Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at 07:12:09 PM
1. The Limitation Act, 1908 (Act IX of 1908) with commentary as amended upto date (excluding Schedule).
1. The Limitation Act, 1908 by Raja Said Akbar Khan.
Object of the law of limitation: Preamble of the Act prescribes its object. It provides the time period in which case can be brought in the Court of law. Negligence in institution of suit with period prescribed causes the suit time barred thus not maintainable in Court of law. Violation of one’s right gives rises to cause of action. One should not sleep over his right. No negligence on accrual of right or interest is permitted. Law aids the vigilant and not the indolent. Vigilance grants the relief. Enforcement of right upon its infringement is got made through courts. Right is extinguished when it is not litigated within time prescribed for it.
The object of the Act is not to create or define causes of action but simply to prescribe the period within which existing rights can be enforced in Court of law. The principle of the Act is not to enable suits to be brought within certain periods, but to forbid them being brought after certain period.
Laches: It means slackness or negligence and hence willful negligence in asserting one’s rights. The doctrine of laches is based on the principle “delay defeats equity”.
Negligence or unreasonable delay in asserting or enforcing a right is called laches. The equitable doctrine that the “delay defeats equities” or that “equity aids the vigilant and not the indolent”. A Court of equity has always refused its aid to stale demands, where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this Court into activity but conscience, good faith and reasonable diligence, when these are wanting the Court is passive and does nothing.
When an equitable right is analogous to a legal right, which is subject to a period of limitation in brining actions to enforce it, the Court of equity may by analogy apply the same provision to the equitable right.
Acquiescence: It means compliance, consent, submission, or permission. Assent to an infringement of rights, either expressed, or implied from conduct, by which the right to equitable relief is normally lost. Where plaintiff has implied consent by way of his conduct is called acquiescence. Party who could not object on the act of other is acquiescence.
Estoppel: The rule of evidence or doctrine of law which precludes a person from denying the truth of some statement formerly made by him, or the existence of facts which he has by words or conduct led others to believe in. If a person by a representation induces another to change his position on the faith of it, he cannot afterwards deny the truth of his representation.
Estoppel by record: A person is not permitted to dispute the facts upon which a judgement against him is based.
Estoppel by deed: A person cannot dispute his own deed, he cannot deny the truth of recitals contained in it.
Estoppel in pais or equitable estoppel: Estoppel by conduct, e.g., a tenant, having accepted a lease, cannot dispute his lessor’s title.
Equitable estoppel: A person who stands by and keeps silence when he observes another person acting under a misapprehension or mistake, which by speaking he could have prevented by showing the true state of affairs, cannot be estopped from later alleging the true state of affairs. Thus an owner of goods who voluntarily allows another to treat them as his own, without protest, whereby a third person is induced to buy them bona-fide cannot recover them from that person. Similarly, if a stranger begins to build on land supposing it to be his own, and the real owner, observing his mistake, abstains from setting him right and leaves him to persevere in his error, equity will not afterwards allow the real owner to assert his title to the land. Estoppel provides a shield, not a sword it cannot create a cause of action.
Prescription: The vesting of a right by reason of lapse of time. Negative prescription is the divesting of a right by the same process.
At common law, a title by prescription was acquired by the enjoyment of a right from time immemorial, or time out of mind, from which an original grant was implied. Such user would be presumed from evidence of long actual user, but the presumption might be rebutted by proof that the enjoyment had in fact commenced within legal memory.
Dismissal of the time barred suit u/s 3: All the suits must come within the period prescribed for them under this or any other special law. It should be kept in mind that any special law excludes the provisions of general law. Even the defendant does not take plea of limitation, it shall not preclude the Court from raising the point of its own accord.
Institution of suit: Suit is deemed to be instituted when first it is presented to the officer concerned. Subsequent acceptance of the suit does not matter as far as the institution of suit within limitation period is concerned. Mere presentation of suit is sufficient to come under limitation period. Making good (realization, completion, perfection, actualization) of deficiency of Court fee also does not matter if it is made within the time which Court provides for such purpose. First presentation is valid and not the subsequent making good.
