Condonation of Delay and Law of limitation
code of civil procedure and the law of limitation , case laws and explanation...Author Name: yashvardhan
code of civil procedure and the law of limitation , case laws and explanation...
Law of limitation:-
The Code of Civil Procedure confers a right to appeal, but does not prescribe a period of limitation for filing an appeal. The Limitation Act, 1963, however, provides the period of filing up appeals. It states that the appeals against a decree or order can be filed in a High Court within ninety days and in any other court in thirty days from the date of the decree or order appealed against.
It is for general welfare that a period be put on litigation. Further, it is a general principle of law that law is made to protect only diligent and vigilant people. Equity aids the vigilant and not the indolent. Law will not protect people who are careless about their rights. (Vigilantibus non domientibus jur A subventiunt). Moreover, there should be certainty in law and matters cannot be kept in suspense indefinably. It is, therefore, provided that Courts of Law cannot be approached beyond fixed period. In civil matters, the limit is provided in Limitation Act, 1963.
The 'Law of Limitation' prescribes the time-limit for different suits within, which an aggrieved person can approach the court for redress or justice. The suit, if filed after the exploration of time-limit, is struck by the law of limitation. It's basically meant to protect the long and established user and to indirectly punish persons who go into a long slumber over their rights.
The statutory law was established in stages. The very first Limitation Act was enacted for all courts in India in 1859. And finally took the form of Limitation Act in 1963.
A citizen is not expected to master the various provisions which provide for limitation in different matters but certain basic knowledge in this regard is necessary. For instance, Section 12 of the Limitation Act lays down certain guidelines regarding computation of limitation period. It says that 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.
Further, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from shall be excluded. However, 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.
Section 14 of the act, similarly, says that in computing the period of limitation for any suit, the time during which the plaintiff has been prosecuting in civil proceedings, whether in a court of first instance or of appeal or revision against the defendant shall be excluded where the proceedings relate to the same matter in a court which is unable to entertain it on account of defect of jurisdiction or other cause of a like nature.
What does limitation period mean?
The law prescribes different periods within which a person who has a grievance should go to court. For example, if somebody has borrowed your money and not returned it, you should approach the court within three years from the date you lent the money. If you don't go to the court within that time, the courts will not be of help to recover your money. This is called the limitation period. After the limitation period, you cannot enforce your rights in a court. The Limitation Act 1963prescribes different limitation periods for different kinds of claims. Some other Acts such as the Consumer Protection Act also prescribe limitation periods
In the bare act:-
Bar of limitation (1) Subject to the provisions contained in sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as defense;
(1) For the purposes of this Act,
(a) A suit is instituted,
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue is a pauper is made; and
(ii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set-off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted-
(i) in the case of a set-off, on the dame date as the suit in which the set off is pleaded;
(ii) in the case a counter claim, on the date on which the counter claim is made in court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.
Short title, extent and commencement - (1) This Act may be called the Limitation Act,1963.
2. It extends to the whole of India except the State of Jammu and Kashmir.
3. It shall come into force on such date as the Central Government may be notification in the Official Gazette, appoint.
BAR OF LIMITATION – Subject to provisions of sections 4 to 24 of the Act (i.e. Limitation Act),every suit instituted, appeal preferred and application made after the ‘prescribed period’ shall be dismissed, although limitation has not been set up as a defence. [section 3(1)]. - - ‘Period of limitation’ means the period of limitation prescribed for any suit, appeal or application by the schedule to the Act and ‘prescribed period’ means the period of limitation computed as per provisions of the Act. [section 2(j)].
PERIOD AS PRESCRIBED IN SCHEDULE TO THE ACT – The period has been prescribed in Schedule to the Act. Generally, it is as follows – (a) 3 years for a suit relating to accounts, contracts, declarations, decrees, suits relating to movable property, recovery of law suit under a contract etc. (b) 12 years for suits relating to possession of immovable property and 30 years for mortgaged property (c) One year for suit relating to torts (3 years for compensation in certain cases (d) 30 to 90 days in case of appeals under Civil Procedure Code and Criminal Procedure Code. - - Period of filing appeal and application can be extended if proper cause is shown (but not the suit) [section 5].
IF COURT IS CLOSED ON LAST DAY – If court is closed on last day of limitation, suit, appeal or application can be filed on next day when Court reopens. [section 4].
CONTINUOUS RUNNING OF TIME – When once period of limitation starts running, it continues even if there is any subsequent disability or inability to institute a suit or make an application. [section 9]. - - However, if at the time when person is entitled to file a suit or make application, if a person was disabled (as he was minor or insane), the period of limitation will start after the disability is removed. [section 6(1)].
A misjoinder of parties or of cause of action shall be deemed to be a cause of a like nature mentioned above. Under Section 15 of the act, the time during which an injunction or restraint order issued by a court remains in force, is to be excluded while computing the period of limitation for any suit or application for the execution of a degree. In cases, where the previous consent or sanction of the government or any other authority is required under the law, the time required for obtaining such consent or sanction shall be excluded. Where a defendant has been absent from India, the time during which he has been absent can be excluded from the period of limitation.
