, the limitation period under section 24A cannot be strictly construed to disadvantage a consumer. It is pertinent to state that with the economic progress and developments in the trade and commerce, a wide variety of consumer goods and services have started appearing and the very purpose of the Consumer Forums/Commissions is to observe the principle of natural justice for redressing the grievance of the consumers. Hence, as per the aforesaid judgement of the Hon'ble Supreme Court of India, in matters concerning consumer dispute, it is important to take a pragmatic view of the rights of the consumer principally, since it is the consumer who is placed at a disadvantage vis- a vis the supplier of good or services who is a step forward in the legal system of our country and thereby, making it imperative to protect the interest of the consumers who also play a major role in the economics and market dynamics of our country.

10. Railway Claims Tribunal

The Railway Claims Tribunal set up under the Railways Act is not a civil Court, so the provisions of  Limitation Act are not applicable. An application under section 78B of the Railways Act for refund of excess charges paid filed beyond period of six months from the date of the delivery was rejected as time-barred, the provisions of section 17(1)(c) of the Limitation Act were held not applicable.

11. Arbitration and Conciliation Act (26 of 1996)

The time limit prescribed under section 34 of the Arbitration and Conciliation Act (26 of 1996) is absolute and unextendable by the Court under section 5 of the Limitation Act, 1963.

The provisions  of section 5 of the Limitation Act are not applicable to the application challenging the award under section 34 of the Arbitration Act, 1996.

As revealed by section 34 of the Arbitration and Conciliation Act no application for setting aside the arbitral award can be made after three months from the date on which the party making the application had received the arbitral award or, if a request has been made under section 33, from the date on which that request has been disposed of by the arbitral tribunal. However, the Court in an appropriate case may extend the said period of three months for filing the application for a further period of thirty days “but not thereafter”. The provision undoubtedly is mandatory in its nature. The competent Court has no jurisdiction to extend or condone the delay in filing the application beyond the period of 30 days. The Court in its discretion may extend or condone 30 days delay only in filing the application under section 34 of the Arbitration Act, 1996.

The provisions of sections 4 to 24 do not apply to proceedings under the 1996 Act.

12. The Limitation Act, 1963 is not retrospective.

13. Limitation law is one relating to procedure having reference only to the Lex-Fori.

14. Jurisdiction - Plea of Limitation and Plea of Res-judicata Pleas are pleas of law which concern jurisdiction of Court trying the proceedings. Since finding on those pleas in favour of a party raising them, would oust jurisdiction of the Court's erroneous decision on those pleas, can be said to be concerned with questions of jurisdiction falling within purview of section 115, CPC.

15. Custom - Custom cannot be allowed to override the provisions of the Limitation Act

16. Execution Proceedings The provisions of the Limitation Act are applicable to the execution proceedings. The bar contemplated by section 5 of Limitation Act covers not only the orders made under O XXI, CPC but also to the proceedings which have originated from O XXI and which are germane to any order passed in exercise of the powers conferred by O XXI of the Civil Procedure Code by the executing Court.

17. Execution of Orders - Where a statute imposes on a Court the duty to issue an order to the village officers to give effect thereto, the duty is in no sense conditional on an application being made for the purpose. Where such imperative duty is imposed upon a Court, the Limitation Act has no application.

                                                                Chapter 4

                                                           DEFINITIONS (Section 2)

(a) “Applicant” includes— (i) a petitioner; (ii) any person from or through whom an applicant derives his right to apply; (iii) any person whose estate is represented by the applicant as executor, administrator or other representative;

Clause (a)—“Applicant” - The definition of “applicant” includes a person who prefers an original petition or otherwise.

(b) “Application” includes a petition;

Clause (b)—“Application” - The Calcutta High Court in a case Bhakti Mondal v Khagendra, 49 has held that an election petition is an application within the meaning of section 2(b) of Limitation Act, 1963 and not a suit. The provisions of section 5 of Limitation Act is equally applicable to such an application. The application includes a petition. “Application” includes a petition but “suit” does not include an appeal or an application. Appeal memo also does not come within the meaning of the term “application”. In another case, High Court of Gauhati has observed that the term “application” ordinarily means the act of making “prayer or request for something”. Therefore, an application or prayer of a party to the Court under section 27(3) of Wealth Tax Act is an application within the meaning of section 29(2) of Limitation Act.

(c) “Bill of exchange” includes a hundi and a cheque

Clause (c)—Bill of Exchange - Section 2(2) of Indian Stamp Act, 1899 defines as under— Bill of exchange, means a bill of exchange as defined by the Negotiable Instruments Act, 1881, and includes also a hundi, and any other document entitling or purporting to entitle any person, whether named therein or not, to payment by any other person of, or to draw upon any other person for any sum of money. Section 5 of Negotiable Instruments Act (26 of 1881) runs as follows: A Bill of exchange is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to the order of a certain person or to the bearer of the instrument. A bill of exchange may include a hundi, but a hundi does not include a bill of exchange. Hundies are of several kinds, the chief being Shahjogi hundi i.e., a hundi payable only to a respectable holder, that is, a man of worth and substance known in the bazar. The Shahjogi hundi is not a hundi payable to the bearer but only to respectable bearer and that only it is endorsed by the last endorsee. A hundi payable at sight is a bill of exchange as defined in section 5 of Negotiable Instruments Act. In any case it is bill of exchange within the definition of the term of section 2(2) of the Stamp Act.

(d) “Bond ” includes any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;

Clause (d)—"Bond”  - Section 2(5) of Indian Stamp Act, 1899 defines “bond” as under: “Bond” includes:— (a) any instrument whereby a person obliges himself to pay money to another on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be; (b) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and (c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another.” The word “bond” has to be given the widest meaning. In substance, if an express stipulation regarding the payment of an amount is incorporated in the document itself the document will have to be construed as a bond because it creates an obligation in itself. In English Law a bond is defined an instrument under seal, whereby one person becomes bound to another for the payment of a sum of money or for the performance of any other act or thing.

“Bond” in Oxford Dictionary is defined as, “binding engagement, agreement, deed by which person binds himself to pay another; Government's or public company's documentary promise to repay borrowed money. Black's Law Dictionary defines it as, “A written promise to pay money or do some act if certain circumstances occur or a certain time elapses; a promise that is defeasible upon a condition subsequent” (Vide Black's Law Dictionary, seventh Edn p 169). In every case a bond represents debt its holder is a creditor. A bond is a promise to pay money at a future date. It is an instrument in writing or written acknowledgment for the payment of debt.

Requisites of Bond

It is necessary to hold formally in mind the requisites of a bond. They are:

(i) It must be in writing.

(ii) It must bear the signature, seal or thumb mark of the obligor.

(iii) It must be attested by at least one witness.

(iv) It must contain a distinct agreement by which obligor binds himself to pay.

(v) It must not be payable to bearer or order.

(vi) The article to be delivered must be money, or grain or any other agricultural produce.

   (vii) The obligation to pay or to deliver must be express and not implied.

(e) "Defendant" includes- (i) any person from or through whom a defendant derives his liability to be sued; (ii) any person whose estate is represented by the defendant as executor, administrator or other representative;

Clause (e)—"Defendant”

In construing the law of limitation, the court must confine itself strictly within the terms of the Limitation Act and not enlarge the scope of the Act by introducing “notional” defendant in the place of the word “defendant”.

(f) "Easement" includes a right not arising from contract, by which one person is entitled to remove and appropriate for his own profit any part of the soil belonging to another or anything growing in, or attached to, or subsisting upon, the land of another

Clause (f)—“Easement” In Indian this term includes profits a prendre; it has not been used by the legislature of this country in this restricted sense in which it is used in English law. This definition is repealed by the Indian Easement Act so far as Madras, Central Provinces and Bombay are concerned by Act V of 1882 and Act VIII of 1891. Section 4 of Indian Easements Act, 1882 gives a comprehensive definition of easement which runs as follows.—An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon or in respect of certain other land not his own. The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner, the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. Explanation—In the first and second clauses of this section, the expression “land” includes also things permanently attached to the earth: the expression “beneficial enjoyment” includes also possible convenience, remote advantage, and even a mere amenity; and the expression “to do something” includes removal and appropriation by the dominant owner for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage or anything growing or subsisting thereon.” The term “easement” as used in the Indian law includes “profits-a-prendre” in gross which are unappurtenant to any dominant tenement and are enjoyed solely for the benefit of an individual. Under the definition of easement in section 2(5), Limitation Act, 1908, it is “a person” who will no doubt include “persons” as also a “definite body of persons”, who would be entitled to claim the easement, but it will not include and indeterminate and fluctuating-body of persons like the villagers of the three villages. Such an indeterminate and fluctuating body of persons cannot prescribe for an easement under section 26 of the Limitation Act. The word “property” in section 25, Limitation Act, 1963, is indicative and descriptive of every possible interest which a party can have. Where a certain number of villagers had been grazing their cattle on the land from the time of their ancestors, this customary right is a right to property and curtailment of that right would constitute an infringement of their fundamental rights guaranteed under article 19(1) of the Constitution. The right of pasturage can be acquired as easement. The plea of necessity to commit nuisance is not permissible. In order to be within the Act an easement must be appertaining to a dominant tenement, and the public, community, or section of the public or a section of the community cannot have any right of easement. It is one thing to say that twenty year's enjoyment as of right by some people of a right in grass, raises a presumption of immemorial enjoyment, and it is another thing to say that certain persons have got a right of easement, thereby assuming that there is a dominant tenement as well as a servient tenement.83 There is difference between sale and “profit-a-pendre”. Extraction of resin from chir trees under contract has been held, a sale.

(g) "Foreign country" means any country other than India

The definition of “foreign country” has been made more comprehensive. Now according to the definition, the term means any country other than India.

(h) "Good faith"-nothing shall be deemed to be done in good faith which is not done with due care and attention

Section 52 of Indian Penal Code defines “Good faith” as under: “52. Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention. The positive aspect of the term is presented by the General Clauses Act (X of 1897) in which it is thus defined:—

“3 (22). A thing shall be deemed to be done in “good faith”, where it is in fact done honestly, whether it is done negligently or not”

This definition in the General Clauses Act is the verbatim reproduction of the term given in English Bills of Exchange Act, 1882 and the Sale of Goods Act, 1893.

The definition of “good faith” in section 2(7), Limitation Act, is identical with that given in the IPC (section 52) and is at variance with the definition given in the General Clauses Act, 1897, which is “A thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not.” Cases of the nature where the plaintiff seeks protection under section 14, Limitation Act, are governed by the definition of the Limitation Act. Of course good faith requires no logical infallibility but due care and attention. How far erroneous actions or statements are to be imputed for want of due care and caution must, in each case, be considered with reference to the general circumstances and the capacity and the intelligence of the person whose conduct is in question. The law does not exact the same degree of care and attention from all persons. It varies with the positions they occupy.

Good faith is state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one's duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage. (Vide Black's Law Dictionary, seventh Edn, p 701)

Good faith as understood in Civil law is different from good faith in criminal law. In Criminal law, unless a thing is done with due care and attention, it cannot be held to be done in good faith. The mere fact that it has been done with a pure motive or without any impure intention or that the actor has been quite honest and free from malice will not justify his action and make it one done in good faith, unless it is shown that he has taken due care and paid due attention. (Vide AIR Commentary on Indian Penal Code, vol I, p 253) 

While interpreting “goof faith” with reference to the provisions of Indian Penal Code, the Court would examine whether the accused has acted with due care and attention. A writer cannot claim to have acted in good faith when he ignored the source of truth opened to him.

The question of “Good faith” is always a question of fact to be determined in accordance with the proved facts and circumstances of each case. The standard of “due care and attention” is not the standard of the hypothetical “reasonable man”. Where there is any repugnance between the definition given in the General Clauses Act and some other Act and the provisions of that Act have to be interpreted, the definition given in that Act has to be preferred over that given in the General Clauses Act. Where applicant is negligent in prosecuting previous application, section 14(2) of Limitation Act has no application. Where initial filing is attributable to carelessness, the subsequent prosecution is not in good faith, but the mistaken view of law is not necessarily “lack of good faith”. If the view of the counsel even though mistaken, was reasonable, the plaintiff will be entitled to benefit of section 14 of the Act. If High Court is enhancing valuation of suit accepted by trial court, the plaintiff is entitled to exclusion of time under section 14(1) of the Act of 1963. In a case, an application under O IX, rule 13, CPC, was presented under the advice of senior and experienced member of the Bar, which was dismissed not on merits but due to binding effect of erroneous precedent (of which the lawyer for the applicant was ignorant) holding that O IX, rule 13, was not applicable to set aside ex parte final decree. Thereafter a petition for review of the ex parte final decree was filed beyond limitation of 90 days from date of final decree. The time spent in proceeding under O IX, rule 13, CPC, was held liable to be excluded.

Where in a case application to sue as an indigent person was dismissed and the Court did not state that plaintiff has not acted in good faith, the plea regarding good faith raised for the first time in second appeal was not allowed. The benefit of section 13 of Limitation Act is available to plaintiff. A plaintiff is entitled to the exclusion of the period under section 14 only when it is established that mistake was due in spite of the care and attention, that is to say, that the mistake was due not on account of the negligence of the party or his legal adviser. Mere absence of dishonesty and mala fides on the part of the lawyer is not sufficient for the plaintiff to invoke in his aid the provisions of section 14 of the Limitation Act.

Standard of Good Faith

The standard of “good faith” laid down in the definition under section 2(7), Limitation Act, is much higher than that of the definition under section 3 of the General Clauses Act. In a case of mistaken legal advice, good faith can be attributable to the party himself only if he had acted with due care and attention, but it should be attributable to his counsel, if he has acted honestly, whether he has acted negligently or not.

(i) "Plaintiff" includes- (i) any person from or through whom a plaintiff derives his right to sue; 2 (ii) any person whose estate is represented by the plaintiff as executor, administrator or other representative;

Clause (i)—"Plaintiff”

Clause (8) of section 2 of old Limitation Act, 1908 defined plaintiff to include any person from or through whom plaintiff derives his right to sue. Reading Article 124 along with section 2(8) old the conclusion is irresistible that to defeat the title of the plaintiff under Article 124, it is necessary to establish that the defendant had taken possession of the office adversely to the plaintiff or somebody from or through whom the plaintiff derives his title, more than 12 years prior to the institution of the suit. Limitation runs only from the date of widow's death and from the date of alienation. 110In this section, clauses (a), (e) and (i) deal not only with parties but also with those who derive a title from or through them, and also with any person whose estate is represented by the party as executor, administrator or other representative.

(j) "Period of limitation" means the period of limitation prescribed for any suit, appeal or application by the Schedule, and "prescribed period" means the period of limitation computed in accordance with the provisions of this Act

Clause (j)—“Period of Limitation” This clause has been newly inserted to the Act. In the earlier Limitation Act 9 of 1908, the term “period of limitation” was not defined.

