ATUL DEPAK

'Faman afa wa a-salah fa-ajruhu ala-Allahi’ (But whoever forgives & makes reconciliation-his/her reward is due from Allah)

Limitation Act 1963 (India) Notes

Object of Limitation Act 1963
1. There should be an end to litigation somewhere
2. Law assists vigilant and not those who sleep over their rights
3. Limitation Act is a statute of bar of a cause of action in court

Purpose of Limitation Act
1. Purpose is not to destroy rights but it is an act focused on public policy filing a life span for availing remedies in court.
2. Limitation bars remedy but does not destroy the rights

No inherent power to extend limitation period by bringing a case under the principle of ‘Interest of Justice’ bypassing the mandatory provisions of Limitation Act

Limitation Rules-
To see that parties do not resort to dilatory tactics
A case may be thrown out for unexplained delay
An unlimited threat of litigation creates insecurity, uncertainty, and thus some kind of limitation is essential for public order
Total Sections 32
Total Articles 137 in total SCHEDULE;
Contains 3 divisions-
1. Suits (First Division) Articles 1-113
2. Appeals (Second Division Articles 114-117
3. Applications (Third Division) Article 118-137

SALIENT FEATURES OF LIMITATION ACT:
S.3 Bar of Jurisdiction
If the suit is not filed within the time limit as prescribed in the provision, such suit shall not be admitted subject to the provision of S.4 to S.24
If the suit has been filed after the expiry of the said period, such will be dismissed even if defendant has not raised that objection except when application for condonation of delay has been filed under S.5 Limitation Act.
But if the suit is not accompanied by such application, it shall not be admitted.
This is based on the public policy that the case of party cannot be thrown away on legal technicalities.
Suit is always ‘instituted’ appeal is always ‘preferred’ and application is ‘made’
This application u/s 5 is a routine feature. If the court forms the opinion that there was a good reason behind the delay, it can hear the suit on merits.
Where the limitation period has already expired, DH acquires a valuable right in his favour which should not overlooked without sufficient reason.

S.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 date 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.


For example-
Limitation period expires on Sunday 07/07/2018. He did not file the case till 06/07/2018 and he cannot file the case on 07/07/2018 as it is Sunday so he can file on 08/07/2018 if the court re-opens on that day.
If on Monday, the court remains closed for sometime for some reason (death of a lawyer, judge etc) or if it is a half-day, then it shall be deemed holiday for that day for the purpose of this section.
Can it be argued that he should have file in the previous day?
No. Prescribed statutory limit cannot be curtailed.
Say. The court is closed for summer vacation from 15/06/2018 to 30/06/2018. And limitation period expires in 22/06/2018. Whether he can be permitted to file the case on 01/07/2018?
During summer vacation, one judge is always appointed as vacation judge. So all such applications, suits must be instituted before the vacation judge. No court in the country remains completely closed during vacation period. A vacation judge or duty magistrate is always there.
But if there is no vacation judge in that particular district (though this never happens)

S.5-Extension of prescribed period in certain cases-
Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be, admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation: The fact that the appellant or the applicant was misled by any order, practice or judgement of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
Prescribed period for any appeal or any application other than an application under any of the provisions of Order 21 of the CPC (Execution), may be admitted for healing after the expiry of the period of limitation if the appellant satisfy the court that there is sufficient cause behind him not making application within time limit.
This section is only confined only to appeal and application and not to filing of suit.
Sufficient cause not defined in CPC but may include that appellant misconstrued a practice prevalent in any HC.
Sufficient cause means which is beyond the control of appellant which resulted in delay. He is bound to make the application of condonation of delay.
If court is satisfied, it may allow the appeal and condone the delay.
Two things-
1. Sufficiency of explanation given by appellant. It should be plausible.
2. Acceptance of that explanation by the court.
Sufficient cause may include-
1. Illness of appellant. (medical certificate attached)
2. Accident of illness.
Illustration– Resident of Junagadh and litigation was ongoing in Dwarka Delhi and he lost the case. Limitation for appeal expires on 20/05/2018. He boarded the train on 18/05 and reached Delhi on 19/05 at 6PM. He boarded Auto but met with accident and suffered grievous injuries and was immediately taken to Akash Hospital where he remained unconscious for 8 days. After 8 days he goes to the lawyer. Lawyer said that limitation period has expired.
Example-If limitation period expires on 02/04/2018. Rakesh Kumar is the appellant and has asked his lawyer to file the appeal. Lawyer could not file the appeal on that date as he was very busy. Whether business of the lawyer would be a sufficient cause for condonation of delay?
No. Court shall reject the application.
Example-Anil Kumar has lost a case and he want to file an appeal. His father died on 21/04/2017. Limitation period is expiring on 27/04/2017. Anil Kumar is busy in performing the last rites and rituals up to 13 days. He still busy after that for religious ritual. He files the case on 30/06/2017.
Court shall allow application the application.
Example-If appellant does not file the appeal for 6 months.

