Assignment on Limitation Law

BANGABANDHU SHEIKH MUJIBUR RAHMAN SCIENCE & TECHNOLOGY UNIVERSITY, GOPALGANJ-8100. Assignment On ‘Importance of the Limitation Act in Bangladesh' Course Title: Laws of Registration, PDR and Limitation Act Course Code: Law-215 Submitted BySmaran Roy Roll: 18 law 078 Semester: 1st Year: 2nd Session: 2018-19 Department of Law, BSMRSTU Submitted ToSuraia Jebin Lecturer Department of Law, BSMRSTU Date of Submission: 16th March, 2021 Page | 1 LAW OF LIMITATION Introduction The right which are not exercised for a long time are said to be as nonexistence. The word limitation itself says the meaning. The word limitation in its literal term means a circumstances which are limited. The law relating to limitation is incorporated in the Limitation Act of 1908, which prescribes different periods of limitation for suits, petitions or applications. The law of limitation has been prescribed as the time limit which is given for different suits to the aggrieved person within which they can approach the court for redress or justice. It prescribes certain periods after the expiry of which the suit and the proceedings cannot be maintained. Law of Limitation ensures that the parties do not resort to dilatory tactics and avail the remedy promptly. Nature Law of Limitation is a Procedural Law. It is Lex Fori. The law of Limitation is founded on Public Policy. The Act applies to all civil proceedings and some special criminal proceedings which can be taken in a Court of law unless its application is excluded by any enactment. Both the law of limitation and Code of Civil procedure being procedural and adjective in nature are in ‘Pari materia’ and as such are to be taken and construed together as one system as explanatory to each other. It can be said that the rules of the Law of Limitation are generally prima facie with the rules of procedure and which has not created or extinguished any rights in favour of any particular person nor does they create any cause of action except as provided under Section 28 of the Act. It has been prescribed that the remedy can be exercised only for a limited fixed period of time and subsequently. As in Bombay Dyeing & Mfg. Co. Ltd. v. State of Bombay1, it was held that the Law of limitation bars the remedy in a Court of law only when the period of limitation has expired, but it does not extinguish the right. History: The Limitation Act (Act No XIV of 1859) was enacted for the first time in the British India in 1859. This act has been adopted successively in Bangladesh after emergence of Bangladesh as a sovereign state in 1971 by Adaptation Act, 1973. As an existing law, the Limitation Act has been amended several times by Article 149(2) of the Constitution of Bangladesh. SCHEMATIC REPRESENTATION OF THE LIMITATION ACT, 1908 There are 32 sections in total out of which three are repealed (Sections 30-32). Articles- 183 in total, divided into 3 partsPeriod of limitation of Suits (Article 1-149) 2. Appeals (Articles 150-157) 3. Applications (Articles 159-183). 1 AIR 1958 SC 328. Page | 2 PURPOSE OF THE ACT The purpose of limitation act is portrayed in the following heads including the two Latin maxims on which the law of limitation is founded: 1)The preamble of Limitation Act makes it clear that this act is enacted to consolidate and amend the law for the limitation of suits, appeals (Sec. 3-25) and providing rules for acquiring by possession, the ownership of easements and other property (Sec.26-28). 2) Interest Republicae ut sit finis litium- The Supreme Court in Balakrishnan v. M.A. Krishnamurthy2 held that the principle is based in the maxim “Interest republicae ut sit finis litium” which means that the interest of the state requires that there should be an end to litigation. 3) Vigilantibus non dormentibus jura subveniunt- The law assists those that are vigilant with their rights, and not those that sleep thereupon. Law of limitation follows the doctrine of clean hand. The Honorable Supreme Court in Rajinder Singh v Santa Singh3 held that the object of law of limitation is to prevent disturbance or deprivation may have been acquired in equity and justice by long enjoyment or what may have been lost by a party’s own inaction, negligence or laches. Its application does not always mean to usurp or help usurp a right. It rather operates on the principle that if a claimant waived his or was not serious, he will be hit by the doctrine of limitation. So, the purpose of Limitation Act is not to destroy the rights but to focus for the Public Policy fixing a life span for the legal remedy for the general welfare. The major broad considerations on which the Doctrine of Limitation and Prescription are based on is that the rights which are related to property and rights which are in general should not be in a state of constant uncertainty, doubt and suspense. Justice Abdot famously opined that the prime purpose of any limitation statutes is to be prevent persons from being harassed. The entire law of limitation rest on two maxims. Those who understand these two maxims clearly understand the Limitation Law. State is a biggest litigator, otherwise it is a perennial threat. If these two maxims are not following, then there is a serious threat.4 4) This act ensures that claims are extinguished or ought to be held extinguished whether they are not litigated in the proper court within the prescribed period. 