Write a detailed note on Section 3 of Limitation Act.

Q. What is the duty of a court when suit is instituted, Appeal is preferred or Application is made after the period of limitation prescribed for it?

Q. Write a detailed note on Section 3 of Limitation Act.

Q. Limitation is a matter between the plaintiff and the court discuss.

Q. Can a court reject a time bared suit, without the objection raised by the opposite party?

1.INTRODUCTION.

According to Section 3 of Limitation Act 1908, no suit can be instituted in the court after the expiry of time. Subject to the provision contained Section 4 to 25 (inclusive), every suit shall be instituted within a prescribed time. A suit is presumed to be instituted, in ordinary cases, when the plaint is presented before the court. In the case of pauper only application can be filed before the court but solid reason shall be proved before the court. As well as, appeal can also be instituted within a prescribed time before the court. The Limitation Act is a procedural law. The defendant cannot be debarred from agitating the question of limitation in appeal. The issue regarding limitation is a mixed question of fact and question of law.

2. RELEVANT PROVISIONS.

Section 3 of Limitation Act 1908 deals concerned topic.

3. EXPLANATION.

A suit is presumed to be instituted, in ordinary cases, when the plaint is presented to the proper officer, in the case of a pauper, when his application for leave to sue as a pauper is made and 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.

4. NATURE OF SECTION 3.

The section 3 of The Limitation Act 1908 is mandatory in nature in that every suit instituted after period of limitation shall subject to the provision of sections 4 to 25 of The Limitation Act 1908.

5. SCOPE OF Section 3.

The scope of section 3 of Limitation Act 1908 is mandatory and wider, moreover section 4 to 25 deals to the exceptions in respect of time barred cases.

Case Law.

2004 MLD 1321.

Section 3 of the Limitation Act, 1908, makes in obligatory for the court to look into the plaint of limitation without there being any objection by any part.

Case Law.

2009 CLC 759.

Court was supposed to check issue of limitation while on the other hand limitation plea cannot be waived and even if waived it can be taken by party waiving it and by the court itself.

6. “TIME-BARRED” IT MEANS “LIMITATION EXTINGUISH THE REMEDY, BUT NOT THE RIGHTS”.

The limitation Act 1908 is a procedural law. It bars a suit for the enforcement of a right but does not extinguish the right itself. The only case where lapse of time extinguish the title is in section 27 of the Act, which provides that on the expiry of the period of limitation for a suit for possession of any property, the right to such the expiry of the period of limitation for a suit for possession of any property, the right to such property shall be extinguished.

“The state of limitation only bars the remedy but does not extinguish the right lapse of time does not extinguish the right of a person”.

Case Law.

2009 CLC 759.

Court was supposed to check issue of limitation while on the other hand limitation plea cannot be waived and even if waived it can be taken by party waiving it and by the court itself.

7. GROUND OF LIMITATION.

There can be no waiver of ground of limitation, even if it assumed that in fact they said consent terms could be considered as waiver. Under section 3 of Limitation Act 1908, it is the duty of the court to also consider as to whether the suit is barred by limitation or not even if no such defense is taken by the defendant in a suit. Therefore, there cannot be such waiver against the provisions of limitation.

8. TIME-BARRED SUIT TO BE DISMISSED.

Section 3 of Limitation Act 1908, sets the obligation on the court the exams the suit which is filed within a limitation or not and if the suit is filed beyond the limitation it must be dismissed.

(I). When Suit Shall Be Dismissed.

It is well settled that the period for filing a review petition is only 30 days. Not petition condoning the delay was admittedly filed by the landlords opposite parties. Under the Civil Court’s Rules framed by High Court, a petition for review has to be registered as a miscellaneous case and then it is to be disposed of in accordance with law. Section 3 of the Limitation Act 1908, casts a duty on the court to dismiss such applications, on the ground of limitation even though expiry of limitation has not been set out as a defense. In the view of the matter, the trial court has committed a jurisdictional error in proceeding to entertain the aforementioned review application and deposing of a merit of on merits by impugned order.

