NOTES-ON-LIMITATION-ACT PDF

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Lectures Notes as given by Advocate Meeta Mohini, Visiting Faculty on Limitation Act. Meeta Mohini is an established advocate in Patna HC with specilization in civil suits....

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CHANAKYA NATIONAL LAW UNIVERSITY MITHAPUR, PATNA, BIHAR

In Partial Fulfilment of Integrated BALLB (Hons) Course CIVIL PROCEDURE CODE On the Research Topic “LIMITATION ACT, 1963”

PRESENTED TO Dr Meeta Mohini Chanakya National Law University, Patna PRESENTED BY Sakshi Mohan Student, BALLB (Hons) Roll No- 1555, Second Year.

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ACKNOWLEDGMENT Prima facea, I am grateful to the God for the good health and wellbeing that were necessary to complete this project in partial fulfilment of the BALLB (Hon). I wish to express my sincere thanks to Dr Meeta, Faculty for Civil Law for providing me with all the necessary facilities for the research. I take this opportunity to express gratitude to all of the Department faculty members for their help and support. I also thank my parents for their encouragement, support and attention. I am also grateful to my peers who supported me through this research project.

DECLARATION

I hereby declare that this Research Project entitled “Limitation Act, 1963” was carried out by me for the partial fulfilment of the BALLB (Hons) Degree Course under the guidance of Dr Meeta Mohini, Chanakya National Law University, Patna. The interpretations put forth are based on my reading and understanding of the original texts and they are not published anywhere in the form of books, monographs or articles. The other books, articles and websites, which I have made use of are acknowledged at the respective place in the text.

Place: Patna, Bihar

Name: Sakshi Mohan

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TABLE

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ACKNOWLEDGMENT...................................................................................................................2 DECLARATION.............................................................................................................................2 TABLE OF CONTENT...................................................................................................................3 INTRODUCTION...........................................................................................................................4 APPLICABILITY OF LIMITATION ACT..........................................................................................6 IMPORTANT DEFINITION..............................................................................................................8 CONDONATION OF DELAY........................................................................................................10 DISABILITY...............................................................................................................................13 SUITS AGAINST TRUSTEES A ND CONTRACTS ENTERED OUTSIDE TERRITORIES......................16 COMPUTATION OF PERIOD OF LIMITATION IN TERMS OF EXCLUSION OF TIME......................18 COMPUTATION OF PERIOD OF LIMITATION IN TERMS OF EFFECTS.........................................24 COMPUTATION OF PERIOD OF LIMITATION..............................................................................29 ACQUISITION OF OWNERSHIP BY POSSESSION........................................................................30 CONCLUSION.............................................................................................................................32 BIBLIOGRAPHY.........................................................................................................................33

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INTRODUCTION The word limitation itself says the meaning. The word limitation in its literal term means a restriction or the rule or circumstances which are limited. The law of limitation has been prescribed as the time limit which is given for different suits to the aggrieved person within which they can approach the court for redress or justice. The basic concept of limitation is relating to fixing or prescribing of the time period for barring legal actions. According to Section 2 (j) of the Limitation Act, 1963, ‘period of limitation’ means the period of limitation prescribed for any suit, appeal or application by the Schedule, and ‘prescribed period’1 means the period of limitation computed in accordance with the provisions of this Act. The Law of Limitation signifies to prevent from the last date for different legal actions which can take place against an aggrieved person and to advance the suit and seek remedy or righteous before the court. Where a suit is initiated after the bar of limitation, it will be hit by the law of limitation. The main and the fundamental aim of the law of limitation is to protect the lengthy process of penalizing a person indirectly without doing any offence In India, the Limitation Act, 1963 is the legislation that governs the period within which suits are to be filed, with relevant provisions for delay, condonation thereof etc. The principle that pervades statutes of limitation at common law is that ‘limitation extinguishes the remedy, but not the right' this means that the legal right itself is not defeated, but only the right to claim it in a court of law is extinguished.2 The Limitation Act is a Procedural Act and not a substantive piece of Law.3 An exception to this general rule is the law of prescriptive rights, whereby the right itself is destroyed. Section 27 of the limitation Act, 1963 proclaims:“Section 27: Extinguishment of Right to Property at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.” This provision, in Articles 64 and 65 of the Limitation Act, 1963 establishes the law of adverse possession as it stands in India today. These two Articles both prescribe a period of twelve years within which the right to claim a particular property is extinguished, but the two differ in so far as the date on which such period of limitation begins to run.Article 64 deals with cases where the dispute is over possession not necessarily based title, and in such cases the period of limitation runs from the time when the plaintiff was dispossessed of the property. Article 65 deals with cases where the dispute is over title as such also, and in such cases the period of limitation runs from the time when the defendant becomes adverse to that of plaintiff. 1 Section 2 (j), Limitation Act,1963. 2 LS Synthetics Ltd v Fairgrowth Financial Services Ltd, 2004 (SCC). 3 ASK Krihnappa Chettair v SVV Somiah, AIR 1964 SC.