The expression “Period of limitation” means the period of so many years or months or days prescribed by the law imposing limitation and not the period after the expiry of which no proceeding may be brought. If the day immediately preceding the last day for filing the suit is holiday, the same may be excluded in computing the period of limitation. 

(k) "Promissory note" means any instrument whereby the maker engages absolutely to pay a specified sum of money to another at a time therein limited, or on demand, or at sight;

Clause (k)—Promissory Note The terms “Promissory Note” is defined in the Negotiable Instruments Act 26 of 1881. 115 Section 4 of the Negotiable Instruments Act 26 of 1881 is as under:— 4. A promissory note is an instrument in writing, not being a bank note or currency note, containing an unconditional undertaking signed by the maker to pay a certain sum of money only to or to the order of certain person, or to the bearer of the instrument. Explanation of section 13(1) of the Negotiable Instruments Act was introduced into the Act by the Negotiable Instruments (Amendment) Act, 1919 and its effect was to bring within the class of negotiable instruments, certain promissory notes payable to order which previously were not negotiable. The fact that a promissory note which is not expressed to be payable to order is now a negotiable instrument does not make it an instrument payable to order.

Essentials of Promissory Note.

The essential elements of a promissory note may be analysed as below: (i) It should contain an agreement for payment of money and money only. (ii) The agreement must amount to an undertaking of promise and such an undertaking must be unconditional. (iii) The sum payable must be certain. (iv) The instrument must be signed by the maker of the instrument. (v) The money must be payable to or the order of a certain person or to the bearer of the instrument. (vi) It should not be a bank-note or a currency note.

When the suit is based on pronote, and promissory note is proved to have been executed, section 118(a), Negotiable Instruments Act raises the presumption, until the contrary is proved, that the promissory note was made for consideration. If plaintiff pleads that the promissory note is supported by a consideration as recited in the negotiable instrument and the evidence adduced in support thereof, the burden is on the defendant to disapprove that the promissory note is not supported by consideration other than one recited in the promissory note did pass. There is a statutory presumption of consideration in respect of the promissory note under section of the Negotiable Instrument Act. Clause showing consequences of non-payment on demand in promissory note does not amount to an agreement making the liability of the promisor conditional. It merely shows what the consequences of non-payment on demand would be and does not qualify the operation of the note. The intention of the parties is to make a promissory note and not a bond of agreement. It is submitted that for the purposes of the Limitation Act, the definition in section 2 (k) alone matters. It may include war bonds, Government Promissory Notes (5 M-1 A-1) and Municipal debentures.

(l) "Suit" does not include an appeal or an application

Clause (l)—"Suit” The word “suit” ordinarily means, and apart from some context, must be taken to mean a civil proceeding instituted by presentation of a plaint. It does not connote an appeal or an application. So also an application under section 184 of Companies Act, 1913 for rectification of a company's registers is not a suit. A petition under Arbitration and Conciliation Act, 1996 is not a suit. Claim petition filed before EI Court under section 75 of Employees State Insurance Act, 1948 is not a suit' for purposes of Limitation Act, but the claim application under Workmen's Compensation Act, 1923 is a suit though an election petition is not a suit. The word “suit” includes any legal proceedings commenced by one person against another to enforce civil right. As such the application under section 166 of Motor Vehicles Act, 1988 is a suit.

(m) "Tort" means a civil wrong which is not exclusively the breach of a contract or the breach of a trust

Clause (m)—“Tort” This clause has been introduced by the Limitation Act, 1963, for the first time. In the Repealed Act of 1908, there was no such provision.

The clause defines tort as a civil wrong which is not exclusively the breach of a contract or the breach of a trust. The protection may be against a wrong independent of contract, that is, a tort. This tort may consist of trespass or disturbance of possession, or in waste which injures the substance, or it may be a nuisance which detracts from the enjoyment or the violation of an easement; and where the property is of a special character, as a patent or copyright. In trade-name or trade-mark, there may be a fraudulent use of this which requires prevention.

Salmond (The Law of Torts, 11th Edn p 15) defines “tort” as a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of a trust or other merely equitable obligation.”

(n) "Trustee" does not include a benamidar, a mortgagee remaining in possession after the mortgage has been satisfied or a person in wrongful possession without title

Clause (n)—“Trustee” -

The definition of the “trust” is to be seen in section 3 of the Indian Trusts Act, 1882 as under:—

A “trust” is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner; the person who reposes or declares the confidence is called the “author of the trust”; the person who accepts the confidence is called the “trustee”; the person for whose benefit the confidence is accepted is called the “beneficiary”; the subject matter of the trust is called “trust property” or “trust money”; the “beneficial interest” or “interest” of the beneficiary is his right against the trustee as owner of the trust property; and the instrument, if any, by which the trust is declared is called the “instrument of trust”; a breach of any duty imposed on a trustee, as such by any law for the time being in force, is called a “breach of trust”; and in this Act, unless there be something repugnant in the subject or context, “registered” means registered under the law for the registration of documents for the time being in force; a person is said to have “notice” of fact either when he actually knows that fact, or when, but for wilful abstention from inquiry or gross negligence, he would have known it, or when information of the fact is given to or obtained by his agent, under the circumstances mentioned in the Indian Contract Act, 1872, section 329; and expression used herein, and defined in the Indian Contract Act, 1872, shall be deemed to have the meanings respectively attributed to them by that Act.

The Trust Act sets and trusts property and other obligations in the nature of a trust. Persons who hold properties falling under the latter category are not trustees in the strict sense of the term but they are quasi-trustees, and the definition given in section 2(11) Limitation Act, is worded in the way it is to cover all such obligations.

A benamidar has a fiduciary relation analogous to that of a trustee and maybe trustee in a general sense but he is not so for the purpose of Limitation Act as the definition of a trustee in section 2(11) does not include a benamidar. Section 10 which contemplates an express trust for specific purpose can, therefore, have no application to him. A mortgagee remaining in possession after satisfaction of the mortgage debt is not a trustee within the meaning of section 2(m). A receiver appointed under the order of the court is a trustee and cannot avail himself of the statute of Limitation. A banker and a customer do not stand in the relation of trustee and cestui que trust but only of a debtor and creditor. But a guardian appointed under the Guardians and Wards Act is a trustee. A trespasser ab initio cannot be said to be a trustees within the meaning of the clause (m) of section 2.

                                                           Chapter 5

                       LIMITATION OF SUITS, APPEALS AND APPLICATIONS

Section 3

1. 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.
2. For the purpose of this Act-- a suit is instituted ---

• in an ordinary course, when the plaint is presented to the proper officer;
• in case of a pauper , when the application for leave to sue as a pauper is made; and
• in the case of a claim against a company which is being wound up by the court, when claimant first sends in his claim to the official liquidator;
• any claim by way of set off or counter claim, shall be treated as a separate suit and shall be

deemed to have been instituted--

• in the case of set-off, on the same date as the suit in which the set off is pleaded
• in case of counter-claim, on the date on which the counter claim is made in the court.

Section 3 of the Limitation Act enjoins a court to dismiss any suit instituted, appeal preferred and application made, after the period of limitation prescribed therefore by the Schedule irrespective of the fact whether the opponent had set up the plea of limitation or not. It is the duty of the court not to proceed with the application if it is made beyond the period   of limitation prescribed. The court had no choice and if in construing the necessary provision of the Limitation Act or in determining which provision of the Limitation Act applies, the subordinate court comes to an erroneous decision, it is open to the court in revision to interfere with that conclusion as that conclusion led the court to assume or not to assume the jurisdiction to proceed with the determination of that matter.

Decree not a nullity- Even if it is true that it is the duty of the court to take note of the provisions of S. 3 of the Limitation Act and to dismiss a suit when it is found that it is barred by limitation, if the court without taking note of the said provisions decides a suit on merits, the decree is not a nullity. It is merely an error of law which can be rectified in the manner provided by the code of Civil Procedure. The decree or order cannot be held to be a nullity (Ittyavira Mathai v.VarkeyVarkey, AIR 1964 SC 907)

Section 3 limits the time after which a suit or other proceeding would be barred. The right to sue and the commencement of the running of time for purpose of the limitation depend on the date when the cause of action arose. Cause of action is a fact or combination of facts that gives a person the right to seek judicial redress or relief against another. Section 3 bars only the institution of suits, application and appeals, and the period within which the same has to be filed. But so far the defense is concerned there is no such limitation. There can be no period of limitation for acts which the courts are bound to perform.

Section 2 (j) Prescribed Period- “period of limitation” means the period of limitation prescribed for any suit, appeal or application by the Schedule, and “prescribed period” means the period of limitation computed in accordance with the provisions of this Act; (Assam Urban Water Supply & Sewerage Board v/s Subash Projects & Mktg. Ltd., (2012) 2 SCC 624)

The limitation Act does not extinguish a right but it only bars the remedy.  In a case   of Bombay Dyeing & Mfg. Co. Ltd. v. State of Bombay, AIR 1958 SC 328, it was held by the Supreme Court in Para 21, “It has been already mentioned that when a debt becomes time-barred, it does not become extinguished but only unenforceable in a court of law. Indeed, it is on that footing that there can be a statutory transfer of the debts due to the employees, and that is how the Board gets title to them. If then a debt subsists even after it is barred by limitation, the employer does not get, in law, a discharge there from. The modes in which an obligation under a contract becomes discharged are well-defined, and the bar of limitation is not one of them”.

The following passages in Anson's Law of Contract, 19th Edn. p. 383, are directly in point: “At Common Law lapse of time does not affect contractual rights. Such a right is of a permanent and indestructible character, unless either from the nature of the contract, or from its terms, it be limited in point of duration. But though the right possesses this permanent character, the remedies arising from its violation are withdrawn after a certain lapse of time; interest reipublicaeut sit finis litium. The remedies are barred, though the right is not extinguished. And if the law requires that a debtor should get a discharge before he can be compelled to pay, that requirement is not satisfied if he is merely told that in the normal course he is not likely to be exposed to action by the creditor”

It is not open to the parties to waive  or contract themselves the period of limitation. It   is however open to the defendant to give consent even in respect of a time-barred claim. In considering whether a suit or proceeding is barred by limitation, the court will be entitled to look into admission of the parties.

ShrimantShamraoSuryavanshiv.PralhadBhairobaSuryavanshi, (2002) 3  SCC  676-  It is, therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part-performance of the contract to protect his possession, though he may not be able to enforce that right through a suit or action.

Section 4 - 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.

Section 4 has nothing to do with period of limitation. It does not add to the period of Limitation. It only extends the concession that is notwithstanding that the period of limitation expires on a day when the court is closed suit appeal or application may be filed on the day on which the court reopens.

Section 5- Extension of prescribed period in certain cases-- Any appeal or any application other than an application under any of the provisions of order 21 of the CPC, may be admitted after the prescribed period, if the appellant or applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation – The fact that appellant or the applicant was mislead by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be a sufficient cause within a meaning of the sub-section.

This Section applies to Criminal Appeal as well.

Delay in filing Criminal Appeal should be excused when where it was erroneously filed in another court. Criminal Procedure Code is not a special law within the meaning of Section 29 but it is a general law relating to procedure.

Appeal under Criminal Procedure Code – The delay in filing appeal against acquittal can be condoned under section 5. But sufficient cause must be established to condone the delay by the appellate court. (Ajay Gupta v. Raju Rajendra Singh Yadav 2016(3) JBCJ 187 (SC))

Some of the instances where delay may be condoned:

(a) Subsequent changes in law.

(b) Illness of party.

(c) Party being a woman or a pardanashin lady.

(d) Imprisonment of party.

(e) Minority, if sufficient.

(f) Poverty or lack of funds.

(g) Party being a Government Servant.

(h) Delay due to pendency of writ petition.

(i) Revision application cannot be treated as appeal.

(j) Two appeals in one suit and one is dismissed whereas other is barred by time, the benefit of section 5 can be given.

(k) Application for leave to appeal in forma pauperis.

(l) Illiterate or ignorant.

(m) Conflicting legal advices resulting in delay of 205 days.

Limitation Act 1963-- Sections 4 and 5-- Limitation-- Extension of period-- Section 5 of Act which deals with extension of prescribed period in certain cases, applies only to appeals or applications and not to suits.--- No court of Tribunal can extend period of limitation for filing a suit--- Even if any cause beyond control of plaintiff is shown also, only extension is permitted under Section 4 of the Act, period coming under court holiday.

Application for setting aside ex-parte decree cannot be allowed without condoning the delay. In this case no application was filed for condonation of delay in filing a petition under Order 9 R 13 of CPC, whereas there was delay of two years in filing the application. (Rajesh Kumar v. Smt. Indu Devi 2016(4)JBCJ (HC))

State of West Bengal v. W.B. Judicial Service Association, 1990 (2) Cal. L.J. 73 - In  this division bench judgement the court speaking through A.M. Bhattacharjee, J observed the following:

The doctrine of equality and rigid adherence to the said doctrine notwithstanding, the Government can be classified as a distinct and separate group to warrant different treatment in the section 5 of the Limitation Act.

The court made reference to the decisions in G. Ramegowda v. Special Land Acquisition Officer (1988(2)SCC142) and Collector, Land Acquisition v. Katiji (AIR 1987 SC 1353) to state the following reasons for adopting a liberal approach towards the Government:

1. If appeals or other proceedings initiated by the Government are lost, no person is individually affected; but what in the ultimate analysis suffers is public interest. The decisions of the Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals.
2. Government decisions are proverbially slow, encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. On account of impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with note- making file-pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand, though more difficult to approve.
3. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision-making process. It might therefore be somewhat unrealistic to exclude these factors which are peculiar to and characteristic of the functioning of the Government.
4. While a private person can take instant decision, a “bureaucratic organ hesitates and debates, consults and considers, speaks through paper, moves horizontally and vertically till at least it gravitates towards a conclusion—unmindful of time and personality.”
5. A certain amount of latitude is, therefore, not impermissible and it is rightly said that those who bear the responsibility of the Government must have “little play at the joints”. It would perhaps be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters.

Also, in a concurrent opinion delivered by S.K. Mookerjee, J, it was emphasised that

“It is well settled that the duty of the appellant in case of a time barred appeal to explain the delay sufficiently does not relate to the period prior to the date of limitation.” And as held in Collector, Land Acquisition v. Katiji (AIR 1987 SC 1353), “refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that cause would be decided on merits after hearing the parties”

Condonation of delay in filing appeal can be decided only after hearing both the parties.

Order 22, Rule 9 (3) the consideration of condonation of delay under section 5 of the Limitation Act and for setting aside abetment under order 22 CPC are entirely different and the court always liberally considers the latter though in some cases the court may refuse to condone the delay in filing the appeal.

A competent civil court has power to pass an interim order of injunction pending hearing of application under Section 5 of the Limitation Act.

Examination of witnesses not necessary-The application for condonation of the delay is not required to be considered on the basis of the evidence of witnesses. The application is to be decided on affidavits. Application for condonation of the delay under S.5 ought not to be dismissed by a non-speaking order.