5) Limitation brings promptness in the prosecution of remedy and quickens diligence and prevent oppression. It secures quiet of the community by suppressing fraud and perjury. The statutes of limitation are statute of repose because they extinguish stale demands and quit titles. They lay claims which might otherwise have disturbed the peace of community. They secure peace by ensuring security of rights and secure justice as by lapse of time, evidence which may have been destroyed. Thus, In S.C. Parashar v. Vasant Sen5, the Supreme Court observed that the statute of limitation is a statute of repose, peace and justice. The intention of the law of limitation is not to give a right where there is not one, but to interpose a bar after certain period to a suit to impose an existing right. The object is to compel the litigant to be diligent in seeking remedies in the courts (1908) 7 SCC 123 AIR 1973 SC 2537 4 Beteley v Faulkner 5 AIR 1963 SC 1356 2 3 Page | 3 of law. In Halsbury’s Laws of England, the objects of the Limitation Act have been presented as follows: “The courts have expressed at least three different reason supporting the existing of the statutes of limitation namely: i. That long dormant claim has more of cruelty than justice in them. ii. That a defendant might have lost the evidence to dispute the stated claims. iii. That person with good cause of action should pursue them with reasonable diligence. In Motichand v. Munshi6, it was held that the law of limitation is a means of ensuring private justice, suppressing fraud and perjury, quickening diligence and preventing oppression. Applicability of Limitation Law in Bangladesh: Disposal of suits by bar of time: The basic concept of limitation is relating to fixing or prescribing of the time period for barring legal actions. Section 3 provides that any suit, appeal or application if made beyond the prescribed period of limitation, it is the duty of the Court not to proceed with such suits irrespective of the fact whether the plea of limitation has been set up in defence or not. The provisions of Section 3 are mandatory. The Court can suo-motu take note of question of limitation. The question whether a suit is barred by limitation should be decided on the facts as they stood on the date of presentation of the plaint. It is a vital section upon which the whole limitation Act depends for its efficacy. Extension of Time in Certain Cases: (i) When court is closed: There is general principle of law enunciated by the maxims "Lex non cogit-ad impossiblia" means the law does not compel a man to do that which he cannot possibly perform, and "Actus curiae neminem gravabit" means the act of the court shall prejudice no man. Section 4 of Limitation Act indicates that where the period prescribed expires on a day when the court is closed notwithstanding that fact, the application may be made on the day that the court reopens, so that there's nothing in this section which alters the length of the prescribed period [Maqbul Ahmed Vs. Onkar Pratap Narayan Singh7]. (ii) Doctrine of sufficient cause: Section 5 allows the extension of prescribed period of limitation on condonation of delay. It does not apply to suit; it is applicable only to appeal and applications8. Section 5 provides that any appeal, application, review or any other applications may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. It is clarified by the explanation appended to the Section 5 that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be a sufficient cause within the meaning of this section. The party applying for condonation of delay should satisfy the Court for not making an appeal or application within the prescribed period for sufficient cause. Court has discretion to condone delay. But such delay has to be exercised judiciously each and every day’s delay must be explained to the satisfaction of the court9. On the question of limitation both Government and public litigant stand on the equal footing10.The term sufficient cause is not defined in the act. It depends on the circumstances of each case which is beyond the party’s control may be considered sufficient to condone the delay11. (iii) Disability in Filling Suits: Section 6 confers benefits on the disabled (e.g., minority or insanity) person so far, the right to sue or institute a proceeding or make an application for execution of a decree is concerned but it does not apply to appeals12. Section 7 is only an AIR 1970 SC 89 A.I.R. 1935 8 Nityananda vs Life insurance corporation of india A.I.R 1970 S.C. 209 9 Saleemullah vs dhaka city corporation and others, 9 MLR (2004) (HC) 8. 