Indian Law of Limitation – A Bird’s Eye View !

A Bird’s Eye view of the Law of Limitation

The Laws of Limitation are statutes of peace and repose, statues that manifest the policy of law in lending its aid only to those who are vigilant and not those who sleep over their rights (Vigilantibus Non Dormentibus Juria Subvenient). Limitation laws suggest that all disputes/claims/remedies should be kept alive only for a legislatively fixed period of time, for otherwise disputes would be immortal when man is mortal. Though arbitrarily fixed limits may seem unfair to some, however they are most pragmatic insofar as there is rarely any justice in stale claims – and evidence also gets destroyed, hence keeping remedy alive serves no useful purpose. 

Law of Limitation is rigid – courts have no power to free the litigant from its shackles by using its inherent powers, however the rigidity of the law has been cut down by providing the principles of exception & Exclusion (S.4-24 of the Limitation Act, 1963) these principles make just allowances ex debito justitate and are based on one rational principle or the other. 

S.3 of the aforesaid act – mandates the court to dismiss a suit even though limitation is not set up as a defence. Normally in actual practise – court frames a preliminary issue on the question of limitation as the same relates to a bar of law, if the bar of limitation is apparent on the face of the plaint – it may also entail Rejection u/o 7 R 11 of the CPC. Otherwise evidences are taken – which leads to a dismissal or the suit continues. 

It is pertinent to remember that Limitation Act does not extinguish the right but negatives its remedial qualities – by turning it into an imperfect right – i.e right without a corresponding remedy. Since it seemingly is at cross purposes with the celebrated maxim of ubi jus ibi remedium – courts have constantly held that when there are two views possible one that saves the remedy should be preferred.

Some Important Areas of the Law of Limitation.

S.4 – is based on the principle of actus curiae neminem gravabit – Act of Court shall prejudice no man, and lex non cogit ad impossibilia. When the period of limitation of insttituing a suit, making an application or filing an appeal expires on a day when court is closed (completely or during any part of it’s working hours) the same can be done on the day when court re-opens. In a catena of decisions problems arose as – case was filed in a wrong court and then S.4 was attempted to be read together with S.14 – to exclude that period. However this contention was negative by the SC in Ami Chand v. UOI (1973) placing reliance up PC Decision in Maqbul Ahmed v. Pratap Narain. That to gain the benefit of S.14 – original suit should have been filed within the prescribed period. Which was not the case here – as S.4 being a principle of exception allows filing after PP is over as opposed to one excluding the period or the POL. Hence the court for the purposes of S.4 means proper court.

S. 5 also is a principle of exception – which allows filing (appeal & applications (other than O.21) after the expiry of Prescribed Period – if sufficient cause is shown. The phrase ‘sufficient cause’ has to be interpreted liberally, keeping in mind at all times that a litigant normally does not stand to benefit from delay – on the contrary there is always a chance of his losing his right altogether. Hence an interpretation that advances substantial justice has to be accorded. Court’s have to show utmost consideration to a suitor unless malafide or negligence is attributable to him. In this regard, barring a few decisions, courts have repeatedly refused to make special exceptions in favour of government, notwithstanding the impersonal  machinery. However J.Chandrachud however in G.Ramegowda v. Special Land Acquisition officer (1988) has held that a certain amount of latitude is not entirely impermissible. Taking cue of this lower courts have been apparently letting the burden of proof of discharging ‘sufficiency’ fall light upon the government. Which is a prudent practice, since in a variety of cases – the adage “what is everyone’s is nobody’s in actuality’ becomes true – and it is the tax payer/revenue that suffers when the government lapses.

S.6/7/8 – together represent a well knit legislative scheme wherein – limitation period is excluded during period when litigant could not have sued on account of minority/insanity/idiocy. However such disability should be present at the time from which the period of limitation is to be reckoned. Subsequent disability/inability would not stop the continuous running of time (S.9). However strict application of this rule would have done injustice to other party, insofar as their rights would be uncertain for long periods of time. To counter this – full period of limitation to be accorded after disability ceases is elongated to a maximum of 3 years. This strikes a perfect balance of conflicting interests of the disabled and the other party.

The Principle of Continous running of time is suspended only in one situation where – the hand to give & receive is the same i.e to prevent conflict of interest and duty. This is envisaged in S.9 Proviso – wherein during the time a debtor holds the letter of administration of his creditor, the period of limitation for recovery of debt stands suspended.

S.10 – envisages the principle of no limitation in matters of trust expressly created for specific purposes. In common parlance a trustee is not immune from legal proceedings with respect to any suit relating to property in his hands as a trustee, by any length of time.