Expiry of limitation on the day when Court is closed u/s 4: Where last day of the limitation period falls on the day when the Court is closed, time shall be extended upto the date very next reopening of the Court. This Court should be the proper Court and not the Court, which has not jurisdiction.
Extension of period in certain cases u/s 5: Extension in the limitation period can be prayed only in the case of appeals or applications for revisions or a review of judgements or for leave to appeal or any other applications to which this section allows. This exception is not applicable in the case where suit is to be brought in first instance.
This exception should be supported with proper justification of the delay. Illness, imprisonment of applicant, wrong proceeding taken by him in good faith, proceeding taken in wrong Court through bona-fide mistake are good instances of “sufficient cause” within the meaning of this section.
If the prescribed period of limitation has expired, the person desiring the Court to condone the delay u/s 5, must explain every day of the delay. The extension of time u/s 5 is a matter of concession or indulgence to the applicant and cannot be claimed by him as a matter of absolute right.
Application of S. 5:
4. Leave to appeal:
5. Any other according to law:
6. Sufficient cause:
7. Satisfaction of Court:
8. Misleading of applicant:
9. Mistake of counsel:
Legal disability u/s 6: Legal disability is inability to sue owing to minority, lunacy, or idiocy. Law recognizes no other ground as sufficient for extending the period of limitation. Legal disability extends the period of limitation till the attainment of the legal capacity to sue. Period of limitation commences when legal disability is ceased. Occasional legal disability is not acceptable as excuse. Interval in legal disability is considered under the limitation period. To get the benefit of legal disability, continue legal disability must be proved.
1. Definition: s
2. Legally disabled persons: s
a) Minor: s
b) Insane: s
c) Idiot: One who is mentally defective or disordered.
3. Commencement of limitation: After cessation of disability.
4. Legal heirs after death are entitled: s
5. Cessation where hairs are insane: s
6. Continue disability: s
Disability of one of several plaintiffs or applicants u/s 7: Where several persons have right to institute suit and one of them becomes disable to be represented properly, time shall not run against all. Proceedings shall be delayed during the course of disability. Where discharge is possible, time shall run continue.
For example, where two brothers institute a suit with same cause of action and subsequently one of them becomes insane, it is presumed that other one can protect the interest of the brother legally disabled. But if there is clash between two brothers, time shall not run until disability ceases to exist.
Continuous running of time u/s 9: Where time has begun to run shall not stop upon subsequent disability. Time shall run continue where once started. Later disability is not taken into consideration.
The rule as to the continuous running of time is one of the fundamental principles of the law of limitation. That rule says that where once time has begun to run, it runs continuously and without any breaks or interruption until the entire prescribed period has run out, and no disability or inability to sue occurring subsequently to the commencement will stop its running.
1. Continue running: s
2. Exceptions: s
a) Letter of administration to debtor: s
b) Defendant is absent: s
c) Plaintiff in good faith: s
d) Where stay for institution of suit: s
e) Notice before institution u/s 80: s
f) During proceedings to set aside sale: s
g) Administrative law: Time limit for decision is ninety days.
Suit on foreign contracts u/s 11: Suits instituted in
Exclusion of time of proceeding bona-fide in Court without jurisdiction u/s 14: Where case is instituted in Court having no jurisdiction, in good-faith, time spent in litigation shall be excluded from the time prescribed for it.
Requisites of the section: Person claiming the rights under this section must fulfill the following conditions:
1. Other civil proceedings: The proceeding, which he was prosecuting, must have been a civil proceeding.
2. Proceedings against same parties: In the earlier civil proceeding all the defendants in the latter suit should have been parties.
3. Prosecution against the same relief: The suit in which the plaintiff claims the benefit of this rule must be founded on the same cause of action as the former civil proceedings.
4. Satisfaction of court: The former civil proceeding must have been prosecuted with due diligence.
5. Prosecution in good faith: In prosecuting the earlier civil proceeding in the wrong Court the plaintiffs must have acted in good faith.