Manindra Land and Building Corporation v. Bhutnath Banerjee, (1964) 3 SCR 495: AIR 1964 SC 1336) -Section 5 of the Limitation Act empowers the court to admit an application, to which its provisions are made applicable, even when presented after the expiry of the specified period of limitation if it is satisfied that the applicant had sufficient cause for not presenting it within time. The court therefore had jurisdiction to determine whether there was sufficient cause for the appellants not making the application for the setting aside of the abatement of the suit in time and, if so satisfied, to admit it.

National Insurance company v. Smt. Runiya Binha, 2008(3) JCR 456(Jhr) - O41 R3A Requirement of filing condonation application along with the memo of appeal is mandatory.-- Court to grant condonation of delay in filing appeal only in exceptional cases.

Special Tehisldar, Land Acquisition Kerala v. K.V. Aiyusuma, 1996(10) SCC 634

In this case, the Government was seeking condonation of delay.  The Supreme Court   held that while it is true that section 5 envisages explanation  of the delay to the satisfaction  of the court and there should not be any distinction made between the State and the citizen. Nevertheless adoption of strict standard of proof would lead to grave miscarriage of public justice. Also, it would result in public mischief by skillful management of delay in the process of filing the appeal. Therefore, the approach of the court should be pragmatic but not pedantic.

Pundik JalamPatil v. Executive Engineer Jalgaon medium project, 2009(1) JLJR 76 SC

In this case the High Court had allowed the application filed by the respondent under section 5 of the Limitation Act, 1963 to condone the delay of 1724 days in filing appeals against the award passed by the Civil Judge in a land acquisition case.

The Supreme Court however, held that:

The incorrect statement made in the application seeking condonation of delay itself is sufficient to reject the application without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay. That a party taking a false stand to get rid of the bar of limitation should not be encouraged to get any premium on the falsehood on his part by condoning delay.

Section 5 of the Limitation Act provides for extension of prescribed period of limitation in certain cases and confers jurisdiction upon the court to admit any application or any appeal after the prescribed period if it is satisfied that the appellant or applicant had sufficient cause for not preferring such appeal or application within the prescribed period.

The court referred to Ramlal and others v. Rewa Coalfields Ltd. [ AIR 1962 SC 361] wherein it was said that, “ even if the sufficient cause has been shown a party is not entitled   to the condonation of delay in question as a matter of right. The proof of a sufficient cause is    a condition precedent for the exercise of the discretionary jurisdiction vested in the court by section 5. This aspect of the matter naturally introduces the consideration of all facts and it is at this stage the diligence of the party of its bona fides may fall for consideration.”

Sufficient Cause

The expression “sufficient cause” deserves to receive a liberal construction striking a just and equitable balance between the right secured by the respondent as a result of the expiry of the prescribed period of limitation and the injustice of depriving the appellant of adjudication of his grievance on the merits of the appeal, for causes beyond his reasonable control. It means cause which is bona fide. An act which is done in good faith is bona fide. A party suffering from low blood pressure and medically advised not to move, he acts in good faith, but time taken in proceedings for getting ex parte order set aside cannot be excluded under section 5 of Limitation Act. “Sufficient Cause” is the cause for which party could not be blamed for his absence. “Sufficient Cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”.

The meaning of sufficient cause is that sufficient reason has to be explained in the application and affidavit for taking the benefit of section 5 of the Limitation Act, 1963. If that has not been done a party is not entitled for any benefit.

The expression “sufficient cause” under section 5 of the Act must receive a liberal construction so as to advance substantial justice. The courts should adopt a liberal approach while dealing with an application under section 5 of the Act. Section 5 of the Indian Limitation Act, 1963 confers power to condone delay if the applicant is successful in showing that he was prevented from preferring the appeal for sufficient cause. It is the sufficient cause which gives jurisdiction to a Court to condone the delay. Normally, after the expiry of the period right to sue extinguishes and the other side acquires right which normally should not be disturbed. Only in case of proving a sufficient cause the applicant is entitled to continue the litigation further. The expression “sufficient cause” employed by the Legislature is elastic to enable the Court to apply the law in a meaningful manner. While deciding application under section 5, Limitation Act, justice-oriented approach is required to be adopted. In Collector, Land Acquisition, Anantnag v Mst Katiji, the Supreme Court held thus—

………… The expression “sufficient cause” employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such liberal approach is adopted on principle as it is realized that:—

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

 3. “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner.

 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk…………

Where the petitioner has not come with bona fide reasons to condone the delay, he is not entitled to be shown any indulgence. The extent of liberal construction should not be such that it may totally ignore the public policy on which the law of limitation is founded and thereby defeat the very purpose of the law of limitation. The Court would not grant exemption from limitation on equitable consideration or on the ground of hardship.

There are always two parties to a litigation before the Court and in adopting an over sympathetic approach which would result perhaps in an over liberal situation in matters of condonation of delay, that a Court would be doing injustice to the opposite party. The concept of doing justice requires even handed treatment to both the litigants and goes against the principle of bending over backwards in favour of one of them at the expense of the other one. Once the period of litigation has elapsed, a corresponding right accrues to the opposite party. After expiry of the period of limitation, the other side acquires right and while dealing with the application for condonation of delay under section 5 of the Act, the Court ought not to be light hearted, so to disturb the legal right accrued to the opponent owing to the neglectful attitude of the appellant in preferring the appeal within the period of limitation prescribed therefor. The condonation of delay is not a matter of right. Even if the sufficiency of cause is shown, the court has discretion for not condoning the delay, but such a discretion, of course, would not be arbitrary or fanciful.

Unless the Court comes to the conclusion that there was intentional delay in making application or filing appeal or there was gross negligence on the part of the litigant for not approaching the Court after coming to know of the proceedings to be filed, the delay under section 5 of the Limitation Act should normally be condoned. Where the Consolidation Officer in view of the controverted affidavit permitted the parties to contest the matter and file objection, condoned the delay in filing objection, the Dy Director of Consolidation was held not justified in reversing the order passed by the Consolidation Officer for condoning the delay on irrelevant consideration.

In cases involving the State and its Agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision-making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for the condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest.

Even the inter departmental correspondence which is the basis for condonation of delay cannot be said to be basis for condonation of delay.

The provisions of law of limitation must be applied to all persons equally and uniformly. The Government departments or local authorities cannot claim privilege in that regard and they must be treated at par with the private individuals. However, the fact of life also cannot altogether be ignored as a body private or an individual takes a decision one way or other almost instantaneously, but a democratic department or bureaucratic authority hesitates, halt, discusses and debates, considers and consults, peep through papers and files, speaks through notes and draft, moves horizontally and vertically till at last it gravitates towards conclusion emergency. Hence, in absence of inaction, want of bona fide or negligence in filing the appeal, the delay should be condoned in the larger interest of justice. The principle of liberal view is to be applied only if it aids in the advancement of justice. The Court has a discretion to condone or refuse to condone the delay as is evident from the use of the words “may be admitted” in section 5. The expression “sufficient cause” has to be construed liberally so as to advance a substantial justice. “Sufficient cause” is to be liberally construed when no negligence or inaction or want of bona fide is imputable to a party. There is no presumption that delay in approaching the Court is always deliberate. Normally, where the applicants have not been grossly negligent nor palpably indifferent in prosecuting the case, the delay should be condoned. But if the reasons assigned show absolute carelessness or recklessness, delay cannot be condoned. “Sufficient cause” has to be of the type, which is beyond control of the party invoking the provisions of section 5 of the Limitation Act. An avoidable cause for delay by due care and attention cannot be sufficient cause. Cause attributable to negligence or inaction of the party cannot be sufficient cause.

Condonation of delay is matter of discretion of the Court. Section 5 does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is not the matter, accordingly, reason of explanation is the only criteria. Sometimes the delay of shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of very long period can be condoned where the explanation thereof is satisfactory. Ordinarily, the Court is required to take a lenient and liberal approach in appreciating and adjudicating the issue of condonation of delay so that a meritorious matter is not thrown overboard on a technical ground. However, it cannot be forgotten that a party is required to explain and account for delay in filing an application, appeal or revision. Normally, matter should be decided only on merits unless it is inevitable and the conduct of the party is blameworthy. If the Counsel had a bona fide belief in the manner indicated by him then unless there are compelling circumstances not to believe him, the explanation should normally be believed. Once the Court is satisfied that the explanation offered for the delay is either reasonable or satisfactory, the Court would be bound to condone the delay, but if the Court is not in a position to record its satisfaction that the delay was either reasonable or satisfactory, there would be no question of condoning the delay.

It is correct that the Court should be liberal in condoning the delay in filing appeal but the delay is implausible unless sufficient cause is shown. One should not be under illusion that when the Government or any other authority seeks condonation of delay by filing application the Court must invariably condone the delay irrespective of whether the delay has been sufficiently explained or not. Refusal of such prayer for condoning the delay may be treated as harsh and unjust to the State Petitioner, but in construing the provisions of law relating to limitation, any equitable considerations of hardship are out of place. Where the appellant did not take any step for filing appeal within the limitation period, the story of threats and refusal to accept applicant’s brief by the counsel were all long after the expiry of the period, there was not sufficient cause for preferring the appeal within the limitation period, the appeal filed after one year and eleven months was rejected as time-barred.

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. It is true that the petitioner cannot claim condonation of delay as a matter of right. But it is equally true that the Courts while deciding such prayers should not adopt hyper- technical approach. Liberal approach should be the general rule, particularly, in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Where the delay is not intentional, it should be condoned.

To attract the provisions of section 5 of the Limitation Act a suitor is under an obligation to show that he had sufficient cause for not preferring the appeal or making application with the period of limitation prescribed under the said Act or under any other statute governing the filing of the appeals or applications. The question of existence of sufficient cause is to be decided on the basis of the facts and circumstances of a particular case. The Courts have found it difficult to define precisely the meaning of sufficient cause or sufficient reason. Making such an attempt would amount to crystallisation into a rigid definition with judicial discretion which the Legislature has for the best of all reasons left undetermined and unfettered. The person invoking the jurisdiction of the Court of condonation of delay is required to satisfy the Court that he was unable to present his appeal in time on account of some misadventure or incapacity or the circumstances beyond his control or such sufficient cause which bona fide prevented him in filing the appeal within the prescribed limitation.

“Sufficient Cause” implied by the Legislature under the Limitation Act is adequately elastic to enable a Court to apply the law in a meaningful manner for the ends of justice. Therefore, in case it appears essential for the ends of justice to go into the merit of the case, it would be proper for a Court to adopt liberal approach.

It is not the law that when an application seeking condonation of delay is filed by the applicant, the Court must invariably condone the delay irrespective of the fact whether sufficient cause is shown or not. Merely because there is subsequent pronouncement of the Supreme Court favourable to the appellant would not be sufficient ground for condonation of delay.

In construing section 5 of the Limitation Act, two important considerations are relevant. The first consideration is that the expiration of the period of limitation prescribed for making an application or petition gives rise to a right in favour of the decree holder to treat the decree as binding between the parties; when the period of limitation prescribed has expired, the decree holder has obtained a benefit under the law of Limitation to treat the delay as beyond challenge and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration, which cannot be ignored is that if sufficient cause for excusing the delay is shown, discretion is given to the Court to condone the delay in filling the application or petition. It is no doubt true that the law of limitation may harshly affect a particular party. But, then, it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds. Mere paucity of funds or old age of applicant cannot be considered to be reasonable or any satisfactory explanation for the condonation of delay.

Section 5 gives the Court a discretion in respect of jurisdiction, to be exercised in the way in which judicial power and discretion ought to be exercised upon principles. This discretion like other judicial discretions must be exercised with vigilance and circumspection according to justice, common sense and sound judgment. Delay cannot be excused as a matter of “judicial generosity” in any case. Its object is to advance substantial justice. It must not be exercised in any arbitrary, vague or fanciful manner. The discretion is to know through law what is just. Proof of sufficient cause is a condition precedent for the exercise of the discretionary power. If it is not proved the Court has no choice and the application for condonation has to be dismissed on that ground alone. The discretion may be exercised against a person even if sufficient cause is shown. The Court should strike a just balance between the right secured by the respondent as a result of the expiry of the prescribed period of limitation and the injustice of depriving the appellant of his grievance on the merits of his appeal for causes beyond his control. The true guide for a Court is whether the appellant or applicant has acted with reasonable diligence in presenting his appeal or application. While liberally exercising the discretion, the Court is burdened with the obligation to test the bona fide of the reason placed by the litigant, which should not unnecessarily cause relative hardship on the respondent also.

Whether the cause for delay is sufficient or not is essentially a question of fact and therefore, it is the duty of the Court, on appreciation of the material on record, to express its satisfaction as to the sufficiency of the explanation offered by the petitioner. Therefore, an order made under section 5 of the Limitation Act condoning the delay without assigning any reasons and particularly without recording the satisfaction of the Court as to the “sufficient cause” cannot be said to be in accordance with law. A learned single Judge of Gujarat High Court has laid down the following aspects to be considered while deciding application under section 5 seeking condonation of delay—

(i) refusal to condone the delay whether is likely to defeat the meritorious matter and the cause of justice;

(ii) whether the approach of the Court would be considered as highly technical view in the matter under consideration;

(iii) when a substantial justice versus other technical consideration are pitted against each other, the cause for substantial justice deserves to be preferred;

(iv) non-deliberate delay element or explained inaction on the part of a lawyer or advocate’s clerk whether emerges on record;

(v) attitude of resisting party when restoration is prayed or delayed proceedings has been instituted including bona fide;

(vi) whether it is easy and/or practicable for the Court to condone the delay by awarding  reasonable amount of costs or by adopting other legal device or methods or imposing certain  conditions;

(vii) if the condonation of delay prayed is not accepted whether it is likely to put the resisting party to a great advantages which may damage the basic need and trend to do substantive justice. A good cause whether should be permitted to turn into a bad cause.

What constitutes sufficient cause is not defined under the Limitation Act. In Shakuntala Devi Jain v Kuntal Kumari, (1969) 1 SCR 1006 : AIR 1969 SC 575) the Supreme Court held that unless want of bona fides of any inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. The Court may refuse to condone the delay if it finds that there are no bona fides in the applicant’s attempt to show cause for the delay or that the appellant is guilty of either inaction or negligence. General delay always be condoned but in cases where it is shown that the party seeking condonation of delay acted with gross negligence in prosecuting his case, the Court has always got the discretion which is vested in it under section 5 to consider the same on its merits.

The Court should be liberal in condoning the delay but any such liberal approach cannot possibly step beyond the legal parameters to justify orders of condonation even in cases where no explanation whatsoever is offered. Public interest is bound to be affected in cases where awards are made against the Government in Governmental agencies, which, if challenged in appropriate proceedings within the time permitted by law may have been set aside or modified, but then the duty is to ensure that there is no injury to public interest. If the Government or its department did not show sufficient care and seriousness in matters involving serious consequences, the consequential injury to public interest shall have to be attributed to them alone.