S.11 – makes clear that the period of limitation has to be seen w.r.t lex fori – i.e the law of the forum where the action is brought and not the one where the contract was formed (lex loci contractus)

S.12 – excludes the day from the Period of Limitation is to be reckoned, plus when a decree/order is appealed against the date of judgment – the time properly required in obtaining a copy of the judgment/decree.

S.13 – provides for a situation where leave to sue in forma pauper is sought (u/o 33 of the CPC) is rejected – and the applicant later pays up the court fees. This principle deems court fee as paid in the first instance, and negatives the chances of a situation where period of limitation has lapsed during the prosecution of such application.

S.14 – a principle frequently pushed into action – where a person spends time pursuing a remedy in a court which from jurisdictional incompetency is unable to try it. However if the person does so without due diligence i.e without due care and caution. He is not allowed to exclude that period from the overall period of limitation. Here a little flexibility is projected by the courts as at least some amount of lack of diligence/indiscretion is implicit in very act of filing it in the wrong court, however the same should not amount to a complete carelessness – if the benefit of this section is to be sought.

S.15 also excludes certain periods – for eg : where filing of a suit or execution application is stayed – the period during which the stay operates is excluded in computing the period of limitation. Other exclusions include – time taken in taking a sanction/permission or where the defendant(s) are outside India, or where a purchaser at a court auction seeks to sue for possession – the period during which such sale in which he gets title is sought to be set aside – is excluded.

S.17 manifests the policy of law – that fraud ought to benefit none – and no amount of time – can turn an illegality into legality. It sends out a clear message to those in fraud – that by no lapse of time can they be allowed to keep the fruits of their ingenious villainy. This principle excludes the period during which a person was labouring under fraud so as to be unaware of his right and its violation, or could not bring a suit as he was forced not to. Though period after which the person could have discovered with reasonable diligence the fraud or where force ceased to operate is not excluded. The section also applies to suits based upon documents – where the same are concealed. It has application with respect to execution petitions also.

 

S.18 – 20 are related to acknowledgements – which forms part of larger doctrine of Admissions (S.21 of IEA) these provisions provide for a fresh/renewed period of limitation on each admission/acknowledgment of liability, for each admission (self harming and hence carrying with it implicit guarantee of truth) affords proof of existence of jural relationship and of subsisting liability.

S.18 deals with acknowledgments in writing/signed by person under liability or predecessor in title.  It goes on to state that acknowledgment need not be a promise to pay, need not to be express or in as many words, but if the jural relationship is capable of being derived by implication (necessary) then the same would amount to an admission.

S.19 deals with acknowledgments evidenced in payments towards debts or interests on legacy, but they should also be recorded in writing/signed.

Cheques as long as they are not encashed do not fall within the purview of S.19. The same applies to a dishonoured cheques as well. However this may expose people to fraud, as a creditor may on the assurance of a cheque issued to him, forbear to sue and in the process period of limitation may run out, and if that cheque bounces – is he left with no remedy ? Well not in S.19 – however the courts have held it to be documented acknowledgement, duly signed hence satisfying the elements of S.18.

S.20 is in a sense supplementary to aforesaid Ss.18/19 insofar as it defines as to who are persons who are duly authorised to make admissions on behalf of a person.

Courts have interpreted these liberal provisions relating to admissions liberally so as to extend their beneficial scope. Statements capable of two views – have been held to be admissions so as to protect the right from turning imperfect.  

S.21 talks about period of limitations vis-à-vis parties added or substituted in a suit. The problem that arises here is the suit or the Cause of Action may be barred with respect to them when they are sought to be joined (O.1 R 10), and as on expiry of limitation against them a valuable right viz. not to face any action accrues to them, they are taken to have been made parties on the date of impleadment i.e date of application of impleadment, if allowed. However this may result into injustice sometimes – which is just what the proviso seeks to counter. The proviso provides for a relating back effect, a legal fiction in case court is satisfied that such party could not be joined due to mistake in good faith. It may deem such parties to have been joined in the first instance, so as to circumvent the bar of limitation in cases which demand such judicious indulgence.

S,22 contain the principle of de, die et diem – that is day to day – in a continuing cause of action period of limitation is renewed each moment as long as the wrong continues. For eg : trespass, nuisance, defamation etc.

