ake r 7. 8. 9. Limitation does not bar defence 1 1 Limitation Act, 1963 SYNOPSIS Procedural law. ....... History of Limitation Act. Object .... Interpretation Scheme of Limitation Act, Limitation Act, 1963: Whether exhaustive. Retrospective operation . Limitation bars remedy . Criminal proceedings Proceedings under the Constitution of India ........---seee eens 12. Limitation Act applies to courts 0. 1. 13. 14. 15. 16. 7. 18. 19. 20. 21, 22. 23. 24. 25. Plea of limitation: Duty of court Starting point of limitation ...- Expiry of period of limitation when court is closed Extension of period of limitation . Condonation of delay. "Sufficient cause” . . Delay by Government Legal disability .... Computation of period of limitation .792 Exclusion of time. ...... ++ ; Postponement of limitation Extinguishment of right. . Void order: Limitation .. 1. PROCEDURAL LAW Generally, laws are divided in two categories: (i) substantive law, and (i) procedural law. Substantive Jaw deals with rights and liabilities of subjects, while procedural law lays down procedure for enforcement of those rights and liabilities.’ Contract Act, 1872; Partnership Act, 1932; Transfer of Property Act, 1882; Penal Code, 1860; etc. are instances of substantive laws. Evidence Act, 1872; Civil Procedure Code, 1908 (CPC); Criminal Procedure, 1973 (CrPC); ete. are procedural laws. Limitation Act, 1963 is also a proce- dural law? But a bold statement that substantive law determines rights while procedural Jaw deals with remedies is not wholly valid. The reason is 1, Glanville Williams, Learning the Law, (1982), pp. 19-113; Law Commission's Fifty- fourth Report, p. 18; see also, “Introduction”, Civil Procedure, at pp. 3-4- 2, _ Ibid; see also A.S.K. Krishnappa Chettiar v. $.V.V. Somiah, AIR 1964 SC 227.LIMITATION ACT [PART 782 remedies belongs to procedure nor the bstantive law. Rights are sometimes hid- ar cut division between the two? er the entire law of rely confined to sul is thus no cle that neith rights are me! f den in procedure. There 2, HISTORY OF LIMITATION ACT idence had no law of limitation. The only law referred ni of prescription which laid down a period concentration being on land and on Hindu ju to by smriti writers was a law of 20 years for acquisition of title, immovable property. Even under the British rule, there was no uniform law of limitation. Three Supreme Courts established under the Royal Chane ia fires Presidency Towns of Calcutta, Madras and Bombay a ee English Law of Limitation, while mofussil courts used to apply differ- ent law, Acts and regulations. ae It was in the year 1862 that for the first time, the Limitation Act was made applicable to the whole of India which was replaced by the Acts of 1871, 1877 and 1908. In 1963, the present Act has been enacted by implementing various suggestions and recommendations of the Law Commission of India#* 3. OBJECT The object and utility of law of limitation has never been a matter of doubt or dispute. A law of limitation is a statute of repose, peace and justice. It is a matter of repose because it extinguishes State demands and quiets title. It seeks to obtain peace and security by raising a pre- sumption that a right not exercised for a long time is non-existent. It is intended to do justice inasmuch as it takes into consideration ground reality that the right of parties should not be in state of constant doubt, dispute or uncertainty. Statutes on limitation are based on two well-known legal maxims: () The interest of the State requires that there should be an end to litigation (Interest reipublicae ut sit finis litium). (i) The Taw assists the vigilant and not one who sleeps over his rights (Vigilantibus non dormientibus jura subveniunt)§ Bharat Barrel & Dri um My a eenb Brel & Dr a ie ce ne v. ESI Corpn., (1971) 2 SCC 860: AIR 1972 SC 1935- & Neo Rata State of Rajasthan, AIR 1961 SC 4: ‘ji V. Home Insurance Co. of New York Chand Saini v. State of Rajasthan, § Ibid; See also Bharat Barrel & Dri ane 1972 SC 1935, '704: (1962) 2 SCR 324; Shanti Kumar (1974) 2 SCC 387: AIR 1974 SC 1739; Trilok aj LR 429, 5 um Mfg. Co. Ltd. v. ESI Corpn., (1971) 2 SCC 860: AIR css siiinnscaivi LIMITATION ACT, 1963 783 ‘There are three cogent grounds in support of the law of limitation: (i) long dormant claims have more of cruelty than justice in them; (ii) a defendant might have lost evidence to disprove a stale claim; and (iii) a person with good cause of action should pursue it with reason- able diligence” 4, INTERPRETATION The law of limitation is procedural or adjective law. The function of adjective law is to facilitate justice and further its ends. The rules of procedure are intended to be a handmaid to the administration of jus- tice. They must, therefore, be construed in such a manner as to render enforcement of substantive rights effective. A statute of limitation deprives an aggrieved person to have recourse to legal remedy. Hence, wherever its language is vague, unclear or ambiguous, that construction should be preferred which preserves such remedy to one which bars or defeats it” Equitable considerations, however, are irrelevant and immaterial in interpreting and applying the law of limitation.” 