In Binod Bihari Singh v UOI, (1993) 1 SCC 572 : 1993 AIR SCW 475 : AIR 1993 SC 1245) it was held that a pragmatic view should be taken by the Court in considering sufficient cause for condonation of delay under section 5. It was held that when the party has come with a false plea to get rid of the bar of limitation, the Court should not encourage such person by condoning the delay and result in the bar of limitation pleaded by the opposite party being defeated. In Shakambari and Co v UOI, (1993) Supp (1) SCC 487 : 1992 AIR SCW 2462 : AIR 1992 SC 2090) a Bench of three Judges of the Supreme held that delay caused in filing the appeal due to fluctuation in laying down the law was held to be a sufficient cause and delay of 14 days was condoned. In Ram Kishan v UP State Roadways Transport Corpn., (1994) Supp (2) SCC 507,  the Supreme Court had held that although the story put forward by the applicant for not filing the application for compensation under the Motor Vehicles Act within the period of limitation was not found convincing but keeping in view the facts and circumstances and cause of justice, the delay was condoned and the matter was remitted to the Tribunal to dispose it on merits.

Where “sufficient cause” is shown condonation of delay would not be refused merely because in a similar case delay was not condoned. Where the question of condoning delay arises, it is true that the Court has to be liberal in condoning the delay but delay is inexcusable unless sufficient cause is shown. It is not the law that when an application seeking condonation of delay is filed by the State or any authority, the Court must invariably condone the delay, irrespective whether sufficient cause is shown or not.

“Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.” (Ramlal, Motilal and Chotelal v Rewa Coalfields Ltd AIR 1962 SC 361 (363-64): (1962) 2 SCR 762: 1961 (2) SCJ 556.)

Their Lordships of the Supreme Court in UOI v Ramcharan, (AIR 1964 SC 215 (219) : (1964) 3 SCR 467 : 1964 2 SCJ 324) observed thus:— There is no question of construing the expression “sufficient cause” liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent. The provisions of the Code are with a view to advance the cause of justice. Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be overstrict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance. This, however, does not mean that the Court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinize it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellant’s default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement.

The extension of period under section 5 of the Limitation Act can be granted, where the reasons for the delay satisfy the Court. Mere filing an application for condonation of delay would not be sufficient. (B Krishna Murthy v B Vishnu Murthy, 2001 AIHC 976 (978) (DB) (AP); Gangadurai v Suseelammal, AIR 1995 Mad 133; Transworld Shipping Services India Pvt Ltd v Harwan Investment & Trading Pvt Ltd, AIR 1989 AP 255 : (1989) 1 APLJ (HC) 547; Babu Ram v DevinderMohan, AIR 1981 Del 14) The Supreme Court in Ramlal, Motilal and Chotelal v Rewa Coalfields Limited, (Ramlal, Motilal and Chotelal v Rewa Coalfields Limited, AIR 1962 SC 361 (363, 364) : (1961) 2 SCJ 556 : (1962) 2 SCR 762) held that in construing section 5 of Limitation Act, two considerations are relevant. The first is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decreeholder to treat the decree as binding. The other consideration is that if sufficient cause for excusing the delay is shown, discretion is given to the Court to condone delay and admit the appeal. The proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by section 5. At that stage diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.( B Krishna Murthy v B Vishnu Murthy, 2001 AIHC 976 (978) (DB) (AP)) Normally in condonation of delay petitions and the petition to set aside the order, the Court would show some indulgence. (D Amudhavalli v N Arunachala Nadar, 1998 AIHC 1612 (Mad)). The provisions of section 5 should be liberally construed and rights of the parties as far as possible should be decided on merits. (Ambika Prasad v Commr, Jhansi Division, Jhansi, 1995 AIHC 579 (580) (DB) (All)). Explanation for the period prior to the period of delay is not required.

‘There is no presumption that delay in approaching the court is always deliberate’. The question of existence of sufficient cause is to be decided on the basis of the facts and circumstances of each particular case The sufficient cause must be a cause which is beyond the control of the party invoking the aid under section 5 and the test to be applied would be to see as to whether it was bona fide cause, inasmuch as nothing can be considered to be bona fide which is not done with due care and attention.(Victor Albuquerque v Saraswat Co-op Bank Ltd, AIR 1998 Bom 346 (350) : 1998 (3) Civ LJ 649 : 1999 (1) Cur CC 248) Merely by stating that the time was consumed in the processing work, consultation and obtaining the necessary sanction, will not provide any sufficient cause to the petitioner for condoning the delay.

“Sufficient cause” is a concept in law depending on facts and circumstances of each case. A straightjacket formula cannot be adopted to find out what constitutes sufficient cause. The parameters adopting, which the Court considers sufficient cause preventing the appellant in filing appeal within time, should be pragmatic but not dogmatic depending on facts and circumstances of each case. (Grid Co Ltd of Orissa v NTPC Ltd, 96 (2003) Cut LT 550 (557) (Ori))

Where “sufficient cause” for the delay in filing appeal is not shown, the delay would not be liable to be condoned. The “sufficient cause” cannot be inferred. (Vinod Kumar Thawani v Firm Ganeshilal Gulabchand, AIR 2008 (NOC) 766 (Chh), SA No 213 of 2007 dated 26November 2007; see also United India Insurance Co Ltd v Madhabi Kalita, AIR 2008 (NOC) 767 (Gau); Jagjit Singh v Hari Dev Bansal, AIR 2008 (NOC) 1366 (P&H); Pawan Goel v KMG Milk Food Ltd, AIR 2008 (NOC) 1367 (P&H); Kolkata Municipal Corpn v Kanak Projects Ltd, AIR 2008 Cal 175 : 2008 (6) AKAR (NOC) 909; Ram Dayal v State of Himachal Pradesh, AIR 2008 (NOC) 2610 (HP); Waghjai Devi E Trust v Sanjeev Kashinath Vare, AIR 2007 (NOC) 740 (Bom) : 2007 (1) AIR Bom R 700; Santosh v Tekchand, AIR 2007 (NOC) 1204 (Del); Parwati Devi v Nirakhni Devi, 2005 AIHC 2536 (Pat); State of Haryana v Dal Chand, 2008 AIHC 2404 (P&H); Roshan Lal v Kewal Singh, 2008 AIHC (NOC) 909 (P&H)). It is true that the expression “sufficient cause” cannot be construed too liberally, merely because the party is the Government. Whether it is a Government or a private party, the provisions of law applicable are the same, unless the statute itself makes any distinction. But it cannot also be gainsaid that the same consideration that will be shown by courts to a private party when he claims the protection of section 5 of the Limitation Act, should also be available to the State.

Existence of sufficient cause is the condition precedent in exercise of this discretion while deciding the application under section 5 of the Limitation Act. Question of diligence or bona fide is to be considered thereafter. It was held by various judicial pronouncements, that “sufficient cause” means a cause beyond the control of party invoking the aid of this section. (Oriental Insurance Co Ltd v Kailash Devi, AIR 1994 P&H 45 : 1994 (2) ACC 326 : 1995 (1) ACJ 212)

The “sufficient cause” within the meaning of section 5 of the Act should receive liberal construction so as to advance substantial justice, when no negligence or inaction or want of bona fides is imputable to a party. (Amrutvahini Nagari S Bank Ltd v Dada AK Shaikh, 2006 AIHC 1677 (Bom); Ram Nath Sao v Govardhan Sao, AIR 2002 SC 1201 : (2002) 3 SCC 195 : 2002 AIR SCW 978 relied on, see also Harinder Pal Singh v Sukhwant Kaur, 2006 AIHC 1790 (P&H))

In the application seeking condonation of delay in moving the application for substitution of parties, who die during the pendency of civil appeal in the High Court, the approach has to be, as observed by the Supreme Court in Bhagwan Swarup v Mool Chand ((1983) 2 SCC 132 : AIR 1983 SC 355 : 1983 2 SCWR 1) and Hans Raj v Sunder Lal Agarwal ((1982) 1 SCC 476). It is the High Court which has to satisfy itself that the petitioner has made out sufficient cause which prevented him from moving the application for substitution in time, and not the trial court. The High Court may call for report of the trial Court, but then it cannot adopt the approach of a Court exercising revision at jurisdiction. It must examine the material collected by the trial Court and come to its own conclusion. It is impermissible for it to say that it is not persuaded to take a different view from the one taken by the trial court. Secondly once an appeal is pending in the High Court, the heirs are not expected to keep a constant watch on the continued existence of the parties to the appeal before the High Court which has a seat far away from where parties in rural areas may be residing. And, in a traditional rural family, the father may not have informed his son about the litigation in which he was involved and was a party. Rules of procedure are designed to advance justice and should be so interpreted, and not to make them penal statutes for punishing erring parties. (1984 All LR 702)

Ex Parte award, setting aside of The delay in filing application for setting aside an ex parte award cannot be condoned under section 5 of the Act. (BU & RD Co-operative Milk PS Union Ltd v H Hanumanthappa, AIR 2011 Kant 122). Where an appeal against ex parte decree was filed with a delay of 717 days, the reason for the delay assigned was that one of the Directors of the defendant company had gone out of India in connection with the treatment of his wife and as such could not contact his counsel in India and the application was rejected as no sufficient cause was shown, thereafter condoning delay in filing application under O IX, rule 13 of CrPC was held wholly unjustified and improper. (VS Shankari Sakhar Karkhana Ltd v BBC ‘N’ Engg Pvt Ltd Co, 2001 AIHC 1266 (1270, 1271) (Bom)

Order under section 5 — Whether Revisable An order condoning delay in filing appeal is not an interlocutory order; revision against the order is maintainable. (Ranjana Ravi Panda v Sanjay Kumar Panda, AIR 2017 Ori 25) An order rejecting the memorandum of appeal following rejection of application for condonation of delay in filing the appeal under section 5 of the Limitation Act, would not be a decree passed in appeal and hence, second appeal would not lie under section 100 of CPC and order would be revisable under section 115 of CPC. (Hubli-Dharwad Municipal Corpn, Commissioner v Shrishail, AIR 2004 Kant 75 : 2004 AIHC 671 (674) : 2004 (1) CCC 78 (FB)). An order rejecting an application for condonation of delay is not open to revision. (Chandrakant Govind Sular v MK Associates, 2003 AIHC 1743 (1745) (Bom)) Where the Court in exercise of its discretion condones the delay, the revisional Court would be slow to interfere with such discretion. (Elugu Sudhakar v State of Andhra Pradesh, 2003 (3) CCC 319 (320) (AP); Ghulam Qadir Malik v J&K Special Tribunal, 2003 (3) CCC 287 (J&K); Ram Chandar v Deputy Director of Consolidation, Azamgarh, 2004 All LJ 92 (All)). In the absence of sufficient reasons, the revisional Court would not interfere with the order passed by the Court below condoning delay. (Sadananda Bhat v Manika Vaidyar, 2002 (2) KLT SN 33 (Ker)) Once the Court accepts the explanation as sufficient and is the result of positive exercise of discretion, 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 a 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 untrammelled by the conclusion of the lower Court. (N Balakrishnan v M Krishna Murthy, AIR 1998 SC 3222 (3224) : (1998) 7 SCC 123 : 1998 AIR SCW 3139) The rejection of application under section 5 in a case decided within the meaning of section 115 of CPC, therefore revision lies. (1961 MPLJ (Notes) 17.) But in Allahabad High Court case, (Hari Ram v Zila Parishad, AIR 1967 All 463 : 1966 All WR (HC) 622 : 1967 All LJ 571) it was observed that whether a claim is barred or not is a decision of the case on merits. The propriety of an order of the Authority admitting an application under the second proviso to section 15(2) of Payment of Wages Act after the prescribed period of 6 months can be challenged in an appeal. No revision lies.

Interference in Revision/Writ While considering the application for condoning the delay, the superior Court does not ordinarily disturb the order of the lower Court accepting the explanation as sufficient cause unless the exercise of discretion is wholly arbitrary, perverse and untenable. (Pushpagiri Murti v Chintakunta Erikala Reddy, 2001 AIHC 196 (198) (AP)).  If the lower Court refuses to condone the delay, the superior Court should consider the cause shown for the delay afresh and come to its own finding ignoring the conclusion of the lower Court.

As a whole, Order 21 C.P.C. relating to execution has been specifically excluded from the

purview of the Section 5 of Limitation Act.

Chapter 6

DISABILITIES OF DIFFERENT KINDS UNDER THE ACT

SECTION 6---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 ceases, as would otherwise have been allowed from the time specified therefore in the third column of the Schedule.

1. Where such person is, at the time from which the prescribed period it to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so specified.
2. Where the disability continues up to the death of that person, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified.
3. Where the legal representative referred to in sub-section (3) is, at the date of the death of the person whom he represents. affected by any such disability, the rules contained in sub-sections (1) and (2) shall apply.
4. Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died.

Explanation - For the purposes of this section 'minor' includes a child in the womb.

This section will not grant indulgence to a minor entitled to prefer an appeal; it provides only for suits or applications for execution of decree. Section 6 does not cover a case of an application under O 21 R 90 CPC to set aside a sale held in execution of a decree. Nor does it apply to an application for the readmission of an appeal under O 41 R 10 of the CPC. Sections 6,7 and 8 from a group, they supplement each other and are not exclusive.

The burden of proof that suit brought on his attaining majority within three years is within time is on the plaintiff.

Ingredients for application of the section are.—

(a) The applicant entitled to sue or apply should be under disability.

(b) The disability should be minority, insanity or idiocy.

(c) The proceeding should be either a suit or an application for execution of decree.

(d) The limitation for such a period should have been prescribed in the third column of the

schedule to this Act.

(e) The applicant should be one entitled to sue or apply at the time from which the period  prescribed to be reckoned.

(f) At the time for which the period is to be reckoned, disability should have existed.

Section 6 of the Limitation Act would apply to the case of a child in the womb. A child in the mother’s womb is deemed to be in existence, at least for purposes of inheritance and has thus a right to challenge any transaction which affects its interest at the time. If so, it has a right of action or a cause of action in respect of the said transaction and is entitled to institute a suit upon the same and, as such a child, as aforesaid cannot, under the Indian Majority Act be held to be a minor, it must be held to be a minor that is, a person suffering from disability, as contemplated in the section.

Section 7-- 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 when 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.

Narayan v. Babasaheb, 2016(2) JBCJ 415 (SC): (2016) 6 SCC 725

Facts : A Hindu man who was the original owner of the ancestral property died leaving his two sons, one being minor, alongwith four daughters and his widow. A sale deed was executed by the widow (D2) in favor of one D1 on 20.1.1982 and on 28.11.1988 for the same property. In 1989, suit is filed by the sons and daughters for recovery of possession and setting aside the sale deed executed by their mother who has been arrayed D2 and the purchaser made party as D1.The first appellate court concluded that Article 60 of the Limitation Act, is not applicable to the case as the D2 is not the guardian appointed by the Court.

