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LIMITATION OF SUITS, APPEALS AND APPLICATIONS[1]
QUESTION BANK
- Explain the meaning and scope of the doctrine of ‘sufficient cause’ under the Indian Limitation Act.
- Explain the doctrine of ‘legal disability under the law of limitation.
SHORT NOTES
- Exclusion of time spend in a legal proceeding.
- Foreign rule of limitation.
- Continuous running of time.
SYNOPSIS
- GENERAL RULE UNDER S. 3-
- EXCEPTIONS TO S. 3-
(1) Expiry of the prescribed period when the court is closed (S. 4)-
(2) Extension of prescribed period in certain cases (S. 5.)-
(i) Illness-
(ii) Mistaken legal advice-
(iii) Poverty, Pardanashin etc.-
(iv) Mistake of a lawyer due to unsettled legal position-
- v) Filing proceeding before the improper forum.-
- vi) Mistake of fact-
vii) Illiteracy-
(3) Legal Disability (Ss. 6, 7 and 8)-
(4) Suspension of limitation while the administration continues/ continuous running of time (S. 11)-
(5) Suits against trustees (S. 10)-
Note-
Foreign Rule of Limitation (S. 11)-
Part II of the Limitation Act, from sections 3 to 11, lays down the rules as to the limitation of suits, appeals and applications.
- 3 lays down general rules, and Ss. 4 to 24 provide exceptions to the general rule.
I. GENERAL RULE UNDER[2] S. 3-
- 3 lays down that every suit instituted, appeal preferred, and the application made after the prescribed period (for filing that) shall be dismissed, although limitation has not been set up as a defence by the opposite party[3].
- 2 (j) of the Limitation Act 1963 defines “period of limitation’ as 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. Thus, the limitation period is prescribed in the Schedule of the Act. (See Schedule for the last topic, i.e., topic no. 25)[4].
- 3 lays down legal disability in filing a suit, appeal or application.
II. EXCEPTIONS TO S. 3-
Ss. 4 to 24 of the Limitation Act lays down the exceptions to the general rule. In other words, delay in filing a suit, appeal, or application may be condoned in the following circumstances.
(1) Expiry of the prescribed period when the court is closed (S. 4)-
Where the prescribed period of any suit, appeal, or application expires when the court is closed, it may be filed when the court reopens[5].
(2) Extension of prescribed period in certain cases (S. 5.)-
Any appeal or any application on (other than an application under any of the provisions of Order XXI of the Code of the Civil Procedure, 1908), may be admitted after the prescribed period if the appellant satisfies the court that he had sufficient cause for not preferring the same within such limitation period[6]. However, no exception is provided for filing a suit.
In Sitaram Chavan V. M. N. Nagarshana[7]
Supreme Court Held- that the party at default must satisfactorily account for each day’s delay in making the application; unless the court is satisfied in respect of each day’s delay in making the application, it has no authority in law to condone the delay.
Thus, S. 5 lays down that even after the expiration of the limitation period, an appeal or applicator can be filed provided the party should satisfy the court as to ‘sufficient cause for delay.
Following are some of the examples of sufficient causes held by different courts from time to time-
(i) Illness-
Illness may be sufficient to condone the delay in filing an appeal or application. However, it must be proved that the person was utterly unable to attend to any duty.
In Gauri Shankar v. Kasi Nath[8]
The Court held- that high fever, attended with delirium by which application was delayed by four days, was a sufficient cause for condoning the delay.
However, a mere plea of sickness is not a sufficient cause for condoning the delay.
(ii) Mistaken legal advice-
There is no general rule to condone delay on the grounds of mistaken legal advice by the legal practitioner. However, it may be a sufficient cause in particular cases.
In State of West Bengal v. The Administrator Howrah Municipality[9]
The Supreme Court held that if a party had acted in a particular manner based on a piece of wrong advice given by his legal advisor, he could not be held guilty of negligence so as to disentitle the party to plead sufficient cause under S.5 of the Limitation Act.
(iii) Poverty, Pardanashin etc.-
Poverty is not a sufficient ground for condoning delay. A poor person can file suit as a pauper, and in criminal matters, free legal aid is provided to him. However, courts are liberal in condoning delay on the grounds of poverty, pardanashin leady, etc.
(iv) Mistake of a lawyer due to unsettled legal position-
Delay due to conflicting decisions misleading party in filing appeal is good ground in condoning the delay.
Similarly, innocently filing defective vakalatnama can be a good ground for condoning the delay[10].
v) Filing proceeding before the improper forum.-
If the suit etc., is filed within the limitation period before the forum (Court) having no jurisdiction, that much delay may be condoned by the appropriate court.
In Balbir Singh V. Bogh Singh[11]
Facts- the first appeal was filed before the District Court instead of the High Court.
Held- The appellant is entitled to the deduction of the period during which the appeal was pending before the District Court.
vi) Mistake of fact-
Mistakes of fact in calculating the limitation period may be taken into consideration to condone the delay.
vii) Illiteracy-
Illiteracy of the party (applicant, etc.) is not always sufficient reason to condone the delay.
(3) Legal Disability[12] (Ss. 6, 7 and 8)-
This Section 6 excuses an insane person, minor and idiot to file a suit (or make an application for the execution of a decree) within the time prescribed by law and enables him to file the suit (or make an application) after the secession of disability. However, such a person should make an application or file suit within the prescribed period of limitation after cessation of such legal disability.
