1

LIMITATION

ACT

The doctrine of limitation is based on two broad considerations: 1. There is a presumption that a right not exercised for a long time is non existent. Vigilantibus non dormientibus jura subveniunt- Laws come to the assistance of the vigilant, not of the sleep ..

!. "t is necessar that title to the propert and matters of right in general should not be in a state of constant uncertaint , doubt and suspense.

AIR 1973 SC 2537: #ajendar $ingh and others Vs. $antha $ingh and others: %The object of the law of Limitation is to prevent disturbance or deprivation of what ma have been ac&uired in e&uit justice b long enjo ment or what ma have been lost b a part 's own inaction, negligence or laches.(

SALIENT FEATURES OF THE LIMITATION ACT, 1963. 1. )bsence of preamble. !. )ccepting the report of the Law *ommission, no illustrations are incorporated in the )ct. The reason given for such a step is that the illustrations were unnecessar and often were misleading. +. The old Limitation )ct regulated suits, )ppeals and onl some applications but the present )ct applies to suits and other proceedings and for purposes connected therewith.

,. The maximum period of -. ears prescribed for certain suits under the 1/.0 )ct has been reduced to +. ears. 1or example, suit b mortgagor for redemption or recover of possession 2)rt. -13, suit b mortgagee for foreclosure 2)rt. -+3 and suits b or on behalf of the *entral 4overnment or $tate 4overnment 2)rt. 11!3. 5. The definition of %applicant(, %plaintiff( and %defendant( have been enlarged so as to include not onl a person from whom the derive title but also a person whose estate is represented b an executor, administrator or other representative.

SCHEME OF THE LIMITATION ACT

Limitation )ct contains +! $ections 2$ection +! repealed3 and 1+6 )rticles. $cheme of the )rticles is as follows: )rticles 1 to 11+ )rticles 11, to 116 )rticles 110 to 1+6 : $uits : )ppeals : )pplications

$uits are divided into 1. categories: 1. !. +. ,. 5. -. $uits relating to accounts $uits relating to contracts $uits relating to declarations $uits relating to decrees and instruments $uits relating to immovable propert $uits relating to movable propert )rt. 1 to 5 )rt - to 55 )rt. 5- to 50 )rt. 5/ ,-. )rt. -1 to -6 )rt. -0 to 61

6. 0. /. 1..

$uits relating to tort $uits relating to trusts and trust propert $uits relating to miscellaneous matters $uits for which there is no prescribed period

)rt. 6! to /1 )rt. /! to /)rt. /6 to 11! )rt. 11+.

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Limitation )ct is an amending and consolidating statute. "t provides for all the contingencies it deals with. There is no scope for engrafting an exception of the rules under the )ct on the ground of hardship or on necessar implication.

A.I.R. 1962 S.C. 1718: "n construing the provisions of the Limitation )ct, e&uitable considerations are out of place.

AIR 1998 SC 2276: 7.8.#amachandran Vs. $tate of 8erala. 9eld: % Law of limitation ma harshl affect a particular part but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on e&uitable grounds.(

AIR 1972 SC 1548: The fixation of the period of limitation is to some extent arbitrar and ma fre&uentl result in hardship. :ven then it is to be construed as the language of the statute in its plain meaning imports. The courts are not concerned with the polic of the legislature or with the result in giving effect to the language used.

The court should not ta;e into extraneous considerations such as hardship in construing the provisions of the Limitation )ct. "s the Limitation )ct exhaustive < )"# 1/-, $* !!6: %The Limitation )ct is a consolidating and amending statute relating to the limitation of suits, appeals and certain t pes of applications to courts and must, therefore, be regarded as an exhaustive *ode. "t is a piece of adjective or procedural law and not of substantive law.

Prin i!"# $%&$ Li'i$&$i(n )&r* r#'#+, )-$ n($ ri.%$/ E0 #!$i(n*: 4enerall , limitation onl bars the remed but does not extinguish the right. The right continues to exist even though the remed is barred b limitation. 9owever, there are special exceptions in which on the remed being barred, the right itself is extinguished. 1or example, $ection !6 of the Limitation )ct. :xcept in cases where the right itself is extinguished b lapse of time, the remed alone is barred. 1or example, a debtor ma pa a time barred debt and he cannot claim it bac; on the ground that it was a barred debt. $imilarl , when a debtor has several debts, the creditor can adjust the pa ment made b the debtor towards even barred debt. ) barred debt ma constitute a valid consideration for a fresh contract. 2 see $ection !5 2+3 of the "ndian *ontract )ct. $ee AIR 1992 SC 1815 2discussed below3. Li'i$&$i(n 1%#$%#r )&r* +#2#n #: Limitation ordinaril does not bar the defence. ) defendant will not be precluded from setting up a right b wa of defence even if he could not have done so as plaintiff b wa of substantial claim. This principle is not applicable where a suit b the defendant would have been barred under $ection !5 or !6 of the Limitation )ct. "t is also not applicable to set off or counter claim since $ection + 2!3 2b3 of the Limitation )ct provides that an claim b wa of set off or counter claim shall be treated as a separate suit.

SECTION 3 )n obligation is cast upon the court b $ection + to dismiss a suit, appeal or application if it is barred b limitation. Though limitation is not pleaded in the written statement, the suit is liable to be dismissed if it is barred b limitation. 2AIR 1973 SC 7163. "t was also held that absence of plea of limitation will not cause prejudice to the plaintiff and that the plea of limitation can be raised even at the appellate stage. 2$ee also AIR 1964 SC 13363

%$ubject to the provisions contained in $ections ! to !,(:"t does not mean that all the provisions of $ections ! to !, will be attracted to ever case. 1or instance, $ection 5 is not applicable to suits.

$ection + of the Limitation )ct and $ection 151 *7*:1or invo;ing the inherent power of the court under $ection 151 *7*, no period of limitation is involved and $ection + of the Limitation )ct is not attracted to such an application.

$ection + applies onl to courts:$ection + applies onl to courts and to no other bodies such as &uasi judicial Tribunals or executive authorit . 2 AIR 1973 SC 2393.

2334 4115 S.C.C. 456: L.$. $ nthetics Ltd. Vs. 1air 4rowth 1inancial $ervices Ltd. )nd another:

7ara ++: % The Limitation )ct, 1/-+ is applicable onl in relation to certain applications and not all applications despite the fact that the words %other proceedings( were added in the long title of the )ct in 1/-+. The provisions of the said )ct are not applicable to the proceedings before bodies other than courts, such as a &uasi judicial tribunal or even executive authorit . The )ct primaril applies to the civil proceedings or some special criminal proceedings. :ven in a tribunal, where the *ode of *ivil 7rocedure or *ode of *riminal 7rocedure is applicable, the Limitation )ct, 1/-+ per se ma not be applied to the proceedings before it. :ven in relation to certain civil proceedings, the Limitation )ct ma not have an application. )s for example, there is no bar of limitation for initiation of a final decree proceedings or to invo;e the jurisdiction of the court under $ection 151 of the *ode of *ivil 7rocedure or for correction of accidental slip or omission in judgments, orders or decrees= the reason being that these powers can be exercised even suo motu b the court, and, thus no &uestion of an limitation arises.( ).".#. 1/6. $.*. !./ >t ananda ?.@oshi Vs. L.".*. of "ndia and 1//0 2!3 $.*.*. !,! 9industan Times Ltd. Vs. Anion of "ndia.

Buestion of limitation: Crdinaril a mixed &uestion of law and fact. Dhen the &uestion of limitation is purel one of law capable of determination on the facts admitted or proved before the *ourt, the *ourt is bound to raise the &uestion suo motu and decide it. Eut where the &uestion of limitation raises issues of facts not arising from the plaint, the defendant is bound under Crder 0 #ule ! *.7.*. to raise such &uestion in his written statement. 9owever, if the facts proved or admitted show that the suit or other proceeding does not seem to be barred, the court is not bound to raise the &uestion of limitation because it is not bound to speculate upon possible &uestions of limitation.

)ppellate *ourt:-

The appellate court is also bound to dismiss the appeal if it is time barred even if the respondent has not ta;en up the plea of bar of limitation. "f the &uestion of limitation is capable of being decided on the admitted facts or proved facts, the respondent in the appeal is even entitled to contend before the appellate court that the suit was barred b limitation. $ee AIR 1973 SC 196 6 AIR 1969 SC 1335.