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AIMS AND OBJECTIVE To study the scope of Limitation Act,1963 and its provision and Schedule. HYPOTHESIS The researcher hypothesis that Limitation Act bars the remedy and not the Right. RESEARCH METHODOLOGY: The researcher has opted for doctrinal method of research. This project has been done based on thorough research work based on intrinsic and extrinsic aspects of the project. SOURCES OF DATA The researcher has used both primary and secondary data, primary being Acts, Statutes and Case Laws and secondary being Books, Journals and Websites. SCOPE AND LIMITATIONS Though in the topic “Limitation Act ” there is a lot to research but due to certain limitations like time limitation, source limitation and area limitation, the researcher has not been able to deal with the topic in greater detail. MODE OF CITATION The researcher has followed a uniform mode of citation through the course of this project. RESEARCH QUESTIONS 

What are the provisions for easements Rights?



What are the general principles of Limitation Act?

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APPLICABILITY OF LIMITATION ACT The Limitation Act,1963 has 32 sections and 137 articles. Article 1 to 113 deals with suits. 114 to 117 with appeals and 118 to 137 with applications. Limitation Act is applicable in the following situations Suits relating to accounts, contracts, declarations, decrees & instruments, movable property, torts, trust and trust property, immovable property. Further, it is applicable to appeal of order of acquittal from sec. 417 of Code of Criminal Procedure, appeal of sentence of death passed by a Court of High Court or other Court, appeal from decree or order passed by the High Court or other code under Civil Procedure Code. The limitation act is also applicable in Application for leave to appeal as a pauper to High Court or any other court, application to leave to defend the issue under summary proceedings and Application of leave for review of the judgment of the Court. Limitation Act is not applicable in the following situations Filing of Writ petition under Article 32 and Art 2264, application of a final decree in a suit fro partition, application for a revocation of probate or application under Section 151 of Civil Procedure Code, in cases of criminal proceeding unless applicable by express provisions. Article 133 of the Limitation Act prescribes for a period of limitation of 90 days for filing a special leave petition to appeal to the Supreme Court. Retrospective Operation of the Code Limitation Code is retrospective in nature as it is a Code of Procedure.5 The act is exhaustive in nature as it govern the law of limitation in respect of all matters specifically dealt by it, and the Indian Court are not permitted to travel beyond its provisions to add or supplement them.6 The limitation act applies to only such applications as party is bound to make for securing the relief he requires and does not apply when the application relates to an action which the court ought to take its own motion whether he applies for it or not. Public Policy behind the Law of Limitation 1. Long Dormant Claim have more cruelty than justice in them7; 2. The defendant might have lost the evidence to the disputed claim; 3. The person with good cause of action should pursue them with reasonable diligence.

4 Rajamata VR Scindia v State of UP, AIR 1986 SC 756. 5 FV Mathapati v Achappanaik Desai, AIR 1956 Bom. 6 AS Krishnappa Chettiar v Nachipappa Chettiar, AIR 1964 SC 227. 7 MP Raghavan Nair v State Insurance Officer, 1971 Ker LJ 583 (FB).

