LIMITATION ACT, 1963

G. M. WAGH

2018
 TABLE OF CONTENTS
INTRODUCTION.................................................................................................................... 1
Object of Law of Limitation........................................................................................................ 1
Effect of the Bar of Limitation.................................................................................................... 2
Exception.............................................................................................................................. 5
Constitutional Aspects of the Limitation Act...............................................................................5
1. Legislative Competence...................................................................................................... 6
2. Applicability of A. 14......................................................................................................... 6
3. Applicability to A. 32......................................................................................................... 7
Salient Features of the Limitation Act, 1963...............................................................................7
Applicability of Limitation Act, 1963..........................................................................................9
Limitation, Laches, Acquiescence and Prescription.....................................................................9
Laches and Acquiescence...................................................................................................... 9
Prescription......................................................................................................................... 10
Starting Point of Period of Limitation........................................................................................11
Institution of Suit Beyond the Period of Limitation...................................................................11
EXPIRY OF THE PERIODS OF LIMITATION ON A DAY WHEN THE COURT IS CLOSED (S. 4). 12
EXTENSION OF PERIOD OF LIMITATION BY COURTS (CONDONATION OF DELAY)..............13
Admission of Appeal or Application After Limitation.................................................................13
‘Sufficient Cause’..................................................................................................................... 14
PERSONS UNDER LEGAL DISABILITY (SECS. 6-9)................................................................15
Continuation of Disability Till the Death..................................................................................15
INSTANCES IN WHICH A SUIT IS NOT BARRED BY ANY LENGTH OF TIME (SEC. 10)...........18
COMPUTATION OF LIMITATION (SS. 12-24).........................................................................19
Exclusion of Time (Ss. 12-15)................................................................................................... 19
Time in Legal Proceedings (S. 12).........................................................................................19
Time in Applying for Leave to Sue as Pauper (s. 13).............................................................20
Time Spent in Wrong Court (S. 14)......................................................................................21
Exclusion of Certain Other Times (S. 15).............................................................................22
POSTPONEMENT OF LIMITATION (SS. 16-23)......................................................................24
Death On or Before the Accrual of Right to Sue (S. 16).............................................................24
Fraud or Mistake (S. 17).......................................................................................................... 25
Acknowledgement (S. 18)......................................................................................................... 26
Payment on Account of Debt (S. 19).........................................................................................30
Effect of Substituting or Adding New Plaintiff or Defendant (S. 21)...........................................30
Effect of Adding Necessary Parties After Limitation..............................................................31
Application to Pro Forma Parties.........................................................................................32
Application to Proper Parties............................................................................................... 32
Misnomer or Misdescription of Party....................................................................................32
Transposition of Parties....................................................................................................... 33
Parties Already Sufficiently Represented..............................................................................33
Continuing Breaches and Torts (S. 22).....................................................................................34
PRESCRIPTION (SS. 25-27).................................................................................................. 36
 TABLE OF CASES
Athmaramayya vs. Seshappa...............................................................................26
Banwari vs. Sakhraj.............................................................................................33
Bibi Asma vs. Suresh Prasad................................................................................33
Chun Choudhary vs. State of Bihar.......................................................................31
Gurucharan vs. Surendra.....................................................................................29
Jainarain vs. Governor-General of India................................................................29
K. Ammal vs. Chemgaran.....................................................................................31
K. M. Mohammed Sultan vs. K. S. Muhammed Nurdin...........................................29
Karuppaswamy vs. C. Ramamurthy.....................................................................32
Keshbinder vs. Bindu Basini.................................................................................32
Mahadeva Rao vs. S. G. Chikanageshwaraiah......................................................31
Mahcidulci vs. Chirangilal.....................................................................................32
Maniruddin vs. Sarat Chandra.............................................................................33
Navrattammal vs. State..........................................................................................6
Raghunath vs. Madan Mohan...............................................................................37
Ramprosad vs. Vijayakrishnan...............................................................................6
S. F. Mazda vs. Durga Prasad Chamaria...............................................................29
T. Motichand vs. Munshi.........................................................................................7
Uppi vs. Mammavan.............................................................................................26
Venkataramayyar vs. Kothandaramayyar............................................................29
Venkatasubbamma vs. Veeravadra......................................................................33
 INTRODUCTION
The Law of Limitation prescribes the time-limit within which an aggrieved person
can approach the court for redressal or justice.

The suit or proceeding, if brought after the expiration of that time-limit, is said to
be barred by limitation.

This rule is basically meant to protect the long and established user and to
indirectly punish persons who go into a long slumber over their rights.

OBJECT OF LAW OF LIMITATION

The laws of limitation are founded on public policy signified by the Latin maxim
Vigilantibus non dormentibus jura subvenient (Law aids only to those who are
vigilant and not those who sleep over their rights).

Limitation laws suggest that all disputes, claims and 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.

The statutes of limitation are described as statutes of repose, to quiet title, to to

suppress fraud and perjury, to quicken diligence and to prevent oppression, and
also to supply the deficiency of proofs arising from the ambiguity, obscurity or the
antiquity or transactions.

They proceed upon the presumption that claims are extinguished or ought to be
held extinguished whenever they are not litigated within the prescribed period.

Courts have expressed at least three different reasons supporting the existence of
statutes of limitation, namely,

1. That long dormant claims have more of cruelty than justice in them;

2. That a defendant might have lost the evidence to dispute the State claim;

3. That persons with good causes of actions should pursue them with.
2 Introduction

The doctrine of limitation and prescription is based on two broad considerations,

namely,

1. That the right not exercised for a long time is non-existence;

2. That the rights in property and rights in general should not be in a state of
constant uncertainty, doubt and suspense.

Limitation to litigation puts a statutory bar on enforce an existing right after a

certain period.

EFFECT OF THE BAR OF LIMITATION

“Limitation bars the remedy, but does not extinguish the right.”

Rules of limitation are prima facie rules of procedure and do not create any rights
in favour of any person nor do they define or create cause of action but simply
prescribe that the remedy could be exercised only up to a certain period and not
subsequently.

The purpose of the statute of limitation is not to destroy the rights but it is
founded on public policy fixing a life span for the legal remedy for the general
welfare.

A right which is recognised by the law is protected by the law by providing some
remedy for its violation, as expressed by the maxim Ubi jus ibi remedium.

Where a right is both recognised and protected by the law, it is called a ‘perfect
right’. However, the remedy should be sought for within the period of limitation
provided for the same. If not, the law will recognise the right but will not enforce it.
The right is then said to be an ‘imperfect right’.

Under s. 3 of the Limitation Act, 1963, a suit instituted, an appeal preferred or an

application made beyond the time prescribed is to be dismissed by the court even
if limitation was not set up and pleaded by the opposite party. Thus, the remedy
provided by law to enforce a right is lost once the period of limitation expires.
Wording of sec. 3 shows that it is the right to institute the suit which is barred but
the original right on which the suit was to be based is not barred.

A statute of limitations which is a procedural law, as distinguished from a statute

which prescribes conditions precedent to a right of action which is a substantive
law, does not go to the substance of a right, but only to the remedy.
 Effect of the Bar of Limitation 3

The object of the law of limitation is expressed by the Latin maxim, Vigilantibus,
non dormentibus, jura subvenient (Law aids only to those who are vigilant and not
those who sleep over their rights). The object of law of limitation is to compel
litigants to be diligent in seeking remedies in courts of law by prohibiting stale
claims. It is to help the bona fide claimant and to prevent fraud being practised by
people upon innocent persons by keeping actions hanging on them for a long time.
Further, there should also be a time limit for maintaining evidence, such as bills,
receipts, letters and other similar documents.