Fecree passed in a suit which was barred b limitation G whether a nullit :>o. $ee AIR 1964 SC 937: "tt avira ?athai Vs. Var;e Var;e . 9eld: %Dhere a court having jurisdiction over the subject matter and part passes a decree, it cannot be treated as a nullit and ignored in subse&uent litigation even if the suit was one barred b time. ..........."f the suit was barred b time and et the court decreed it, the could be committing an illegalit and therefore the aggrieved part would be entitled to have the decree set aside b preferring an appeal against it.(

S#$ (22 &n+ (-n$#r "&i': 2$ection + 2!3 2b3 Limitation )ct. $ee also Crder V""" #ules -, -) to - 4 and 6 *.7.*.3 "n the case of set off, the date with reference to which limitation is to be applied is the date of institution of the suit, whereas in the case of counter claim, the relevant date is the date on which the counter claim is made in court. Thus even if the set off is pleaded in respect of a claim barred b limitation on the date of written statement, the set off shall be deemed to have been validl made if it is not barred on the date of suit.

"n AIR 1987 SC 1395, the $upreme *ourt held that a counter claim which is treated as cross suit can be preferred before the time limited b the Limitation )ct for filing the suit on the same cause of action expires and that the defendant could prefer the counter claim even after filing the original written statement. The onl limitation is that the claim on the date it was filed was not barred b limitation.

#elevant provisions of the *7* while considering $ection + of Limitation )ct:7laint Dritten statement $et off *ounter claim 7resentation of )ppeal Crder V"" #ule -, #ule 11 2d3 Crder V""" #ule ! Crder V""" #ule Crder V""" #ules - ) to - 4 Crder ,1 #ules 1 and +.

R#"#7&n$ +# i*i(n*:

2334 4115 SCC. 425: Fraupadi Fevi and others Vs. Anion of "ndia and others:

#aising the plea of limitation after new facts were detected after evidence- permissibilit - Title suit filed in 1/-. in respect of propert purchased b the plaintiff from the #uler of 8apurthala $tate on 1.-11/5. after accession of that $tate to Fominion of "ndia, assuming the same as private propert of the #uler. 7laint did not clearl state as to when the cause of action arose. Fefendant also did not plead an thing on that aspect. )fter ascertainment of facts b evidence, 9igh *ourt

finding that as earl as in 1/51, 4overnment of "ndia had refused to treat the propert as private propert of ?aharaja. 9eld, the 9igh *ourt rightl applied )rt. 1!. of the Limitation )ct, 1/.0 and held that the suit was barred b limitation. 27aragraphs 6! to 653

2334 455 SCC 272: 8&9r&n."&" S%i7 %&n+r&i R-i& :*. S%&*%i;&n$ N.R-i& &n+ ($%#r*: Though period of limitation prescribed in the Limitation )ct precludes a plaintiff from bring a suit which is barred b limitation, there is no such limitation so far as an defence is concerned. 1993 425 <LT 837 : 7admanabhan @ The plaintiff should plead and prove if he relies on an ac;nowledgment to save limitation. )c;nowledgment not pleaded at least b amendment of plaint cannot be relied on.

AIR 1996 SC 1457: 2para.+.3 There is no period of limitation prescribed b an law within which 4overnment should exercise its prerogative of imposing assessment on land liable to be assessed with public revenue.

AIR 1992 SC 1815: $ection + of the Limitation )ct onl bars the remed but does not destro the right which the remed relates to. The right to the debt continues to exist notwithstanding the remed is barred b limitation. Therefore when the principal debtor did not repa the ban; loan, the Ean; as creditor can adjust it at maturit of the 1ixed Feposit #eceipts deposited b the guarantor with the Ean; as securit , though the debt became barred b limitation at the time maturit of the said fixed deposit receipts. "t is not obligator to file a suit to recover the debt.

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1996 415 SCC 93: 2 ?uni Lal Vs. Criental 1ire and 4eneral "nsurance *o. Ltd.3 $uit for mere declaration without see;ing conse&uential reliefs dismissed b trial court, as being not maintainable under proviso to $ection +, of the $pecific #elief )ct. )pplication for amendment of the plaint at the appellate stage see;ing conse&uential relief, was filed, after the suit was barred b limitation. 9eld: "t is not permissible. S## AIR 1996 SC 2358, AIR 1996 SC 642, AIR 1997 SC 772, 2331 465SCC 163 &n+ 199425 <LT 646. SECTION 4

This section gives expression to the maxim Lex non cogit ad impossibilia. i.e., the law does not compel a man to do that which he cannot possibl perform = and )ctus *uriae >eminem 4ravabit- an act of the court shall not prejudice an part .

$ection , would appl to suits, appeals or applications, civil or criminal. $ection , does not extend the period of limitation. "t onl provides that when the period prescribed expires on a particular da when the court is closed, then notwithstanding that fact, the application ma be made on the date when the court reopens. The period of limitation should be computed first. Then, if $ection 1! or an other $ection is attracted to exclude the period, that excluded period is to be added. "f the total period thus arrived at falls on a da when the court is closed, then $ection , comes into pla .

"f two courts have concurrent jurisdiction to entertain a suit and one of them is closed, the plaintiff is competent to file the suit on the

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next reopening da . The fact that the other court in which he could have filed the suit was open on that date is not all material in computing the period of limitation before the court where the suit was actuall filed. 2$ubramania " er Vs. La;shmi )mmal: ILR 1965 415 <#r&"& 1433

The benefit of $ection , cannot be attracted unless the suit instituted in proper court. 2AIR 1935 PC 853

"f the plaintiff's title to the propert is to be extinguished on the expir of the period of 1! ears and that period expires on a $unda , the plaintiff filing the suit on the following ?onda saves his right being extinguished b adverse possession. 2 1965 425 ML= 234 : $anjeevi Vs. $hanmugha3.

"t cannot be said that the court is closed when the presiding officer is on tour.

1979 <LT 493: Viswanatha " er @ "f the proceeding is initiated in a wrong court after the expir of the period of limitation, $ection , is not available. $ection , and $ection 1, provide for different situations and the cannot be read together to exclude an period of limitation.

AIR 1996 SC 796: M&n(%&r =(*%i>* &*#: E"# $i(n P#$i$i(n. S# $i(n 13 (2 ?#n#r&" C"&-*#* A $ 1&* in7(;#+.

AIR 1973 SC 313: A'&r %&n+ :*. Uni(n (2 In+i&.

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@C(-r$A '#&n* !r(!#r (-r$ %&7in. 9-ri*+i $i(n $( #n$#r$&in $%# *-i$. ILR 9 M&+r&* 133: Fr& $i(n (2 & +&, in "-+#* & +&,. 1964 <LT 449: 1989 415 ML= 241: P&r$i&" %("i+&,. AIR 1968 A**&' 57, AIR 1979 8(')&, 14: S$ri;# ), A+7( &$#*. S# $i(n &n )# in7(;#+. 2335 415 <LT 434 : Pi-* C. <-ri&;(*# = C(-r$ &- $i(n *&"#. P-r %&*#r (-"+ n($ +#!(*i$ *&"# !ri # +-# $( *$ri;# (2 ?(7#rn'#n$ #'!"(,##*. S# $i(n 4 1&* &!!"i#+.

SECTION 5

AIR 1987 SC 1353: The $upreme *ourt held that a liberal approach should be ta;en in the matter of condonation of dela . The following principles were laid down: 1. Crdinaril appeal late. a litigant does not stand to benefit b lodging an

!. #efusing to condone the dela can result in a meritorious matter being thrown out at the ver threshold. +. "f the dela is condoned, the highest that can happen is that the case would be decided on the merits.

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,. The principle that ever da 's dela should be condoned- ) pragmatic and not a pedantic approach should be made b the court. 5. Dhen substantial justice and technical considerations are pitted against each other, course of substantial justice deserves to be preferred, for, the other side cannot claim to have vested right in injustice being done because of a non deliberate dela . -. There is no presumption that dela is occasioned deliberatel or on account of culpable negligence, or on account of malafides. ) litigant does not stand to benefit b resorting to dela . "n fact, he runs a serious ris;. 6. "t must be grasped that judiciar is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and the court is expected to do so.

Li)#r&" A!!r(& %: "n favour of minors : 1//, 2!3 8LT ,6/: Ealasubraman an @ 1/// 2!3 8LT / : 8alliath @ H 7.8.Ealasubraman an @ 1//1 213 8LT !10 7admanabhan @

AIR 1996 SC 1623: $tate of 9ar ana Vs. *handra ?ani and others: )pplication b $tate. "n view of the fact that the 4overnment is an impersonal machiner and decisions are ta;en at slow pace, certain amount of latitude is not impermissible.

1997 425 <LT 647 4SC5 : #amachandran Vs. $tate of 8erala. 1or condoning dela , the court has to record reasons for its satisfaction that the explanation for dela was either reasonable or satisfactor .

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AIR 1999 SC 1573: !/ da s' dela in filing Letters 7atent )ppeal. 9eld that the 9igh *ourt erred in not considering sufficienc of grounds for condoning the dela . Fela was condoned b the $upreme *ourt. 9eld: %"t is obvious that even dela of few da s ma be inordinate in the facts of a case and dela of 1.. or more da s ma not be inordinate in set of facts of other case.(

AIR 1999 SC 1393: $tate of Eihar and others Vs. $ubhash $ingh: )ppeal or #evision b 4overnment - $trict proof of ever da 's dela should not be insisted upon.