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Rules of limitation are not meant to destroy the rights of the parties. They are meant to ensure that parties do not resort to dilatory tactics but seek their remedy promptly.8 The law of limitation bars the action and not the 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 suits.9 In Rajendra Singh v Santa Singh10, the court held that the object of the law of limitation was to prevent disturbance and deprivation of rights what may have been acquired by equity and justice by long enjoyment or what may have been lost by a party’s own indignation, negligence or laches. In Balakrishnan v MA Krishnamurthy11, the Act is based on the Statute, “interest republicae ut sit finus litium.” Limitation Act is Lex Fori It is lex fori as remedies on contracts are to be regulated and pursued according to the law of the place where the action is instituted and not by the law of the place of contract. Enlargement of Time The judge cannot on equitable grounds enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by it.12 Application of the Act over the Territory of India In Syndcate Bank v Parbha D Naik, 13 the court held that there is only one Law of Limitatiojn for the entire territory of India. The act applies to Courts only The Limitation Act applies to court only. IT applies to proceeding which can be initiated in a court of law.14 Tribunals, Quasi Tribunals are not covered by the Act.15 Thus the proceeding do not apply before the labour court16, arbitration court17 or Election Tribunal.18 Application to Criminal Proceedings As a general rule, “the crime never die”. Lapse of time does not bar the crown to prosecute an offender. The provisions of the Limitation Act does not apply to criminal proceedings , except when the express provisions has been made for that purpose.

8 S. Ganesharaju v Narasamma, (2013) 11 SCC 341. 9 Kishan Lal v Kashmiro, AIR 1916 PC 172. 10 AIR 1973 SC 2537. 11 (1998) 7 SCC 123. 12 Kirpa Shah Sant Singh v Sri Harikishan Das, AIR 1957 Punj 273. 13 AIR 2001 SC. 14 MP Steel Corpn v CCE, (2015) 7 SCC 58. 15 Sushila Devi v Ramanandan Prasad, (1976) 1 SCC 361. 16 Nityananda v LIC, (1969) 2 SCC 199. 17 Assam Urban Water Supply and Sewage Board v Subhash Project & Marketing Ltd, (2005) 30 AIC 891. 18 KV Rao v BN Reddi, AIR 1969 SC 872.

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IMPORTANT DEFINITION Following are the important definitions 1. Applicant19 It includes (i) (ii) (iii)

a petitioner; any person from or through whom an applicant derives his right to apply; any person from or through whom an applicant derives his right to apply other representative;

It includes a person who prefers an original application or otherwise. 2. Application20 It includes an Petition but a suit does not include an appeal or an application. Application ordinarily applies act of making prayer or request for something. 3. Bill of Exchange21 Bill of exchange includes a hundi and a cheque. It can also be i. ii. iii. iv. v. vi.

Instrument in writing; Containing an unconditional order; Signed by the maker; Directing a certain person to pay a certain sum of money; Directing a certain person to pay a certain sum of money; Only to the order of a certain person to pay a certain sum of money.

4. Defendant22 It includes (i) (ii)

any person from or through whom a defendant derives his liability to be sued; any person whose estate is represented by the defendant as executor, administrator or other representative.

5. Easement23 Easement includes a right not arising from contract, by which one person is entitled to remove and appropriate for his own profit any part of the soil belonging to another or anything growing in, or attached to, or subsisting upon, the land of another.

19 Section 2 (a), Limitation Act, 1963. 20 Section 2 (b), Limitation Act, 1963. 21 Section 2 (c), Limitation Act, 1963. 22 Section 2 (e), Limitation Act, 1963. 23 Section 2 (f), Limitation Act, 1963.

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6. Good Faith24 Good faith—nothing shall be deemed to be done in good faith which is not done with due care and attention. It includes i. ii. iii. iv.

Honesty in belief or purpose; Faithfulness to one’s duty or obligation; Observance of reasonable commercial standards of fair dealings in a given trade or business; Absence of intent to defraud or seek inconsiderable advantage.