Thus, the object of law of limitation not to give a right where there is none, but to
impose a bar after a certain period to institute suit to enforce an existing right.
The right continues to exist notwithstanding that the remedy is barred by
limitation. If a time barred claim is satisfied outside the court of law after the
expiry of period of limitation, that is not illegal.

A time barred debt is a good debt, though it is technically called bad debt. Though
it cannot be recovered through Court, if it is received by the creditor in any other
manner, he may retain it.

The debtor who has paid money through oversight or ignorance cannot claim it
back. For example, a debtor who pays a time barred debt to the creditor without
knowing that it is time barred, cannot claim it back on the plea that it was time
barred.

For example, a debtor who owes several debts to a creditor may pay a sum of
money to the Creditor. If there is no specific mention, then the creditor can adjust
the payment towards any of the debts, including the one whose recovery is barred
by limitation.

Example

A has taken three loans from B. First loan of Rs. 10,000 was taken on 12.3.2016.
Second loan of Rs. 15,000 was takn on 26.11.2017 and the third loan of Rs. 5,000
was taken on 5.7.2019. On 23.8.2020 A paid Rs. 15,000 to B towards the
repayment of loan of the second loan of Rs. 15,000 dated 26.11.2017. But he did
not mention it to B, as he though that looking to the amount B will take it as
repayment of that loan.

But, B wrote off the first loan of Rs. 10,000 dated 12.3.2016, which was time
barred, and adjusted the remaining amount of Rs. 5,000 towards the part
repayment of the second loan of Rs. 15,000. He informed A about the same.

A cannot object to the appropriation of Rs. 10,000 towards the repayment of the
time barred loan.
4 Introduction

Further, what is prohibited by sec. 3 is a claim based on a time barred right and
not a defence based on it. What it says is that the suit instituted after the period of
limitation should be dismissed but does not say that a defence in the written
statement should be struck down or ignored.

Example

A has taken a loan of Rs. 10,000 from B on 12.3.2016. He has not repaid that loan.
In June 2020 A decided to baught a car and he wanted to sell his motorcycle for
Rs. 25,000. B approached A to purchase the motorcycle. A agreed to sell the
motorcycle to B and delivered it to B.

B paid only Rs. 15,000 to A. When asked by A about the remaining amount ot
Rs. 10,000, B told A that he had adjusted that amount towards the debt of
Rs. 1,000 owed by A to B.

B sued A for the remaining price of the motorcycle, Rs. 10,000. In his written
statement B took defence that he has recovered the loan of Rs. 10,000 which was
due from A to him.

The Court will accept the defence and dismiss the suit.

However, the above case must be distinguished from a case of set-off or counter-
claim. In these cases the amount is not recovered by the defendant from the
plaintiff. He claims that the amount which is due from plaintiff to defendant
should be deducted from the amount due from defendant to the plaintiff. On the
contrary, in the above example, defendant B had already recovered the amount
from the plaintiff A. He only says that he has already recovered the amount from
the plaintiff.

Example

A has taken a loan of Rs. 30,000 from B. A has sold this motorcycle to B for
Rs. 25,000. B has not paid the price of motorcycle to A. So also A has not repaid
the loan taken by him from B.

B sues A for the loan of Rs. 30,000. A claims set-off of Rs. 25,000 and contends
that he owes only Rs. 5,000 to B.

Set-off must be within limitation as on the date of presenting the written

statement in which it is claimed. Counter-claim must be within limitation as on
the date of institution of the suit in which it is claimed.

In the example previous to the last, B’s contention was that he has already
recovered the loan from the plaintiff A, while in the last example, A’s contention
was that he is entitled to recover the loan from the plaintiff B.
 Effect of the Bar of Limitation 5

An indebtedness does not lose its character as such merely because it is barred, it
still affords sufficient consideration to support a promise to pay, and gives a
creditor an insurable interest. Under Sec. 25(3) of the Indian Contract Act, 1872,
an agreement in writing undertaking to pay a time barred debt is valid and
binding.

It is well established proposition that payment of a time barred debt is a valid

consideration for transfer of property.

In suit for accounts the bar of limitation is not consequential, although the remedy
is barred. A decree can be passed in favour of the defendant for the balance if
found due to him.

EXCEPTION

The Limitation Act, 1963 lays down a rule of substantive law in Sec. 27, which is
an exception to the general rule that law of limitation does not extinguish the
remedy. Accordingly, if an owner, whose immovable property is encroached upon,
suffers his right to be barred by the law of limitation, the practical effect is the
extinction of his title in favour of the party in possession. It is of the utmost
consequence in India that the security which long possession affords should not
be weakened.

As between private owners contesting inter so the title to lands, the law has
established a limitation of twelve years: after that time it declares not simply that
the remedy is barred, but that the title is extinct in favour of the possessor, and
the possessor perfects his title to the land by adverse possession.

CONSTITUTIONAL ASPECTS OF THE LIMITATION ACT

The following three Constitutional aspects of Constitutionality of the Limitation

Act, 1963 are determined by the Supreme Court:

1. Legislative Competence

2. Application of art. 14

3. Application to art. 32
6 Introduction

1. LEGISLATIVE COMPETENCE
According to art. 246(3) of the Constitution of India, Parliament and the
Legislature of any State also have power to make laws with respect to any of the
matters enumerated in List III in the Seventh Schedule in the Constitution
referred to as the ‘Concurrent List’.

Entry 13 of the Seventh Schedule to the Constitution contains “Civil procedure,

including all matters included in the Code of Civil Procedure at the
commencement of this Constitution, limitation and arbitration.”

Ramprosad vs. Vijayakrishnan

The Supreme Court held that Parliament may enact statutes prescribing the period
of limitation under art. 246 and the entry 13 of the List III of the Seventh Schedule
to the Constitution within which actions may be brought or varying or changing the
existing law of limitation by shortening or extending the time without violating
fundamental rights.

2. APPLICABILITY OF ART. 14
Under the Limitation Act in some cases, the State enjoys a longer period of
limitation compared to an individual.

Navrattammal vs. State

It was contended the validity of art. 149 of the Indian Limitation Act, 1908
(equivalent to art. 112 of Limitation Act, 1963) providing special period of limitation
to the State violated art. 14 of the Constitution.

The Supreme Court negatived the plea.

It was held

1. that the article does not violate art. 14 of the Constitution, as the statutes of
limitation are designed to effectuate a beneficial public purpose;

2. that there is a rational basis for a distinction being drawn between the claims of
the State and the claims of the individual; and

3. that the loss of the claims of the State by limitation is the loss of the community
in general and this justifies the differential treatment in favour of the State.

Unlike an individual who can take decisions quickly as he has to take his own
decisions and need not go through any procedure to take them, State cannot take
decisions quickly. In government, various departments are involved in decision-
making and they have to follow lengthy procedure to take any decision, especially
on a legal matter.
 Constitutional Aspects of the Limitation Act 7

3. APPLICABILITY TO ART. 32

T. Motichand vs. Munshi

The Supreme Court held that no period of limitation can be prescribed for a person
aggrieved by the State action challenging such action as violating fundamental
rights and filing a petition under art. 32 of the Constitution before the Supreme
Court.

Such principle of limitation period would have the effect of putting curbs in the
way of the enforcement of fundamental rights and might be challenged under art.
13(2) of the Constitution which states,

“The State shall not make any law which takes away or abridges the rights
conferred by this part and any law made in contravention of this clause shall, to
the extent of the contravention, be void.”

Law of limitation abridges a right, and hence cannot be applied to judicial

remedies available for violation of fundamental rights.

SALIENT FEATURES OF THE LIMITATION ACT, 1963

The Salient Features of the Limitation Act, 1963 are as follows:

1. The Limitation Act, 1963 contains 32 Sections and a Schedule which is divided
into three divisions contains 137 Articles.