10 Abul Quashem and others VS Government of Bangladesh, 6 MLR 2001 HC 73 11 Chairman, Rajdhani Union Kartipakkha vs Rokeya Begum, 6 MLR 2004 HC 8. 12 Bachi vs Ahsanullah, ILR 12. All. 46 6 7 Page | 4 application of the principle in Section 6 to a joint-right inherited by a group of persons wherein some or all of whom are under the disability. The disability of all except one does not prevent the running of time, if the discharge can be given without the concurrence of the other. Section 8 imposes a limitation on concession provided under Sections 6 and 7 to a person under disability up to a maximum of three years after the cessation of disability. The Section applies to all suits except suits to enforce rights of pre-emption. According to Section 9 of the Act where once time has begun to run, no subsequent disability or inability to institute a suit or make an application can stop it. The rule of this section is based on the English dictum. “Time when once it has commenced to run in any case will not cease to be so by reason of any subsequent event”. Thus, when any of the statutes of limitation is begun to run, no subsequent disability or inability will stop this running. Computation and Exclusion of Limitation Period: (i) Exclusion of certain days or exclusion of time in legal proceedings: While computing Period of Limitation certain day/days are to be excluded. Sections 12 to 24 deals with computation of period of limitation. According to Section 12(1), the day which is to be excluded in computing period of limitation is the day from which the period of limitation is to be reckoned. For computation of period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, 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 or sought to be revised or reviewed shall be excluded [Section 12(2)]. While computation of period for an application made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment shall also be excluded [Section 12(3)]. For computation of Limitation period for an application to set aside an award, the time required for obtaining a copy of the award shall be excluded [Section 12(4)]. (ii) Exclusion of time bona fide taken in a court without jurisdiction: Section 14 of the Limitation Act contains provisions for exclusion of time spent in proceedings in wrong forum or in court having no jurisdiction, in respect of limitation for a suit or an application or an appeal honestly pursued on bonafide contention. This section applies to suit application, or appeal for the purpose of exclusion of time spent in civil proceedings in wrong forum. The relief to a person is given when the period of limitation is over, because another civil proceeding relating to the matter in issue had been initiated in a court which is unable to entertain it, by lack of jurisdiction or by any other like cause. The following conditions must co-exist for the applicability of this Section:       that the plaintiff or the applicant was prosecuting another civil proceeding against the defendant with due diligence; that the previous suit or application related to the same matter in issue; that the plaintiff or the applicant prosecuted in good-faith in that court13; The plaintiff has initiated some other proceeding in another court; No relief in the said proceeding could be granted as there was defect of jurisdiction14; and that the court was unable to entertain a suit or application on account of defect of jurisdiction or other like cause15. (iii) Exclusion of time during which proceedings are suspended: Where the institution of a suit or an application is being delayed by an order of injunction or stay the period during the continuance of such injunction/order or stay including the date on which the injunction was granted or the order of stay was made and the date on which such injunction or order is withdrawn shall be excluded from the period of limitation prescribed by the first schedule to the act as provided under section 15(1). Similarly, in section 15(2), the period of any notice which is served as required by any other law in force shall also be excluded from the period of limitation prescribed. (iv) Effect of Death before right to sue accrues: In case of death of the plaintiff before having the right to sue accrues the period of limitation for such suit shall be counted from the date when the legal representative of the deceased becomes capable of instituting such suit according to section 17(1). The same rule applies in case if defendant dies [Sections 17 (2)]. However, the Gurdial Singh vs Munsha Singh. AIR !977 SC 640. Surajmal Dagduramji vs Shrikishna Ramkishan A.I.R.1973 Bom 313,317. 