1997 425 <LT SN P&.# 37 C&*# 43 : Famodaran Vs. 8$#T* 28amath @ H $hafi @3 : ?otor Vehicles )ct -- dela of one ear in filing the claim petition G dismissed b the Tribunal - 9eld: *ourt has to appl the law in a meaningful manner which subserves the ends of justice.

1999 425 <LT 863 : $asidharan @ ?unicipal *orporations )ct - )ppeal filed in time - dela in depositing tax - Fela can be condoned.

1999 435 <LT SN 68 C&*# 69 : 7.8.Ealasubramanian @ Law of limitation is not an e&uitable statute. "t is a statute of repose. Ander the guise of interpreting $ection 5 of the Limitation )ct, the court is not entitled to nullif the law of limitation or the public polic behind that statute.

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Ar)i$r&$i(n A $, 1943: "n 1994 415 <LT 268 2 @ohn ?athew @ H >ara ana 8urup @3, it was held that $ection 5 of the Limitation )ct can be invo;ed to condone the dela in respect of an application see;ing to set aside an award presented be ond time. $ee contrar view in 1997 415 <LT 556: $tate of 8erala Vs. $ivan 7illai 2?ohammed @ H $reedevi @3. 1//, 213 8LT !-0 was not referred to in 1//6 213 8LT 55-. Later, a F-"" 8#n % overruled 1//6 213 8LT 55-. The 1ull Eench approved 1//, 213 8LT !-0. 1999 425 <L= 1337 : Anion of "ndia Vs. Vija achandran 2Asha @ H #ajendra Eabu @3 - 9eld that $ection 5 Limitation )ct can be invo;ed. 1998 475 SCC 141: $tate of ).7. Vs. *handrase;hara #edd others: $upreme *ourt held that $ection 5 can be invo;ed. and

Ar)i$r&$i(n &n+ C(n i"i&$i(n A $:

AIR 2331 SC 4313: S# $i(n 34 (2 $%# Ar)i$r&$i(n &n+ C(n i"i&$i(n A $ B S# $i(n 5 Li'i$&$i(n A $ i* n($ &!!"i &)"#.

L&n+ A C-i*i$i(n A $: 1996 495 SCC 414 D 1996 415 <LT SN 24 C&*# 31 : Cfficer on $pecial Furt Vs. $hah ?anilal. $ection 5, Limitation )ct is not applicable to an application under $ection 10 of the Land )c&uisition )ct, 10/,. 7eriod for ma;ing application for reference cannot be extended b ta;ing recourse to $ection 5 of the Limitation )ct. Dhile ma;ing a reference under $ection 10 213, the *ollector acts as a statutor authorit and not as a *ourt.

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R#7#n-# R# (7#r, A $: 1999 435 SCC 657 D <&""i&ni;-$$,. 1999 425 <LT 146 : S$&$# (2 <#r&"& :*. R.

In 7i#1 (2 $%# &)(7# +# i*i(n (2 $%# S-!r#'# C(-r$, $%# F-"" 8#n % +# i*i(n in 1996 415 <LT 814 i* n($ .((+ "&1. 4N($# $%# +i $-' "&i+ +(1n in $%#*# $1( +# i*i(n*5

C('!&ni#* A $: 1//5 2!3 8LT +6-: 27atnai; @3 The provisions of the Limitation )ct would not appl application made b the Cfficial Li&uidator to set aside sale. to

R#n$ C(n$r(" A $: 1995 425 <LT 235 4SC5 : 4opalan Vs. )boobac;er. )ppeal filed before the )ppellate )uthorit be ond the period of prescribed under $ection 10 of the #ent *ontrol )ct G $ection 5 Limitation )ct can be applied, since the )ppellate )uthorit constituted under the #ent *ontrol )ct functions as a *ourt. 1973 <LT 138 4F85 (7#rr-"#+.

A.ri -"$-r&" In ('# T&0 A $:

1995 425 <LT 231 : 27areed 7illa *@ H $hanmugham @3 $ection 5 of the Limitation )ct cannot be invo;ed in an application filed under $ection 1/ of the )ct. )gricultural "ncome Tax officer cannot condone the dela since the )ct does not empower him to condone dela .

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Un"&12-" A $i7i$i#* 4Pr#7#n$i(n 5 A $: 1993 425 <LT 821: 2T.V.#ama;rishnan @3 Fela in ma;ing the application under $ection 0 203 before the Fistrict *ourt G $ection 5 of the Limitation )ct is applicable.

In+i&n T#"#.r&!% A $: 1989 425 <LT 825: #aghavan >air Vs. 8$:E. 2@ohn ?athew @3 *ourt exercising the jurisdiction under $ection 1- 2+3 of the "ndian Telegraph )ct has jurisdiction to entertain an application under $ection 5 Limitation )ct. S## AIR 1977 SC 282 &n+ 1993 425 <LT 835

T(++, E(r;#r* E#"2&r# F-n+ C(n$ri)-$i(n A $, 1969: 1999 425 <LT 531: 7rasad Vs. $tate of 8erala 2).#. La;shmanan )g. *.@ H $an;arasubban @3 $ection 5 Limitation )ct does not appl to an appeal filed under $ection 0 253 of the )ct.

In+-*$ri&" Fi*!-$#* A $: AIR 1999 SC 1351 : 1999 425 <LT SN 52 C&*# 56 4SC5 )pplicabilit of Limitation )ct to proceedings under "ndustrial Fisputes )ct. 7rovisions of )rt. 1+6 Limitation )ct do not appl to proceedings under the "ndustrial Fisputes )ct. #elief cannot be denied to wor;men merel on the ground of dela . #eference of dispute to Labour *ourt- 7rovisions of )rt. 1+6 Limitation )ct do not appl - dela of 6 ears. 27etition against award of Labour *ourt setting aside termination of wor;men. >o plea regarding dela was ta;en in reference

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proceedings before Labour *ourt G 9igh *ourt set aside the award on the ground of dela . 9eld: 9igh *ourt was not justified in substituting its opinion to that of Labour *ourt, even without pleadings.3

2331 425 <LT SN C&*# 11 !&.#* 13,11 : 7ioneer $hopping *omplex 7vt. Ltd. Vs. 7ioneer Towers 2?arimuthu @3. There is no bar for an advocate filing an affidavit for the part , for condoning dela .

S# $i(n 5, Li'i$&$i(n A $ &n+ Or+#r 22 CPC: 1996 425 SCC 568: $tate of ?.7. Vs. $.$. );ol;ar. The considerations for condonation of dela under $ection 5 of the Limitation )ct for filing appeals and in setting aside abatement and condonation of dela thereof are entirel distinct and different. ?ore liberal approach should be made in the latter case.

2337 415 <LT 673 : S&n;&r&n :*. F#7&;i A''& 4<.T.S&n;&r&n =5

1/// 2!3 8LT ++5: $tate of 8erala Vs. ?adhava 8urup 7etition for substitution of legal representatives, filed without an affidavit stating the reason for the dela , is liable to be dismissed. $ubse&uent petition and affidavit filed after - ears would not cure the irregularities unless sufficient cause is shown.

S## AIR 1993 SC 2324.

1999 485 SCC 315 D 1999 475 S-!r#'# T(+&, 629: Dest Eengal :ssential *ommodities $uppl *orporation Vs. $wadesh )gro 1arming and $torage 7vt. Ltd.

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$ection 5 Limitation )ct is not applicable to :xecution 7etitions. Limitation runs from the date of decree and not from the date of drawing up of the decree. The time ta;en to prepare the decree cannot be excluded in computing the period of limitation for filing :xecution 7etition. $ection 1! has no application to :xecution proceedings.

1993 S-!!. SCC 89: LI>ai; ?ahabir $ingh Vs. *hief of )rm $taff. The $upreme *ourt condoned the dela in filing the $L7 accepting an oral pra er made b the counsel to condone dela . >o application to condone dela was filed in that case.

S## 1979 <LT 166, 1986 <LT SN 3 &*# 4, 1993 415 <L= 393.