5. SCHEME OF LIMITATION ACT, 1963 The present Limitation Act of 1963 is enacted on the basis of sugges- tions and recommendations of the Law Commission. According to the Law Commission, the law of limitation should be simple, certain and rational. The period of limitation should neither be too long nor too short. It should be in consonance with the outlook and notions of laymen. For instance, period of limitation for recovery of immovable property should be 12 years while for other cases, it should be three years, etc." 7. Halsbury’s Laws of England (4th Edn), Vol. 28, para. 605 at P. ae 8. ore Singh Gi Election Tribunal, AIR 1955 SC 425: (1955) 2 ae Cer aad Banking Corpn. Ltd. v. Gauri Shankar Sharma, AIR 1950 SC 6: 1950 i poe iB a Bar Corp ional Building Material Supply, (969) SCC ESS AAT? ip Pram Lala Nahata v. Chandi Prasad Sikaria, (2007) 2 SCC 552: AIR 2007 SC 1247; Iso, “Civil Procedure”, supra at pp- 8-9. : 9. ASK. Krishmappa Chettiar v. S.V.V- Somiah, ATR 2964 Sears (0969) SCR a¢v tal Batiakuand v: Lajtoanti,(g75) 1 SOC 725° AIR 4975 i Balmukund v. Lajwanti’ W972" «Oc 628: AIR 1975 SC 8: ee nea SC 108: 1959 SCR 1287;784 LIMITATION ACT [PART of the Act contains sections (Ss. 1-32). The scheq- . f imitation. The first division relates to suits of e prescribes period of limitation. : r 0 Suits o eee types Lee therein and prescribes period of limitation for filing such suits, providing time from which such period begins to run. The second division applies to appeals, whereas the third division je 2 deals with applications of different types. sine “The er in the body of the Act govern and control articles in the schedule. All the provisions of the Act should be read together harmo- niously but in case of conflict or inconsistency, the former will prevail over the latter.’ The substantive part 6. LIMITATION ACT, 1963: WHETHER EXHAUSTIVE The Limitation Act, 1963 has been enacted “to consolidate and amend” the law for the limitation of suits and other proceedings. The Act is thus a complete Code and is exhaustive in respect of all ma ifically and expressly dealt with by it. No court, hence, can travel beyc provisions of the Act." But in respect of matters not dealt with by it, the Act has no applica- tion. The provisions of the Act cannot be extended by analogy or refer- ence to proceedings to which they do not apply, either expressly or by necessary implication. Thus, a proceeding which does not fall under any of the articles in the First Schedule cannot be held to be barred by time on the analogy of a matter which is governed by a particular article. : 7. RETROSPECTIVE OPERATION Itis well-settled that as a general rule tive wl : ciple substantive statutes are prospec le procedural laws are retrospective. This is based on the prin- at no one has a vested right in procedure.” 12. . 2 Bhawonipore Banking Corpn, Ltd. v. Gauri Shankar Sharma, ATR 3950 SC 6; Ramprasad Degaduram v. Vijaykumar Motilal Hix oy Syed Yousuf Yar Khan v. Syed inl Hirakhanala, AIR 1967 SC 278: 1966 Supp SCR * 1 Damtorypan AR Sot Se aed Yar Khan, AIR 1967 SC 318; Nev Ratan 568: AIR sp73 SC 67 Se ix Ccestigation) v, Pooran Mal & Sons, (978) 45° SCR os: see also, Ch LP. v. pea Ram Upadhya, AIR 1961 SC 751 (9) ‘Seth Hira a cea ¥. SUV. Somiah, AIR 1964 SC 227; Manohar Lal Cho?" w 1961 SC 238 196s) 1 SCR 5g, 90? SUPP (®) SCR 450; Pada Sen v. State of uP id; see also Huka a Civil Procedure, p. x 15, i m Chand Boid v. Kamal lanand Singh, R (ag06).33 Cal 927° ng:vi LIMITATION ACT, 1963 785 But itis equally well-settled that no statute can take away vested right, nor it can create new obligation. It can no doubt change the forum. 