CHAPTER – II
BAR ON LIMITATION OF SUITS, APPEALS AND APPLICATIONS
INRRODUCTION
“Vigilantibus non domientibus jur A subventiunt” law of limitation is based 0n this maxim. It is a general principle of law that law is made to protect only diligent and vigilant people. Equity aids the vigilant and not the indolent. Law will not protect people who are careless about their rights. Moreover, there should be certainty in law and matters cannot be kept in suspense indefinably. It is, therefore, provided that Courts of Law cannot be approached beyond fixed period. In civil matters, the limit is provided in Limitation Act, 1963.
The 'Law of Limitation' prescribes the time-limit for different suits within, which an aggrieved person can approach the court for redress or justice. The suit, if filed after the exploration of time-limit, is struck by the law of limitation.
BAR OF LIMITATION
Section 3 of the Act provides that any suit, appeal or application if made beyond the prescribed period of limitation, it is the duty of the Court not to proceed with such suits irrespective of the fact whether the plea of limitation has been set up in defence or not. The provisions of Section 3 are mandatory. The Court can suo motu take note of question of limitation. The question whether a suit is barred by limitation should be decided on the facts as they stood on the date of presentation of the plaint. It is a vital section upon which the whole limitation Act depends for its efficacy. The effect of Section 3 is not to deprive the Court of its jurisdiction. Therefore, decision of a Court allowing a suit which had been instituted after the period prescribed is not vitiated for want of jurisdiction. A decree passed in a time barred suit is not a nullity.
Section 3, Bar of limitation
(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.
(2) For the purposes of this Act-
(a) A suit is instituted-
II. in an ordinary case, when the plaint is presented to the proper officer;
III. in the case of a pauper, when his application for leave to sue as a pauper is made; and
IV. in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;
(b) Any claim by way of a set off or a counter claim shall be treated as a separate suit and shall be deemed to have been instituted-
I. in the case of a set off, on the same date as the suit in which the set off is pleaded;
II. in the case of a counter claim, on the date on which the counter claim is made in court;
(c) An application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.
In the case of Noharlal Verma v. District Co-op Central Bank Ltd AIR 2008, court held that bare reading of Section 3 of the Limitation Act, 1963, makes it certain that if a suit is instituted, or an appeal is preferred or an application is made after the prescribed period, then it has to be dismissed even though no such plea has been raised or defense has been set up. It simply means that a court must dismiss a suit/appeal/application, if it is satisfied that it is barred by limitation, even though there is no such plea taken by the defendant/respondent/ opponent. Section 3 only bars the remedy but not destroy the right to which the remedy relates. Section 3 requires that every suit filed after the period of limitation shall be dismissed, and the same for application also.
In a case of Bombay Dyeing & Mfg. Co. Ltd. v. State of Bombay AIR 1958 SC 328. It was held by the Supreme Court that, when a debt becomes time-barred, it does not become extinguished but only unenforceable in a court of law.
In Gannamani Anasuya vs. Parvathi Amarendra Chaudhary, the Supreme Court held that whether a plea that the suit is barred by limitation or not has been raised by the parties, the court will determine this question, as far as section 3 of the Limitation Act is concerned. This kind of jurisdictional fact need not be pleaded. Where the suit was barred by the limitation and no plea of limitation was taken by the defendant, the trial Court ought to have rejected the plaint as barred by limitation or to have dismissed the suit as bared by limitation.
Thus In a claim for excess amount the material point of time for the purpose of limitation is the time of institution of the suit and not the time of filing the written statement. Under section 3, 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 has no choice.The question of limitation is intertwined with question of fact, such a question if not raised before the trial court cannot be permitted to be raised before the Appellate Court. Under Section 3 of the Limitation Act it is the duty of the court/ Arbitrator to reject the claim where on the face of it, it is found to be barred by the period of limitation.
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. (IttyaviraMathai v. Varkey
What is sufficient cause and what is not may be explained by the following observations:
- Wrong practice of High Court which misled the appellant or his counsel in not filing the appeal should be regarded as sufficient cause under Section 5
- In certain cases, mistake of counsel may be taken into consideration in condonation of delay. But such mistake must be bona fide;
- Wrong advice given by advocate can give rise to sufficient cause in certain cases;
- Mistake of law in establishing or exercising the right given by law may be considered as sufficient cause. However, ignorance of law is not excuse, nor the negligence of the party or the legal adviser constitutes a sufficient cause;
- Imprisonment of the party or serious illness of the party may be considered for condonation of delay; Time taken for obtaining certified copies of the decree of the judgment necessary to accompany the appeal or application was considered for condoning the delay.
- Non-availability of the file of the case to the State counsel or Panel lawyer is no ground for condonation of inordinate delay (Collector and Authorised Chief Settlement Commissioner v. Darshan Singh and others, AIR 1999 Raj. 84).