(a) First division deals with Suits (Arts. 1 to 113),

(b) Second division deals with Appeals (Arts. 114-117), and

(c) Third division deals with Applications (Arts. 118-137).

The sections provide for rules of limitation and articles provide for periods of
limitation in specific suits and proceedings.

2. No uniform of limitation for suits under the classifications has been attempted.

(a) The longest limitation period of 30 years (under the Indian Limitation Act,
1908 it was 60 years) is in the suits of the following nature:

(i) Suit by the mortgagor for the redemption or recovery of possession of the
immovable property mortgaged;

(ii) Suits by mortgagees for foreclosure; and

(iii) Suits by or on behalf of the Central Government or any State Government

including the State of Jammu and Kashmir.
8 Introduction

(b) A longer period of 12 years has been prescribed for various kinds of suits
relating to immovable property, trusts and endowments, and in case of
execution applications.

(c) A period of 3 years has been prescribed for suits relating to accounts,
contracts, and declarations, suits relating to decrees and instruments and
suits relating to movable property.

(d) A period varying from 1 to 3 years has been prescribed for suits relating to
torts and miscellaneous matters and for suits for which no period of
limitation has been provided elsewhere in the Schedule to the Act.

(e) The minimum period of 30 days for appeals.

3. The Limitation Act, 1963 has avoided illustrations on the suggestion of the
Third Report of the Law Commission on the Limitation Act of 1908 as the
illustrations are unnecessary and often are misleading.

4. The scope of the Limitation Act, 1963 has been considerably widened to include
almost all Court proceedings.

The extended definition of ‘application’ has been given so as to include any

petition, original or otherwise. The change in the language of Sections 2 and 5 of
the Limitation Act, 1963 includes all petitions and also applications under
special laws.

5. The definitions of ‘application’, ‘plaintiff and ‘defendant’ have been enlarged in

the new Act so as to include not only a person from whom the ‘applicant’,
‘plaintiff, or ‘defendant’ as the case may be, derives his title but also a person
whose estate is represented by an executor, administrator or other
representative.

6. Sec. 27 provides for law of prescription under which the expiry of period of
limitation not only bars the remedy, but also extinguishes the right.

7. There are provisions in the Limitation Act, 1963 which modify the period of
limitation under special circumstances:

(a) Secs. 4 and 5 provide for extension of period of limitation in certain

situations.

(b) Secs. 6 and 7 deal with the cases where the person who has to institute a
suit or proceeding is suffering from some disability such as minority or
unsoundness of mind.

(c) Secs. 12-15 provide for exclusion of certain periods of time while computing
the period of limitation for filing suits and proceedings.

(d) Secs. 16-23 provide for postponement of limitation in certain cases.

 Applicability of Limitation Act, 1963 9

APPLICABILITY OF LIMITATION ACT, 1963

The Limitation Act, 1963 is enacted to “consolidate and amend” the law of
limitation in India. It is a complete code by itself and is exhaustive of all matters
specifically and expressly dealt with by it.

Courts cannot travel beyond the provisions of the Limitation Act, 1963. Courts
cannot in the exercise of their inherent powers extend the period of limitation.

Thus, period of limitation prescribed in the Limitation Act, 1963 is mandatory in

two senses:

1. The bar of limitation affects the jurisdiction of the court, and hence, the court is
under a duty to consider the bar even though it is not pleaded by the parties to
the suit or proceedings.

2. Courts cannot enlarge or extend the period of limitation except under sec. 5.

On the other hand, the Act has no application beyond its provisions. If a case is
not covered by the provisions of the Act, they cannot be extended to that case by
analogy.

LIMITATION, LACHES, ACQUIESCENCE AND PRESCRIPTION

These are related terms having their own clear and distinct meanings.

LACHES AND ACQUIESCENCE

Both, limitation and laches extinguish remedy, but there are important
differences between them:

1. Limitation emerges from law, while laches has its origin in the doctrine of
equity.

2. Limitation prescribes specific periods within which the suits or proceedings

should be instituted, laches does not specify any such time.

3. Limitation is binding on courts, laches is discretionary.

4. Limitation is based on public policy, laches is based on equity and fairness.

10 Introduction

The chief points to be considered in connection with laches are:

1. Acquiescence on the plaintiff’s part;

2. Any change of position on the defendant’s part.

If a party having a right stands by and allows another person to violate it, he
cannot afterwards complain. This is the proper sense of the word ‘acquiescence’.

The whole fault of the plaintiff lies in this that he remains silent while the violation
of the right is in progress.

In some cases this may be construed to mean the giving implied assent to the
violation of his right. Therefore, it is unjust to give the plaintiff a remedy where he
has by his conduct waived the remedy.

In other cases, the plaintiff whose rights are violated, by his silence, allows the
defendant to be mislead about his own rights.

PRESCRIPTION

The Indian Limitation Act deals with the Law of Prescription as well as the Law
Limitation.

Prescription is the acquisition of title by possession of property for the prescribed

period provided that possession was neither forcible nor clandestine. Such
possession acquires its title chiefly on account of the fact that those who had
interest in the property have allowed their rights to get barred by not caring to
pursue their remedies within the time allowed by law to enforce those remedies.

Limitation simply bars the judicial remedy but it neither affects the extra judicial
remedies nor the substantive right itself. Prescription bars not only the judicial
remedy but a extinguishes a substantive right.

Limitation as affecting the remedy is an adjective law. Prescription on the other

hand as affecting the right itself is a substantive law.

Limitation is negative in its operation depriving a person of a power which he

possessed before. Prescription, on the other hand, is affirmative conferring on a
person right to that which he hitherto enjoyed in fact but not in law.
 Starting Point of Period of Limitation 11

STARTING POINT OF PERIOD OF LIMITATION

The basis of law of limitation is that the person whose rights are violated has to
act quickly and seek the remedy to which he is entitled without unnecessary
delay.

Therefore, the period of limitation begins on the day on which the cause of action
arose, or the day on which the aggrieved person got the knowledge of the violation
of his right, whichever is later.

INSTITUTION OF SUIT BEYOND THE PERIOD OF LIMITATION

Sec. 3 lays down that a suit instituted, an appeal preferred, or an application

made beyond the prescribed period of limitation shall be dismissed, although
limitation has not been pleaded as a defence.

This means that where the court finds that a suit or other proceeding has been
instituted after the prescribed period of limitation, is must be dismissed.

Same rule is applicable to appeals and applications, but that rule has to be read
with sec. 5 of the Limitation Act, 1963.
 EXPIRY OF THE PERIODS OF LIMITATION ON A DAY
WHEN THE COURT IS CLOSED (SEC. 4)
Sec. 4 of the Limitation Act lays down that where the prescribed period of
limitation expires on a day when the court is closed, the suit, appeal or application
may be instituted, preferred or made on the day that the court re-opens.

The section gives expression to the general principle of law enunciated by the
maxims

1. Lex non cogit ad impossibilia (law does not compel a man to do that which he
cannot possibly perform); and

2. Actus curie neminem gravabitan (act of the Court shall prejudice no man).

The general principle of law is this – “When a party is prevented from doing a thing
in court on a particular day, by the act of the court itself, as for instance, on
account of the closing of the court, and not by any act of his own, he is entitled to
do it at the first subsequent opportunity.”

This section does not in any way extend the period of limitation, nor does it
furnish any date for computation of time, it merely embodies a rule of elementary
justice that if the time allowed by statute to do an act or to take a proceeding
expires on a day when the court is closed, it may be done on the next working day
of the Court.

According to explanation to sec. 4 a Court shall be deemed to be closed on any day

if during any part of its normal working hours, it remains closed on that day.