In case, the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted on the day when the court reopens, as provided under Section 4 of the act. This is based on the principle "actus curial neminem gravabit", which means that an act of court shall not prejudice any one. The court can condone the delay, if satisfied that it causes were beyond the control of the plaintiff too.
Condonation of delay Rule 3-A:-
Condonance may be made when an accuser has previously forgiven or condoned (in some way or at some level) the act about which they are complaining. In some legal jurisdictions, and for certain behaviours, it may prevent the accuser from prevailing.
Rule 3-A has been inserted by the Amendment Act of 1976. It provides that where an appeal has been presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application that the applicant has sufficient cause for not preferring the appeal within the time.
Prior to the insertion of rule 3-A, the practice was to admit such an appeal subject to the opinion regarding limitation. This practice was disapproved by privy – council, and it stressed the expediency of adopting a procedure for securing the final determination of the question as to limitation before admission of appeal. This rule is added to give effect to give effect to the recommendation of the privy council.
As observed by the Supreme Court in the State of M.P v. Prandeep Kumar, the object of the provision is two-fold; frstly to inform the appellant that the delayed appeal will not be entertained unless it is accompanied by an application accompanying the delay; and secondly, to communicate to the respondent that it may not be necessary for him to get ready on merits as the court has to first deal with an application for condonation of delay as a condition precedent. The provision is, however, directory not mandatory. If the memorandum of appeal is filed without an accompanying application for condonation of delay the consequence is not necessarily fatal. The defect is curable.
Judicial Actions:
Raj Bahadur Singh & Another v. D.J. & Others(Civil Misc.Writ Petition No.12718 of 2002) :
According to the learned Judge the application 4-Ga had been rejected on two grounds firstly being barred by limitation and secondly being without any valid ground. Thus, the appeal filed by the respondents was fully maintainable. He further submitted that the learned District Judge vide order dated11.2.2002 had admitted the appeal while over ruling the preliminary objections and the writ petition filed by the petitioners is not maintainable.
In the present case the question is as to whether an appeal lies against an order passed by the trial Court wherein it had by a common order rejected both the applications under section 5 of the Limitation Act and Order9 Rule 13 C.P.C. on the ground that the application is barred by Limitation and no ground for condonation of delay has been made out, or a revision lies. If it is held that no appeal lies then the order admitting the appeal is wholly without jurisdiction and in such a circumstance a writ petition is maintainable.
State of Jammu and Kashmir v/s Ghulam Rasool Rather
J&K Limitation Act, S. 3 – Condonation of delay - Sufficient cause - What amounts to - On the facts of the case, held that the cause shown was reasonable and satisfactory - Delay condoned.
The expression "sufficient cause" in section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to deliberate tactics, but seek their remedy promptly. While considering a case for condonation of delay, the court must always remember that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not sufficient to turn down his plea and shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. The discretion exercised in the matter of condonation of delay should be proper and judicious.
Conclusion:
Thus we can understand from the above examples that law of Limitation and Condonation of Delay are two effective implementations in the quick disposal of cases and effective litigation. On the one hand if the law of limitation keeps a check on the pulling of cases and prescribes a time period within which the suit can be filed and the time available within which the person can get the remedy conveniently. The law of Condonation of Delay keeps the principle of natural justice alive and also states the fact that different people might have different problemas and the same sentence or a singular rule may not apply to all of them in the same way. Thus it is essential to hear them and decide accordingly whether they fit in the criteria of the judgement or whether they deserve a second chance.
# http://www.vakilno1.com/bareacts/limitationact/PART2/S3.html
# www.dateyvs.com/gener08.htm viewed on august 28 2010
# www.answers.com/topic/condonation viewed on august 28 2010
# (2000)7 SCC 372
The author can be reached at: yash@legalserviceindia.com
ISBN No: 978-81-928510-1-3
Author Bio: yashvardhan sharma
Email: yash@legalserviceindia.com
Website: http://www.legalserviceindia.com
Views: 155570
antony thomas : thirtyseven year old property we are in rent but the landowner sold unknowingly to us .our dad paid 50000indian money in1978 .what will be the result if we file the case against land owner a
Gulnar Raheem Khan : I as a lay man and an ordinary citizen, am eager to know why section 15/5 of Limitation act 1953 allows the time of abssence of the defendant from India, to be excluded from the period of limitation, please.