Food Corporation of India vs. Jugal Kishore Agarwal, AIR 2001Where delay in filing restoration petition was on account of non-communication of dismissal order and Managing Director of the Food Corporation was pre-occupied, the Assistant Manager of the Corporation on oath stated that the delay had been occasioned due to inadvertent reasons and that there were neither deliberate laches nor any intention to harass the opposite party, the delay in filing the restoration petition under Order IX, rule 9 of CPC was condoned.
Collector land acquisition Anantnag vs. Katiji [ 1987 SC]In this leading case issue was whether the court should be more lenient or strict when the condonation delay application is filed by the government servant or on behalf of the government.
There is no reason able difference between a private person and the government and hence there is no reason why the court should treat the condonation application of the government differently from that of the private person. In case of government the very functioning or the circumstances surrounding the functioning of the government our such as maybe automatically deemed to be causative of delay therefore in the case of government as compared to private individual the factor of delay is much more easily understandable or explainable.
The term sufficient cause is not defined and universal application can also not be made to sufficient cause. Sufficient cause is like elastic in the hands of court which can be stretched to any extent to meet the end of justice.
PERSONS UNDER LEGAL DISABILITY
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 ceased, as would otherwise have been allowed from the time specified therefore in the third column of the Schedule.
(2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the sameperiod after both disabilities have ceased, as would otherwise have been allowed from the times so specified.
(3) Where the disability continues up to the death of that person, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified.
(4) 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.
(5) Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died.
Explanation: For the purposes of this section ‘minor’ includes a child in the womb.
TYPES OF LEGAL DISABILITY-
There are three types of legal disabilities that have been described in the Limitation act, 1963. These includes-
In S.K.Yadav V State of Maharashtra AIR 2008In this case the court dealt with the concept of insanity in our legal system at great length. It stated that courts only recognized legal insanity and not medical insanity and that there were substantial differences between the two. Even if insanity has been previously proved medically or in a lower court of law, it has to be proved in the higher court. Furthermore, it is to be noticed that no such specific tests lie to prove legal insanity. Behaviors, antecedent, attendant and subsequent to the event, are to be taken into account while considering if a said person is to be termed insane or not.In the case of Hari Singh Gond V State of Madhya Pradesh CRIMINAL APPEAL NO. 321 OF 2007It was said that there were four sub-types of non-compos mentis i.e.1. an idiot;2. one made non compos by illness3. a lunatic or a mad man and4. One who is drunk.
“Readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned”
LEGAL DIABILITY U/S 6 AND COMBINATION WITH OTHER SECTION 6, 7, 8 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, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.
Explanation I: This section applies to a discharge from every kind of liability, including a liability in respect of any immovable property.Explanation II: For the purposes of this section, the manager of a Hindu undivided family governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property.
Person jointly entitled to Institute Suit
In order to attract the terms of section 7, it is necessary that one of the several persons jointly entitled to institute a suit is under a disability and a discharge can be given without the concurrence of such person by the other person jointly entitled to institute the suit. The expression ‘jointly entitled to institute a suit’ refers to a case in which cause of action is vested in all persons jointly.
Valid Discharge: Who can give?One of several co-partners can give a valid discharge of a debt due to a firm. A manager of a joint Hindu family can give a valid discharge without the concurrence of the others. One of several co-executors can also give a valid discharge in respect of the whole debt.
8. SPECIAL EXCEPTIONS.
Nothing in section 6 or in section 7 applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application.
Sections 6, 7 and 8 must be read together. Section 8 imposes a limitation on concession provided under Sections 6 and 7 to a person under disability up to a maximum of three years after the cessation of disability. The Section applies to all suits except suits to enforce rights of pre-emption.
Section 6 is an enabling section which enables persons under disability to exercise their legal rights within a certain time. Section 7 supplements Section 6, Section 8 controls these sections, which serves as an exception to Sections 6 and 7. The combined effect of Sections 6and 8 is that where the prescribed period of limitation expires before the cessation of disability, for instance, before the attainment of majority, the minor will no doubt be entitled to a fresh period of limitation from the attainment of his majority subject to the condition that in no case the period extended by Section 6 shall by virtue of Section 8 exceeds three years from cessation of disability, i.e. attainment of majority.
The period of three years under Section 6 of this Act has to be counted, not from the date of attainment of majority by the person under disability, but from the date of cessation of minority or disability.
Combined Effect of Sections 6, 7 and 8
Both Sections 6 and 7 go together. Section 7 is an extension of Section 6, where the point of time at which the existence of disability is to be recognised “the time from which the period of limitation is to be reckoned”.
Section 7 is only an application of the principle in Section 6 to a joint-right inherited by a group of persons wherein some or all of whom are under the disability. The disability of all except one does not prevent the running of time, if the discharge can be given without the concurrence of the other. Otherwise the time will run only when the disability is removed.To apply Section 7, disability must exist when the right to apply accrued, i.e., at the time from which period of limitation is to be reckoned.