Question whether the suit was barred by limitation, being hit by:

Article 60 which prescribes a limitation of 3 years after the ward attains majority to set aside transfer of property made by Guardian of a ward? OR

Article 109 which prescribes a limitation of 12 years when the suit is by a Hindu governed by Mitakshara Law to set aside alienation made by father of his ancestral property.

Ans: Article 60 shall apply and not Article 109. Reason:

After the death of Plaintiff's father, their mother D2 became their natural guardian. Simply because she was not formally declared a Guardian will not alter her legal status. But at the same time, section 8 (2)(a) of the Hindu Succession Act, 1956 requires the seller or the purchaser to obtain the permission of District court for the sale. Therefore, the limitation to file the present suit is governed by Article 60 and the limitation is 3 years from the date of attaining majority.

When there are several plaintiffs, what is the reckoning date of limitation? A reading of Section 7 makes it clear that when one of several persons who are jointly entitled to institute  a suit or make an application for the execution of the decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against all of them but where no such discharge can be given, time will not run against all of them until one of them becomes capable of giving discharge.

Further, as per Explanation II appended to section 7, the manager of a Hindu undivided family governed by Mitakshara Law shall be deemed to be capable of giving a discharge without concurrence of other members of family only if he is in management of the joint family property. The three sisters though major on the date of institution of property, were not the manager or karta of the property. Therefore, explanation II will not be applicable.

Section 8-- Special exceptions--Nothing in section 6 or in section 7 applies to suits to enforce rights of pre-emotion, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application.

The combined effect of s. 6, and s. 8 read with the third column of the appropriate Article of the Limitation Act would be that a person under disability may sue within the same period as would otherwise be allowed from the time specified therefore in the third column of the schedule but the special limitation as an exception has been provided in s. 8 laying down that the extended period after cessation of disability would not be beyond three years of the cessation of disability or the death of the disabled person.

Kolandavel Goukderv Chinnapan, AIR 1965 Mad 541

Facts: Some joint family property was sold by the father acting for himself and on behalf of his minor sons in 1940 and the purchaser made further sale in1942. Possession passed from father to the alienee on 17.8.1942. In this suit filed on 9.1.1958 by the sons (who had been born in 1928, 1931 and on 13.8.1937) it was contended that the period of limitation i.e 12 years ( as provided by Article 126) should be counted from the date of the youngest son attaining majority or in the alternative, when the first son becomes the manager of the property after the death of his father in April, 1948 so that he became capable of giving discharge on behalf of his brothers also. In the light of this, the period will start running against them all only from April,1948.

Held: On a reading of Ss. 6, 7 and 8, it is clear that S. 8 imposes a limitation on the concession provided under Ss. 6 and 7 to a maximum of three years after cessation of the disability. Therefore, the period of three years would start running from the day of the eldest son attaining majority in 1946. Thus, the suit is barred by limitation.

Section 8 is ancillary to and restrictive of the concession granted in Ss 6 and 7 and does not confer any substantial privilege. This section is in the nature of proviso to Ss 6 and 7.

Section 9 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.

Limitation cannot run unless the cause of action has arisen. A cause of action normally accrues when there is in existence a person who can sue and another can be sued, and when all the facts happened which are material to be proved to entitle the plaintiff to succeed. Where time has begun to run owing to the right to sue having accrued to a person not laboring under any legal disability, the subsequent disability of himself or his son or other representative is not a ground of exemption from the operation of the ordinary rule.

Under the ordinary law of limitation as enacted in section 9, Limitation Act, the period of limitation can be extended in three classes of cases viz. (1) where injustice 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.

The section is applicable not only to suits but also to applications in execution. Section 9 refers only to subsequent disability or inability to sue. It has nothing to do with a case where execution has been stayed by an order. The time during which execution cannot go on because of an order resulting in the stay of execution is expressly excluded by section 15 (1), whether there is in any particular case such an order or not has to be determined by reference to the facts of the particular case and the order in question. The cause of action, if accrues when plaintiff is not born, the benefit of section 6 cannot be awarded on coming of age. Even an acknowledgement during minority of heir, section 9 of the Act cannot take away the privilege given by section 18 in such a case. Section 9 would not apply where the claimant is only a trespasser.

It is a rule of the law of limitation that if once the time has begun to run, no subsequent circumstance can suspend its running or interrupt it; it is to run continuously; but it can be extended and prevented from running in cases where the person entitled to sue is affected with a disability at the date from which the period of limitation is to be reckoned; in other words, if limitation has not begun to run, disability to sue saves the running of time, but if it has commenced, running of time cannot be interrupted except in the solitary instance cited in section 9 as a proviso, or in the case of defendant’s absence out of India. Even circumstances beyond the control of the plaintiff have been held not to relax the rigour of this rule in favour of the plaintiff, for it would be mischievous to make distinctions between voluntary and involuntary disabilities. Time that had begun to run against father cannot be applied to sons at the time when they were not born.

Section 10- Suits against trustees and their representatives- Notwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested if trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof or for an account of such property or proceeds, shall be barred by any length of time.

Explanation - For the purposes of this section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trusted thereof.

Section 11- Suits on contracts entered into outside the territories to which the Act extends–

1. Suits instituted in the territories to which this Act extends on contracts entered into the State of Jammu and Kashmir or in a foreign country shall be rules of limitation contained in this Act.
2. No rule of limitation in force in the State of Jammu and Kashmir or in a foreign country shall be a defense to a suit instituted in the said territories on a contract entered into in that State or in a foreign country unless -
   1. the rule has extinguished the contract; and
   2. the parties were domiciled in that State or in the foreign country during the period prescribed by such rule.

                                                   Chapter 7

                           COMPUTATION OF PERIOD OF LIMITATION

Section 12 -. 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 complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.
3. Where a decree or order is appealed from or sought to be revised or reviewed, or when 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 a decree or an order, any time taken by the court to prepare the decree or order before an application for copy thereof is made shall not be excluded.

Sub-section (1) applies to all applications whereas sub-section (2) applies to applications of three kinds mentioned therein. Application for leave to appeal includes application for leave to appeal as an indigent person. Sub-section (2) applies even though copy is not required to be filed along with memorandum of appeal or revision or review application. Section 12 applies to all appeals irrespective of any particular statute which provides a right to appeal.

The provisions of sections 12(2) and (3) of the Limitation Act, 1963, are a positive direction excluding the time taken in obtaining a copy of the judgment and decree or order as the case may be and those provisions are irrespective of the Code of Civil Procedure or the rules made by a court under section 122 of the Code. Such rules, if they permit a memorandum of appeal to be filed without annexing thereto a copy of the judgment or decree or order, confer a privilege on a would be appellant but do not govern the positive direction contained in section 12, but no part of the section is retrospective.

It is well-settled principle of law that sections 12 and 14 provide for extension of limitation. The period provided under sections 12 and 14 are to be added to the period prescribed. If such periods taken together expire during vacation, appeal may be filed on the day on which court reopens. The limitation runs from date when suit is decreed ex parte and not from when such decree is signed.

If application for copy of judgment is made to wrong authority, no benefit can be given under section 12(2).

Before the effect of absolute terms of section 12 can be taken advantage of, it must be shown that the case on hand is one to which section 12 applies. Execution application is not such a case.

An application includes a petition. The sub-section (1) is applicable to petition also. Article 12(2) of the Indian Limitation Act does not apply to an execution petition.

Section 12(2) does not require any prayer or application on the part of a party for the exclusion of the time spent in obtaining copies, as such exclusion is made imperative by the section itself and it is the duty of the Court to exclude such time.

Requirements of the sections - It becomes very clear that to gain advantage of any period under section 12(2), the appellant must establish that he was vigilant and actively pursuing the matter in the whole of that period claimed. Naturally his activity started on applying for the certified copy and can certainly claim exclusion of that one day spent in preparing the decree in the instant case.

Exclusion of Day on which Cause of Action Arose - The day on which the obligation in the bond is to be discharged, or money under a promissory note is to be paid, or on which the contract debt is payable, or on which the agreement in question was made, is to be excluded in computing the time for bringing a suit thereon. In computing a calendar month or year it is sufficient to go from one month or year, to the corresponding day in the next, and to exclude from the computation the day “from” which the month or the year is calculated, so that two days of the same number are not comprised in it. When a sealed award sent by the arbitrator is opened by the Court in the presence of the counsel for the parties, the day on which the award is opened shall be excluded from the limitation period for filing objection under section 119(b), of the Limitation Act. A suit for recovery of loan should be filed within three years. The day from which period is to be reckoned has to be excluded in view of section 12 of the Act.

Exclusion of Time spent in Pursuing Proceedings Barred by statute –

It is well settled that all procedural laws are retrospective unless legislature expressly states to the contrary. They must be applied at the date when the suit or proceeding comes on for trial or disposal. The court is bound to take notice of the change in the law and is bound to administer the law as it was when the suit came up for hearing. If a court has jurisdiction to try a suit when it comes for disposal it then cannot refuse to resume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was instituted. In a case, where the statute is later repealed, no question of limitation would arise as time taken in the earlier suit would be excluded.

Under this section the time taken to obtain a copy of the decree and the time taken to obtain a copy of the judgment must both be excluded. If the copies of the judgment and decree are applied for at different times, both these periods should be excluded in computing the period of limitation allowed for presenting the appeal, unless the two periods overlap partially or entirely in which case the appellant is not entitled to have the deduction of the same time twice over. The time required for obtaining copies of the judgment and decree must be excluded in computing the period of limitation for an appeal, even though such copies need not, according to the rules of the High Court, accompany the memorandum of appeal. But where copies of the decree and the judgment are applied for on the same day, the longer of the two periods required for obtaining the copies should be credited to the applicant, and he is not entitled to add on to the longer of the two periods any time within the termini of the longer period.

This covers the interval between the date on which the application for copies is made and the date on which the copies are prepared and are ready for delivery. It is immaterial on which date the copies were actually delivered. But if it is not shown that the applicant was informed about the date of its being ready for delivery, the date of actual delivery is the date of its being ready. If a copy is applied for on the date that the Court closes for the annual vacation, and the same is received after the vacation, the whole time is to be deducted though the notice was posted during the vacation that copy was ready.

Where the appellant is filing with the memorandum of appeal, copies obtained by his co-defendant for his (co-defendant’s) own use, the time required by co-defendant in obtaining copies cannot be excluded.105 The time spent in obtaining a copy of the judgment or order appealed from is to be excluded in computing the limitation period prescribed for filing an appeal.

The expression “time requisite” used in section 12(4) is significant. It enjoins exclusion of the time “requisite for obtaining a copy of the award”. It does not speak of exclusion of time for obtaining certified copy of the award when the award is already in possession of the party. The explanation clearly refers only to one part of sub-section (2) of section 12 and states in what manner that part must be understood. That part is contained in the words “time requisite for obtaining a copy of the decree.” The explanation says in computing the time requisite for obtaining a copy of the decree, any time taken by a court to prepare the decree or order before an application for a copy thereof is made shall not be excluded. It means that the time taken by the court to prepare the decree or order before an application for a copy thereof is made will have to be included in computing the time requisite for obtaining a copy of the decree.

In computing the period of limitation for an appeal, a party applying to the Lower Court for a copy of the decree on the day it reopened after the holidays, is not entitled to deduct as time requisite for obtaining a copy of the decree, the period during which the Lower Court was closed when he could have made such application before the Court closed, and when on the day he actually applied the period limited for appeal had expired. But where a judgment was delivered in a case on the afternoon of the last court day before the commencement of the Christmas vacation, when it was too late to apply for a copy of the judgment, application for a copy was made on the day upon which the Court re-opened and an appeal was filed on a subsequent day which would have been in time if the period during which the Court was closed was allowed to be deducted on its being contended that inasmuch as no application for a copy had been made before the Court closed, the applicant was not entitled to have the period during which the Court was closed deducted, it was held that the appellant was entitled to deduct the period during which the Court was closed. Such period in the circumstance of the case must be taken to form part of the time requisite for obtaining a copy of the judgment. What is the time requisite for obtaining copies of decree and judgment is a question of fact depending upon the circumstances of each particular case.

Example: In a suit for specific performance of agreement, the date of performance mentioned in the agreement will be the date for reckoning the period of limitation of three years and that date has to be excluded for computing the period of limitation for three years which is the period of limitation for filing such a suit.

A suit for recovery of loan has to be filed within three years of the date of granting the loan. Hand note receipt was dated 5.9.1991 and the suit filed on 5th September 1994 would be within time because the date of hand note i.e. 5.9.1991 has to be excluded for computing the period of limitation.

The suit for recovery of money based on promissory note was filed on 16.04.2003. The note was executed on 12.04.2000. So, the suit has to be filed on 12.04.2003 as the date of execution of the promissory note has to be excluded in view of s. 12 of the Limitation Act. But from 12.04.2003 to 15.04.2003 there were general holidays. So, the suit filed on 16.04.2003 is not barred by limitation.

Time requisite for obtaining the certified copy of the judgment and decree will be excluded. The delay caused by the carelessness for negligence of the party in applying for a copy are in paying the money required for making the copy cannot be excluded from computation.

Time between judgment and signing of decree – Generally there is an interval of time between the delivery of the judgment and signing of the decree. In computing the time requisite for obtaining a copy of the decree or an order any time taken by the court to prepare the decree or order before application for copy thereof is made shall not be excluded. The interval between judgment and signing the decree cannot be excluded as the time requisite without regard to the date of application for copies. In other words that it is only the time required if the application is made that can be excluded as the time requisite.

Section 13- Exclusion of time in cases where leave to sue or appeal as a pauper is applied for –

In computing the period of limitation prescribed for any suit or appeal in any case where an application for leave to sue or appeal as a pauper has been made and rejected, the time during which the applicant has been prosecuting in good faith his application for such leave shall be excluded, and the court may, on payment of the court-fees prescribed for such suit or appeal, treat the suit or appeal as having the same force and effect as if the court-fees had been paid in the first instance.

The law provides that the time taken for obtaining the copy of judgment should be excluded in computing the period of limitation for an application for leave to appeal as an indigent person. Order XXXIII of CPC lays down the procedure for obtaining permission of the Court to sue as an indigent person and O XLIV, CPC lays down the procedure for obtaining permission to sue as an indigent appellant. Section 13 of Limitation Act, was inserted only to make the position clear on account of conflict of decisions.

Order XXXIII, rule 5 of the Code lays down the grounds on which an application to sue as an indigent person can be rejected. While O XXXIII, rule 7(3) of the Code provides that the court shall either allow or refuse to allow the applicant to sue as an indigent person after enquiring and hearing the parties, there is no provisions in the Code except amendments by two High Courts (not the Patna High Court) under which a court can allow payment of court fees with retrospective effect when the application is refused. Hence, the question arose whether the court, in such a case, could allow courtfees to be paid under section 149 of the Code, and there was a conflict of decisions of this question. This was resolved by inserting section 13 in the new Limitation Act. Even before the enactment of this Act, the Supreme Court in Mahanth Ram Das v Ganga Das, took the view that under section 149 the court had ample powers in this respect.