In other words, if a Court remains closed only for a few hours during its working
hours on any day, it will be treated as closed on that day and the suit, appeal or
application may be instituted, preferred or made on the next re-opening day.

But for the application of this section, the Court may be said to be closed if it is
not possible to present plaint, appeal memo or application.
 EXTENSION OF PERIOD OF LIMITATION BY COURTS
(CONDONATION OF DELAY)
A Court may grant extension of period of limitation in appeals and applications
other than applications for execution, and no others (Sec. 5).

ADMISSION OF APPEAL OR APPLICATION AFTER LIMITATION

The general rule is that every suit instituted, appeal preferred or application made
after the period prescribed there for by the first schedule shall be dismissed.

Sec. 5 is an exception to this general rule and provides that an appeal or any other
than an execution application may be admitted after period of limitation
prescribed therefor.

When the appellant or applicant satisfies the Court that he had sufficient cause
for not preferring the appeal or making the application within such period.

But mere proof of existence of sufficient cause for not filing the proceeding within
the prescribed period does not ipso facto compel the court to extend the time.

The court has a discretion which is of course a judicial and not an arbitrary
discretion, to admit or refuse to admit the proceeding even if sufficient cause is
shown.

The existence of sufficient cause for not filing the proceeding in time is thus
merely a condition that must be satisfied before the court can exercise its power of
granting or refusing to grant the extension of time. If the condition is not satisfied,
there is no room for the applicability of the discretion.

Where no cause has been given for filing the proceeding out of time, there arises
no opportunity of considering the sufficiency or otherwise of the reason for that
fact, and there cannot be any room for the exercise of the discretion given by the
section.

If the condition is satisfied, then the court gets a discretionary power to grant or
refuse the prayer for extension of time.

But it may in its discretion refuse to extend the time even though there may be
sufficient cause for the delay.

The extension of time is thus a matter of concession or indulgence to the applicant

and cannot be claimed by him as a matter of absolute right.
14 Extension of Period of Limitation by Courts(Condonation of Delay)

‘SUFFICIENT CAUSE’

For obtaining an extension under sec. 5 the appellant or the applicant must
satisfy the court that he had sufficient cause for not preferring the appeal or
making the application within the prescribed period.

What is a ‘sufficient cause’ has nowhere been defined in the Limitation Act except
that the Explanation indicates what shall be the sufficient cause in the case of an
appellant, or who was misled by any order, practice or judgement of the High
Court in ascertaining or computing the prescribed period.

But it has been held that sufficient cause must mean a cause which was beyond
the control of the party invoking sec. 5. A cause for delay which by due care and
attention a party could have avoided cannot be a sufficient cause.

However, the expression ‘sufficient’ cause’ should receive a liberal construction.

The extension of time cannot be obtained for instituting a suit as sec. 5 does not
apply to suits. The reason is that the period of limitation allowed in most of the
suits extends from three to twelve years, whereas in appeal and applications, it
does not exceed six months.

Therefore it is necessary that some concession should be made in respect of these

appeals and applications, to provide for circumstances which hinder a person from
filing his appeal or application within the short period of time allowed.

If an appellant or applicant is misled by any order, practice or judgement of the

High Court in ascertaining or computing the prescribed period of limitation, he
must be regarded as having shown sufficient cause for not preferring the appeal or
making the application within the period allowed by law, and he is entitled to
extension of time under sec. 5.

But even in such a case if he is guilty of undue delay, the delay may not be
condoned.
 PERSONS UNDER LEGAL DISABILITY (SECS. 6-9)
Sec. 6 of the Limitation Act, 1963 excuses a minor and a person of unsound mind
to

1. institute a suit; or

2. make an application for the execution of decree,

within the time prescribed by it and enables him to file the suit or make an
application after the disability has ceased counting the prescribed period.

It does not refer to any other period, prescribed or provided in any other Act from
the date on which the disability ceased.

If one disability supervenes on another disability one disability is followed by

another without leaving a gap, the suit or application for execution may be filed
after both disabilities have ceased to exist.

CONTINUATION OF DISABILITY TILL THE DEATH

If the disability or disabilities continue till the person’s death, then the
representative of the deceased on whom the title devolves is allowed to file a suit or
make an application for execution within the time allowed by the Limitation Act
counting it from the death of the person entitled.

If the legal representative also suffers from minority or unsoundness of mind at

the time of the death of the person whom he represents will also be governed by
the same rules provided under sec. 6.

Where a person under disability, dies after the cessation of such disability, but
before the expiry of the period allowed to him under sec. 6, his LR may institute
the suit or make the application within the same period after the death of his
predecessor-in-interest as would otherwise have been available to that person had
he not died.

The reason why persons under disability are not subject to the ordinary rule of
limitation is that law considers them incapable of forming a proper judgement as
to bringing suits or otherwise managing their own affairs.

It should be clearly understood that no disqualification other than those

mentioned in the section viz. minority, insanity, or idiocy can save limitation
under the Act.
16 Persons Under Legal Disability (Secs. 6-9)

According to the explanation to sec. 6 ‘minor’ includes a child in the womb.

It should also be noted that the section applies only to suits (suits other than pre-
emption) and application for execution of decrees and does not apply to appeals.

Sec. 7, which is a supplement to sec. 6, is applicable where several persons who

are jointly entitled to institute a suit or file an application for execution of a
decree, and one or some of them suffer from some disability.

Sec. 7 is applicable where the legal relation between them is such that one of them
who is free from disability can give a full discharge of the whole claim or debt
without waiting for the concurrence of others. In such a case, the minority,
insanity or idiocy will not entitle him or his co-plaintiffs to the extension of any
time under sec. 6.

The peculiar feature of this provision is that limitation under it is extended or not
with reference to the entire body of persons jointly entitled to sue or make an
application for execution of a decree. The extension of limitation does not take
place with reference to the person under disability alone.

Sec. 7, like the preceding sec. 6, is confined to suits and application for execution
of decrees by persons under disability. It does not apply to appeals. It also does
not apply to enforce right of pre-emption.

It has now been made clear by Explanation 1 to Sec. 7 that this section applies to
a discharge from every kind of liability, including a liability in respect of any
immovable property.

According to first part of sec. 8 suits for pre-emption are not governed by secs. 6
and 7 of the Act and in spite of the disability, they must be proceeded with and no
extension of time will be given an account of the disability of the plaintiff.

The second portion of the section says that a person under disability may sue after
cessation of the disability within the same period as he would otherwise have been
allowed under the schedule but in no case can the period be extended to anything
beyond 3 years from the cessation of the disability.

It is not to be understood that a person under disability will be entitled to the full
period of limitation prescribed for a suit or application, computed from the date of
the cessation of the disability.

The law allows only the prescribed period of limitation computed from the
cessation of the disability provided that if such period exceeds 3 years, he is not
 Continuation of Disability Till the Death 17

entitled to the full period, but only 3 years from the date of the rescission of the
disability.

But if the ordinary period of limitation computed from the original accrual of the
cause of action expires more than three years after the cessation of the disability,
such period will be allowed.

Sec. 9 provides that once time has begun to run, on subsequent disability or
inability to institute a suit or make an application stops it. This applies to a
person himself as well as to his representatives-in-interest after his death.

The joint effect of sec. 9 and previous sections is that if advantage is taken of two
disabilities they must so overlap each other as to leave no gap of normal period
between them.

The words used in sec. 9 are “disability or inability.” ‘Disability’ is the want of
capacity to act, such as minority, insanity or idiocy. ‘Inability’, on the other hand,
denotes, want of power or facility to act.

There is no provision in law to extend the time for a person who is unable to file a
suit apart from his disability arising from his being a minor or an idiot or insane
person.