3 It has been authoritatively held that though the law of limitation is a procedural law, it can neither provide a longer period by reviving a dead remedy nor can it extinguish vested right of action by providing a shorter period. In other words, the law of limitation which is in ae on the commencement of action would govern it.” ° The provisions of the Limitation Act, 1963 apply to proceedings already commenced at the time when the Act came into force.” = 8. LIMITATION BARS REMEDY The law of limitation, being a procedural law, merely_bars the remedy. It does not destroy primary or substantive right accrued in favour of a party. The judicial remedy available for enforcement of such right is barred, but the substantive right survives and continues to be available if there are other ways or means for enforcing it." Hence, if a debtor pays to his creditor time-barred debt, he cannot claim it back on the ground that the creditor could not have filed a suit against the debtor for recovery of the said amount. Similarly, if a debtor owes several debts to a creditor, some of which are barred by limitation, and makes payment of some amount without any specification and the creditor adjusts the amount towards time-barred debt, the debtor can- not object nor he can claim such amount. A creditor may obtain pay- ment of time-barred debt by a permissible mode, eg. a right of lien, valid contract, etc.” 9, LIMITATION DOES NOT BAR DEFENCE The law of limitation _bars an action and not a defence. It is, therefore, open to the defendant in a suit filed by the plaintiff to set up a plea in defence which he may not be able to enforce by filing a suit.* id; see a .s Act, 1879; S. 31, Limitation Act, 1965. 18. Ibid; see also, $. 6, General Clause NN TS ti Misra, (1975) 2 SCC B4o: AIR 1976 1964) 5 SCR 836. . 20. tone es Ramprasad Degadura Bee 278; Mahadeo Prasad Singh v. Ram Lochan (ot) 4 21, Bharat Barrel & Drum Mfg. Co. Lid. v. ESI Corts A New Delhi Municipal Committee v. Kalu Rem (970) 3g Balmukund wv. Lajweanti, (1975) 3 SCC 72577 964 SC 907: (1964) 3 SCR 495i 22. Tht see also Ityacira Mathai v. ee) Th 1963 SC 1356: (2964) 1 SCR 29, See als, S.C. Prashar v. Vasantsen Dwarkadas, Se as coe ae a atmas, AIR 1067 Raj 258: + Motilal Hirakhanzvala, AIR 1967 SC 4 SCC 354; AIR 1981 SC 416. 971) 2 SCC 860: AIR 1972 SC 1935; SCC 407: AIR 1976 SC 1637: Lala786 ion, the defendant may raise any plea Sa rca he could not have filed aie imilarly, in a suit to set aside a decree its euler a atell os Boa ce of decree can be set up as onaaty ie defendant, even after expiry of the period of limita- ti ate a suit. Again, wrong description of property in the sale- ne does i debar the defendant purchaser from setting up a defence and from protecting his possession by showing that ne property sold to him was the real property sold, but it was wrongly lescribed in the sale-deed. Again, an attorney can avail right of lien for his fees, although a suit might have been time-barred. we : / But if the expiry of limitation destroys the right itself, it can neither be enforced by a suit nor can be set up as a defence. Thus, the defend- ant cannot raise a plea in defence of some inchoate or imperfect right, establishment of which depends upon a suit within a particular period and the said period has expired within which no suit is filed. Thus, in a voi for enforcing the tran: 10. CRIMINAL PROCEEDINGS. Asa general rule, “crime never dies”. Lapse of time, hence, does not bar the right of the Crown to prosecute an offender. The provisions of the Limitation Act, 1963 do not apply to criminal proceedings, except where express provisions have been made for that purpose.” Thus, there is no limitation for lodging a complaint of a criminal case, unless the Code of Criminal Procedure, 1973 or the penal law creating the offence itself prescribes the period within which a complaint is required to be filed. 11. PROCEEDINGS UNDER THE CONSTITUTION OF INDIA A writ petiti i i eee under Article 32 or Article 226 of the Constitution is nei- oe ner an appeal, nor an application within the meaning of the fore, do not apply ra ane Provisions of the Limitation Act, 1963, there- ®, do Tit petitions filed or in High Courts (Art. Be ae ee 24. Ibid: see also, Kr i , Krishna Ai a is! ‘yar v. Subba Reddiar, _ ‘ ne Nan Dr ll AI Ma oy)» MU — ( Tnltation. Act, 1963; see also, “Extinguishment of right” at For detailed discrceinn 23. 26. oovi) LIMITATION ACT, 1963 787 Article 133 of the Limitation Act, 1963, however, prescribes period of limitation, of 90 days for g.a special leave to.appeal to the Supreme Court. 12. LIMITATION ACT APPLIES TO COURTS The Limitation Act, 1963 applies to courts only. It applies to proceed- ings which can be initiated in a court of law. Tribunals, quasi-judicial bodies and judicating authorities, other than courts, are not within the contemplation of the Limitation Act.