S.6-Legal Disability-
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 therefor in the third column of the Schedule.
Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the times so specified.
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.
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.
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.

Clause 1 says that where a person is unable to institute a suit due to their legal disability, they can file the suit after their legal disability ceases.
Clause 2 says that where a person is affected by 2 disabilities or after the ceasing of one disability acquired another liability, he can file the suit after both disabilities have ceased. Before one disability goes, he is attacked by another liability. He can file the suit within the same period after the disability has ceased, as would otherwise have been allowed from the time specified
Example-A mentally deranged child.
Clause 3 says that where such persons are affected by disability and such disability does not ceases and continues till their death, his legal representative may institute the suit after his death within the same period as would have been allowed to him as appended in the schedule of limitation act.
What if legal representative are also affected by legal liability?
Clause 4 provides that in such a case, rules contained in clause 1 and 2 will apply. They can file within the same time if disability ceases.

Section 7 deals with the disability of one person out of several persons.
S.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.

Where one person out of several persons who are jointly entitled to file a suit or make an application for execution of a decree is affected by an viability but discharge can be given on his behalf by other person without his concurrence, then time period of limitation shall run against all of them but where such concurrence cannot be given, time shall not run against any of them unless the said such person becomes capable to give discharge without concurrence of other person or until his disability goes.
Discharge is every kind of liability

Example-Manager of Hindu United Family (HUF) is capable of giving a discharge on behalf of other members of the family. Even if one child is mentally deranged in a HUF, its karta can discharge liability without concurrence of the minor so time period of limitation shall run against all of them.


Section 8 contains exceptions regarding persons covered under 6 and 7.
S.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.
So pre-emptive suits shall not get any extension by the virtue of legal disability of a person.
Such right of pre-emption shall for more than three years from the cessation of the disability or the death of the person affected thereby.

S.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 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.
Once time of limitation has began to run, no subsequent disability can stop it from running.

S.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.

Suits against trustees to their representative, there shall be time limit for filing of suit against them.

EXCLUSION OF TIME

There are some situations where limitation period is to be calculated after exclusion of some time. S.12-20 deals with such issues.

S.12-Exclusion of time in legal proceedings
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.
In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgement, the day on which judgement 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.
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 judgement shall also be excluded.
In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.

Explanation: In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.

The first day shall be excluded.
Say the limitation period starts from 1/2/2014 to 1/2/2017. In this case 1/2/2013 shall be excluded.
The day of pronouncement of judgement is excluded.
Say, the judgement is pronounced on 1/2/2014. This day will be excluded.
If a party has not applied to get the copy of the judgement, order or decree, then he cannot take the benefit of this exclusion.
Any time taken by court to prepare decree, order before an application for a copy shall not be excluded.

S.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 time taken by court to decide an application of a person to sue as a pauper will be excluded if his application to sue as a pauper is rejected.
Where leave to sue or to file appeal as a pauper is applied if rejected, total time is to be excluded.

S.14-Exclusion of time of proceeding bona fide in court without jurisdiction
In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.

Explanation: For the purposes of this section-
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.

Plaintiff has instituted the suit in a civil court, but that court is not competent to try this suit, yet plaintiff is continuing his suit in this court in a bonafide manner for one year which this court decides that it has no jurisdiction o try this suit. In such a case, the time spent in the former suit which was instituted in a court without jurisdiction shall be excluded.
Provided
First suit was filed with good faith
With Due Diligence

S.15-Exclusion of time in certain other cases (IMP for Judicial Exams)
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.
In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.

Explanation: In excluding the time required for obtaining the consent or sanction of the government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the government or other authority shall both be counted.
Suppose a person wants to prosecute a public servant, he cannot file a complaint straightaway without sanction of competent authority. So total time which is taken by such authority in consideration of the sanction shall be excluded.
In computing the period of limitation for any suit or application for execution of a decree by any receiver or interim receiver appointed in proceedings for the adjudication of a person as an insolvent or by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company, the period beginning with the date of institution of such proceeding and ending with the expiry of three months from the date of appointment of such receiver or liquidator, as the case may be, shall be excluded.
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.
Where during the execution of a decree, attached property has been sold by the court auctioneer, and thereafter JD has filed an objection. Time taken by court in deciding this objection shall be excluded.
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.
This benefit has been given to defendant. If on the date when suit is filed, defendant is outside India, his absence time from India shall be excluded.

S.16-Effect of death on or before the accrual of the right to sue
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.
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 time7 when there is a legal representative of the deceased against whom the plaintiff may institute such suit or making such application.
Nothing in sub-section (1) or sub-section (2) applies to suits to enforce rights of pre-emption or to suits for the possession of immovable property or of a hereditary office.