AIR 1998 SC 2276: 7.8.#amachandran Vs. $tate of 8erala. Fela of 5-5 da s in filing )ppeal b $tate. Fela was condoned b the 9igh *ourt. $.*. held that the reason stated in the application under $ection 5 that %)t the relevant time the )dvocate 4eneral's office was fed up with so man )rbitration matters pending consideration( can hardl be said to be satisfactor explanation for dela . 9eld: % Law of limitation ma harshl affect a particular part but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on e&uitable grounds.(

AIR 1998 SC 3222 D 1998 475 SCC 123: >. Eala;rishnan Vs. 8rishnamoorth . 2$agir )hmed @ H 8.T.Thomas @3 Fela of 00+ da s in filing the application for setting aside exparte decree, condoned b the trial court - 9igh *ourt reversed G $upreme *ourt condoned the deal . 2reason for deal - failure of the )dvocate to inform the client.3

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9eld: % #ules of limitation are not meant to destro the rights of parties. The are meant to see that parties do not resort to dilator tactics but see; their remed promptl . P&,'#n$ (2 (-r$ 2## B +#"&, (n+(n&$i(n: 1991 425 <LT 779 : :liJabeth Vs. 1rancis 2Varghese 8alliath @ H ?anoharan @3 %Trul and in substance the enlargement of time in the matter of pa ment of court fee under $ection 5! of the *ourt 1ees )ct is b the order of the court. $o long as it is order of the court, $ection 1,0 of the *.7.*. is also applicable. Eut since $ection 1,/ of the *.7.*. is a specific provision which gives the court wide power to extend time for ade&uate reasons, it is not at all difficult to invo;e that power in the matter of extension of time for the pa ment of balance court fee under $ection 5! of the *ourt 1ees )ct.( 2paragraph 163. %*onsidering all these aspects of the matter, we are of opinion that the courts have got ade&uate power to enlarge the time be ond the period of +. da s mentioned in the third proviso to $ection 5! of the *ourt 1ees )ct. Cf course, it is a discretionar power and the discretion has to be exercised judiciall on sound and legal reasons. 2paragraph !,3

1997 415 <LT 569: $hajahan Vs. 8amala >ara anan 2T.V. #ama;rishnan @ H $an;aranara anan @3 The court has power to extend the time for pa ment of /I1. court fee pa able under $ection , ) of the *ourt 1ees )ct be ond the period of +. da s if sufficient reasons are shown. 1//1 2!3 8LT 66/ affirmed.

1998 425 <LT 541 : $tate of 8erala Vs. Amesh #ao 28rishnanunni @3 %>ormall , the balance court fee must be paid within 15 da s, on a date fixed b the court. Cnl the court is empowered to extend that time upto +. da s even under the )ct. Therefore, the court will have to

21

fix the date before which the balance court fee shall be paid. Cn that da , for reasons to be recorded the time ma be extended upto +. da s. "f it is not paid, the conse&uences of Crder V"" #ule 11 *.7.*. have to follow. Eut if the plaintiff or the appellant satisfies the court that for exceptional reasons he was unable to pa court fee and grave injustice would result, the court can exercise the power under $ection 1,/ *.7.*. and extend the time( ............ The case must be posted for getting orders of the court in the matter of extending time for pa ment of court fee on the 15th da after admission and on such da if the court extends time further, it must again be called on that da . "f the court fee is not paid even on that da , it must be brought to the notice of the court so that it can appl its mind and extend time further under $ection 1,/ *7*. This process must continue until the balance court fee is paid or the case is disposed of under Crder V"" #ule 11 *7*.(

SECTIONS 6, 7 ANF 8

AIR 1999 SC 876: Eailochan 8aran Vs. Easant 8umari >ai;. %) combined effect of $ections - and 0 read with third column of the appropriate article would be that a person under disabilit ma sue after cessation of disabilit within the same period as would otherwise be allowed from the time specified therefor in the third column of the schedule. Eut such extended period would not be be ond three ears from the date of cessation of the disabilit . *onse&uentl , the right to file a suit of the appellant got expired at the end of three ears from the date of his attaining majorit .(

22

1999 415 <L= 994 : ?oidu and others Vs. $antha and others . 2$an;arasubban @3 $ection 0 of the Limitation )ct controls $ection - and nothing in $ections - and 6 shall be deemed to extend for more than three ears from cessation of disabilit , the period of an suit or application. The effect of $ection - is that a person under disabilit ma sue after cessation of disabilit in the same period as prescribed under the $chedule and $ection 0 adds a proviso that in no case can the period be extended to an thing be ond three ears from the date of cessation of disabilit . 1998 425 <LT 691 D 1998 425 <L= 241 : ?oidu 9aji Vs. 8unhabdulla 27.8. Ealasubraman an @3 $ale of ?ohammedan minor's propert b a person who is not his legal guardian. 9eld: "f the propert exclusivel belonged to a ?ohammedan minor and the same had been alienated b a person who was not his legal guardian, the said transaction would be void and appl ing )rticle -5 of the Limitation )ct and in the light of $ections - and 0 of the )ct, the suit had to be instituted b the &uondam minor within three ears of his attaining majorit or within 1! ears of the transaction itself.

AIR 1995 SC 75: Farshan $ingh and others Vs. 4urudev $ingh. 7aragraph , : %"n other words, $ection 0 is a proviso to $ections - or 6. ) combined effect of $ection - and 0 read with third column of the appropriate )rticle would be that a person under disabilit ma sue after cessation of disabilit within the same period as would otherwise be allowed from the time specified therefor in the third column of the $chedule but special limitation as an exception has been provided in $ection 0 la ing down that extended period after cessation of the disabilit would not be be ond three ears from the date of cessation of the disabilit or death of the disabled person.(

23

2337 445 <LT 1341 D ILR 2337 445 <#r&"& 393 : S%##"& &n+ &n($%#r :*. M-r&"##+%&r&n. 4<.T.S&n;&r&n =5

2333 435 <LT 551 : $athish Easu Vs. $tate of 8erala. 2@E 8osh @ H #amachandran @3 $ection - is applicable to proceedings filed under $ection 0 of the 7rivate 1orests 2Vesting and )ssignment3 )ct. 7etitioner, a minor at the relevant time, is entitled to the benefit of $ection -. $cope of $ection !/ Limitation )ct, considered.

2332 425 <LT 454 : M&n(%&r&n :*. P(-"(*# 4<.S.R&+%&;ri*%n&n = G S%&2i =5 Min(ri$, i* & *-22i i#n$ &-*# -n+#r $%# !r(7i*( $( S# $i(n 113 A 435 (2 $%# M($(r :#%i "#* A $ $( #n$#r$&in &!!"i &$i(n.

SECTION 13

1993 425 <LT 798: $osa Vs. Varghese 2 7areed 7illa @3 9eld: Anpaid streedhanam amount will not have the character of a trust and hence $ection 1. of the Limitation )ct cannot have an application. %"mplied Trusts or obligations in the nature of trusts do not come within the purview of $ection 1.. "n view of $ection !0 of the Travancore *hristian $uccession )ct, the plaintiff can onl see; enforcement of charge on the propert and cannot invo;e $ection 1. of the Limitation )ct.(

24

1993 415 8urup @3

<LT 675: *hac;o Vs. )nnamma 28alliath @ H >ara ana

9eld : % 7articularl in a *hristian marriage when the father of a girl ma;es a pa ment which has to be considered as a streedhanam to her father in law though not directl b specific words, but b the ver act certainl indirectl an express trust is created and the girl is made a cestui &ue trust and in that context there is nothing wrong in adopting a purposive interpretation of the content of $ection 1. of the Limitation )ct b holding that when such a pa ment ta;es place, the mone paid would constitute in the hands of the husband or the father in law the subject matter of an express trust and the amount is a trust propert or trust mone .(

1973 <LT 838 4F85 9# H *: )ct- power to cancel sanction for transfer of immovable propert Fevaswom- power can be exercised without an limitation of time. 9eld: %The reason behind $ection 1. of the Limitation )ct 1/-+ which provides for no period of limitation for a suit against a person in whom trust propert has become vested is that an express trust ought not to suffer b the misfeasance or nonfeasance of a trustee. Therefore considering the fiduciar character of the power under the $ection when invo;ed to cancel a sanction and the object for which it is to be exercised, namel , to protect the interests of religious institutions, it cannot be said that the 4overnment can exercise the power under the $ection onl within a reasonable period. )s the )ct does not provide for an period of limitation for the exercise of the power under the $ection, no period of limitation for its exercise can be implied.(

1993 425 <LT 634: $wapna Vs. Than;avelu 28rishnamoorth @3 $uit b wife for return of ornaments and utensils entrusted b her to husband - There is no period of limitation.

25

1989 415 <LT 636: ?ani amma Vs. )bdul #asa; 28 T Thomas @3 $ection ,.- "7*. 9eld: The husband will be liable for breach of trust if he fails to return the cash or gold ornaments belonging to his wife.

1991 425 8alliath @3

<LT

71:

$cariah Varghese Vs. ?ar ;utt

2Varghese

$uit for return of $threedhanam or dowr . >o period of limitation is prescribed for such a suit.

AIR 1999 SC 1136 : Dali ?ohammad Vs. #ahmat Eee and others 2@agannatha #ao @ H ?.E. $hah @3 7aragraph ,. : %The lower appellate *ourt and the 9igh *ourt erred in not noticing that a ?uthawalli can never set up adverse title and that propert could be recovered from the donee of a muthawalli at an time in view of $ection 1..(

2333 415 <LT 751 : Ehas;aran @ "mplied trusts or obligations in the nature of trusts are not within the scope of $ection 1..