9. DUTY OF THE COURT.

Section 3 of Limitation Act 1908 imposes the duty on the court to dismiss an appeal presented out of time subject, which is not related to section 4 to 25.

Case Law.

1993 MLD 2126; 1997 CLC 268 Ref. 2004 CLC 269

Duty of court to see, whether suit is barred by time or not, even without raising objection by any of the parties in view of section 3 of Limitation Act, 1908.

10. RAISING QUESTION OF LIMITATION IN APPEAL.

The defendants cannot be debarred from agitating the question of limitation in appeal even though the issue regarding limitation was not pressed by either party before the Trial court.

11. ISSUE REGARDING LIMITATION IS A MIXED QUESTION OF FACT AND LAW.

The issue regarding limitation is a mixed question of fact and law. The averments in the complaint indicate that accused No. 3 was in the employment of respondent No. 2 company during the period 1979 to 1986. It has been recited in the complaint that at this request, the accused were allowed to reside were allowed to reside even after his retirement for a further period of 12 months after his retirement i.e. till about December 1987. It, therefore, cannot be held particularly that the present complaint which was filed on 17th March, 1988 is barred by limitation.

12. BAR OF LIMITATION AND CAUSE OF ACTION.

The bar of limitation does not destroy the cause of action, if any but only bars the remedy. The two ideas are distinct as seen from Order VII, Rules 11, C.P.C.

13. APPLICATION OF SECTION 3, WHEN SECTION 6 IS INAPPLICABLE.

If section 6 is inapplicable,, the provisions of section 3 of The Limitation Act 1908 are shall applicable and court is bound to dismiss the suit which is time barred.

14. CONDITION OF DELAY (EACH DAY IS EXPLAINED).

According to law, each day of limitation must be explained with reasons but in such cases the satisfaction of the court is very necessary. The sufficient grounds for delay shall be mentioned in the suit or appeal.

15. PRESCRIBED PERIOD CANNOT BE EXTENDED.

Limitation being a matter of statute, section 3 leaves no room for equitable considerations. Apart from the provisions of the Act, no principle can be evoked to add to or supplement the provisions of the Act. There is no judicial discretion to relieve a person from the operation of the Act except in a case of hardship or any authority to the court to dispense with its provisions. No act of the parties or even of arbitrators can extend the period of limitation for the simple reason that the parties cannot waive or contract themselves out of such a statute which is based on public policy and general considerations.

16. DATE OF PRESENTATION OF PLAINT.

Where a plaint is filed in the court of principal civil jurisdiction with application for transfer to subordinate court and thereafter it is transferred to the subordinate court and registered, then the date of presentation of the plaint to the court of principal jurisdiction is to be taken to be the date on which the suit is filed for the purposes of limitation.

17. LACHES.

In the cases of legal rights Laches are not applicable. Laches means negligence and willfully delay. It is also called the ignorance. The Doctrine of Laches is based on equity “Delay defeats Equity”. In case of equitable relief, courts of equity in England refuse to grant such relief to an applicant who had willfully stopped over his right. 

The Doctrine of Laches has no application in generally. The Doctrine of Laches applies in relief under Specific Relief Act 1877 and temporary injunction. 

Case Law.

PLJ 2005 Kar. 75.

Where provisions of Limitation Act, 1908 do not apply, the principle of Laches should play a role.

18. AMENDMENT OF REFUSED WHEN FRESH CLAIM BARRED BY TIME IS SOUGHT.

The amendment must be refused where the plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation.

19 WHEN NO SUFFICIENT GROUND.

BENARSI DAS V/S STATE OF UTAR PARDESH AIR 1956 SC 520

When there was delay of 44 days in filing appeal in the Supreme Court and the only ground urged for condition of delay was collection of money from large numbers of petitioners interested in filing the appeal, it was held that it was not sufficient ground condone the delay.

(I). Effect of Amendment, When Description of Name of Plaintiff Has Benn Changed.

Where the name in which the action is instituted merely a mis-derscription of the original plaintiff, no question of limitation can arise. In such a case the plaint must be deemed on amendment to have been instituted in the name of real plaintiff on the date on which the plaint may have been instituted.