S.27 – the only exception to the general effect of the act in barring only the remedy and not the right. This section, in cases of recovery of possession, if an action is not brought within the period stipulated – destroys the very right. Also known as the doctrine of adverse possession – if use of property/its care or attempt to regain is foregone for a period – and an adverse title being established is not opposed to through the instrumentality of law or otherwise. The other person does acquire a valid title. This is baffling for a reasonable man, how does some years of illegality turn into a legality. This concept of adverse possession is affront to the notions of justice and equity and run counter to modern ideas of propriety rights. The Supreme Court has gone to the extent of saying that – adverse possession is an area where justice and law do not happily co-incide. Keeping in mind this observation and the inherent unjust nature of this principle, courts have been consistently insisting on a very rigid satisfaction of conditions – only after which adverse possession ripes into title. These conditions have to be specifically claimed and proved. 

25B DRC is a complete code in itself

Om Prakash vs Ashwani Kumar Bassi on 27 August, 2010
Bench: Altamas Kabir, A.K. Patnaik

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) No.24430 OF 2008 Om Prakash … Petitioner Vs.

Ashwani Kumar Bassi … Respondent J U D G M E N T

ALTAMAS KABIR, J.

 

1. This Special Leave Petition is directed against the judgment and order dated 5th October, 2007, passed by a learned Single Judge of the Punjab & Haryana High Court, dismissing Civil Revision Petition No.5129 of 2007 which had been filed by the Petitioner herein against an order dated 4th August, 2007, passed by the Rent Controller, 2

Ludhiana. By his said order the Rent Controller dismissed the Petitioner’s application under Section 5 of the Limitation Act for condoning the delay in filing the application for leave to contest the eviction petition. Consequently, the application for leave to contest the eviction petition was also dismissed.

 

2. The Respondent herein filed an application for eviction of the Petitioner from the premises in question under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949, hereinafter referred to as "the 1949 Act". Notice of the application was issued to the petitioner/tenant in the prescribed form asking him to appear before the Rent Controller within 15 days from the date of service of the notice and to apply for leave to contest the petition. The tenant was served with the summons of the eviction petition on 19th May, 2005. The 15 days’ period indicated in the notice 3

for filing the application for leave to contest expired on 3rd June, 2005. Such an application was subsequently made the next day on 4th June, 2005, but was not accompanied by any application for condonation of the delay of one day in making the same. Thereafter, the petitioner filed an application under Section 5 of the Limitation Act for condonation of the said delay in filing the application which was dismissed by the Rent Controller on 4th August, 2007, along with the application for leave to defend the eviction petition. In dismissing the Petitioner’s application under Section 5 of the Limitation Act, 1963, the Rent Controller, relying on certain judgments of the Punjab & Haryana High Court, held that the provisions of Section 5 of the Limitation Act were not applicable in proceedings before the Rent Controller, particularly, for condoning the delay in filing an application for leave to contest 4

the eviction petition.

 

3. The said decision of the Rent Controller, Ludhiana, was questioned in Revision Petition No.5129 of 2007 before the High Court and it was contended that the impugned order had been passed in violation of the provisions of Section 18-A(7) of the East Punjab Urban Rent Restriction Act, 1949, as also Section 17 of the Presidency Small Causes Courts Act, 1882. It was contended on behalf of the Petitioner that by virtue of Sub- section (7) of Section 18-A of the 1949 Act, the procedure prescribed for trial of a suit under the Small Causes Courts Act was also applicable for trial of eviction petitions under the 1949 Act and by virtue of Section 17 of the Small Causes Courts Act, the Code of Civil Procedure has been made applicable to eviction proceedings as well. It was also contended that it was, therefore, obligatory upon the part of the Rent Controller to 5

have considered the merits of the eviction petition and to direct the landlord to lead evidence to prove the grounds for eviction taken by him. It was also urged before the High Court that mere rejection of an application for leave to contest did not ipso facto entitle the landlord to an order of eviction. On the other hand, the Rent Controller should have recorded the evidence of the landlord and it is only after such evidence was recorded and the Rent Controller was satisfied as to the existence of grounds for eviction of the tenant under Section 13-B of the 1949 Act, that the order of eviction could be passed.

 

4. On consideration of the submissions made on behalf of the respective parties, the High Court took the view that the provisions of Section 18-A of the 1949 Act have an overriding effect on all other laws inconsistent therewith and that Sub- section (7) of Section 18-A of the 1949 Act and 6

Section 17 of the Presidency Small Causes Courts Act, 1882, were not attracted to the facts of the case or in a situation where leave to contest has been declined for any reason whatsoever. The High Court further held that under the circumstances, there was no statutory obligation upon the Rent Controller to frame issues or to try the eviction petition by calling upon the petitioner to lead evidence. The High Court further held that refusal to grant leave to contest amounts to admission of the contents of the eviction petition and if the eviction petition itself satisfies the requirements of Section 13-B of the 1949 Act, an order of eviction has to follow as a matter of course.