15 AIR 1958 S.C 767,769. 13 14 Page | 5 above rule does not apply to suits to enforce rights of pre-emption or to suits for the possession of immovable property or of a hereditary office. [Section 17(3)]. (v) Effect of fraud: Section 18 deals with fraud in such as 1) with the right to sue or make and application has been fraudulently concealed from the plaintiff by the fraud of defendant. 2) Where the title on which such right is founded has been so concealed. 3) When any document necessary to establish such right has been fraudulently concealed. The period of limitation shall not begin to run until the plaintiff or applicant has discovered fraud or mistake subject to certain exceptions. This section only applies to suit and applications. Acquisition of Ownership by Possession: (i) Right to Easements: The right to acquisition of easements is given in Section 26. It provides that the right to access and use of light or air, way, watercourse, use of water, or any other easement which have been peaceably enjoyed without interruption and for twenty years (Sixty years if property belongs to Government) shall be absolute and indefeasible. Such period of twenty years shall be a period ending within two years next before the institution of the suit. The enjoyment of such easements has to be peaceful and without interruption. Interruption for one year will terminate the right of easement. Suit for establishment of easement rights should be filled within two years of the completion of 20 or 60 years as the case may be16. Section 26 has no application if the claim of a person is not in respect of a right of easement, but about a public right over a public way17. There are three classes of right of way. First there are private rights vested in particular individuals or the owners of particular tenements. Secondly, there are rights belonging to certain classes of persons. Thirdly, there are public rights for the benefits of all the subjects18. (ii) Extinguishments of Right to Property: Section 28 states that the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. Under section 26 certain easements rights are created by continuous user for long period while under section 28 right to property is extinguished due to not being in possession for certain period. The right to property is extinguished after lapse of certain period by reason of adverse possession for twelve years in the case of a private individual and in the case of government for more than sixty years. These two sections are the two sides of same principal with converse concept of gaining and losing certain right with the lapse of time. Section 28 is an exception to the rule of limitation law that, it only bars the remedy and does not extinguish the right itself19. In Nurunnahar Hossein vs. Mrs. Kohinoor Begum, it was held that no adverse possession can be done against abandoned property. An abandoned property by the operation of law remains in the possession of the government on behalf of the owner. The suit for the recovery of possession of such property is governed by article 142 of the Limitation act20. Conclusion: The main objective of the Act is to put a bar on litigation. In the absence of such legislation, the adjournment of any suit will become impossible. And in such circumstances, the court will become meaningless. It is an integral part of Bangladeshi Legislation. However, in certain circumstances parties are unable to file an appeal before the court. It can be due to any personal, financial or health-related reasons. For aiding such bona fide issues, the Act provides the necessary provision in part II of the Act. And, the discretion is left with the courts to decide on the merits of the case. Chanti China Venkatareddi vs Kurasami Koti Reddy AIR 1967 A. P. 81, 82 Aribam Tuleshwar Sarma Vs Irengbam Yaima Singh, AIR 1965 Manipur 39,42 18 AIR 1930 Cal. 286. 19 Mahamud Raza Ahmed Vs. Zahoor Ahmed AIR 1930 All. 858 DB Hem Chand Vs. Peary Lal AIR 1942 P.C. 64,67 20 2 MLR 1997 AD 305 16 17 Page | 6 References: 1) Bare act of Limitation Law, 1908 2) MLR by Raja Said Akbar Khan 3) The Limitation Act by Gazi Shamsur Rahman 4) http://www.legalservicesindia.com/article/article/condonation-of-delay-and-law-oflimitation543-1.html 5) A Handbook on Law of Limitation Rashadul Islam 6) The law of limitation and Prescription in Bangladesh by Abdul Halim 7) Halsbury’s Laws of England 8) Black’s Law Dictionary 8th edition The End Page | 7