Where an individual dies before the accrual of right of sue or right to sue accrue arise on death of such person. Where such person dies before the right to sue accrues. Time of limitation starts when there is Legal representative of the deceased is conformed.
This section will have no application when a suit is filed for right of pre-emption or for movable property.

S.17-Effect of fraud or mistake
Where, in the case of any suit or application for which a period of limitation is prescribed by this Act-
the suit or application is based upon the fraud of the defendant or respondent or his agent; or
the knowledge of the right or title on which suit or application is founded is concealed by the fraud of any such person as aforesaid; or
the suit or application is for relief from the consequences of a mistake; or
where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him;
the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:

PROVIDED that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which-
in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or
(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or
(iii) in the case of concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.
Where a judgement-debtor has, by fraud or force, prevented the execution of a decree or order with the period of limitation, the court may, on the application of the judgement-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
.

Time taken by the party to discover the fraud all be excluded.
Clause 2 is for execution proceedings.

S.18-Effect of acknowledgement in writing
Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed.
Where the writing containing the acknowledgement is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received,.

Explanation : For the purposes of this section-
(a) an acknowledgement may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right;
(b) the word “signed” means signed either personally or by an agent duly authorised in this behalf; and
(c) 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
.

S.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 authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:
PROVIDED that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgement of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.
Explanation: For the purposes of this section –
where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment;
“debt” does not include money payable under a decree or order of a court
.

S.20-Effect of acknowledgement or payment by another person
The expression “agent duly authorised 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 authorised by such guardian, committee or manager to sign the acknowledgement or make the payment.
Nothing in the said sections renders one of several joint contractors, partners, executors or mortgagees chargeable by reason only of a written acknowledgement signed by, or of a payment made by, or by the agent of, any other or others of them.
For the purposes of the said sections,-
(a) an acknowledgement signed or a payment made in respect of any liability by or by the duly authorised agent of, any limited owner of property who is governed by Hindu law, shall be a valid acknowledgement or payment, as the case may be, against a reversioner succeeding to such liability; and
(b) where a liability has been incurred by or on behalf of a Hindu undivided family as such, an acknowledgement or payment made by, or by the duly authorised agent of, the manager of the family for the time being shall be deemed to have been made on behalf of the whole family.

Remember that the crux of Sections 18, 19, 20 is where any person has acknowledged in writing his liability in right of the opposite party, in such case period of limitation afresh with effect from the date on which he has acknowledged his liability and other person’s right. IMP.

S.21-Effect of substituting or adding new plaintiff or defendant
Where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:
PROVIDED that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.
Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.
The party shall be deemed to have been a party from the date of filing of application and not when the court has passed the order as court may take years to pass such order.
Where the court is of the view that omission as to not include a party as a necessary party was due to mistake or in good faith, court may direct that suit for such party shall be deemed to have been instituted from an earlier date.

S.22. Continuing breaches and torts (IMPORTANT)
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.
Continuing wrong/tort example-
Trespass, omission, obstruction to water way, obstruction to enjoyment of easement, closing of tank or drains, destruction of a right of way, disturbance of the right to worship, an infringement of trade mark, obstruction of light and air are continuing wrong tort.

S.23. Suits for compensation for acts not actionable without special damage
In the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results therefrom, the period of limitation shall be computed from the time when the injury results.
Acts which result in specific injury such as obstruction of public path.
Cause of action is not the act, but the actual injury caused so it is the point of time which such injury is caused that fixes the starting point.

S.24. Computation of time mentioned in instruments
All instruments shall for the purposes of this Act be deemed to be made with reference to the Gregorian calendar.

EASEMENTARY RIGHTS
S.25-Acquisition of easement by prescription
Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for twenty years, and where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for twenty years, the right to such access and use of light or air, way, watercourse, use of water, or other easement shall be absolute and indefeasible.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
Where the property over which a right is claimed under sub-section (1) belongs to the government that sub-section shall be read as if for the words “twenty years” the words “thirty years” were substituted.
Explanation : Nothing is an interruption with the meaning of this section, unless where there is an actual discontinuance of the possession or enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made.

Acquisition of Easement by prescription: 20 years continuously.
Prescription means a title acquired by use and time allowed by law.
Three things are essential to establish a right by prescription.
1. Use and Enjoyment
2. The identity of things enjoyed
3. It should be adverse to the right of some other person
Prescriptive Right-A right acquired by prescription ie. uninterrupted use of possession from time immemorial or for a fixed period.
The exercise of easementary right must be within a period of 2 years of the suit. If not exercised, suit becomes time barred.
Example-Public thoroughfare used by villagers peacefully since 30 years without any interruption. And after 30 years, some person started using construction on that way. People using that way have acquired easementary rights on that way.