The section contemplates payment of court-fees after the application for leave to sue or appeal as an indigent person has been rejected. The right to pay the court-fee under section 13 has not been made subject to any permission being granted by the court at the time of rejecting the application for leave to sue or appeal as an indigent person. Section 13 now removes the difficulty which used to arise if no permission to pay court fee was granted at the time of rejecting the application, making this plea available to the other side that after rejecting the application, the Court has become functus officio and no permission to pay court-fee would subsequently be granted. The section has two parts. The first part deals with the exclusion of time spent in prosecuting the application for leave to sue or appeal as an indigent person in computing the period of limitation prescribed for a suit or appeal. The second part deals with payment of court fee after the application has been rejected and its consequences. The cumulative effect of the two parts of section 13 is that the period between the date on which the application to sue or appeal as an indigent person was made and the date on which it was rejected shall be excluded if the applicant has been prosecuting the said application in good faith and on the court-fee being paid the suit or appeal would be deemed to be a valid document as if the court-fee had been paid in the first instance. The benefit of section 13 shall not be available in those cases where either the applicant had not been prosecuting his application in good faith, or even after excluding the period during which he has been prosecuting the said application in good faith, there is some impediment which disentitles him of its benefit.

Section 14 - 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 the appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
2. In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a count of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
3. Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court of other cause of a like nature.

Explanation - For the purpose of this section, -

1. in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
2. a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
3. misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.

The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. But, when the party seeking the benefit of this section has failed to get the relief in earlier proceedings not because of any defect in jurisdiction or some other cause of like nature he cannot get the benefit of section 14. When the plaintiff has concurrent remedies and has availed one remedy and has become unsuccessful he cannot get the benefit of section 14 when instituting the second alternative remedy though section 14 does apply to appeal, the principle underlying it can be invoked in aid of sufficient cause contemplated by section 15. The benefit of this provision is not available in criminal proceeding. Execution proceeding is a civil proceeding within the meaning of S.14, the primary requirement for seeking exclusion u/s 14 is that the matter was prosecuted before a court suffering from defect in jurisdiction. Further it is necessary that the same plaintiff should be in both the suits it is not necessary that the plaintiff must have been prosecuting the previous proceeding as a plaintiff, it is sufficient if as a defendant he was urging the same case as he after words prefers as a plaintiff. It is also necessary that the defendant must be the same in both the proceeding. Due diligence in good faith needs to be established. The definition of good faith is given under S. 2 (4) of the Limitation Act, which requires the thing to be done with due care and attention. S.14 will not help a party who is guilty of negligence lapse or in action. This Section also does not apply where the previous suit was abandoned or withdrawn by the plaintiff and then a fresh suit has been filed after the period of limitation.

There is a fundamental distinction between discretion to be used under Section 5 of the Limitation Act and exclusion of time provided under Section 14 of the Limitation Act. Whereas the exclusion under Section 5 is discretionary, under S/14 it is mandatory.  If the initial filing  is due to carelessness the subsequent prosecution of the suit cannot be said in good faith. The benefit of this section can be availed only when there is initial want of jurisdiction. Where the plaintiff chooses to withdraw his suit under O 23 R 1 CPC he is not entitled to the benefit of Section 14 of the Limitation Act in a subsequent suit on the same cause of action. If a suit is withdrawn by the plaintiff under O 23 R 1 with permission to bring another suit, and a fresh suit is instituted, the plaintiff is bound by the limitation in the same manner as if the first suit had not been instituted. This is so even if the court expresses it opinion that Section 14 shall apply.

The policy of the Section is to afford protection against the bar of limitation to a man pursuing his claim in a wrong forum. The following condition must be satisfied for the application of this Section--

• Both the prior and subsequent proceeding are civil proceeding prosecuted by the same

party

• The prior proceeding had been prosecuted with due diligence
• The failure of the prior proceeding was on account of jurisdiction or subjects of like nature
• The prior proceeding and the later proceeding should be of the like nature.It applies only to proceedings before Court

J. Kumardasan Nair v. IRIC Sohan AIR 2009 SC 1333 Fact:

First Respondent obtained a decree in a suit and the said decree was put in execution vide Execution Petition No. 705 of 1977. Respondent no 2 to 6 are the heirs and legal representative of Respondent no.1. The said execution petition was dismissed by an order dated 8.7.1996.

The Judgment Debtor suffered another decree passed in original suit no. 274/82 regarding which Execution Petition No. 271 of 1986 was filed. A sale Certificate was issued in respect of suit property.

Respondent No 1 to 5 filed a second execution petition. Appellants were impleaded as Respondent 16-17. They raised objection interalia on ground of Limitation. The said objection petition was rejected.

An appeal was preferred which was held to be not maintainable by the 1st Appellate Court by an order dated 5.10.2015. However, the merit of the case was also considered.

Aggrieved by the order Execution 2nd Appeal was preferred before the Hon'ble High Court. It was held that the impugned order was not correct in entering into merit of the case despite holding that the appeal was not maintainable.

A revision petition was filed along with a petition under Section 5 of the Limitation Act for condonation of delay. However application under Section 5 was withdrawn and an application under Section 14 was filed. High Court held that the said application was not maintainable in the facts and circumstance of the case and the expression 'cause of like nature' has to be read as ejusdem generis with expression 'defect of jurisdiction' and that so construed the expression 'other cause of like nature' must be interpreted so as to convey something analogous to the preceding words 'from defect of jurisdiction'

Apex Court allowed the appeal negating the reasoning given by the High Court that Section

14 can be allowed in cases of Jurisdictional error and not otherwise.

Consolidated Engg.Enterprises v. Irrigation Department (2008)7 SCC 169

Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:

1. Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;
2. The prior proceeding had been prosecuted with due diligence and in good faith;
3. The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;
4. The earlier proceeding and the latter proceeding must relate to the same matter in issue and;
5. Both the proceedings are in a court

The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing  his best to get his case tried on merits but failing because the court is unable to give him such  a trial, would not be applicable to an application filed under Section 34 of the Arbitration and Conciliation Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or mistake of law or defect of procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded

There must be no pretended mistake intentionally made with a view to delaying the proceeding or harassing the opposite party. In the light of these proceedings the question will have to be considered whether appellant prosecuted the matter in the court with due diligence and good faith. The definition of “good faith” as found in S.2(4) of the Limitation Act would indicate that nothing shall be deemed to be in good faith which is not done with due care and caution.

Benefit under Section 14 is not available in a Criminal Proceeding.

The second suit is not a continuation of the first suit and the limitation is to be computed afresh with respect to the second suit. It is only the period in which the plaintiff prosecuted the suit bona-fide in another court is relevant and which can be excluded.

Section 14 provides for exclusion of period, whereas Section 5 provides for con-donation

of delay.

Commissioner, M.P. Housing Board and Ors v. M/S Mohan Lal and Company, 2016 SCC Online SC 738 --- It has been held in this case that filing of an application under Section 11 of the Arbitration and conciliation Act 1996, for an appointment of arbitrator is totally different than an objection to award under Section 34 of the 1996 Act as one is at the stage of initiation and another is at the stage of culmination. Thus, proceedings do not relate to “same matter in issue” and therefore Section 14 shall not apply.

Section 15- Exclusion of time in certain other cases

1. In computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
2. In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.

Explanation - In excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be counted.

1. In computing the period of limitation  for  any  suit  or  application  for  execution of decree by any receiver of interim receiver appointed in proceedings for the adjudication of a person as an insolvent or by any liquidator or provisional liquidator appointment in proceedings for the winding up of a company, the period beginning with the date of institution of such proceeding and ending with the expiry of three months from the date of appointment of such receiver or liquidator, as the case may be, shall be excluded.
2. In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded.
3. In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government, shall be excluded.

In computing the period of limitation, where a suit has been filed or an application for stay has been made, the time during which there was a stay order of the against the filing of suit or execution application shall be excluded.

Where a plaintiff is required to give notice to the Government u/s 80 Civil Procedure Code he is entitle to exclude the period of notice in computing the period of limitation prescribed for the suit

A receiver including an interim receiver or a liquidator including a provisional liquidator appointed in a proceeding for adjudication of a person as an insolvent or in proceeding for the winding up of a company as the case may be, is entitled, in view of sub-sec. (3), the exclusion of the period between the date of application and the date of appointment and also additional period of three months thereafter in computing the period of limitation for filing suit or execution as such receiver or liquidator. As such receiver or liquidator needs sufficient time to acquaint himself with the affairs of the estate or of the company, as the case may be, and its assets and liabilities before he can take steps for filing a suit or for giving him a period of three months after his appointment to file a suit or a petition for execution.

Two condition have to be fulfilled in order to obtain the benefit of S. 15 (4) namely :

The suit should be one for possession by the purchaser at a sale in execution of the decree,

and

It should be a suit and not an application if this two conditions are fulfilled then the time

during which a proceeding for setting aside the sale deed been prosecuted shall be excluded

Turner Morrison & Co. Ltd. v. Hungerford Investment Trust Ltd., AIR 1972 SC 1311

Facts: The plaintiff company filed a suit on 15th November 1965 for recovery of a sum of money from the defendant company on account of the tax liability of the latter discharged by the plaintiff before 15th November 1962. The defendant, a foreign company, was attending the general meetings of the plaintiff company through its representatives.

Held: Section 15(5) of the Limitation Act, 1963 can be viewed in one of the two ways i.e. that that provision does not apply to incorporated companies at all or alternatively that the incorporated companies must be held to reside in places where they carry on their activities and thus being present in all those places. Hungerford is an investment company. It had invested large sums of monies in Turner Morrison. Its Board of Directors used to meet in India now and then. It was (through its representatives) attending the general meeting of the shareholders  of Turner Morrison. Under those circumstances, it must be held to have been residing in this country and consequently was not absent from this country. Hence Section 15(5) cannot afford any assistance to Turner Morrison to save the bar of limitation.

SECTION 16- EFFECT OF DEATH ON OR BEFORE THE ACCRUAL OF RIGHT TO SUE

(1)Where a person who would, if he were living, have a right to institute a suit or make an application dies before the right accrues, or where a right to institute a suit or make an application accrues only on the death of a person, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting such suit or making such application.

1. Where a person against whom, if he were living, a right to institute a suit or make an application would have accrued dies before the right accrues, or where a right to institute a suit or make an application against any person accrues on the death of such person, the period of limitation shall be computed from the time when there is a legal representative of the deceased against whom the plaintiff may institute such suit or make such application.
2. Nothing in sub-section (1) or sub-section (2) applies to suits to enforce rights of preemption or to suit for the possession of immovable property or of a hereditary office.

“Before the right accrues” – The death must occur before the right to sue or make an applicationaccrues.Iftherightaccruesinthelife-timeofthedeceased,limitationbeginstorun from the date of accrual, and it matters not whether by a will or by any other means a legalrepresentativecomesintoexistenceornot.TheintentionofSection16istolimitthetime during which an action may be brought and not to take the rights of a person who is a possibledefendanttoanactionanditisnotintendedtoaccurateanyrightofactionagainstsuch a person. The expression ‘capable of suing’ is the equivalent of ‘not being under legal disability toItdoesnotrefertoanincapacityarisingfromwantofmeansorabsenceorotherphysical cause.

Section 16 confines to rights of action accruing after death. It makes it applicable to rights of action accruing either simultaneous on death or thereafter of the person suing or sued. In order to attract the applicability of Section 16, it is necessary that the death must occur before the right to institute a suit or make an application accrues. If the right to institute a suit or make an application accrues in the life time of the deceased the limitation shall begin to run from the date of the accrual of cause of action and the provisions of Section 16 would not apply.

SECTION 17-- EFFECT OF FRAUD OR MISTAKE

(1)Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,--

1. the suit of application is based upon the fraud of the defendant or respondent or

his agent; or

1. the knowledge of the right or title on which the suit or application is founded is concealed by the fraud of any such person as aforesaid; or
2. the suit or application is for relief from the consequences of a mistake; or
3. 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 plaintiff or applicant has discovered the fraud or the mistake or with reasonable diligence could have discovered the it; or in the case of a concealed document, 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-

1. 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
2. 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.

1. 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.

This section does not apply to criminal cases.

According to the Hon’ble Supreme Court in, Pallav Sheth v. Custodian (2001) 7 SCC 549, the provision of this section embodies fundamental principles of justice and equity, vis., that a party should not be penalized for failing to adopt legal proceedings when the facts or material necessary for him to do so have been willfully concealed from him and also that a party who has acted fraudulently should not gain the benefit of limitation running in his favor by virtue of such fraud.

If the plaintiff claims exemption on the ground of fraud on the part of the defendant he must proof the fraud. In such a case it is for the plaintiff to give in the first instance clear proof of the fraud alleged by him. The court will not presume it from the mere existence of suspicious circumstances.

The Supreme Court in P. Radha Bai v. P. Ashok Kumar, examined the applicability of Section 17 of the Limitation Act, 1963 for condonation of a delay caused  on the account of alleged fraud played on the objector (party challenging the award) beyond the period prescribed under Section 34 (3) of the Arbitration and Conciliation Act of 1996. According to the Hon’ble Court, Section 17 does not encompass all kinds of frauds and mistakes. Section 17(1)(b) and (d) only encompasses only those fraudulent conduct or act of concealment of documents which have the effect of suppressing the knowledge entitling a party to pursue its legal remedy. Once a party becomes aware of the antecedent facts necessary to pursue a legal proceeding, the limitation period commences.

SECTION 18- EFFECT OF ACKNOWLEDGEMENT IN WRITING

(1)Where before the expiration of the prescribed period for a suit or application in respect or any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derived his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

1. Where the writing containing thee 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 ( 1 of 1872), oral evidence of its contents shall not be received.

Explanation - For the purposes of this section, -

1. an acknowledgment 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 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;
2. the word "signed" means signed either personally or by an agent duly Authorized in this behalf ; and
3. 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.

It is not necessary that an acknowledgment within Section 18 must contain a promise pay or should amount to a promise to pay. [Subbarsadya v.Narashimha, AIR 1936 Mad.939]

The acknowledgement must be unqualified so as to create fresh cause of action. The acknowledgement must be of existing liability. It must be an acknowledgement of debt as such and must involve an admission of a subsisting relationship of debtor and creditor; and an intention to continue it until it is lawfully determined must also be evident. The acknowledgement must be made before the expiry of the period of limitation. An acknowledgement of barred liability is not material. Thus where the debt has already become time-barred, acknowledgement cannot create fresh period of limitation. An acknowledgement without signature is no acknowledgement. It will be sufficient if the acknowledgement is signed by the agent and not by the debtor. Acknowledgement should be by a person who has personal liability to pay. Acknowledgement does not create a new debt it only extends the period of limitation. Acknowledgement must relate to a definite liability in respect of the right claimed. Explanation (b) to S.18 has explained that the writing containing the acknowledgement need not be signed by the debtor himself;    it would be sufficient if the signature is that of the agent. Agents authority may be by way of a power of attorney or it may be gathered from the surrounding circumstance of the case.