There is only one exception allowed by the section viz., when the administration of
an estate has been, given to a debtor of the deceased, no time will run against
such a debtor until the administration of estate which has been entrusted to him
has been finished.

In such cases the law prevents the duty of properly administering the estate to
come into conflict with the right of the person to sue for the debt, the hand to give
and the hand to receive is the same.
INSTANCES IN WHICH A SUIT IS NOT BARRED BY ANY
LENGTH OF TIME (SEC. 10)
Sec. 10 declares that where a trust has been created expressly for some specific
purpose or object and property has become vested in a trustee upon such trust
the beneficiary may bring a suit against such trustee or his LRs to enforce that
trust at any distance of time without being barred by limitation.

As a result of this section, an apparently fraudulent trustee who has put trust
money into his own pocket cannot escape by reason of lapse of time.

The section declares that trust properties shall not be subject to any law of
limitation but when trust property finds its way into the hands of an assignee for
valuable consideration, the ordinary law of limitation shall apply, and the assignee
shall have the same benefit as an ordinary purchaser of property would have.

In other words, a person who is beneficiary interested in the trust cannot bring a
suit to recover the trust property in the hands of an assignee for consideration at
any time. He must bring the suit within the prescribed period of limitation.

The following conditions must be fulfilled before benefit of sec.10 can be had:

1. There must be property which has become vested in a person in trust for a
Specific Purpose.

2. The suit must be against such person or his legal representative or assign (not
being an assign for valuable consideration). The section has no application in a
suit between the beneficiary and the trustee on the one hand and strangers on
the other.

3. The suit must be for the purpose of following in the hands of such person the
trust property or its proceeds or for an account of such property or proceeds.
 COMPUTATION OF LIMITATION (SS. 12-24)
Part III of the Limitation Act, 1963 consisting of secs 12 to 24 prescribes rules as
to computation of periods of limitation for suits, appeals or applications.

These provisions are intended to apply not only to the periods of limitation
prescribed by the Schedule to the Limitation Act, but apply also to periods of
limitation provided for by other enactments.

These provisions may be divided into two categories:

1. Provisions relating to exclusion of time (secs. 12-15); and

2. Provisions relating to postponement of limitation (secs. 16-24).

EXCLUSION OF TIME (SS. 12-15)

Secs. 12-15 of the Limitation Act, 1963 deal with exclusion of certain periods of
time while computing the period of limitation. The provisions are as under:

1. Time taken in legal proceedings (s. 12)

2. Time taken in applying for leave to sue or appeal in forma pauperis (s. 13)

3. Time spent in bona fide prosecuting suit in a court having no jurisdiction (s. 14)

4. Other cases (s. 15)

TIME IN LEGAL PROCEEDINGS (S. 12)

Section 12 of the Limitation Act, 1963 provides that:

1. In computing the period of limitation for any suit, appeal or application, the day
from which such period is to be reckoned, shall be excluded.

2. In computing the period of limitation for an appeal or an application for leave to

appeal or for revision or for review of a judgement,

(a) the day on which the judgement complained of was pronounced and

(b) the time requisite for obtaining a copy of the decree, sentence or order
appealed from or sought to be revised or reviewed

shall be excluded.
20 Computation of Limitation (Ss. 12-24)

3. Where a decree or order is appealed from or sought to be revised or reviewed, or

where an application is made for leave to appeal from a decree or order, the time
requisite for obtaining a copy of the judgement on which the decree or order is
founded shall also be excluded.

4. In computing the period of limitation for an application to set aside an award,

the time requisite for obtaining a copy of the award shall be excluded.

Explanation to sec. 12 provides that any time taken by the court to prepare the
decree or order before an application for a copy thereof is made shall not be
excluded.

The rationale behind sub-sections (2) to (4) is that in order to prefer appeal, or to
apply for revision or review or for setting aside an award, a copy of that judgement,
decree, order or award is necessary. Copies of the judgement, etc. are available
only if the parties apply for the same.

After an application is made for a copy, the office of the court has to take some
time to furnish the copy to the applicant. Because of the pressure of work in court,
this time quite often exceeds the period of limitation itself, as the periods of
limitation in such cases are quite short, normally 30 days.

If these periods are not excluded, parties will not be able to prefer appeals, apply
for revision or review.

There need not be any prayer or application by a party for the time to be excluded
under sec. 12 of the Limitation Act. This section confers a substantive right upon
a party and it is the duty of the court to exclude the time when the case comes
under the purview of any of the sub-sections of sec. 12.

The time which is to be excluded is the time actually taken to obtain a copy of the
relevant document and not the time required to obtain the copy.

TIME IN APPLYING FOR LEAVE TO SUE AS PAUPER (S. 13)

In computing the period of limitation prescribed for any suit or appeal in any case
where an application for leave to sue or appeal as a pauper has been made and
rejected,

1. the time during which the applicant has been prosecuting in good faith his
application for such leave shall be excluded, and

2. the court may, on payment of the court fees prescribed for such suit or appeal,
treat the suit or appeal as having the same force and effect as if the court fees
had been paid in the first instance.
 Exclusion of Time (Ss. 12-15) 21

TIME SPENT IN WRONG COURT (S. 14)

Sec. 14 provides for exclusion of time of proceeding spent bona fide in court
without Jurisdiction.

Under sub-section (1), in computing the period of limitation for any suit the time
during which the plaintiff has been prosecuting with due diligence another civil
proceeding against the defendant shall be excluded.

This provision is applicable in a court of first instance or of appeal or revision, but

subject to the following conditions:

1. The earlier proceeding must relate to the same matter in issue

2. It must have been prosecuted in good faith.

3. The court in which the earlier proceeding was pursued could not entertain it
from defect of jurisdiction or other cause of a like nature.

Sec. 14(2) makes an identical provision in respect of applications.

Sec. 14(3) applies the provision of sec. 14(1) to a fresh suit instituted on
permission granted by the court under Order XXIII, Rule 1 CPC, where such
permission is granted on the ground that the first suit must fail by reason of a
defect in the jurisdiction of the court or other cause of a like nature. This provision
contains a non obstante clause giving it an overriding effect over Order XXIII,
Rule 2, CPC.

In order to attract the sec. 14, it is essential that the court in which the prior
proceeding was prosecuted, must have been unable to entertain it.

Benefit of sec. 14 cannot be obtained where the prior proceedings were dismissed
on merits.

Sec. 14 does not apply also where the previous suit was voluntarily abandoned or
withdrawn by the plaintiff and then he brings a fresh suit after the expiry of the
period of limitation.

But if the court was not competent to entertain the suit, and the suit was
withdrawn with the leave of Court, the order of withdrawal might be treated as an
order returning the plaint, and the provisions of sec. 14 would apply to the suit
when re-instituted.
22 Computation of Limitation (Ss. 12-24)

A plaintiff can claim the benefit of sec. 14 only where the previous proceedings had
been brought by himself or by some person through whom he derives title to sue.
If the former proceedings had been instituted by a wrong plaintiff, no deduction
can be made.

It is not necessary that plaintiff must have been prosecuting the previous
proceeding as a plaintiff. He is entitled to a deduction of the period of pendency of
a former suit in which he as defendant was urging the same claim as he
afterwards prefers as plaintiff.

EXCLUSION OF CERTAIN OTHER TIMES (S. 15)

Sec. 15 of the Limitation Act, 1963 provides for exclusion of time in certain other
cases which are not covered by secs. 12-14.

Sec. 15(1) provides for exclusion of

1. time during which the institution of a suit or application for execution of a

decree was stayed by injunction or order,

2. the day on which it was issued or made, and

3. the day on which it was withdrawn.