7. Period of Limitation25 Period of limitation means the period of limitation prescribed for any suit, appeal or application by the Schedule, and “prescribed period” means the period of limitation computed in accordance with the provisions of this Act. If a period of limitation expires on the day during the court vacation, a suit filed on the next opening day shall be treated within time. If the day immediately preceding the last day for filing the suit is a holiday, the same may be excluded in computing the period of limitation.

CONDONATION OF DELAY (Section 3 to Section 5)

24 Section 2 (h), Limitation Act, 1963. 25 Section 2 (j), Limitation Act, 1963.

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Section 3- Bar of limitation.—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. For the purposes of this Act, (a) a suit is instituted, (i) (ii) (iii)

in an ordinary case, when the plaint is presented to the proper officer; in the case of a pauper, when his application for leave to sue as a pauper is made; and in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;

In Noharlal Verma v District Co-op Central Bank Ltd,26 the SC observed that if a suit, appeal or application is barred by limitation, a court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and decide it on merits. Even in the absence of such plea by the defendant , respondent or opponent, the court or authority must dismiss such suit, appeal or application, if it is satisfied that same is barred by limitation. This general rule is stated in Section 3 (1). Section 3 bars the legal remedy, the enforceability of the right accrued whether under a contract or under an other situation.27 Section 3 only bars the remedy but not does not destroy the right tow which the remedy relates.28 Section 3 requires that every suit filed after the period of limitation shall be dismissed, and the same for application also.29 The section is mandatory in its term and as observed by the privy council in General AF and L Insurance Corporation v Jan Mohd,30 . In Boota Mal v UOI and Rajendra Singh v Santa Singh, where SC refused to apply an alien doctrine of lis pendens against provisions of the Limitation Act, 1963. The limitation has to be computed from the date when the suit is filed and not from any other previous date. IN the case of Bhabani Sahankar Agarwal v State of West Bengal 31, it was held that the complaint sent a demand notice but was not able to know whether it was served upon the accused or not. The postal authority initiated the date of delivery of the demand notice. Limitation begins to run from the date of postal authority intimation. Generally defence of limitation mist be raised in pleadings so that the other party may also note the basis and the facts by reasons of which the suit is sought to be dismissed. In Food Corporation of India v Babulal Agarwal32, it was held that it observed that it is well settled that a suit filed beyond limitation is liable to be dismissed eventhough limitation may not be set up as defence. 26 2008, SC. 27 Soic Southern Petrochemicals Inds Corpn Ltd v M/S AK Jajee, Distributor of Seeds Fertilizers and Agricultural Equipment, 2012 (3) Civil LJ 96 (Kant). 28 Palai Central Bank v Joseph Augusti, AIR 1966 Ker 121. 29 Rameshwar Bux v Ganga Bux, AIR 1950 All 598. 30 Privy Council, 1941. 31 AIR 2007 (DOC) 204 (Cal). 32 (2004) 2 SCC 712.

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In the case India Switch Company Private Limited v ACL (India) Inc 33, it was held by the virtue of section 3 of the Limitation Act, 1963 it is obligatory for the court to non-suit any person who sues belatedly after the expiry of the period of limitation.

Section 4- This section is limited in its applicability to the institution, preferring or making of suits, appeal or applications where a period of limitation has been prescribed therefore. Thus, the Limitation Act encompasses not only the suits or appeals, but the applications also. Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court re-opens. 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.

Principle behind Section 4 is i. ii.

The law does not compel a man to do what he cannot possibly perform; An act of court shall not prejudice anyone.

The section 4 of the Limitation Act does not extends the period of limitation. It provides for the contingency when the prescribed period expires on a holiday and the only contingency contemplated is “when the court is closed”.

Section 5- The section applies only to i. ii.

Appeals; Application other than execution application under Order XXI , CPC.

The section applies only to an application for leave to the Supreme Court.34 This section applies to criminal appeals and the criminal appellant court have the power to excuse delay and admit a time barred appeal, if the court is satisfied that the appellant has sufficient reason for not preferring the appeal within the prescribed tim...