20. DUTY OF COURT-WHEN PLEA OF LIMITATION IS NOT RAISED.

Section 3 of The Limitation Act 1908 casts a duty on the court to dismiss any matter, which is barred by limitation, even though no plea is taken by the defendants which regards to limitation. 

Question of limitation, even if not raised in the courts below. Can be raised in second appeal because it is a question of law for the decision of which no additional facts or materials are necessary.

Besides, the court has to go into the question of limitation even where it has not been raised by the defendant or the judgment-debtor. Section 3 of Limitation Act 1908 imposes upon the court a duty to dismiss an application made after the prescribed period of limitation even though limitation has not been set up as a defense.

21. DIFFERENCE BETWEEN LIMITATION AND LACHES.

(I). Meaning.

Limitation.

The law of limitation limits the time after which a suit or other proceedings cannot be maintained in a court of law.

Laches.

Laches means negligence or slackness and hence willfully delay in asserting one’s own right. Lapse of time or delay in using unaccounted for by disability, ignorance or other circumstances, constitute laches.

(II). Base.

Limitation.

It is a part of procedural law.

Laches.

The Doctrine of Laches is based on equity “Delay Defeats Equity”. In case of equitable relief, courts of equity in England refuse to grant such relief to an applicant who had willfully step over his right.

(III).Application.

Limitation.

In Pakistan also as the period of limitation for the various suits have been fixed by the Limitation Act.

Laches.

The Doctrine of Laches has no application in general. The Doctrine of Laches applies in the following cases.

(i). Relief under Specific Relief Act, 1877.

(ii). Temporary Injunctions.

(iii). Interlocutory Orders.

(iv). Matrimonial suits for divorce and judicial separation.

(v). In cases of appeals under section 5 of The Limitation Act.

(IV). Period of Limitation.

Limitation.

In case of limitation, the period of limitation is fixed and a suit brought after that period will be dismissed.

Laches.

In case of Laches, there is no fixed period of time.

(V). Suit Barred.

Limitation.

If a suit is barred by limitation, it is inflexible and no other matters are taken into consideration. A positive law of limitation cannot depend on any other consideration.

Laches.

In the case of Laches, the courts will look into the facts of each case and see.

(i). Whether the delay on the part of the plaintiff was unreasonable.

(ii). Whether the plaintiff’s delay has resulted in loss or destruction of evidence and

(iii). Whether due to the delay by the plaintiff, the defendant had incur any expense or to alter his position.

(VI). Right.

Limitation.

In the case of Limitation, it is immaterial for the plaintiff to show his ignorance of knowledge with respect to his right.

Laches.

But in order to take the plea of Laches in defense of a claim, it is necessary to show that the plaintiff had sufficient knowledge of the fact constituting his title to the relief and that he knowingly forborne to exercise his right.

(VII). Depend.

Limitation.

Law of Limitation is based on public policy and utility.

Laches.

Laches is based on equity alone.

(VIII). Justice.

Limitation.

Limitation depends upon express law.

Laches.

Laches depend upon justice and fair play.

(IX). Positive Law.

Limitation.

A positive law of limitation cannot depend upon whether there is Laches or not.

Laches.

Except in the case of discretionary orders, the defense of Laches cannot prevail when a period is fixed by limitation.

(X). Plead.

Limitation.

Limitation can be pleaded generally only against the plaintiff.

Laches.

Laches may be pleaded either against the plaintiff or the defendant.

(XI). Object.

Limitation.

The object of the Limitation Act is to prevent a person from seeking to enforce a state demand and not to prevent a person from raising my defense that he likes.

Laches.

Laches requires an element of estoppels or neglect which has operated to the prejudice of defendant.

22. CONCLUSION.

The pith and marrow of all the previous discussion there is no iota untruth shows that when the right to sue and the right to be sued and unite by act of law, the same person, i-e, when the same person becomes the hand to receive and the hand to pay, the running of the statute is suspended during such union of rights.