*! The provisions of the Limitation Act, 1963, hence, do not apply to proceedings before the labour court,” | or Arbitration Tribunal,® or Election Tribunal. : 13. PLEA OF LIMITATION: DUTY OF COURT Section 3 of the Limitation Act enacts that “every suit instituted, appeal preferred and application made after the prescribed period shall be dis- missed, although limitation _has not been set up as a defence.” Section 3 is thus peremptory or mandatory in nature and casts duty "on the court to dismiss the suit, appeal or application, if it is beyond the eriod of limitation. It is immaterial whether such a plea has been set ip up in defence by the opposite party. It has, therefore, been held that a new plea of limitation can be taken at any stage of the proceedings, provided it is based on admitted, undis- puted or proved facts and does not involve investigation-of facts.°° Writs (2006) at pp. 174-204. ee 30. Ibid, at pp. 406, 1032; and pp. 1488-96. ; 31. Sushila oP ty Ramanandan Prasad, (1976) 1 SCC 361: AIR 1976 SC 177; Nityananda v. LIC of India, (1969) 2 SCC 199: AIR 1970 SC 209; K.V. Rao v. B.N. Reddi, AIR 1969 SC 872: (1969) 1 SCR 679; Town Municipal Council v. Labour Court, (1969) 1 SCC 873: AIR 1969 SC 1335. ” ; 32. Noma S LIC of India, (1969) 2 SCC 199: an 1970 SC 209; Town Municipal Council . t, (1969) 1 SCC 873: AIR 1969 SC 1335+ . : 33, naires ‘ Sewarage Board v. Subhash Project & Marketting Ltd. IC 891. ; . aa. CR we BN. Reddi, AIR 1969 SC 872: (9 OM a ee eee ee, 77: CR 630; D.P. Mishra v. Kamal Na 7 Kumar, ATR 1969 SC 677: (1969) 1S A fae ATR aan SC 1477- Mee core |. 2a a0" 2K bn Adelle Lael788 LIMITATION ACT [PART 14. STARTING POINT OF LIMITATION Limitation starts running, from the date right to sue accrues in favour of a party. “Right to sue” means right to seek relief, i.e. right to approach a court of law. Thus, there can be no “right to sue” until there is an accrual of right asserted in the suit, appeal or other proceedings.” In such cases, second column of each article fixes the period of limi- tation, while the third column specifies time from which the period of limitation starts running.” 15. EXPIRY OF PERIOD OF LIMITATION WHEN COURT IS CLOSED Section 4 of the Limitation Act, 1963 states that where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be filed on the day the court reopens.” Section 4 is based on two well-known principles: (i) The law does not compel a person to do that which he cannot possibly perform (lex non cogit ad impossibilia). (i) An act of court shall prejudice no one (actus curiae neminem gravabit). 16. EXTENSION OF PERIOD OF LIMITATION Section 5 of the Limitation Act provides for extension of time in certain cases. It states that any appeal or application may be admitted even after the limitation is over, if the appellant or applicant satisfies the court that he had “sufficient cause” for not filing such appeal or appli- cation within the period of limitation." In such cases, delay in filing an appeal or application can be con- doned by a court and the matter can be heard and decided on merits. 37. Phool Rani v, Naubat Rai Ahluwalia, ( ‘ I / i, (1973) 1 SCC 688: AIR Gannon Data & Co. Lid. v. Union of India, (1969) 3 SCC 607: AIR eee aca a axminarayan, AIR 1960 SC 335: (1960) 2 SCR 235.vil LIMITATION ACT, 1963 789 17, CONDONATION OF DELAY The general rule laid down in Section 3 of the Limitation Act, 1963 declares that every suit, appeal or application filed after the period of limitation shall be dismissed? So far as suit is concerned, the rule is absolute and unqualified. Any suit instituted after the prescribed period of limitation has to be dis- missed inasmuch as there is no provisions for condonation of delay in filing a suit Soe ni ae ee In respect of appeals and applications, however, the Limitation Act, 1963 provides for extension of time and condonation of delay in filing appeals and applications (6. 5). It provides that where the appellant or applicant satisfies the court that he had a “sufficient cause” for not pre- ferring appeal or making application, the court may condone delay and hear the case on merits.“ While dealing with an application for condonation of delay, the court will keep in view two conflicting considerations: (i) As far as possible, the court would try to decide every cause on merits rather than throwing it away on technical ground of delay without entering into real issues in the case. (ii) The court must also consider an important aspect that non-filing of appeal or application has created a valuable right in favour of the opposite party which cannot be defeated or interfered with lightly.