1997 425 SCC 397.

26

S E C T I O N 12

AIR 1992 SC 1977 D 1992 425 <LT 293 4SC 3: Commen Vs. ?oran Easelius ?arthoma. 2)ppeal from the decision in 1/0, 8LT 55+3 Crder ,1 #ule 1 *7* has no relevance nor can control the provisions of Limitation )ct. ) person cannot ta;e advantage of the certified cop obtained b another appellant and claim exclusion of time under $ection 1! of the Limitation )ct.

1993 425 4uttal @3

<LT 793 : 8umari )mma Vs. 8avu;utt )mma 24.9.

Three suits G Fefendant, who is a part in all the three suits applied for cop of judgment onl in one suit 2common judgment in the three suits3. Dhether the time ta;en for obtaining that judgment can be made use of b that part in the other two appeals filed b him against the other two decrees. 9eld: >o. The time ta;en for obtaining the judgment in one case cannot be excluded in respect of other appeals from other decrees, though the judgment is a common judgment.

1992 425 <LT 929 27.8.Ealasubraman an @3

$ivalingam

Vs.

Fa;shinamoorth .

#ule !,! of the *ivil #ules of 7ractice- The period of three da s mentioned in the #ule for production of stamp papers for obtaining the certified cop cannot be excluded under $ection 1! 2!3 of the Limitation )ct. 4T%i* +# i*i(n 1&* (7#rr-"#+ ), in 2331 415 <LT 1945

27

1985 <LT >ambiar @3

731:

?arthanda 7illai

Vs.

Fevassia. 2Ehas;aran

*op of the judgment was read for deliver during vacation of court and delivered onl onl on the re-opening date. 9eld: %Cn a combined operation of $ection 1! of the Limitation )ct, $ection 1. of the 4eneral *lauses )ct and $ections 1/ and !. of the *ivil *ourts )ct and the notifications issued thereunder, it seems to be clear that when a cop is read for deliver during the vacation of a court, it can be ta;en deliver of on the date when the court reopens after vacation without losing time for computation of the period of limitation for filing appeal, revision etc. "f, however, the cop is actuall received during vacation, time will rum from that date.(

1973 <LT 666 : ?ohammad Vs. 8unhammad 9aji and others 2$ubramanian 7oti @3 The da on which the application for cop is made and the da on which the cop is received should excluded from the period of limitation.

Fate on which stamp papers are called for and intervening holida s should be excluded in computing the period of limitation.

7art is bound to furnish stamp papers on the same da of calling for stamp papers 2 *ivil #ules of 7ractice #ules !/ and !,!3

1969 <LT 876: *hempa;a;utt 28rishna " er @3

8alliani Vs. 8unju 8amala;sh

28

4oing b the cop of the judgment, the appeal was out of time. *op of the decree was applied for after /. da s. "f the time ta;en for obtaining the decree is also excluded, the appeal was within time. Cffice too; the stand that the time ta;en for obtaining the cop of the decree cannot be excluded since the application for cop of the decree was filed after /. da s. 9eld: %"t is not permissible for the court to abridge the period allowed for filing the appeal b $ection 1!, read with )rt. 11- of the Limitation )ct. ) true construction of $ection 1! justified the stand that the exclusion of the time for obtaining the cop of the decree does not depend upon the application being made within /. da s. :ven if it is made be ond the original period of /. da s, such time can be excluded, provided the application has been made within the extended period, that is to sa within the total period made up of /. da s allowed under )rticle 11- and the time re&uired to obtain a cop of the judgment allowed under $ection 1! 2+3 of the Limitation )ct. % %)s between two interpretations of a section, one that will give a larger period of limitation must be preferred.(

AIR 1999 SC 1393 D 1999 425 <LT SN !&.# 14 &*# 13 4SC5 : $a;eth "ndia Ltd. Vs. "ndia $ecurities Ltd. $ection 1+0 of the >egotiable "nstruments )ct. *ause of action arose on 15-1.-1//5. *omplaint was filed on 15-11-1//5. 9eld that the complaint was filed within time, since the da on which the cause of action arose could be excluded.

1999 485 SCC 315 D 1999 475 S-!r#'# T(+&, 629: Dest Eengal :ssential *ommodities $uppl *orporation Vs. $wadesh )gro 1arming and $torage 7vt. Ltd. $ection 1! 2!3 has no application to :xecution 7etition. Time ta;en to prepare the decree cannot be excluded in computing the period of limitation for filing the :.7.

29

Ander )rticle 1+-, the period of limitation runs from the date of decree and not from the date when the decree is actuall drawn up.

I$ i* n($ $%# i+#&" "#**#r $i'# 1%&$ i* (n$#'!"&$#+ -n+#r S# $i(n 12 425: 1987 415 <LT 138 : $reevalsan 7illai Vs. Than;amani )mma. 2$ivaraman >air @ H @ohn ?athew @ 3 )pplication for cop dismissed for non pa ment of printing charges G restoration of the cop application G 9eld that the contention that the period between the dismissal and restoration of the cop application cannot be considered as time re&uisite for getting a cop within the meaning of $ection 1! of the Limitation )ct is not sustainable.

1993 425 <LT 456 : Than;appan Vs. #aghavan 2Ealanara na ?arar @3 The period between the dismissal of a cop application and its restoration can be considered as time re&uisite for getting a cop within the meaning of $ection 1! of the Limitation )ct. Dhen the court grants the re&uest for restoration of the cop application, the original application gets revived and for all purposes the period of limitation has to be computed on the basis of the copies obtained on that application with reference to the date of that cop application.

$ee also 1969 <LT 876: *hempa;a;utt 8amala;sh 28rishna " er @3

8alliani Vs. 8unju

1997 415 <LT 231 : 8adimu; "slam @ama ath Vs. )ssoo 27.8. Ealasubraman an @3

30

7etition for review should be accompanied b certified cop of the decree or order sought to be reviewed unless it is dispensed with b the *ourt. To claim exclusion of the period ta;en for obtaining the cop , the review petitioner has to produce the certified cop before court.

1995 415 <LT 573 : $h amala Vs. Vasudevan 27.8.Ealasubraman an3 ) person cannot get exclusion of the period that elapsed between pronouncement of the judgment and the signing of the decree if he made the application for a cop onl after preparation of the decree. $ee also 1973 <LT 389 : 8ochappi 8unji and others Vs. 8ali 8ochu 7illai and others 28rishnamoorth " er @ 3 and 1973 <LT 666 : ?ohammad Vs. 8unhammad 9aji and others 2$ubramanian 7oti @3

AIR 1977 SC 2319 : Ada an *hinubhai Vs. *. Eali. Ander $ection 1! 2!3 read with the :xplanation a person cannot get exclusion of the period that elapsed between pronouncement of the judgment and the signing of the decree if he made the application for a cop onl after preparation of the decree. 2"n view of this decision of the $upreme *ourt, the Fivision Eench decision of the 8erala 9igh *ourt in 1977 <LT 223 i* n($ .((+ "&1.3

AIR 2331 SC 3434 D 2331 475 SCC 573 : H&'##+ =(%&r&n :*. A)+-" S&"&'. P#ri(+ *$&r$* 2r(' $%# +&$# (2 $%# +# r## &n+ n($ *-)9# $ $( S# $i(n 35 (2 $%# S$&'! A $. @E0# -$&)i"i$, @ &n+ @#n2(r #&)i"i$,A +i*$in.-i*%#+. 4In 7i#1 (2 $%# SC +# i*i(n, $%# +# i*i(n* in 1988 415 <LT 836 &n+ 1991 425 <LT 632 &r# n($ .((+ "&1.

31

A!!#&"* -n+#r S!# i&" S$&$-$#*:

2333 495 S.C.C. 393D A.I.R. 2333 S.C. 2384: In+i& H(-*# :*. <i*%&n N.L&"1&ni: "t is well settled that b virtue of sub section 2!3 of $ection !/ of the Limitation )ct, the provisions of $ection 1! are applicable for computing the period of limitation prescribed b an special or local law. G 1/6. 2!3 $.*.*. +-/ and 1/-/ 2!3 $** 6!+ relied on.