Object of sec. 15(1) is to protect the interest of the person who is precluded by an
injunction or order of court from exercising a right of suit or execution of a decree
passed in his favour.

As sec. 15 refers to a suit or an application for execution, sec. 15(1) does not apply
to appeals or applications other than the application for execution.

Sec. 15(2), excludes the period of notice given in accordance with the requirement
of any enactment for the time being in force shall be excluded.

Under sec. 15(2), the notice must be a notice of the suit and the enactment
requiring the notice to be given must prescribe the period of notice before the
expiry on which the claimant cannot institute a suit.

Where the previous consent or sanction of the Government or any other authority
which is mandatory to institute a suit or proceeding, sec. 15(2) excludes

1. the time taken to obtain such consent or sanction,

2. the date on which the application was made for obtaining the consent or
sanction, and

3. the date of receipt of the order of the Government or other authority.

 Exclusion of Time (Ss. 12-15) 23

Under sec. 15(3) of the Limitation Act, a receiver or a liquidator is entitled for the
exclusion of the period between the date of application and the date of
appointment.

Sec. 15(3) has specifically provided for giving the receiver or liquidator an
additional period of three months after his appointment to file a suit or a petition
for executions as he requires time to acquaint himself with the affairs of the estate
or of the company, as the case may be.

In computing the period of limitation for a suit for possession by a purchaser at a

sale in execution of a decree, the time during which a proceeding to set aside the
sale has been prosecuted shall be excluded under sec. 15(4).

In computing the period of limitation for any suit the time during which the
defendant has been absent from India and from the territories outside India under
the administration of the Central Government, shall be excluded under sec. 15(5).
 POSTPONEMENT OF LIMITATION (SS. 16-23)
In some cases, the starting of limitation is postponed or extended. There are five
circumstances in which limitation is postponed, or period of limitation is extended
under the Limitation Act, 1963:

1. Death on or before the accrual of right to sue (sec. 16)

2. Fraud or mistake (sec. 17)

3. Acknowledgement (sec. 18)

4. Payment on account of debt (sec. 19)

5. Continuing breaches and torts (sec. 22)

DEATH ON OR BEFORE THE ACCRUAL OF RIGHT TO SUE (S. 16)

Where the plaintiff dies before the accrual if right to sue, or where a right to sue
accrues only on the death of a person, the period of limitation shall be computed
from the time when there is a legal representative of the deceased capable of
instituting such suit. The same rule is applicable to an applicant also.

Where the defendant dies before the right accrues or where a right to sue any
person accrues on the death of such person, the period of limitation shall be
computed from the time when there is a legal representative of the deceased
against whom the plaintiff may institute such suit. The same rule is applicable to
an opponent also.

These provisions do not apply to

1. suits to enforce rights of pre-emption;

2. suits for the possession of immovable property; and

3. suits for the possession of a hereditary office.

The principle of this provision is that in order that a right of suit or cause of action
may exist, there must be in existence a person capable of suing and another
person capable of being sued. And there can be no limitation until there is a
person in existence competent to sue.

The expression “capable of suing” is the equivalent of “not being under legal
disability to sue”. It cannot refer to in capacity arising from want of means or
absence or other physical cause.

It is necessary that the death must occur before the right to institute a suit or
make an application accrues.
 Fraud or Mistake (S. 17) 25

FRAUD OR MISTAKE (S. 17)

Sec. 17 is applicable to the following situations:

1. the suit or application is based upon the fraud of the defendant or respondent
or his agent;

2. the knowledge of the right of title on which a suit or application is founded is

concealed by the fraud of any such person as aforesaid;

3. the suit or application is for relief from the consequences of a mistake;

4. where any document necessary to establish the right of the plaintiff or applicant
has been fraudulently concealed from him.

In these cases the limitation begins from the day on which

1. the plaintiff or applicant discovered the fraud or the mistake; or

2. could, with reasonable diligence, have discovered it; or

3. in the case of a concealed document, the plaintiff or the applicant first had the
means of producing it or compelling its production.

However, nothing in this Section shall enable any suit to be instituted or

application to be made to recover or enforce any charge against, or set aside any
transaction affecting, any property which,

1. in the case of fraud, has been purchased for valuable consideration, by a person
who was not a party to the fraud and did not at the time of the purchase know,
or have reason to believe, that any fraud had been committed; or

2. in the case of mistake, has been purchased for valuable consideration

subsequently to the transaction in which the mistake was made, by a person
who did not know, or have reason to believe, that the mistake had been made;
or

3. in the case of a concealed document, has been purchased for valuable

consideration by a person who was not a party to the concealment and, did not
at the time of purchase know, or have reason to believe, that the document had
been concealed.
26 Postponement of Limitation (Ss. 16-23)

ACKNOWLEDGEMENT (S. 18)

Where, before the expiration of the prescribed period of limitation for a suit or
application in respect of any property or right, an acknowledgement of liability in
respect of such property or right has been made in writing and signed by the party
against whom such property or right is claimed, or by any person through whom
he derives his title or liability, a fresh period of limitation shall be computed from
the time when the acknowledgement was so signed.

The following are the conditions for valid acknowledgement.

1. An acknowledgement is the admission of a fact to be true.

2. Such acknowledgement must be in respect of a liability in respect of property or

right;

3. It must be made before the expiry of the period of limitation; and

4. It should be in writing and signed by the party against whom such property or
right is claimed or an agent duly authorised in this behalf.

Under provisions of the Indian Evidence Act, 1872, oral evidence of its contents
shall not be received. As per sec. 18(2) of the Limitation Act, 1963 oral evidence of
the contents of a document cannot be received, but where the writing containing
the acknowledgement is undated, oral evidence may be given of the time when it
was signed.

An acknowledgement under sec. 18 must be unconditional.

Uppi vs. Mammavan

It has been held that where there is only one debt, and the acknowledgement omits
to mention the name of the mortgagor or the date of the mortgage or the amount of
the debt, parole evidence is admissible to prove the name, date or the amount.

Athmaramayya vs. Seshappa

It has been held that where plaintiff relies on post cards and containing
acknowledgement, but there is nothing on the face of the post cards that they
necessarily referred to the suit debt, oral evidence is admissible to prove that the
post cards relate to the suit debt.
 Acknowledgement (S. 18) 27

Explanation to sec. 18 provides that for the purpose of this section,

1. an acknowledgement may be sufficient though

(a) it omits to specify the exact nature of the property or right; or

(b)avers that the time for payment, delivery, performance or enjoyment has not
yet come; or

(c) is accompanied by a refusal to pay, deliver, perform or permit to enjoy; or

(d)is coupled with a claim to set off, or is addressed to a person other than a
person entitled to the property or right;

2. the word ‘signed’ means signed either personally or by an agent duly authorised
in the behalf; and

3. an application for the execution of a decree or order shall not be deemed to be

an application in respect of any property or right.

The following points are to be noted

1. Promise to pay is not an acknowledgement.

2. Sec. 18 of the Limitation Act is applicable to local or special laws, unless

expressly excluded as per sec. 29 of the Limitation Act.

3. Sec. 18 is not applicable for execution of decree.

4. An acknowledgement does not create any new right. It only extends the period
of limitation.

5. The person claiming benefit of an acknowledgement must be bona fide.

6. The onus lies on the creditor to prove that the acknowledgement was made
within time.

7. An acknowledgement has the effect of making a new period run from the date of
acknowledgement. It does not create a new contract.

It must, therefore distinct from a novation of contract within the meaning of sec.
62 of Contract Act.

Therefore, an acknowledgement of a time barred debt cannot give a fresh period

of limitation in favour of the credit.
28 Postponement of Limitation (Ss. 16-23)

A time barred debt cannot be revived by an acknowledgement. It can be revived

only by a new contract that is by promise to pay under sec. 25(3) of the Indian
Contract Act, 1872.