* 18. “SUFFICIENT CAUSE” 1963 enables the court to condone delay if the appellant or applicant satisfies the eferring an appeal or mak- Section 5 of the Limitation Act, in filing appeal or application, 1f th court that he had “sufficient cause” for not pr ing an application within such period. Say with , ‘But waht is “sufficient cause”? The expression ‘sufficient cause” has not been defimed in the Act. It is, however, very wide, comprehensive and elastic in nature. It is also construed liberally by courts so as to coe ane advance the cause of justice: * limitation: Duty of court” at p. 787. 42.. $.3, Limitation Act, 1963; See also, : ee te oe cenghmitra x. Director E ; ae . 43, Sk Mohammad Ismail v. Sk. Antoar Ali, ATP 100) 0 y. Chandro, AIR 2971 All 234;LIMITA aN VART 21. COMPUTATION OF PERIOD OF LIMITATION “ides for computation of period of limitation. They oe aceoning the period of limitation, or postpone of re S imitation.* Ss. 12-24) t int of 1 22. EXCLUSION OF TIME 5 of the Limitation Act provide for exclusion of time in ae od of limitation prescribed by law. ; alia, exclude the following periods: on which the period of limitation is to be reckoned? e day on which the judgment/order/award is pronounced.* e time spent in obtaining copy of decree/order/award/ pent in prosecuting an application to sue as an indi- ent person.* fy The cm Pent in proceedings taken bona fide (in good faith) in court having no jurisdiction.” i) The time during which stay or injunction operated.@ ) The time spent in giving notice or for obtai, tion required by law. (tii?) The time during which there was receiver or ] liquidator. (the time during which Proceedings to set aside sale were pend- ing (in a suit for Possession). _b} The time during which the defendant had been out of India ning consent or sanc- 3 of the Limitation Act, 1963 provi t of me 1963 provide for postponement For application of law of action. In other word: son who can be sued, and a Cause of application can be filed. Moreover, tion to institute such ing w r roceedin; or impediment, P oi of limitation, there must be a completed cause s, there must be a person who can sue, a per- action on which a suit, appeal On Such person should be in a posi- ithout any hindrance, obstruction por detailed discussion, see, “Exclusion on ‘detailed discussion, See, “Poctnn..... 12 (9) Rs of time” at p. 792.vn LIMITATION ACT, 1963 793 In the following cases, there is postponement of limitation, i.e. the period of limitation will not start running: A The period of limitation will not start running till there is a per- son who can sue or who can be sued.” (i In case of fraud or mistake, the period of limitation will not start _ Tunning till such fraud or mistake is discovered. _fii) In case of right or liability, a fresh period of limitation will start running from the date of acknowledgment in writing of such right or liability by the party.” (iv)_In case of debt, payment will provide fresh period of limitation from the time of such payment.” (v) Where after the institution of a suit, a new plaintiff or defendant is added or substituted, the suit shall be deemed to be instituted against him when he was made a party.” But if the court is satisfied that such omission was due to bona fide mistake, the suit shall be deemed to have been instituted on any earlier date.” (vi) In case of continuing breach of contract or tort, fresh period ~~ of limitation begins to run every moment_till_breach_or_tort continues.” vit) In a suit for compensation for an act not actionable without spe- cial damage, the period of limitation will be computed from the time the injury result.* 24. EXTINGUISHMENT OF RIGHT ction 27 of the Limitation Act speaks of extinguishment of right to Je of law is that limitation bars property. a neral princip! i n bi The right remains subsisting We have seen that the ge I the right. edy and does not destroy is rule and enacts that the bar of rem- though without remedy.” mn econ Tiasier exception a ‘oy the right itself. Where a person i inguish and destr e ; Be not ane : es possession, his right to such property stands extinguished.” go 38LIMITATION ACT 25. VOID ORDER: LIMITATION At one time, it was held that if an action taken or order made by the authority is illegal, ultra vires or void, the law of limitation does not apply to it, and a suit for declaration or for setting aside such order can be filed at any tim In Union Carbide Corpn. v. Union of India’, however, the Supreme Court held that even if the act is void or ultra vires, the aggrieved party must approach the court within the period of limitation. Since no period is prescribed specifically for such acts, the residuary provision (Art. 113) will apply, and a suit must be filed within three years from the time when the right to sue accrues, i.e. from the date such order is passed or action is taken. 77. State of Punjab vy. Go8A\'s cL ngh; (1988) 1 SLR'96 (P&H); State af Ds ar ct Chol