7ara 6: %The period of limitation statutoril fixed has to be strictl adhered to and cannot be relaxed or departed from for e&uitable considerations. )t the same time, full effect should also be given to those provisions which permit extension or relaxation in computing the period of limitation such as those contained in $ection 1! of the Limitation )ct. The underl ing purpose of these provisions is to enable a litigant see;ing enforcement of his right to an remed to do so effectivel and harsh prescription of time bar not undul interfering with the exercise of statutor rights and remedies. That is wh $ection 1! has alwa s been liberall interpreted.(

7ara 6: % >o application is re&uired to be made see;ing the benefit of $ection 1! of the Limitation )ct= it is the statutor obligation of the court to extend the benefit where available.(

7ara 6: )ll that sub section 2!3 of $ection 1! of the limitation )ct sa s is the time re&uisite for obtaining the cop being excluded from computing the period of limitation, or in other words, as we have put it herein above, the time re&uisite for obtaining the cop being added to the prescribed period of limitation and treating the result of addition as the period prescribed. "n adopting this methodolog it does not ma;e an difference whether the application for certified cop was made within

32

the prescribed period of limitation or be ond. >either is it so provided in sub section 2!3 of $ection 1! of the Limitation )ct no in principle we find an reason or logic for ta;ing such a view.(

1985 <LT 543 4F85 Kesoda Vs. >ara anan 2Ehas;aran *.@ , V.E.>ambiar @ H 1athima Eeevi @3 )ppeal under the 9indu ?arriage )ct G Time ta;en to get the certified cop of the decree can be excluded. $ection 1! 2!3 of the Limitation )ct applies to appeals under the 9indu ?arriage )ct.

1983 <LT 34 4F85 : $tate of 8erala Vs. $h mala Thampuratti 24opalan >ambiar *.@., 4eorge Vada;;el @ H *handrase;hara ?enon @3 7rivate 1orests 2Vesting and )ssignment3 )ct, 1/61. )ppeal under $ection 0). 9eld: time ta;en to get cop of the order can be excluded under $ection 1! 2!3 of the Limitation )ct.

SECTION

13

1993 425 <LT 392: $reedevi Vs. )ppu. )pplication to sue as an indigent person - dismissed G *ourt fee was not paid within time. $ubse&uentl , a fresh suit was filed. "t was apparentl barred b limitation. 9eld: The exclusion is available onl in the same proceeding which gets converted into a suit or appeal on pa ment of court fee. *ourt cannot enlarge the period of limitation prescribed under the Limitation )ct and permit a time barred suit to be admitted. Dhat is permitted is onl exclusion of time b treating the same suit or appeal

33

as having the force and effect as one filed at the first instance as if court was paid then. $ection 1+ is permissible onl for converting the same proceeding into a regular suit or appeal on pa ment of court fee and it is not available when a fresh suit independent of the original proceeding is filed. The fresh suit which is filed as an independent proceeding later on pa ment of court fee cannot be treated under $ection 1+ as having the force and effect as if court fee was paid at an earlier date.(

SECTION

14

2334 435 S.C.C. 458: Uni(n (2 In+i& &n+ ($%#r* :*. E#*$ C(&*$ P&!#r Mi""* L$+. An+ &n($%#r: 7ara 1,: % 9owever, $ection 1, of the Limitation )ct is wide in its application, in as much as it is not confined in its applicabilit onl to cases of defect of jurisdiction but it is applicable also to cases where the prior proceedings have failed on account of other causes of li;e nature. The expression %other cause of li;e nature( came up for the consideration of this *ourt in #oshanlal 8uthalia Vs. #.E.?ohan $ingh Cberoi L 1/65 2,3 $.*.*. -!0M and it was held that $ection 1, of the Limitation )ct is wide enough to cover such cases where the defects are not merel jurisdictional strictl so called but others more or less neighbours to such deficiencies. )n circumstance, legal or factual, which inhibits entertainment or consideration b the court of the dispute on the merits comes within the scope of the section and a liberal touch must inform the interpretation of the Limitation )ct which deprives the remed of one who has a right.(

1//6 213 8LT 666 : #ajarethna >ai;;an Vs. 7arameswara 8urup 27.8.Ealasubraman an @3

34

)pplication filed b the @udgment debtor under Crder !1 #ule /. was dismissed on the ground of limitation. $ubse&uentl he filed an application under $ection ,6 *.7.*. 9eld that the period spent in prosecuting the application under Crder !1 #ule /. cannot be excluded invo;ing $ection 1,. )pplication under Crder !1 #ule /. cannot be said to be for the same relief as made in the application under $ection ,6, as contemplated under $ection 1,.

1993 425 <LT 467: Than;amma Vs. Eharathi 7illai 2T. L. Viswantha " er @3 ) mere inabilit to grant the relief claimed in a particular suit because it is not grantable or because a suit of that nature is not maintainable, though the suit is within the jurisdiction of the court, is not a case which falls under $ection 1, 213.

$ection 1, 2+3 applies onl in cases where suit is permitted to be withdrawn on the ground of defect of jurisdiction or other cause of a li;e nature. "f the suit is withdrawn on other grounds or because it is misconceived, $ection 1, 2+3 does not appl . an

1991 415 <LT 218: $amuel @oseph Vs. #amachandran *hella 27admanabhan3

$ections 5 and 1, are not mutuall exclusive. :ven in a case where $ection 1, applies, $ection is not excluded.

1987 425 <LT 578: $arojini Vs. 7athummal. *.?.). filed erroneousl before the Fistrict *ourt. $ubse&uentl , the appeal was filed in proper court, namel , the $ub *ourt. The appellant sought to exclude the period during which the appeal was pending before the Fistrict *ourt and an application for condonation of dela was filed.

35

9eld: %Though $ection 1, in terms applies to suits and applications onl and not to appeals, the circumstances envisaged in the $ection can ver well constitute a %sufficient cause( within the purview of $ection 5 of the )ct for the purpose of appeals also.(

1983 <LT 922 : ?oo;;en Fevass Cuseph H $ons Vs. #ajappan 7illai. *onditions to be satisfied to invo;e $ection 1,, discussed. 9eld: %Cnl if it is brought out that the suit happened to be prosecuted before the wrong court not because of an want of due care and attention on the part of the plaintiff that he can get the time ta;en before the wrong court excluded under $ection 1, of the Limitation )ct.

1964 <LT 449 4:#"- Pi""&i =5 1964 <LT 145

2333 435 <LT 1179 : ?ac > 9ome s stems Vs. 7.$. Varrier 28.$.#adha;rishnan @ H 7ius *. 8uria;ose @3 $uit filed a person in wrong court owing to his own negligence or default G $ection 1, is not attracted. :ven if there is wrong legal advice and the part has acted on that advice, that b itself is not a ground to get the benefit of $ection 1,.

2333 435 <LT SN 29 C&*# 41 : R&9#*1&ri :*. Ani"# Fir# E(r;* F& $(r, 4<.S. R&+%&;ri*%n&n = G Pi-* C. <-ri&;(*# =5 S# $i(n 14 &n+ 5. AIR 2332 SC 2768: F##n& :*. 8%&r&$ Sin.%

36

1986 <LT 982 : 7aramewaran Vs. #amachandran $ection 1, is to be construed liberall . 9eld: %The time allowed to the plaintiff b the wrong court after declaring that it has no jurisdiction to tr the suit, is not a period during which the suit can be said to be pending the wrong court. The grant of a grace period to re-present the suit in the proper court to save the court fee paid on the plaint, a prevalent practice in the lower courts, has reall no statutor bac;ing.(

1979 <LT S%(r$ N($#* C&*# N(. 53 P&.# 21 &$ 22 . >achimuthu 4ounder Vs. $tate of 8erala. 2$ubramanian 7oti @ H @ana;i )mma @3 "n appropriate cases, a suitor is entitled to the benefit of $ection 1, when pursued the remed under )rticle !!- of the *onstitution. Eut to enable him to avail that exclusion, the right to sue must have been subsisting when the proceedings were initiated under )rticle !!-.

1979 <LT 493: )braham Vs. $adanandan and others: 2Viswanatha " er @3 $uit for damages for infringement of cop right filed in the ?unsiff's *ourt instead of Fistrict *ourt - 7eriod during which the suit was pending in ?unsiff's *ourt cannot be excluded. ) failure to loo; into the provision of law cannot be said to be a bonafide error or mista;e. Time granted while returning the plaint b the wrong court for presentation before the proper court does not come under $ection 1,.

AIR 1972 SC 733 : #abindranath $amuel Fawson Vs. $iva;ami and others:

37

7roceedings contrar to express provision of law cannot be regarded as proceeding in good faith. 7lea of non joinder of parties was ta;en at the initial stage. $till, the plaintiff resisted the plea and run the ris;. $uch a part is not entitled to the benefit of $ection 1,.

AIR 1985 SC 1669 : Vija 8umar #ampal and others Vs. Fiwan Fevi and others. :xpression %good faith( &ualifies prosecuting proceeding in court having no jurisdiction. :rror in valuing suit or wrong computation of court fee cannot be grounds for den ing benefit of $ection 1, to the plaintiff.

1995 455 SCC 333 : Feput *ollector, >orthern $ub Fivision , 7anaji Vs. C('-ni+&+&+# (2 8&')("i' )ppeal was filed b the 4overnment 7leader well within time under 7ortuguese *ode. $ubse&uentl the 4ovt. 7leader filed a memo stating that he was pursuing the appeal under *.7.*. without giving up the remed under the 7ortuguese *ode. )ppeal under *7* was filed be ond the period of limitation. 9eld : "n the circumstances of the case, the 4overnment 7leader was under a bonafide mista;e in pursing the remed under the 7ortuguese *ode. "t was held that the )ppellant was entitled to the benefit of $ection 1,.