Even if the acknowledgement be a conditional one, the condition must be fulfilled

that such acknowledgement should save limitation.

It is not necessary that the acknowledgement of liability must be made to the

person who is entitled to the right in respect of which the liability arises, or to any
one through whom he claims. An acknowledgement, to whomsoever made, is a
valid acknowledgement if it points with reasonable certainty to the liability under
dispute. Thus an admission of liability in respect of a decree amounts to an
acknowledgment although the admission is not made to the decree-holder.

An acknowledgement without signature is no acknowledgement. Signature need

not necessarily be by writing one’s name. Making his mark by an illiterate debtor
is sufficient. Under sec. 3(52) of the General Clauses Act, “Sign should, with
reference to a person who is unable to write his name, includes his mark”. Initials
are equivalent to signature.

As per explanation (b) to sec. 18 of the Limitation Act, it is not necessary that the
acknowledgement must be in the handwriting of the maker. But it must be signed
by the person making it or by his agent otherwise it will not be valid.

In the case of acknowledgement made by an agent, it is necessary for the plaintiff

to prove that the agent was duly authorised by the defendant to make an
acknowledgement of a liability on his behalf.

An acknowledgement by an agent being sufficient to affect has principal –

acknowledgement by one partner will, it is apprehended, be regarded as an
acknowledgement by the firm.

To attract the explanation (b) of sec. 18(1), a special power of attorney

acknowledging debt is not necessary, general authroisation is sufficient.

Unstamped acknowledgement is not acknowledgement. If any acknowledgement is

unstamped, it, no doubt, comes within the mischief of sec. 35 of the Stamps Act,
and is inadmissible.

An improperly stamped promissory note cannot be admitted in evidence to prove

acknowledgement of liability in order to save limitation in respect of promissory
notes previously executed.
 Acknowledgement (S. 18) 29

A receipt may be an acknowledgement of the previous debt and be an

acknowledgement within the meaning of the sec. 18 and if the following three
conditions are satisfied, namely:

1. The acknowledgement must have been made before the expiration of the period
prescribed for the suit;

2. It must be a clear and unambiguous acknowledgement specifically admitting

liability in respect of the debt sued upon; and

3. It must be signed on stamp by the party or his authorised agent.

If a person admits a right he also admits the legal consequences of that right.

Gurucharan vs. Surendra

It has been held that a person admits that the land of which he is in possession
belongs to another, he admits that he is liable to restore the land to that other.

K. M. Mohammed Sultan vs. K. S. Muhammed Nurdin

It has been held that acknowledgement of the portion of the claim can be used to
save limitation only with respect to the portion of the claim acknowledged.

Venkataramayyar vs. Kothandaramayyar

It has been held that if an acknowledgement is made in favour of a minor, the new
period of limitation is to be computed from the date when the plaintiff attains
majority.

According to Explanation (a) to sec. 18, an acknowledgement may be sufficient

though it omits to specify the nature of the property or right.

S. F. Mazda vs. Durga Prasad Chamaria

The Supreme Court has held that the acknowledgement need not specify the exact
nature of the property or right in respect of which the liability is acknowledged.

Jainarain vs. Governor-General of India

It has been held that it is not necessary that if there is an admission of facts of
which the liability in question is a necessary consequence there would be an
acknowledgement within meaning of sec. 18.
30 Postponement of Limitation (Ss. 16-23)

PAYMENT ON ACCOUNT OF DEBT (S. 19)

Sec. 19 provides that where payment

1. on account of a debt; or

2. of interest on a legacy

is made before the expiration of the limitation by the person liable to pay the same
or by his authorised agent, a fresh period of limitation shall be computed from the
time when the payment was made.

Explanation to sec. 19 lays down that for the purposes of this section,

1. where mortgaged land is in the possession of the mortgagee, the receipt of the
rent or produce of such land shall be deemed to be a payment;

2. ‘debt’ does not include money payable under a decree or order of a court.

EFFECT OF SUBSTITUTING OR ADDING NEW PLAINTIFF OR

DEFENDANT (S. 21)

Sec. 21 of the Limitation Act, 1963 provides that:

1. Where after the institution of a suit, a new plaintiff or, defendant is substituted
or added, the suit shall, as regards him, be deemed to have been instituted
when he was so made a party.

2. Nothing in sub-section(1) shall apply to a case where a party is added or

substituted owing to assignment or devolution of any interest during the
pendency of a suit or where a plaintiff is made a defendant or a defendant is
made a plaintiff.

Sec. 21 of the Limitation Act applies to suits. The word ‘suit’ in sec. 21 includes
only the stages of a suit down to its termination by the decree of the trial court.
Therefore, it does not apply to an appleal.

Addition of parties in appeal is governed by O. XLI, R. 20 of the CPC and not by

sec. 21 of the Limitation Act.

All that sec. 21(2) requires is that no respondent shall be added after expiry of the
period of limitation for appeal, unless the court for reasons to be recorded allows
that to be done on such terms as to costs as it thinks fit.
 Effect of Substituting or Adding New Plaintiff or Defendant (S. 21) 31

Sec. 21 is not applicable to proceedings in execution of a decree made in a suit.

An application under O. XXI, R. 101 of the CPC is not a suit; and this section does
not apply.

Sec. 21 does not apply to addition of parties in revision.

Sec. 21 is not applicable to an application.

Sec. 21 applies to the case of all persons brought on record after the expiry of
limitation.

EFFECT OF ADDING NECESSARY PARTIES AFTER LIMITATION

A suit is not said to be properly constituted unless all the necessary parties are
impleaded in it, and the addition of these parties after the period of limitation will
necessitate a dismissal of the suit.

K. Ammal vs. Chemgaran

Kerala High Court has held that all plaintiffs who have a joint cause of action must
be impleaded before the expiry of the period of limitation. If some of them institute
a suit within time and the other plaintiffs are added after the period of limitation,
the claim of the original plaintiffs also, who had a joint cause of action with the
added plaintiffs, would be barred.

Mahadeva Rao vs. S. G. Chikanageshwaraiah

Karnataka High Court has held that the effect of striking out the name of one of the
defendants is that the suit so far as that defendant is concerned ends. Therefore if
he is again impleaded by amendment it will be treated as seeking to add a new
defendant and sec. 21 is attracted.

However, proviso to sec. 21(1) provides that where the Court is satisfied that the
omission to include a new plaintiff or defendant was due to a mistake made in
good faith it may direct that the suit as regards such plaintiff or defendant shall be
deemed to have been instituted on any earlier date.

Chun Choudhary vs. State of Bihar

Patna High Court has held that the proviso to sec. 21(1) clothes the court with the
discretion to condone the delay in filling the application for addition of parties after
the period of limitation provided the same is made bona fide and good cause is
shown therefor.
32 Postponement of Limitation (Ss. 16-23)

Karuppaswamy vs. C. Ramamurthy

The Supreme Court has pointed out that the proviso to sec. 21(1) of the Limitation
Act permits correction of errors which have been committed due to a mistake made
in good faith.

But this is only when the court permits correction of such mistake. In that event its
effect is not to begin from the date on which the application for the purpose is
made or from the date of permission but from the date of the suit, deeming it to
have been correctly instituted.

Keshbinder vs. Bindu Basini

Calcutta High Court has held that even after remand a new party may be added in
lower court, if such party is found to be necessary and such addition is not
contrary to the direction given by the appellate court remanding the suit.

APPLICATION TO PRO FORMA PARTIES

When a party is brought on the record out of time, the question of limitation does
not arise when there is no relief claimed against that party.