5. It is against the said order of the learned Single Judge of the High Court, dismissing the petitioner’s Revision Petition, that the present Special Leave Petition has been filed.

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6. As indicated hereinbefore, the case of the Petitioner is that both the Rent Controller and the High Court had erred in law in holding that the provisions of the Limitation Act would not apply in a proceeding before the Rent Controller and that Section 18-A of the 1949 Act would have an overriding effect over Section 29(2) of the Limitation Act, 1963. It was reiterated that by virtue of Sub-section (7) of Section 18-A of the 1949 Act, the procedure prescribed for trial of suits in the Small Causes Courts Act, is also applicable for trial of eviction petitions since by virtue of Section 17 of the Small Causes Courts Act, the Code of Civil Procedure has been made applicable to eviction proceedings as well.

7. Appearing for the Petitioner, Mr. Ujjal Singh, learned advocate, referred to and relied upon the decision of this Court in Mukri Gopalan vs. 8

Cheppilat Puthanpurajil Aboobacker [(1995) 5 SCC 5], wherein a similar question had arisen with regard to the power of the Appellate Authority under Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965, to condone the delay in filing an appeal after expiry of the period of limitation prescribed under the Act. This Court held that the conditions for applicability of Section 29(2) of the Limitation Act were satisfied since Section 18 is a special law and in the absence of any provision under the Limitation Act, for filing an appeal, the period of limitation provided under Section 18 would have to be treated to be different from that under the Limitation Act. It was held that as a consequence, Section 5 of the Limitation Act would be automatically attracted to an appeal under Section 18 in the absence of any express exclusion under the Rent Act. It was further held that since the District Judges 9

function as Appellate Authority under Section 18, such an authority is a court and not persona designata and, therefore, entitled to resort to Section 5 of the Limitation Act. It was further held that the Appellate Authority constituted under Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965, functions as a Court and as a result the period of limitation under the said provisions governing appeals would be computed keeping in view the provisions of Sections 4 to 24 of the Limitation Act, 1963. Reference was made to a decision of this Court in Gaya Prasad Kar vs. Subrata Kumar Banerjee [(2005) 8 SCC 14], wherein it was held that having regard to the beneficial provisions of the West Bengal Premises Tenancy Act, 1956, which allowed extension of time for making deposit of arrears of rent, the provisions of the Limitation Act and, in particular, Section 5 thereof, would also be applicable.

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8. Yet another decision of this Court in the case of Akesh Wadhawan & Ors. vs. Jagdamba Industrial Corporation & Ors. [(2002) 5 SCC 440], was referred to on behalf of the Petitioner in the context of the 1949 Act, in which it was held that subsidiary rules of interpretation envisage that in case of ambiguity, a provision should be so read as to avoid hardship, inconvenience, injustice, absurdity and anomaly. It was held that since a statute can never be exhaustive, courts have jurisdiction to pass procedural orders, though not specifically contemplated by statute and that such innovation is permissible on the basis of authority supported by the principles of justice, good sense and reason.

9. Certain other decisions were also referred to by learned counsel which are on similar lines.

10. On behalf of the Respondent it was submitted that Section 13-B had been introduced in the 1949 11

Act by way of amendment in 2001 to make special provisions for Non-Resident Indians who return to India and are in need of immediate possession of their building or buildings let out by them. Such benefit had been made available to a Non-Resident Indian only after a period of five years from the date on which the Non-Resident Indian became the owner of such building. It was contended that the provisions of the 1949 Act and, in particular, Section 13-B thereof, would have to be very strictly construed on account of the object with which it had been enacted. In this regard reference was made to a decision of this Court in Prithipal Singh vs. Satpal Singh (Dead) through its LRs. [(2010) 2 SCC 15], where an ex-parte eviction order based on ground of bonafide requirement of landlord was recalled by the Rent Controller exercising jurisdiction under Order 9 Rule 13 read with Order 37 Rule 4 and Section 151 of the Civil 12

Procedure Code. The said order was affirmed by the High Court observing that in view of Rule 23 of the Delhi Rent Control Rules, 1959, the Rent Controller is conferred with power to set aside the ex-parte order of eviction in exercise of jurisdiction under the aforesaid provisions of the Code. On the said orders being questioned in this Court it was held that Rule 23 of the aforesaid Rules could not be applied in view of Section 25-B which is a special code and provides for a specific and exhaustive procedure for eviction of a tenant by a landlord on ground of bonafide requirement. The order of the High Court was, therefore, set aside and that of the Rent Controller was restored.