AIR 1985 SC 39: Nafar 8han Vs. Eoard of #evenue, A.7. : :xpression %cause of li;e nature( G "t has to be read ejusdem generis with the expression %defect of jurisdiction(. $o construed, the expression, %other cause of a li;e nature( must be so interpreted as to conve something analogous to the preceding words %from defect of jurisdiction(. 7rima facie, it appears that there must be some preliminar objection which if it succeeds, the court would be incompetent to entertain the proceeding on merits, such defect could

38

be said to be %of the li;e nature( as defect of jurisdiction. *onversel , if the part see;ing benefit of the provision of $ection 1, failed in the earlier proceeding on merits and not on defect of jurisdiction or other cause of a li;e nature, he would not entitled to the benefit of $ection 1,. A I R 1997 SC 2724: )shis 8umar 9ara Vs #ubi 7ar; *o-op. 9ousing $ociet Ltd. and others. Fispute between *o-operative $ociet and its members- notice for arbitration given G Limitation is ! months. Eut after ! months, suit was filed on the original side G dismissed G Thereafter, proper application was filed. $upreme *ourt held that $ection 1, applies to the period during which the suit was pending. Eut the $upreme *ourt did not accept the reason for dela caused before the date of filing of the suit.

AIR 1997 SC 1686 : $underdas and others Vs. 4ajanan #ao and others : $uit was filed within the period of limitation before the ?unsiff's *ourt. "t too; the view that the suit was properl valued for jurisdiction. 9igh *ourt held that the suit was not properl valued and directed return of the plaint for presentation before proper court. ) contention was ta;en that suit shall be ta;en to have been filed onl when it was filed in the proper court and therefore the suit was barred b limitation. 9eld: $ection 1, applies and the period during which the plaintiff was prosecuting the suit before the ?unsiff's *ourt was liable to be excluded.

2339 435 <LT 627 : 4<-ri&n =(*!#%= G <.T.S&n;&r&n =5

AIR 1999 SC 322: Daman #ao 8eshav #ao Feshmu;h Vs. Fin;ar #ao Ehau $aheb Feshmu;h and others.

39

The respondent 2before the $*3 filed application before the Feput *ollector for restoration of possession under $ection 0, of Eomba Tenanc and )gricultural Lands )ct, 1/,0 against the appellant, filed before the Feput *ollector. Feput *ollector dismissed the application as not maintainable holding that the remed of the respondent was to appl to the Tahsildar under $ection !/ of the )ct for restoration of possession. That order was challenged in appeal before the #evenue Tribunal. Tribunal dismissed the appeal on +.---1/-1. Cn +.---1/-1 itself, an application was filed b the part before the Tahsildar under $ection !/. The opposite part contended that the application under $ection !/ was barred b limitation since it was filed ! ears after the date of dispossession. The authorities held that the application was barred b limitation. 9igh *ourt of Eomba held that $ection 1, could be applied and accordingl allowed the application for restoration of possession. The $upreme *ourt confirmed the order of the 9igh *ourt.

2331 415 <LT 428 : )nas )bdul 8hader Vs. )bdul >asar. 29ariharan >air @3 )rbitration proceedings instituted before the $ub *ourt and later represented before the Fistrict *ourt. 7eriod of pendenc before wrong court was sought to be excluded under $ection 1,. 9eld: %The real intention of $ection 1, being to extend the period of limitation prescribed b the statute, what has to be done is to add that period during which the suit had been prosecuted with due diligence and in good faith in a court, which either on account of lac; of jurisdiction or other cause of a li;e nature, was unable to entertain it, to the normal period of prescribed b the statute.(

AIR 2333 SC 2323 D 2333 455 SCC 355 D 2333 425 <LT 771. 7.$arath Vs. $tate Ean; of "ndia.

40

7aragraph 1!: %"t will be noticed that $ection 1, of the Limitation )ct does not spea; of a %civil court( but spea;s onl of a %court(. "t is not necessar that the court spo;en of in $ection 1, should be a %civil court(. )n authorit or Tribunal having the trappings of a court would be a %court( within the meaning of this $ection. 2337 445 <LT 848 : MH* :i+#( (n In$#rn&$i(n&" L$+. :*. L(.(* Tr&+#r* 4<.T.S&n;&r&n =5 C(-r$ r#$-rnin. $%# !"&in$ -n+#r R-"# 13 (2 Or+#r :II CPC. %&* n( 9-ri*+i $i(n $( #0$#n+ $%# !#ri(+ 2i0#+ ), i$ 2(r !r#*#n$&$i(n )#2(r# !r(!#r (-r$. S# $i(n 14 1&* &!!"i#+.

SECTION

15

1993 425 <LT 369 : T.7.8. >air Vs. Anion of "ndia 27admanabhan @3 Dhen a suit is filed jointl against several defendants, in order to get exclusion of the period under $ection 15 2!3 for the entire suit, it is enough if the statutor notice is re&uired as against an one of the defendants. Eut in a case where the $tate or the public officer is an unnecessar or improper part and there is no cause of action against them and the were impleaded without bonafides or b mista;en feeling regarding existence of cause of action, the exclusion is not available.

1993 415 <LT 213: 1)*T Ltd. Vs. Anion of "ndia. 2$hamsuddin @3 The period of notice under $ection 0. *7* has to be excluded in computing the period of limitation in view of $ection 15 2!3 of the Limitation )ct.

41

1988 425 <LT 947 D ILR 1989 415 <#r&"& 579 4F85 7.@. @ohnson H $ons Vs. ?Is )strofiel )rmadorn $.). 7anama H others : 28ochu Thommen@ , 8.T.Thomas @ H $hamsuddin @3 $ection 15 253 G Fefendants 1 and +, being foreign *orporations GThe were never present in "ndia. "f the were not present in "ndia, the naturall could not be absent from "ndia, and in that event sub section 253 of $ection 15 has no application. The mere presence of a representative of the foreign *orporation is not sufficient if his onl authorit is to elicit orders from customers, but not to ma;e contracts on behalf of the *orporation.

1988 415 <LT 675: ?unicipal *ommissioner Vs. Favid @. Ehanu 2$u;umaran @3 $uit for damages against ?unicipalit - statutor notice was given to ?unicipalit G period of notice should be excluded unde $ection 15 2!3. The effect of $ection 15 2!3 is to add to the period of limitation that much of the period of notice.

1983 <LT 562: *ochin 7ort Trust Vs. )ssociated *otton Traders Ltd. and others . 2Ehas;aran @ H A.L.Ehat @3 7eriod of notice is liable to be excluded.

AIR 1987 SC 2195: #aj 8umar Fe Vs. Tarapada Fe and others: )ward was filed in *ourt pursuant to the order of *ourt within the time for presenting for registration. )ward remained in the custod of the court upto certain date due to injunction and thereafter due court's refusal to return for the purpose of registration - 7resented for registration on the next da of its return from court G :ntire period

42

during which the award remained in the custod of the court should be excluded. 9eld: The two legal maxims G the law does not compel a man to do that which he cannot possibl perform and an act of court shall prejudice no man would appl with full vigour in the facts of the case. AIR 1984 SC 1383 : )nandilal and another Vs. #am >arain and others . ) partial sta of the execution of the decree sta ing the sale of the attached propert is within the meaning of $ection 15213. There is no reason wh $ection 15 213 should be given a restricted meaning as allowing the benefit to a decree holder where there is a complete or absolute sta of execution and not a partial sta . The word execution in $ection 15 213 embraces all the appropriate means b which a decree is enforced. $ta of an process of execution is sta of execution within the meaning of $ection 15 213. Dhere an injunction or order has prevented the decree holder from executing the decree then irrespective of the particular stage of execution, or the particular propert against which, or the particular judgment debtor against whom, execution was sta ed, the effect of such injunction or order is to prolong the life of the decree itself b the period during which the injunction or order remained in force.

2332 415 <LT SN P&.# 23 C&*# 27: Oavier Vs. 27.#.#aman @3

Luc V. 7apal .

%:ven though the trial court decree ma be enforceable in the absence of an interim order of sta passed b the appellate court, that b itself will not show that the period of limitation for executing the decree starts from the date of the trial court decree because appl ing the principle of merger, the decree that is executable is that of the appellate *ourt. %

2333 415 <LT 414 : 2#.Ehas;aran @ 3

43

$ection 0. notice received b #ailwa s. Two months' period is to be added to the period of limitation.

2332 435 <LT 663: 2#.Ehas;aran @3 $ection 0. notice was dispensed with and permission was granted. >otice period can be added. Dhen two interpretations are possible the one in favour saving limitation is to be preferred.