An unregistered document, registration of which is compulsory, can be used for the collateral purpose of proving acknowledgement of liability for the purpose of extending time under S.18 of the Limitation Act.

Application to Execution Proceedings – Section 18 does not apply to execution of decree. So, even in case of consent decree for specific performance of contract, the execution has to be filed within 12 years of the date on which the decree becomes executable.

SECTION 19- EFFECT OF PAYMENT ON ACCOUNT OF DEBT OR OF INTEREST ON LEGACY

Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly Authorized in this behalf, a fresh period of limitation shall be computed from the time when payment was made:

Provided that, save in the case of payment of interest made before the 1st day of January,1928, an acknowledgment of the payment appears in the hand-writing of, or in a writing signed by the person making the payment.

Explanation - For the purposes of this section, -

1. where mortgaged land is in the possession of the mortgagee, the receipt of the rent of produce of such land be deemed to be a payment;
2. "debt" does not include money payable under a decree or order of a court.

A payment saves limitation under this section if it is made by a person liable to pay it a purchaser of equity of redemption is a person liable to pay the mortgage the debt therefore,   if under a mortgage decree of sale of the mortgaged property to which he is a party through exempted from person liability he pays interest as such, such payment gives a fresh period of limitation for execution of the decree.

A payment by one of the two joint debtors would save limitation against the other debtor also. In order to attract Section 19, payment has to be made within the period of limitation and not that the acknowledgement of such payment has to be made within the period of limitation. It will suffice if it is signed before the suit is commenced.

Under Section 19 it is the payment which extends the limitation and such payment has to be proved in a particular way, namely, a written or signed acknowledgement. That is the only mode of proof of such payment.

SECTION 20 - EFFECT OF ACKNOWLEDGMENT OR PAYMENT BY ANOTHER PERSON

(1)The expression "agent duly Authorized in this behalf" in sections 18 and 19 shall in the case of a person under disability, include his lawful guardian, committee or manager or an agent duly Authorized by such guardian, committee or manager to sign the acknowledgment or make the payment.

1. Nothing in the said sections renders one of several joint contractors, partners, executors or mortgagees chargeable by reason only of a written acknowledgment signed by, or of a payment made by, or by the agent of, any other or others of them.
2. For the purposes of the said sections, -

(a) an acknowledgment signed or a payment made in respect of any liability by, or by  the duly Authorized agent of, any limited owner of property who is governed by Hindu Law, shall be a valid acknowledgment or payment, as the case may be, against a reversionary succeeding to such liability; and

(b)   where a liability has been incurred by, or on behalf of a Hindu undivided family as such, an acknowledgment or payment made by, or by the duly Authorized agent or, the manager of the family for the time being shall be deemed to have been made on behalf of the whole family.

The word ‘chargeable’ in Section 20 means every kind of chargeability and includes liability as to property it is not limited to personal liability only. Section 20 of the Limitation Act is explanatory of Sections 18 and 19 of the Act and does not constitute an exception in the case of either of these sections.

Section 20 of the Limitation Act shows that for the purpose of Section 20, the payment made by a guardian must be held to be a payment by an agent duly authorized on his behalf.

SECTION 21-- EFFECT OF SUBSTITUTING OR ADDING NEW PLAINTIFF OR DEFENDANT

(1)Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was made a party:

Provided that were the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.

1. Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the tendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.

If some of them institute a suit within time and the other plaintiffs are added after the period of limitation, the claim of the original plaintiffs, would be barred. Order I Rule 10(2) CPC provides for the addition of (1) necessary parties(2) proper parties. In adding necessary parties Section 21 of the Limitation Act has to be taken into account, but in adding proper party Section 21 has no application.

The proviso to sub-section (1) of Section 21 clothes the court with the direction to condone the delay in filing the application for addition of parties after the period of limitation provided the same is made bona-fide and good cause is shown therefore.

SECTION 22--- CONTINUING BREACHES AND TORTS

In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during the breach or the tort, as the case may be, continues.

According to Section 22 of the Limitation Act, 1963 in the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues. This section speaks about continuing breach of contract and not of successive breach of contract.

The expression ‘Continuing breach of contract or continuing tort’ means that, if an act or

omission on the part of an accused continued the breach of contract or wrongs, and if that act or omission continues from day to day, then a fresh cause of action de die in diem(from day to day) causes for a fresh offence every day on which the act or omission continues.

Section 22 of the Limitation Act relates to continuing breach of contract and also to continuing tort which this section provides for a suit for compensation for acts not actionable without special damage. The law of Limitation recognized that liabilities for payments of damages and/or compensation may continue to accrue day to day newly in respect of continuing breach of contracts and torts.

The continuing tort means continuing ‘wrong’. Section 22 refers to a continuing wrong or tort. A continuing wrong creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. An infringement of a trade mark is a continuing wrong. In Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co., AIR 1997 SC 1398, it has been held that after filing the first suit based on the infringement of trade mark and passing off action till the date of suit, a second suit is filed for continuous acts of infringement of trade mark subsequent to the filing of the earlier suit is not barred.

SECTION 23 – SUITS FOR COMPENSATION FOR ACTS NOT ACTIONABLE WITHOUT SPECIAL DAMAGE

In the case of suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results there from, the period of limitation shall be computed from the time when the injury results.

The provisions of Section 23 are applicable even in cases of special or local laws, unless

expressly barred or excluded in accordance with Section 29 of the Limitation Act.

The Section 23 of the Limitation Act is applicable to suits based on both torts and contracts. It deals with a suit for compensation for an act which does not give rise to a cause of action. The expression ‘cause of action’ is not defined by the Limitation Act. However, it means every fact which it would be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of the court.

To avail the benefit of Section 23 of the Limitation Act, it must be proved that some specific injury has occurred to the plaintiff. The word ‘specific’ means that can be specified and the word ‘injury’ includes a legal injuries.

SECTION 24 – COMPUTATION OF TIME MENTIONED IN INSTRUMENT

All instruments shall for purposes of this Act, be deemed to be made with reference to the Gregorian calendar.

                                      Chapter 8

    ACQUISITION OF OWNERSHIP BY POSSESSION (PART- IV)

SECTION 25 - ACQUISITION OF EASEMENT BY PRESCRIPTION

1. Where the access and use of light or air to and for any building have been peaceable enjoyed there with as an easement, and as of right, without interruption and for twenty years, and where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for twenty years, the right to such access and use of light or air, way, watercourse, use of other easement shall be absolute and indefeasible.
2. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein claim to which such period relates is contested.
3. Where property over which a right is claimed under sub-section (1) belongs to the Government that sub-section shall be read as if for the words "twenty years" the words "thirty years" were substituted.

Explanation - Nothing is an interruption within the meaning of the section, unless where there is an actual discontinuance of the possession or enjoyment by reason   of an obstruction by the act of some person other than the claimant and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made.

SECTION26- EXCLUSION IN FAVOR OF REVERSIONARY OF SERVANT TENEMENT –

Where any land or water upon, over or from, which any easement has been enjoyed or derived has been held under or by virtue of any interest for life or in terms of years exceeding three years from the granting thereof the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation of the period of twenty years in case the claim is, within three years next after the determination of such interest or term, resisted by the person entitled on such determination to the said land or water.

SECTION 27- EXTINGUISHMENT OF RIGHT TO PROPERTY

At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.

It is an exception to the general principle that the laws of limitation only bar remedy and does not extinguish title. This is not only a law of limitation but is also a law of prescription. It only extinguishes the title of a rightful owner but it does not specifically states as to where such right vests. But the title of the property cannot be left in the air. So on the extinguishment of the title of the rightful owner, such title to the property shall follow possession and person in possession as trespasser is to be treated to have acquired title by adverse possession. The right extinguished by Section 27 of the Limitation Act is the right which the lawful owner has and against whom a claim of adverse possession is made.

MadinaBegam v.. Shiv Murthy Prasad Pandey, 2016 (4) JBCJ 63 SC – The decision of the 3 Judges Bench of the Hon’ble Supreme Court in Ahmadsahab Abdul Mulla (Dead) v. Bibijan and Others was followed in this case and the question “whether the use of the expression “date” used in Article 54 of the Schedule to the Limitation Act is suggestive of a specific date in the Calendar?” was addressed. The Apex Court held that the expression “date fixed for performance” is a crystallized notion. When a date is fixed it means that there is a definite date fixed for doing a particular act and, therefore, the expression “date” is definitely suggestive of a specified date in the Calendar.

Therefore, for a suit for specific performance of an agreement, if a date is fixed then non- compliance with agreement on the date would give a cause of action to file a suit for specific performance within three years from the date so fixed. But where no such date is fixed limitation of three years would begin when plaintiff has notice the defendant has refused performance of agreement.

                                  PART V MISCELLANEOUS

SECTION 29 – SAVINGS

1.Nothing in this Act shall affect Section 25 of the Indian Contract Act 1872.

1. Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provision contained in Sections 4 to 24 apply only insofar as , and to, the extent which, they are not expressly excluded by such special or local law.
2. Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.
3. Sections 25 and 26 and the definition of "easement" in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act,1882 may for the time being extend

In case of Special Laws the limitation as provided under the special law shall have application and not the limitation as provided under the Limitation Act. Another important point that has been made is that the provisions of the limitation Act Sections 4 to 24 shall stand excluded only when the Special Act excludes its operation.

Suryachakra Power Corporation v. Electricity Department [2016(7)Supreme 111]

An appeal under Section 125 Electricity Act 2003 filed after 120 days cannot be entertained by the Supreme Court. The Appellant is not even entitled to the benefit of the principle under Section 4 of the Limitation Act for exclusion of the period when the Court is closed.

1. Section 5 of the Limitation Act cannot be invoked for entertaining an appeal filed against the decision of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso.
2. Section 14 of the Limitation Act can be applied even when Section 5 of the Act is not applicable. For availing benefit of Section 14 the party should be prosecuting another civil proceeding with due diligence, and the prosecution should be in good faith. Bothe due diligence and good faith must be established.

Sunil Krishna Ghosh v. Calcutta Improvement Trust [AIR 2001 Cal 199]

It was contended in the case that Article 55 of the Limitation Act will be applicable in the case since there was n o fixed time to execute the conveyance sought to be performed in the agreement and when there is no fixed time, the suit has to be brought within three years from the date of the refusal to perform the agreement.

The Court held in this case that in this case the plaintiff had performed his part of the contract but the defendant had not and there was no stipulated date for the performance of the contract. The defendant had not in writing refused either to execute their conveyance or to perform their part. Thus there was a continuous breach on the part of the defendant to perform by not handing over the physical possession of the property. It is therefore a case where not only Art 55 of the Limitation Act but also Section 22 of the Limitation Act was applicable as this was a continuing cause of action because in each and every day, the breach was being committed by the defendant. Consequently, the suit was not held to be barred.

ARTICLE 136 OF THE SCHEDULE OF THE LIMITATION ACT

Article 136 of the Limitation Act 1963 provides for a 12 year for any limitation for the execution of any decree or order of court. The period of limitation to commence from the time when the decree or order becomes enforceable or decree or order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, when default in making payment or delivery in respect of which execution is sought takes place: provided an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation. The test to be applied for determining whether the decree was capable of immediate execution is whether the performance of condition was entirely dependent on the will of the decree holder. If the execution was not within the power of the decree-holder but dependent on some extraneous circumstance then the period of limitation shall not commence till the presence that external circumstance.

Chandi Prasad v. Jagdish Prasad [2004(8) SCC 724] –

Issue involved in the Case – “What would be the date from which a decree becomes

enforceable for execution thereof within the meaning of Article 136 of the Limitation Act, 1963?”

According to the doctrine of merger,  when an appeal is prescribed under the statute   and an appeal is preferred before a higher forum and a passes a decree, the decree of the trial court merges with the decree of the decree of the appellate court and even if subject to the modification that may be made in appellate decree, the decree of the appellate court supersedes the decree of the trial court. In other words merger of the decree takes place irrespective of the fact whether appellate court affirms, modifies, or reverses the decree of the trial court.

It was held that once a decree is sought to be enforced for the purpose of execution thereof irrespective of being original or appellate, the date of the decree or any subsequent order would be considered to be the starting period for limitation. In this case, the final decree was prepared in a partition suit by the trial court on 07.05 1968. After appeal, the High Court decided the second appeal on 18.04.85 and drew up a formal decree pursuant thereto on 30.10.86. Thus the decree of the High Court merged with that of the trial court. In view thereof the execution application filed on 26.03.97 was held not to be time barred because when an appellate forum is invoked and entertained, for all intent and purpose the suit continues.

Mangra Dhobi v. KheduaBaraik [2005(2) JCR 491 (Jhr)]

The sale deed which had been sought to be cancelled was dated 10.11.1979 and on the basis of the said sale deed, the purchaser defendant had filed Mutation Case and in that Mutation Proceeding, the Plaintiffs had appeared and filed objection and that objection was rejected and the Mutation Proceeding was allowed in favour of the Defendant No. 2 by order dated 11.2.1980. The plaintiffs had thus knowledge of the said deed at least on the date of the objection made by them on 11.2.1980. The suit was filed on 14.5.1986, admittedly, much beyond the prescribed period of limitation seeking the relief of cancellation of the sale deed. It was held that unless the 1st claim for cancellation of the sale deed is decreed in favour of the plaintiff, their right, title cannot be declared in respect of the suit land and second relief prayed for by them cannot be granted. In that view, the Hon’ble High Court held that the suit was barred by law of limitation. Regard being had to the nature of the suit, the provision of Article 59 of the Limitation Act has been correctly referred to and applied by the learned lower appellate Court in deciding the question of limitation.

   Section 30. Provision for suits, etc., for the prescribed period is shorter than the period prescribed     by the Indian Limitation Act, 1908.

Notwithstanding anything contained in this Act- (a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of seven years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier: Provided that if in respect of any such suit, the said period of seven years expires earlier than the period of limitation prescribed therefor under the Indian Limitation Act, 1908 and the said period of seven years together with so much of the period of limitation in respect of such suit under the Indian Limitation Act, 1908, as has already expired before the commencement of this Act is shorter than the period prescribed for such suit under this Act, then, the suit may be instituted within the period of limitation prescribed therefor under this Act; 25 (b) any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be preferred or made within a period of ninety days next after the commencement of this Act or within a period prescribed for such appeal or application by the Indian Limitation Act, 1908, whichever period expires earlier.

Section 31. Provisions as to barred or pending suits, etc.

Nothing in this Act shall- (a) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908, expired before the commencement of this Act; or (b) affect any suit, appeal or application instituted, preferred or made before, and pending at, such commencement.  