Mahcidulci vs. Chirangilal

It has been held that sec. 21 has to be taken into account for adding a necessary
party but the provisions of these sections will not apply in adding a proper party
against whom no relief is sought for by the plaintiff.

APPLICATION TO PROPER PARTIES

Sec. 21 applies where the party subsequently added is a proper party, even though
he is not a necessary party, and he cannot be added after the expiry of the period
of limitation.

MISNOMER OR MISDESCRIPTION OF PARTY

Where it is clear from the facts as to the person who intends to sue or is intended
to be sued but is described wrongly it is a case of misdescription of parties which,
can be corrected by the court at any time.

A mere misnomer or misdescription can be corrected at any time because it is no

addition of new party to attract sec. 21.
 Effect of Substituting or Adding New Plaintiff or Defendant (S. 21) 33

TRANSPOSITION OF PARTIES
Sec. 21 of the Limitation Act refers only to the parties subsequently added. Sec.
21(2) of the Limitation Act makes it very clear that the provision of addition would
not apply to a case

1. where a party is added or substituted owing to assignment of devolution of any

interest during the pendency of the suit, or

2. where plaintiff is made a defendant or a defendant is made a plaintiff.

Transposition (change of position) of a party will not affect limitation as such party
was already on record.

Venkatasubbamma vs. Veeravadra

It has been held that no question of limitation will arise under sec. 21 in the case of
transposition of parties.

Maniruddin vs. Sarat Chandra

It has been held that sec. 21(2) will apply only to those cases where the claim of the
person transposed as plaintiff can be sustained on the plaint originally filed, or
where the person remaining as plaintiff after transposition can have sustained his
claim against the transposed defendant on the basis of the plaint originally filed.

PARTIES ALREADY SUFFICIENTLY REPRESENTED

The provisions of sec. 21 are attracted only when parties are added and not
otherwise when parties are effectively represented through persons whose actions
bind them so that a decree passed against them is binding on them.

In such cases specific mention of the name of one such person subsequently in
the title of the suit cannot be treated as addition of a new party.

Banwari vs. Sakhraj

A suit was instituted within the period of limitation against all the adult members
of a joint Hindu family. Two more minor defendants, whose fathers were already
defendants in the suit, were added after the expiry of the period of limitation. It was
held that the suit could not be dismissed against the minors.

Bibi Asma vs. Suresh Prasad

It has been held that even if a suit was filed against a dead person, his legal
representatives can be brought on record. However, the cause of action should not
stand barred by limitation in the mean time.
34 Postponement of Limitation (Ss. 16-23)

CONTINUING BREACHES AND TORTS (S. 22)

The expression ‘continuing breach of contract’ or ‘continuing tort’ means that,

1. if an act or omission on the part of an accused constitutes the breach of

contract or wrongs, and

2. if that act or omission continues from day to day,

then a fresh cause of action arises on every day on which the act or omission
continues.

If a wrongful act is of such a character that the injury caused by it continues then
the act constitutes a ‘continuous wrong’.

If the act is such that the source of injury is continuous, then there is a
‘continuing wrong’.

Where the injury complained of is complete on a certain date there is no

continuing wrong even though the damage caused by the breach may continue.
Trespass, obstruction to enjoyment of an easement, closing of tank, closing of
drains etc. are continuing wrongs.

Breach of obligation is a breach of contract. A continuing breach of contract can

be in case of landlords and tenants, partners, principals and agents, bailors and
bailees, etc.

In these cases, one of the parties is under an obligation to do some act during the
subsistence of the contract. Tenant, for example, has to pay rent to the landlord
during the subsistence of the contract of lease.

There can be continuing breach of contract only in such cases, i.e., where a party
is under an obligation to do a particular act or adopt a particular course of action
during the subsistence of a contract.

In these cases the breach does not terminate the contract. If the seller fails to
hand over the actual physical possession of the property to the purchaser, the
contact of sale is not terminated and hence, the breach amounts to continuing
breach.

On the other hand, if a debtor fails to repay the loan the contract is terminated by
the breach. Hence, it is not a continuing breach, as the contract comes to an end
and there cannot be a further breach of it.
 Continuing Breaches and Torts (S. 22) 35

The law of Limitation recognises that liabilities for payments of damages or

compensation or both may continue to accrue day to day newly in respect of
continuing breach of contracts and torts. But the liabilities which arose within the
period of limitation only can be enforced.

According to sec. 22 in the case of a continuing breaches and torts, a fresh period
of limitation begins to run at every moment of the time during which the breach or
the tort, as the case may be, continues.
 PRESCRIPTION (SS. 25-27)
Sections 25 to 27 of the Limitation Act, 1963 deal with prescription. Sec. 25 and
26 deal with acquisition of right by prescription. Sec. 27 deals with perfecting title
by adverse possession.

Acquisition of Right by Prescription (S. 25, 26)

Sec. 25 provides that where the access and use of light or air to and for any
building have been enjoyed

1. peaceably,

2. as an easement,

3. as of right,

4. without interruption,

5. for twenty years,

the right to such access and use of light or air shall be absolute and indefeasible.

Similarly, where

1. any way or

2. water course or

3. the use of any water or

4. any other easement (whether affirmative or negative)

has been enjoyed

1. peaceably and openly,

2. as an easement,

3. as of right,

4. without interruption

5. for twenty years,

by any person claiming title thereto as an easement, the right to such way,
watercourse, use of water, or other easement shall be absolute and indefeasible.
 Prescription (Ss. 25-27) 37

If the property over which the right is exercised belongs to the government, the
period will have to be 30 years instead of 20.

The owner of a house does not obtain by his easement a right to all the light he
has enjoyed for the past twenty years. He obtains a right to so much of it as will
suffice for the ordinary purposes of inhabiting or business according to the
ordinary notions of mankind, having regard to the locality and surroundings.

The word ‘peaceably’ means that the plaintiff who claims to be the dominant
owner has neither been obliged to resort to physical force himself at any time to
exercise his right within 20 years, nor has he been prevented by the use of
physical force by the defendant in his enjoyment of such right.

Mere protest on the part of the servient owner orally or oral expression of
opposition cannot prevent the enjoyment being peaceful.

The term ‘interruption’ is altogether inapplicable to any voluntary discontinuance

of the user by the claimant himself. An interruption to be effective must result in
actual discontinuance of the enjoyment of the right of the claimant.

Raghunath vs. Madan Mohan

It has been held that there can be interruption only if in execution the decree-
holder takes possession of the property thereby physically preventing the other
party from continuing in enjoyment of the right.

Mere protests do not amount to interruption. A right of easement is not

interrupted by mere verbal quarrels or contentions.

A right to easement is not indefeasibly established by an enjoyment for less than

20 years. But, a title to easement is not complete merely upon the effluxion of 20
years and however long the period of enjoyment may be.

No indefeasible right can be acquired until the right is brought in question in some
suit, and until so brought, the right is inchoate only. In order to establish it when
brought into question, the enjoyment relied on must be an enjoyment for 20 years
up to within two years of the institution of the suit.

A claim for prescriptive right would be defeated if the period of user had
terminated more than two years before the filing of the suit.

Under sec. 26 the time during which an infant, an insane person or a married
woman is the owner of the servient tenement is excluded from the period during
which a prescriptive right is in course of acquisition.
38 Prescription (Ss. 25-27)

Illustration

A sues for a declaration that he is entitled to a right of way over B’s land. A proves
that he had enjoyed the right for twenty five years.

B shows that during ten of these years C, a Hindu widow, had a life interest in the
land, and on C’s death B became entitled to the land, and that within two years
after C’s death he contested A’s claim to the right.

The suit must be dismissed, as A, with reference to the provisions of this section,
has only proved enjoyed for fifteen years.