Janardhanan Krishnankutty : My Great Grandma had been awarded a landed property by her parents in 1915 with a pathway of 3ft wide to the PWD road through the eastern boundry of another property owned by her sister. This pathway has been specifically mentioned in the partritian deed. Subsequently both the lands were subjected to partitions as the generation change one after other. Residents of these two lands have been using the said pathway for transportation to and fro the PWD road till the NHAI acquired land from both parties in 1998 for Kollam By-Pass. So far the By-Pass was not materialised. The other party built a new house in his remaining piece of property and he closed our pathway to the PWD road. As the alignment of the By-Pass had been marked in 1972 and acqusition started in 1998 and road works not yet started yet by the NHAI. The pathway had been earmarked in the deed which had been registered in 1915. I believe that my family and I have the right to use this pathway even after the By-pass is materialised. Kindly advise me if we are right or not Yours very lovingly, J. Krishnankutty.
sunil kumar : orders allowing me 2nd time bound higher scale was issued by my employeri.e Punjab State power corp. ltd in April 2012. I have retired from service on 31.08.2013.I submitted my representation in 2014 against the above stated order.Is there any limitation period prescribed by the law during I can challene the order in the High Court. It is noteable that revision of order will enhance my pension.
s sandeep : Good Morning sir, My grandfather purchased a property in 1971 and registered in his name.My mother is the only child to my grand parents. Now we are fighting a civil case against the person who himself claiming as an adopted son of my grand parents without any adoption deed. We learned that my grand mother brought up the boy by giving food, clothing etc. as he was an orphan roaming on the roads. My grand father executed a will in 1972 stating that " this property should belong to my wife and to my only daughter after my death.After my grand parents death my mother became the only legal heir as per the will deed. All document like sale deed, current bill, water bill, and property tax are on my grand father's name. Now the person who is claiming himself as an adopted son transfered the current bill and water bill on his name illegally by bribing the government official. We have the current bill and water bill payment history and the documents proving the transfer is illegal. Now please tell me sir what steps should be taken to get my mother's property back. Thank you sir
Julia Abraham : Bonafide own use is the most common petition filed by the landlords to evict their tenants. We can positively win the case if we are able to prolong the case to a considerable period of time by the resortign to all procedures in the court. Adopting deklaying tactics is not a ground for eviction. In the meanwhile there will be any subsequent event that can be used in favour of us or to prolong the litigation or to defeat the landlord compleetly. Prolonging the litigation itself is a boon to our interest because all these time we can have possession and enjoyment of the building in question, that too at the rate of rent we used to pay. There are Court decisions in favour of tenants that any subsequent event that have a bearing on bonafide own use is to be looked into even at appellate or revisional stage of the suit or proceedings. Death of the landlord is detrimental to the case of the landlord but death of the tenant is of no consequence because even the heirs of the tenant is the tenant as per rent control laws. On the death of landlord the case has to be remanded. In Sheshambal vs. Chelur Corporation 2010 (3) SCC 470, JT 2010 (2) 260 In a case of bonafide requirement, it is always necessary, till the decree of eviction is passed that the landlord should satisfy that the need is bonafide subsists. In a case where the need is available at the time of filing the petition, but at the time of granting the decree it may not continue to subsist, in that event, the decree for eviction could not be made. Similarly pending appeal or revision or writ petition, the need may become more acute. The court should take into account all the subsequent events to mould the relief. the High court ought to have considered this aspect of the matter. Important matter we have to bear in mind is that we should some how or other prolong the litigation so that some subsequent event will be of great assistance in the result of the litigation.
harsha naidu : We the parents of disabled girl child fighting for justice for the negligence of doctor, our child lost her left hand. The case dismissed in Dist. Forum because of limitation act, mother filed dismissed forum told fresh complaint to be filed by minor. We need support from every one to get justice to our child. Kindly mail: ashababiescase@gmail.com, contact 91 8123498889
Muralidhar : Sir, I have purchased a house site in the year, 1998 and constructed basement in the year, 2006. My neighbour owner requested to break the some of the portion of the basement for his borehole drilling and after completion of the work he will construct the basement and will handedover the same. But he fraudulently after completion of his house construction in the year, 2007 he illegally encroached the basement and constructed compoundwall on my basement and abusing me in filthy language. I alongwith wellwishers of the colony approached him and requested to give my site at about 30 sq.yds. but he won't handedover the same till today. I want to evict him from my basement. please give me legal remedies from evicting him from my basement. please give suggestion at the earliest.
Prabhu : Dkt patta holders( assigned land )can sell the property to any one with out their legal heirs .or they could get permission from concerned officer.orthey can sell the land only to legal heirs Please answer this. Sir very urgent
Neelu Singh : Is an audio recording admirable as an evidence in civil suit that was filed for partition of a property? Plzz ans sir..
tapan kumar roy : litigants are suffering due to ignorancy of law and having insuffiency of money.I need a kindhearted eminent advocate who will help me in my case in supreme court,india.The said case is a case of injustice.If I get requisite help,i will be grateful for ever,thank u.
tapan kumar roy : If delay is caused for proving the fraud,the time spent for proving the said fraud whether may be excused in filing the writ or not?and the doctrine of non traverse is involved in my case also,still i was not favoured.thank you.with best wishes for all
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