                                                            Chapter 9

                                                   ADVERSE POSSESSION

Under the old Act, all suits for possession, whether based on proprietary title or on the ground of previous possession, were governed by Art.142 where the plaintiff whilst in possession was dispossessed or discontinued in possession. Where the case was not one of dispossession of the plaintiff or discontinuance of possession by him, the said Article did not apply.

Suits based on title alone and not on dispossession or discontinuance of possession was governed by Art. 144, unless they were specifically covered by some other Article, namely, 47, 136, 137, 138, 140 and 141.

In all suits for possession based on dispossession, whether the plaintiff had title or not, the burden of proof under the old Act was on the plaintiff to prove that he was in possession within 12 years of the suit. Under the present Act, a suit based on title, even if dispossession also is alleged, the defendant can succeed only if he proves that his possession had become adverse to the plaintiff beyond 12 years of the suit. Under the present Act, the plaintiff need prove only his title and he need not Show that he was in possession within 12 years of the suit.

SCOPEOF ARTICLES 142 AND 144

?      GURBINDER SINGH AND ANOTHER V. LAL SINGH AND ANOTHER AIR 1965 SC. 1553

Facts:

One Mst. Raj Kaurwas holding certain lands on different tenures under the Raja of Faridkot. She had two daughters. She adopted the son of one of them and put him in possession of all the lands. He transferred a part of the lands to the second respondent who was son of the other daughter of Raj Kaur. After Raj Kaur's dearth the Raja filed suits for possession of the land, and in execution of the decree he obtained in those suits, took possession of the entire land, in October, 1938. He then transferred the land, but the transferee was dispossessed by the appellants in June 1950, in execution of a decree they obtained, in a suit for preemption filed by them against the transferee. The second respondent's mother had died in 1938 and her sons the first and second respondents, filed a suit for possession of the entire land in February 1950, as heirs of RajKaur, but it was decreed only to the extent of their half share, and the decree was affirmed by the High Court. In the appeal to the Hon’ble Supreme Court it was contended that the suit was governed either by Article 142 or Article 144 of the Indian Limitation Act, 1908, and on either basis, was barred by time.

Decision: -

Article 142 - In order that the article may be attracted the plaintiff must initially have been in possession of the property and should have been dispossessed by the defendant or someone through whom the defendant claims or alternatively, the plaintiff should have discontinued possession. It was no one’s case that the first respondent was ever in possession of the property. As regards the second respondent’s possession at one time of a part of the property, it was by reason of a transfer by the adopted son. The claim in the instant case, however, was by succession, under a different title altogether, and so it must be held that the plaintiffs-respondents, as heirs of Raj Kaur, were never in possession of the land.

Article 144 - Article 144 was applicable to the suit, but the suit was not barred by time. In a suit to which Art 144 is attracted, the burden is on the defendant to establish that he was in adverse possession for12 years before the date of suit, and for computation of that period, he can avail himself of the adverse possession of any person or persons through whom he claims but not the adverse possession of independent trespassers. The starting point of limitation in Article 144 is the date when the possession of the defendant becomes adverse to the plaintiff. The gist of the definition of the word “defendant" in Section 2(4) of the Act is the existence of a jural relationship between the different persons referred to in the definition, and there can be no jural relationship between two independent trespassers.

SUITS ON THE BASIS OF POSSESSION AND SUITS BASED ON PROPRIETARY TITLE.

Under the present Act, all suits for possession of immovable property have been brought under

two categories:-

1. Suits based only on the right of previous possession and not on proprietary title.
2. Suits based on proprietary title. .

In the first case, Art.64 applies and in the other case, Art.65 applies. In the former, time begins to run from the date of dispossession of the plaintiff or the discontinuance of possession. In the case of the latter, time begins to run when the possession of the defendant becomes adverse to the plaintiff. In the case of Neelakanta Pillai vs. BharathiAmma1971 KLT SN. 54, it was held that Article 142 applies to a suit for recovery of possession by a person who has been dispossessed, even on the strength of his prior possession.

ARTICLES 64 AND 65: REASON FOR THE CHANGE IN LAW.

As observed by the Hon’ble Supreme Court in RajRani & Another v. Kailashchand& Another [AIR. 1977 SC 1123] that the difficulty in deciding the question whether Art. 142 or Art 144 Limitation Act applies to a case which really depends upon an interpretation of the pleadings was sought to be removed in the Limitation Act of 1963 by a more clarified position in Articles 64 and 65 of the Limitation Act of 1963. The reasons given for this changes were:

“Articles 142 and 144 of the existing Act have given rise to a good deal of confusion with respect to suits for possession by owners of property. Art.64 as proposed replaces Art. 142 but is restricted to suits based on possessory title so that an owner of property does not lose his right to the property unless the defendant in possession is able to prove adverse possession." In other words, in cases governed by the former Limitation Act, at any rate, a plaintiff admitting dispossession, in suits based on title, had to prove that he was in actual or constructive possession within 12 years. Hence the change in law.

ARTICLES 64 AND 65: DISTINCTION- I

In both cases, suit must be for possession. The same was the position under Articles 142 and 144 of the old Act. A suit for mere declaration of right to property is not a suit for possession, within the meaning of Art 64 or 65. Where possession is claimed in a suit as a consequence of the declaration, the suit would be covered by Art 65 and not by Art 58 of the present Act. Suits for possession mean suits in which possession is asked for as the primary relief. Where the primary relief is something other than possession, and possession is asked for as a consequence of the primary relief being granted, the article which applies is the appropriate article for the primary relief. e.g. Suits   for pre-emption, Suit for redemption of usufructuary mortgage. It is not always the form of the relief claimed that will determine the real character of the suit. The question is what in substance does the plaintiff claim. A suit for possession does not invariably mean a suit for actual physical possession. It means a suit for such possession as the property is capable of the previous possession contemplated under Art. 64 is effective possession. By effecting possession is meant either actual possession or constructive possession. e.g. Possession through a tenant.

ARTICLES 64 AND 65: DISTINCTION- II

Suit for possession based on prior possession and dispossession are generally referred to as suits based on possessory title as distinguished from suits based on proprietary title. Suits under Art. 64 are suits based on possessory title, while suits under Art. 65 are suits based on proprietary title. In a suit for possession based on possessory title, under Art.64, the plaintiff will be entitled to succeed as against all persons except the true owner. Whereas under Section 6 of the Specific Relief Act, if the plaintiff proves prior possession and dispossession within six months of the suit, and such dispossession is otherwise than in due course of law, he will be entitled to recover possession notwithstanding that the defendant may be the true owner. The onus of proof is on the defendant to prove that he has got better title to the property than the plaintiff, in suits under Art. 64 as observed in Nair Service Society v. K.C. Alexander (AIR 1968 SC 1165).

Effective possession is necessary. By effective possession it is meant either actual possession or possession through a tenant, who must have paid rent voluntarily or under a decree to the person claiming possessory title. Mere paper adornment is not enough. Plaintiff failing to prove  his proprietary title but proving his prior possession is entitled to recovery   of possession if the defendant is found to be a trespasser. Person having possessory title can protect such title from invasion by trespassers. Such possessory title can be invoked against all persons except true owner. Philip and Others v. Sharia and Others, 1987 (1) KLT 213

Possessory title is inheritable, devisable and transferable. Earlier possessory title is better than possessory title obtained later. Held: “It will not be necessary for the plaintiff to establish his possession for the statutory period. The position is that as between two persons who are unable to make out a valid title the person who was having possession prior to the dispossession is really entitled to have the property restored to him from the trespasser. A trespasser does not have any right whatever to dispossess a person in possession. A trespasser cannot take the stand that the person whom he had thrown out from the property had no proprietory title and consequently the least concerned with any other interest in the property.”

ARTICLES 64 AND 65 DISTINCTION- III

There was a difference of opinion as to whether Art. 142 (Art : 64) was confined to suits for possession on the ground of possessory title, or whether it was applicable to all cases        of dispossession, whether the plaintiff was suing merely on his possessory title or on his proprietary title also. The general trend of opinion was that the article would apply to all cases of dispossession, when the plaintiff sued on possessory or proprietary title. The contrary view was that Article 64 applies only to suits on possessory title and could not apply to suits on proprietary title even though it was a case of dispossession. Art. 64 of the new Act specifically say: for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Art.65 applies to suits for possession based on title even though the plaintiff was dispossessed. Therefore the cardinal difference between Art.64 and 65 is that the former relates to suits based on possessory title and dispossession by the defendant while the latter is a suit based on title and it does not matter in such cases whether the plaintiff was dispossessed or not.

MurtiDussadhin and Others v. Surajdeo Singh and Othres, AIR 1965 SC 875

A suit for possession based on title without any allegations of dispossession was governed by Art. 144 (Art. 65). In that case, the suit was for declaration of title and the plaintiff asserted that he was in possession. But an alternative relief was claimed that he should be put in possession if it is found that he should be deemed to have been dispossessed by reason of earlier proceedings under Cr.P.C.

Defendant did not deny it but claimed he had acquired occupancy rights. Neither party alleged dispossession or discontinuance of possession of the plaintiff. Held that Art.144 (Art.65) applied and that the case must proceed on the defendants’ plea. (Under the present Act, all suits for possession based on title will be governed by Art.65)

Kesar Singh v. Balwant Singh, [AIR 1967 SC 487]

A suit was filed by the Plaintiffs for the ejectment of the defendants who were the servants of the plaintiffs as they did not want their services any more. In such a case, the Hon’ble Supreme Court held that the bar of limitation under Article 142 cannot apply since originally the possession of the appellant and the other defendant was clearly permissive, there can be no question of the application of Art. 142 in the present case and the appellant could only succeed if he could prove adverse possession under Art. 144 for over 12 years.

ARTICLES 64 AND 65 DISTINCTION- IV

Suits under Art.64 should be filed within 12 years of the date of dispossession. Suits based on proprietary title come under Art.65 even though the plaintiff was dispossessed. In such cases, the mere lapse of a period of 12 years from the date of dispossession will not make the suit time barred unless the defendant can prove that he has been in adverse possession continuously for "a period of 12 years before the suit. In suits under Art.64, the period of limitation start from the date of dispossession, While in suits under Art. 65 limitation period commences when the possession of the defendant becomes adverse to the plaintiff.

ARTICLES 64 AND 65 DISTINCTION- V

Under the present Act, in cases under Art.64, the onus is on the plaintiff to prove that his dispossession took place within the period of limitation. Similarly in cases coming under Art.65, the onus will be on the defendant to prove that he was in adverse possession against the plaintiff for more than the statutory period.

Under the old Act, Art. 142 applied to all cases of dispossession and discontinuance of possession, even in cases where the suit was filed by the true owner. Therefore even in such cases, the plaintiff was bound to prove dispossession within 12 years. Under the 1963 Act, suits for possession based on title come under Act.65 under which limitation runs from the time when the defendant’s possession. Becomes adverse to the plaintiff and not from the time when the plaintiff was dispossessed as under Art.64. Therefore under the present Act, in a suit for possession based on title, the onus is no longer on the plaintiff to prove that his dispossession took place within the period of limitation.

Under the new Act, in a suit for possession based on title, the onus of proof is on the defendant to prove at what point of time his possession became adverse to the plaintiff prior to the statutory period.

ARTICLES 64 AND 65 DISTINCTION- VI

Article 64: Applies in the case of immovable property alone.

Article 65: Applies in the ease of immovable property or any interest therein. The interest in immovable property referred to in Art.65 must be such as is capable of being enjoyed by acts of ownership because unless it is so, there cannot be any adverse possession of such interest. Under the old Act also, the position was the same. Article 142 is limited to suits for possession of immovable property and Article 144 includes, in addition to suits for possession of immovable property, suits for possession of interest in immovable property.

Interest in Immovable Property: Interest in immovable property does not relate only to a

personal liability. The following are some examples of interest in immovable property:

1. Right to collect assessment of lands endowed in favour of a shrine.
2. Right of occupancy tenant in the land.
3. Right to a watercourse.
4. Right to collect rent of the property.
5. Right to graze cattle on the land of another.

• Bihar Regulation (1 of 1969) w.e.f. 8.2.1969 Period of Limitation 30 years in respect of immovable property belonging to a member of the Scheduled Tribes as specified in part III to the schedule of constitution (Schedule Tribes) Order 1950.
• “Adverse possession” means Hostile possession which is expressly are impliedly in denial of the title of the true owner. Such possession must be actual and exclusive under a claim or right adequate in continuity in publicity and in extent so as to show that it is adverse to the true owner. The plea must be taken in the pleading and a specific averment as to the point of time from which possession become adverse is necessary. Plea of adverse possession cannot be sustained in the absence of animus possidendi. Mere possession for the statutory period is not sufficient unless there is an assertion of hostile title possession be it of whatever length does not ripen of title.
• Permissive Possession is not adverse and can be terminated at any time by the rightful owner. In the absence of evidence to support the plea of openness hostility are notoriety such possession will not establish adverse  possession  permissive  possession  cannot be converted into adverse possession unless it is proved that the person in possession asserted hostile title therein far a period of 12 years or more.

                                                   Chapter 10                          

                           SCHEDULE OF PERIOD OF LIMITATION

DIFFERENT PERIODS OF LIMITATION

Part III Section 12-24 of Limitation Act, 1963 provides for computation of the period of limitation. They either exclude time of reckoning the period of limitation or postpone starting point of limitation. Sections 12-15 of the Limitation Act provide for the exclusion of time in computing the period of limitation prescribed by law.

Those provisions, inter alia, exclude the following periods:

1. The day on which the period of limitation is to be reckoned.
2. The day on which the judgment/order/award is pronounced.
3. The time spent in obtaining the copy of decree/order/award/sentence.
4. The time spent in prosecuting an application to sue as an indigent person.
5. The time spent in proceedings taken bona fide (in good faith) in court having no jurisdiction.
6. The time during which stay or injunction operated.
7. The time spent in giving notice or for obtaining consent or sanction required by law.
8. The time during which there was receiver or liquidator.
9. The time during which proceedings to set aside sale were pending (in a suit for possession).
10. The time during which the defendant had been out of India.

Sections 16-23 of the Limitation Act, 1963 provide for postponement of limitation. For the application of the law of limitation, there must be a completed cause of action. In other words, there must be a person who can sue, a person who can be sued, and a cause of action on which a suit, appeal or application can be filed. Moreover, such person should be in a position to institute such proceeding without any hindrance, obstruction or impediment.

1. The period of limitation will not start running till there is a person who can sue or who can be sued. In the following cases, there is a postponement of limitation, i.e. the period of limitation will not start running.
2. In case of fraud or mistake, the period of limitation will not start running till such fraud or mistake is discovered.
3. In case of right or liability, a fresh period of limitation will start running from the date of acknowledgement in writing of such right or liability by the party.
4. In case of debt, payment will provide afresh period of limitation from the time of such payment.