 

11. Reference was also made to a Bench decision of the Punjab & Haryana High Court in Ashwani Kumar Gupta vs. Siri Pal Jain [1998 (2) RCR 222], in a Civil Revision, where the very same question fell for consideration and it was held that when the 13

tenant had failed to file affidavit seeking leave to contest the proceedings within the time prescribed, the Rent Controller had no power to condone the delay. Certain other cases were also referred to on the same lines relating to the 1949 Act and Sections 13-B and 18-A thereof.

 

12. From the materials on record it is clear that the application for leave to contest the application under Section 13-B of the 1949 Act has to be made within 15 days from the date of service of the summons. In this case, the application for leave to contest the application was made one day after the said period had expired. The issue for consideration before us is whether the Rent Controller was right in rejecting the application on the ground that he had no jurisdiction to condone the delay under the Act. The matter was considered at length by the High Court, which, as indicated hereinabove, came to the conclusion that 14

Section 18-A of the 1949 Act would have an over- riding effect on all other laws inconsistent therewith and that Sub-Section (8) of Section 18-A of the 1949 Act and Section 17 of the Presidency Small Causes Courts Act, 1882, were not attracted to the facts of the case.

 

13. The views expressed by the High Court also formed the subject matter of the decision in Prithipal Singh’s case (supra), though in the context of the Delhi Rent Control Act, 1958, and the rules framed thereunder. This Court was of the view that Section 25-B of the Delhi Rent Control Act was a complete Code by itself and other provisions could not, therefore, be brought into play in such proceedings. In the instant case, the same principle would apply having regard to the fact that the Rent Controller had not been conferred with power under Order 9 Rule 13 C.P.C. to recall an ex-parte order passed earlier. 15

 

14. Apart from the above is the view taken by this Court in Prakash H. Jain vs. Marie Fernandes[(2003) 8 SCC 431], where it was specifically held that since the Competent Authority under Section 40 of the Maharashtra Rent Control Act, 1999, was not a court but a statutory authority with no power to condone the delay in filing an affidavit and application for leave to contest, the Competent Authority had no other option but to pass an order of eviction in the manner envisaged under the Act.

15. The decision in Mukri Gopalan’s case (supra) relied upon by Mr. Ujjal Singh is distinguishable from the facts of this case. In the facts of the said case, it was the District Judges who were discharging the functions of the Appellate Authority and being a Court, it was held that the District Judge, functioning as the Appellate 16

Authority, was a Court and not persona designata and was, therefore, entitled to resort to Section 5 of the Limitation Act. That is not so in the instant case where the Rent Controller appointed by the State Government is a member of the Punjab Civil Services and, therefore, a persona designata who would not be entitled to apply the provisions of Section 5 of the Limitation Act, 1963, as in the other case. The decision in Gaya Prasad Kar’s case (supra) is also of little help to the Petitioner since under the West Bengal Premises Tenancy Act, 1956, powers have been vested in the Rent Controller to extend the time for making deposits of arrears of rent, which would make the provisions of the Limitation Act applicable in such specific instances.

 

16. The instant case stands on a different footing and, in our view, is covered by the decision of this Court in Gaya Prasad Kar’s case (supra), 17

wherein it was held that the Competent Authority had no other option but to pass an order of eviction since it had no power to condone the delay in filing an application for leave to contest.

17. Section 13-B is a power given to a Non-Resident Indian owner of a building to obtain immediate possession of a residential building or scheduled building when required for his or her use or for the use of any one ordinarily living with and dependent on him or her. The right has been limited to one application only during the life time of the owner. Section 18-A(2) of the aforesaid Act provides that after an application under Section 13-B is received, the Controller shall issue summons for service on the tenant in the form specified in Schedule II. The said form indicates that within 15 days of service of the summons the tenant is required to appear before the Controller and apply for leave to contest the same. 18

There is no specific provision to vest the Rent Controller with authority to extend the time for making of such affidavit and the application. The Rent Controller being a creature of statute can only act in terms of the powers vested in him by statute and cannot, therefore, entertain an application under Section 5 of the Limitation Act for condonation of delay since the statute does not vest him with such power.

 

18. In such case, neither the Rent Controller nor the High Court had committed any error of law in rejecting the Petitioner’s application for seeking leave to contest the suit, since the same had been filed beyond the period prescribed in the form in Schedule II of the Act referred to in Section 18-A(2) thereof.

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19. The Special Leave Petition must, therefore, fail and is dismissed accordingly. However, there will be no order as to costs.

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (A.K. PATNAIK)

New Delhi

Dated:27.08.2010