Section 8 provides that in those cases where the application of Section 6 or 7 of the Act results in an extension of the period prescribed by Schedule, that extension is not to be more than three years after the cessation of the disability.
Darshan Singh v.Gurdev Singh 1995 AIR 75, 1994 SCC (6) 585.
Section 6 allows the minor to extend the limitation to some more time and entitles the minor, insane or idiot to institute the suit or make the application within the same period prescribed in the third column of the Schedule to the Act after the said legal disability has come to an end. Special limitation explained in Section 8 of the act has explained that extended period after cessation of the disability will not cover beyond three years of the death of such legally disabled person or cessation of his said legal disability. In each case, the plaintiff is considered to be empowered by section 8 to a fresh starting period of limitation from the date of cessation of disability, which is consequently subject to the condition that the period of such extension under Section 6 or 7. The plaintiff can thus file a suit within this time period before limitation debars it.
Dhavji Anandji Ladha and Ors.v. Bapudas Ramdas Darbar, AIR 1950 Bom 94.
Section 6 does not cover in any way any “intervening” kind of legal disability. When a legal disability is in existence, only then can section 6 be successfully applied. But if a person cannot be termed to be suffering from any kind of legal disability when such a limitation time-line begins, he cannot in any way avail the relaxation of standards offered by section-6. While reading Section 3, the period of limitation for suits has to be considered by reading Schedule 1 with Sections 4 to 25of the Limitation Act and therefore prescribed for a suit by a minor cannot be the period mentioned in Schedule 1, but a special period that is described in Section 6 of the Act.
Usha Rani Banerjee &Ors. v. Premier Insurance Company Ltd AIR 1983 Allahbad 27–
Section 7 had to be taken as an exception to the general principle enunciated by Section 6 and held that if there are multiple individuals that were jointly entitled to institute a suit and if one of them was disabled, time would not run against any of them until the disability ceased to exist. But if one of the persons entitled to institute the suit was competent to give discharge without the concurrence of the other, then time would begin to run against both of them.
Applicability to Child in Womb
A child in womb can take advantage of the provisions of sections 6 and 8. Section 6 of the Limitation Act would apply to the case of a child in the womb. A child in 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. He 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.
In the case of Bhayyamma vs. Nigamma, AIR 2009 (NOC) 1272 (Kar)., the court held that a suit by major daughters on behalf of minor daughters who would have an independant right to challenge alienation would not be covered by section 7 of the Act.
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.
NATURE AND SCOPE OF SECTION-9
The applicability of this Section is limited to suits and applications only and does not apply to appeals unless the case fell within any of the exceptions provided in the Act itself.
The rule of this Section is based on the English dictum. “Time when once it has commenced to run in any case will not cease to be so by reason of any subsequent event”. Thus, when any of the statutes of limitation is begun to run, no subsequent disability or inability will stop this running. For the applicability of Section 9 it is essential that the cause of action or the right to move the application must continue to exist and subsisting on the date on which a particular application is made. If a right itself had been taken away by some subsequent event, no question of bar of limitation will arise as the starting point of limitation for that particular application will be deemed not to have been commenced.
Thus, time runs when the cause of action accrues. True test to determine when a cause of action has accrued is to ascertain the time. Section 9 contemplates only cases where the cause of action continues to exist.
Subsequent Disability or Inability to Sue
The terms of section 9 of the Limitation Act do not apply where subsequent disability or inability arises after cause of action arose. Where, at the time of execution of the promissory note in favour of the appellant, the appellant was a minor, he is entitled to rely upon the terms of section 6 of the Limitation Act for the purposes of extending the period of limitation.
Exceptions to section 9
The rule laid down in section 9 is subject to some exceptions:
1. 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. Thus, an administrator is prevented from taking advantage of his office by delaying the payment of a debt, he owes to the estate, till the prescribed period expires.
2. 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. Thus, 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 copy of the decree, sentence or order appealed from or sought to be reviewed or revised shall be excluded. Likewise where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment shall also be excluded. In the same manner 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 (Section 12).
3. Exclusion of time in cases where leave to sue or appeal as a pauper is applied for (Section 13).
4. Exclusion of time of proceeding bona fide in court without jurisdiction.
5. In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed ‘by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn, shall be excluded [Section 15(1)].
6. 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 [Section 15(2)]
7. 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 [Section 15(4)].
8. 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 [Section 15(5)].
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 in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.
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 trustee thereof.
Section 10 excludes suits against trustees and their representatives from the purview of the Act. In order to invoke the application of Section 10 the property must be vested in a trustee or trustees for a specific-purpose.
CONCLUSION-
Thus we can understand from the above examples that law of Limitation and Condonation of Delay are two effective implementations in the quick disposal of cases and effective litigation. On the one hand the law of limitation keeps a check on the pulling of cases and prescribes a time period within which the suit can be filed and the time available within which the person can get the remedy conveniently. The law of Condonation of Delay keeps the principle of natural justice alive.