In a case where one disability is followed by another, the suit, etc., may be filed after both disabilities have ceased to exist.
If the disability continues until the person’s death, the legal representatives are allowed to file suit, etc., within the prescribed limitation period, which counts from the date.
- 6, applies to suits (other than a suit for pre-emption), and applications for execution of decrees for which the period of limitation is mentioned in the Act; however, it does not apply to appeals.
- 7, supplements the above rule under S. 6. S. 7 lays down that 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. A discharge can be given without the concurrence of such person, and time will run against them all. Still, 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.
- 8 further clarifies the rule under S.6. It states that the exemption under S. 6 does not apply to pre-emption suits. In other words, pre-emption suits should be filed within the limitation period even though the person is legally disabled, as mentioned above.
S.8 further provides that a person with a disability may sue after the cessation of the disability within the prescribed limitation period, but the period cannot be extended beyond 3 years from the cessation of the disability.
(4) Continuous running of time[13] (S. 9)-
Where once time has begun to run, no subsequent disability or inability to institute a suit etc, can stop it.
(5) Suits against trustees (S. 10)-
where a trust is created expressly for some specific purpose or object and property has become vested in a trustee upon such trust, the beneficiary (for whose benefit the trust is created) may bring a suit against such trustee or his legal representative to enforce that trust at any length of time without being barred by the law of limitation.
Note-
Foreign Rule of Limitation (S. 11)-
Suits instituted in the territories to which this Act extends or contracts entered into in the state of Jammu and Kashmir or a foreign country shall be subject to the rules of limitation contained in this Act.
This principle envisages the general rule of International Law that all suits must be brought within the limitation period prescribed by the local law of the county where the suit is brought (lex fori). However, the interpretation of the contract, its form, validity, rights, etc., must be governed by the law of the country where the contract was made (lex loci).
Sub- Sect (2) of S. 11 is an exception to the above general rule; it lays that even foreign law (lex loci) of limitation may be preferred on local law (i.e. lex fori), in two circumstances viz.
(i) that the foreign law (lex loci) has extinguished the right or the obligation itself;
(ii) that both parties have resided in the country where such law prevails for the whole of the prescribed time.
For example, if A’s right to recover the money advanced from B is time-barred by Indian law, and A files suit to recover the money advanced in American court (if he and B resided there for some time); irrespective of the law of limitation prevailing in America, the Indian law is to be taken into consideration because it has extinguished right.
THE SCHEDULE
PERIOD OF LIMITAITION
(Some parts of the Schedule to Limitation Act are given for the understanding and convenience of the subject. For convenience, it is not necessary to narrate the whole Schedule here. The Schedule is to be read with section 3 and S. 2 (j). There are a total of 137 entries prescribing the limitation period. However, some entries are given here.
FIRST DIVISION –SUITS
| Sr.
No |
Description of Suit | Period of Limitation | Time from which the period begins to run |
PART I- SUITS RELATING TO ACCOUNTS
| 1 | For the balance due on a mutual, open and current account, where there have been reciprocal demands between the parties. | Three
Years |
The close of the year in which the last item admitted or proved is entered in the account; the such year is to be computed as in the account. |
| 2 | Against a partner for an account | Three
Year |
When the account is, during the continuance of the agency, demanded and refused or, where no such demand is made, when the agency terminates. |
| 3 | By a principal against his agent for movable property received by the latter and not accounted for.
(There are total 5 entries here) |
Three
Years |
When the account is, during the continuance of the agency, demanded and refused or, where no such demand is made, when the agency terminates. |
PART II-SUITS RELATING TO CONTRACTS
| 6 | For a seaman’s wages | Three years | The end of the voyage during which the wages are earned |
| 7 | For wages in the case of any other person | Three years | When the wages accrue due. |
| 8 | For the price of food or drink sold by the keeper of a hotel, tavern or lodging house | Three years | When the food or drink is delivered. |
SECOND DIVISION-APPEALS
| 114 | Appeal from an order of acquittal-
(a) Under sub-section (1) or subsection (2) of S. 417 of the Code of Criminal Procedure, 1895 (5 of 1898) |
Naivety days | The date of the order appealed from. |
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[3] Sub-clause (2) of S. 3 provides explanation to above mentioned general rule. It explains as to when suits are deemed to be instituted. It lays that a suit is instituted, in ordinary cases, when the plaint is presented to the proper officer. In the case of the pauper, when his application to sue as a pauper is made; in the case of a claim against a company which being wound-up by the court, when the claimant first sends his claim to the official liquidator.
It further explains above rule, that 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-
(i) in the case of set-off, on the same date as the suit in which set-off is pleaded.
(ii) in the case of a counter claim, on the date on which the counter claim is made in the court;
It further explains that an application by notice of motion in a High Court is made when the application is presented to the proper officer of the court.
[4] ‘The Schedule’ at the last is given for better understanding and convenience; questions are not asked on the topic.
[5] 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.
[6] Explanation- the fact that the 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 sufficient cause within the means of this section.
[7] AIR 1960 SC 260.
[8] AIR 1934 All. 367.
[9] AIR 1972 SC 749.
[10] Mohmmad Shaha Khan V. Mohmmad Ali Khan 1930 A.L.J 394.
[11] AIR 1974 SC 650
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