SECTION

17

$ee Crder V" #ule , and Crder V"" #ule - , *.7.*. 1994 415 <LT SN P&.# 21 C&*# N(. 23 . 8arthia ani )mma Vs. $udasundaran. 2Ealanara ana ?arar @3 1raud- suit to set aside transaction on the ground of fraud G "ngredients to attract $ection 16 Limitation )ct explained. $cope of pleadings G burden of proof.

1986 <LT 351 : ).). @oseph Vs. Varghese 4eorge. 2@ohn ?athew @3 7etition to set aside court sale under Crder !1 #ule /1 G contention of the decree holder was that the defendants suppressed the fact that the no saleable interest in the propert and that it amounts to fraud. 9eld: >on mention in the objection that the judgment debtors have no title to the propert will not amount to fraud or misrepresentation. >o dut is there for the judgment to disclose the same.

44

1997 425 <LT 73 4P.<.8&"&*-)r&'&n,&n =5 E%&$ i* 2r&-+, #0!"&in#+.

1974 <LT 244 : $ales Tax Cfficer Vs. ?.F. )braham. 2V.7.4. >ambiar @ H Ehas;aran @3 $ection 16 of the Limitation )ct is clear that if the applicant could have discovered the mista;e with due diligence that is sufficient to start the running of time against him.

1998 425 <LT 1378 : 2$an;arasubban @3 Fecree holder committed fraud in getting sale of @F's propert . $estion applied in a petition uner #ule /. of Crder OO" *.7.*.

SECTION

18

2333 425 S.C.C. 15: $ ndicate Ean; Vs. #.Veeranna and others: 2Lahoti *.@ and )sho; Ehan @3

7ara 0: %"t is clear from the judgment of this *ourt in 9iralal Vs. Ead;ulal ).".#. 1/5+ $.*. !!5 that an un&ualified ac;nowledgment of liabilit as in the present case b a part not onl saves the period of limitation but also gives a cause of action to the plaintiff to base its claim.

45

2334 4125 S.C.C. 363: 1ood *orporation of "ndia Vs. )ssam $tate cooperative ?ar;eting and *onsumer 1ederation Ltd. )nd others:

7ara 15: % The statement providing foundation for a plea of ac;nowledgment must relate to a present subsisting liabilit , though the exact nature or the specific character of the said liabilit ma not be indicated in words. The words used in the ac;nowledgment must indicate the existence of jural relationship between the parties such as that of debtor and creditor. The intention to attempt such jural relationship must be apparent. 9owever, such intention can eb inferred b implication from the nature of the admission and need not be expressed in words. ) clear statement containing ac;nowledgment of liabilit can impl the intention to admit jural relationship of debtor and creditor. Though oral evidence in lieu of or ma;ing a departure from the statement sought to be relied on as ac;nowledgment is excluded but surrounding circumstances can alwa s be considered. *ourts generall lean in favour of liberal construction of such statements though an ac;nowledgement shall not be inferred where is no admission so as to fasten liabilit on the ma;er of the statement b an involved or far fetched process of reasoning 2see $hapoor 1reedom ?aJda Vs. Furga 7rosad *hamaria ).".#. 1/-1 $.*. 1!+- and La;hirattan *otton ?ills *o. Ltd. Vs. )luminium *orpn. Cf "ndia Ltd. 1/61 213 $.*.*. -63 $o long as the statement amounts to an admission ac;nowledging the jural relationship and existence of liabilit , it is immaterial that the admission is accompanied b an assertion that nothing would be found due from the person ma;ing the admission or that on an account being ta;en something ma be found due and pa able to the person ma;ing the ac;nowledgment b the person to whom the statement is made.(

46

1994 425 <LT 193 4F85 : 7allai Vs. 8all ani;utt )mma 28.T.Thomas@, V.V 8amat @ H >ara ana 8urup @3 1/0. 8LT 016 affirmed. Dhen an ac;nowledgment relates to the part of the claim which is not specified G 1. >ot necessar that should be a specific and direct ac;nowledgment of the particular liabilit . !. "f there is an admission of facts of which the liabilit in &uestion is a necessar conse&uence, there would be an ac;nowledgment within the meaning of $ection 10. +. Dhat is necessar is the admission of the existence of a debt.

1991 415 <LT 138 4SC5D AIR 1991 SC 723 D 1993 445 SCC 672. >ara ani Vs. 7athumma. ?uslim d ing intestate leaving debt and some estate- pa ment b one of the heirs if saves as against other heirs G >o. The legal heirs inter se have no jural relationship as co-debtors or joint debtors. The succeed to the estate as tenants in common in specific shares.

1993 425 <LT 392 : $reedevi Vs. )ppu -

27admanabhan @3

There must be an ac;nowledgment of a subsisting liabilit which is not alread barred.

)c;nowledgment does not create a new right but merel extends the period of limitation.

47

"t is not necessar that the statement should indicate the exact nature or the specific character of the liabilit .

Eut the words used in the statement must relate to a present subsisting liabilit and indicate the existence of a jural relationship between the parties such as that of a debtor and creditor and the intention to admit such jural relationship.

The intention need not be in express terms- it can be b implication.

1993 425 <LT 139 : Oavier Vs. 8asi 2$hamsuddin @3 7laintiff could ver well rel on the written statement in a previous suit as an ac;nowledgment.

1993 425 <LT SN P&.# 59 C&*# 81: @ai 9ind Cil ?ills Vs. 8erala :lectrical and )llied :ngineering *ompan . 27admanabhan @3 )c;nowledgment can be proved onl signed writing and not b parole evidence.

1993 425 <LT 837 : *raft *entre and others Vs. The 8oncher *oir 1actories. - )c;nowledgment must be in writing. - "f it is not produced in evidence, court cannot ma;e a roving en&uir for getting admissions from the defendant. - 7laint, ex facie barred b limitation. )c;nowledgment must be pleaded in the plaint.

48

- Cral evidence of the contents of ac;nowledgment shall not be received b *ourt. )c;nowledgment must be produced before *ourt. 1989 425 <LT 27admanabhan@3 628 : $avithri 8unjamma Vs. >ara anan:

$ection 10 G ingredients. 1989 415 <LT 627: Anion Ean; of "ndia Vs. $tephen. )c;nowledgment of liabilit b principal debtor G saves limitation onl against the person who ac;nowledges. :ven in a case of joint contractors the ac;nowledgment of liabilit of one of the parties would ;eep the liabilit alive onl against him. 48-$ S## 1979 <LT 566 M.P. M#n(n =5

*ontinuing guarantee. Febt ;ept alive b ac;nowledgment b principal. 7eriod of limitation extends against guarantors also.

AIR 1979 SC 1937: Valliamma *hampa;a 7illai Vs. $ivathanu 7illai. )c;nowledgment of past liabilit G ?ere recital in a document as to existence of past liabilit coupled with a statement of its discharge does not constitute an an ac;nowledgment.

AIR 1971 SC 2342: $hiv Lal and others Vs. *hetram and others. $uit for redemption G 7laintiff rel ing on certified cop of a statement made in mutation proceedings for the purpose of proving ac;nowledgment. Criginal of the statement was not produced "t was also not proved that the ma;er of the statement signed it. 9eld that the

49

certified cop of the statement with does not prove signature does not serve as ac;nowledgment.

1987 425 <LT 27admanabhan @3

236 : Ean; of "ndia Vs. @ames 1ernandeJ

)c;nowledgment need not be in the handwriting of the ma;er.

AIR 1999 SC 1347 D 1999 425 <LT SN 76 C&*# 83 4SC5 : $ampuran $ingh and others Vs. >iranjan 8aur and others. )c;nowledgement should be made during subsistence of the period of limitation. )c;nowledgment of liabilit after expiration of the prescribed period of limitation for filing suit - "f limitation has alread expired, it would not revive under this $ection. 2333 495 SCC 722 : $tate of 8erala Vs. T.?.*hac;o. 28erala 9* decision was reversed.3 7aragraph 1.: %"t ma be noted that for treating a writing signed b the part as an ac;nowledgment, the person ac;nowledging must be conscious of his liabilit and commitment must be made towards that liabilit . "t need not be specific but if necessar facts which constitute the liabilit are admitted, an ac;nowledgment ma be inferred from such an admission.

2331 415 <L= 114: *hellappan 7illa Vs. 4omathi )mma. 2$reedevi @3 ?ere admission of jural relationship between the mortgagor and mortgagee is not sufficient to constitute ac;nowledgment within the meaning of $ection 10.

Cther decisions:

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!..+ 213 8LT +!5 1/06 2!3 8LT //! 1/05 8LT 65+, ,.! and 11,+. 1/0. 8LT 016. 1/6. 8LT ,!. 1/-0 8LT 1.,. 1/6/ 8LT 5-- and -//.

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