6. Want of jurisdiction: The incapacity of the Court in which the earlier civil proceeding was instituted must have been due to (i) want of jurisdiction or (ii) other cause of a like nature.
7. Misleading in computation of limitation:
8. Unawareness of law:
10. Mistake of fact:
11. Mistake of lawyer’s clerk:
13. Defective power of attorney:
14. The expression “is unable to entertain” means is unable to go into the merits of the case.
15. The period which the rule permits to be excluded is:
a) The time during which the earlier suit or application was pending or being made.
b) The day on which the suit or application was instituted.
c) The day on which the proceeding terminated, and
period between the decision of the
Effect of fraud u/s 18: Where a person has obtained possession by means of fraud there period of limitation commences from the time when such fraud comes within the knowledge of such aggrieved party or deprived person against whom fraud is committed. Time of mutation becomes immaterial so far as the limitation period is concerned. It is also punishable offence u/s 420 of Pakistan Penal Code.
1. Limitation ceases: s
2. Commencement upon knowledge: Knowledge of fraud.
3. Upon production of document: s
Effect of acknowledgement in writing u/s 19: Period of limitation commences when cause of action arises, such as refusal of repayment of debt or commission of other such a type wrong. But where before the expiry of limitation written acknowledge is made and duly signed admitting the liability, limitation period is supposed to be prolonged. Thus four ingredients comes out as such:
1. Prior agreement: Agreement must be made before the expiration of the prescribed period of limitation.
2. Admission of liability: It must in terms be a sufficient admission of liability. Where is no admission of liability, there is no agreement acceptable as extension in limitation.
3. Written: Such agreement must be written. Oral agreement requires sufficient evidence.
4. Signature: Agreement without duly signed is void. It should be duly signed.
1. Fresh time starts:
a) Made before expiry of limitation:
b) Must be in writing:
c) Must be signed:
d) Acknowledgement of liability:
e) Regarding property or right:
f) Signed by the defaulter/defendant:
g) Oral evidence of time where signed undated:
Computation of new limitation: A new period of limitation shall be computed from the time of the acknowledgment, i.e., from the time when it was signed.
Agent of person under disability u/s 21: Where are three plaintiffs one of whom is minor, limitation as against minor shall stand ceased until he attains age of majority. Time limitation shall run against rest of two major plaintiffs. Where all plaintiffs are partners in a firm, it is presumed that interest of all is not clashing as to each other being having common interest in business.
Effect of substituting or adding new plaintiff or defendant u/s 22: When parties either plaintiff or defendant are added or substituted, it shall be presumed that this effect is made from the date of such addition or substitution.
It is duty of the plaintiff to get joined all the necessary parties. Plaintiff should be vigilant and not the indolent. Order 6 governs the joinder of the parties.
Continuing breaches and wrongs u/s 23: Where is continue breach, limitation runs continuously during such breach. Case can be brought in Court of law at any time during such breaches.
Where easement has not been acquired and continuously water is drained from the land belonging to other, it is continuous breach of other’s legal right.
Unauthorized use of copyright belonging to other is also covered under continuous breach.
Where wife has left her husband without any lawful excuse and refusal to come back and exercised his conjugal rights after his repeated requests is also continuous breach.
Suit for compensation for act not actionable without special damage u/s 24: Where there is not special injury from the act of others, but violation of legal right is there, limitation starts when such injury results.
A owns the surface of a field. B owns the sub-soil. B digs coal there-out without causing any immediate apparent injury to the surface, but at last the surface subsides (decline). The period of limitation in the case of a suit by A against B runs from the time of the subsidence (decline). Where B digs subsoil without effecting the surface of A, no wrong is committed.
Easement u/s 26: Easement is a right of use of way or air or light continuously twenty years openly and without interruption. Where this right is violated, suit must be instituted within two years otherwise right to sue shall extinct.
1. Peacefully enjoyment:
2. Without interruption:
a) 20 years on private land:
b) 60 years on government land:
3. Occupation of person:
4. As of right:
5. Without licence:
6. Without rent:
7. As an easement: Not as of owner.