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SYNOPSIS

Exclusion of time in legal proceedings (S.12)
Exclusion of time in cases where leave to sue or appeal as a pauper is applied for (S.13)
Exclusion of time of proceeding bona fide in court without jurisdiction (S.14)
Exclusion of time in certain other cases (S.15)
Effect of death on or before the accrual of the right to sue (S.16)
Effect of fraud or mistake (S.17)
Effect of acknowledgment in writing (S.18, 19 and 20)
Effect of substituting or adding a new plaintiff or defendant (S.21)
Continuing breaches and torts (S.22)
Suits for compensation for acts not actionable without special damage (S.23)

Note-

1) Exclusion of time of proceeding bona fide in court without jurisdiction (S.14)-

Explanation clause (a)-

Explanation clause (b)-

Explanation clause (c)-

2) Effect of fraud or mistake (S.17)-

Exception-

3) Acknowledgment-

1) Effect of acknowledgment (S.18)-

Explanation (a) to S.18-

Explanation (b) to S.18-

2) Effect of payment on account of debt etc. (S.19)-

3) Effect of acknowledgment or payment by another person (S.20)-

Explanation S.20 (3) (a)-

4) Continuing breach and torts (S.22)-

Continuing breach of a contract-

Continuing tort-

Ss. 12 to 18 of the Limitation Act deal with the computation of the period of limitation. In other words, it points out how the period or time shown in the IInd column of the Schedule is to be computed.

These sections point out what days or periods have to be excluded or extended from the calculation of the limitation period. There is no necessity for any prayer or application by the party for the exclusion of the period provided by these sections. It is the duty of the court to exclude such time.

For the purpose of computing the period of limitation under the Limitation Act, the Gregorian Calendar (i.e. British Calendar) is to be used (S.24).

The rules relating to the computation of the period of limitation are as follows-

1) Exclusion of time in legal proceedings (S. 12)-

S. 12 has laid down the following rules relating to excluding some days from the computing period of limitation-

In computing period of limitation prescribed for a suit, appeal or application, the day on which time begins to run shall be excluded.
In computing the period of limitation prescribed for an appeal, the following period shall be excluded-
1. the day on which the period begins to run;
2. the day on which the judgment was pronounced;
3. the time requisite for obtaining a copy of the decree, sentence or order;
4. the time requisite for obtaining a copy of the judgment.
In computing the period of limitation prescribed for an application for revision or review or leave to appeal, the following periods shall be excluded-
1. the day on which the time begins to run;
2. the day on which the judgment was pronounced;
3. the time requisite for obtaining a copy of the decree;
4. the time requisite for obtaining a copy of the judgment.
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.

However, the time between the date on which the copy is ready and the date on which it is actually taken delivery by the party cannot be excluded.

2) Exclusion of time in cases where leave to sue or appeal as a pauper is applied for (S.13)-

Where an application for leave to appeal or leave to sue as a pauper is rejected and the party files an appeal or suit with payment of court fees, the time during which such application was prosecuted in good faith shall be excluded.

3) Exclusion of time of proceeding bona fide in court without jurisdiction (S.14)-

(Discussed at length in the Notes at the end of this topic.)

4) Exclusion of time in certain other cases (S.15)-

In computing the period of limitation where the institution of a suit (or execution of a decree) has been stayed by an injunction or order, the period during which such injunction or order was in force is to be excluded.
In cases where the law requires that a notice should be given or consent or sanction of the Government or any authority should be obtained before a suit is instituted, the period of such notice or period required for obtaining such consent or sanction shall be excluded.
In respect of suits on behalf of an insolvent or a company in liquidation:
1. the period between the date of filing of the petition for adjudication or winding up and the appointment of the receiver or interim receiver;
2. a period of three months thereafter;
shall be excluded in computing the period of limitation.
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 (against the purchaser by the party) has been prosecuted shall be excluded.
In computing the period of limitation for any suit, the time during which the defendant has been absent from India and from territories outside India under the administration of the Central Government shall be excluded.

5) Effect of death on or before the accrual of the right to sue (S.16)-

Where a person who would, if he were living, have a right to institute a suit or application—
1. dies before the right accrues; or
2. the right accrues only on the death of such person;
the period of limitation shall be computed from the time when there is a legal representative capable of instituting such suit or application.
Where a person against whom, if he were living—
1. a right to institute a suit or make an application would have accrued;
2. dies before the right accrues; or
3. the right accrues only on the death of such person;
the limitation period shall be computed from the time when there is a legal representative of the deceased against whom the plaintiff may institute such suit or application.

This section enacts the general principle that unless there is a complete cause of action, limitation cannot run; and unless there is a person who can sue and a person who can be sued, there cannot be a complete cause of action.

However, the above rules do not apply to suits to enforce rights of pre-emption or to suits for possession of immovable property or hereditary offices.

6) Effect of fraud or mistake (S.17)-

(Discussed at length in the note at the end of this topic.)

7) Effect of acknowledgment in writing (S.18, 19 and 20)-

(Discussed at length in the note at the end of this topic.)

8) Effect of substituting or adding a new plaintiff or defendant (S.21)-

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.

Provided 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.

In other words, a suit in which a party is subsequently joined shall be deemed to be instituted as regards him (new party) on the date of his joinder. The date is taken into consideration for computing the period of limitation. The suit may be barred with respect to the newly added party if he is added after the limitation period is over.

9) Continuing breaches and torts (S.22)-

(Discussed at length in the note at the end of this topic.)

10) Suits for compensation for acts not actionable without special damage (S.23)-

In the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results, the period of limitation shall be computed from the time when the injury results.

Note-

1) Exclusion of time of proceeding bona fide in court without jurisdiction (S.14)-

Subsections (1) and (2) of S.14 lay down that, in computing the period of limitation for any suit or application, the time during which the plaintiff (applicant) has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which for defect of jurisdiction or other cause of a like nature is unable to entertain it.

In Basdeo Khemka v. Union of India

The court held that the litigant is entitled as a matter of right to exclude the period spent in infructuous proceeding provided the essential elements of S.14 are satisfied by the plaintiff.

Thus, the person seeking exclusion under this section must prove-

that he had prosecuted the former proceeding in good faith and with due diligence;
that the former proceeding was between the same parties;
that the matter in issue was the same;
that the former court was unable to entertain such suit or application for defect of jurisdiction or other cause of a like nature.

The exception also applies to execution applications (Sub-S.2 of S.14).

Illustration:

For example, when a primary teacher is dismissed by a Government private school, an appeal is filed in the School Tribunal (which has jurisdiction to try appeals against private schools only). On the issue of jurisdiction, the appeal is dismissed.

The teacher filed a civil suit against the Government, but the limitation period was three years from the order of dismissal. The suit was filed after four years and fifteen days (one year was spent in appeal before the School Tribunal). The period spent in appeal will be excluded while computing limitation.

Explanation clause (a)-

According to Explanation clause (a), in excluding time under S.14, the day on which the former suit or application was instituted or made and the day on which the proceeding therein ended shall be excluded.

Explanation clause (b)-

According to this clause, a plaintiff or an applicant resisting an appeal (as the respondent) shall be deemed to be prosecuting a proceeding.

Explanation clause (c)-

According to this clause, a misjoinder of parties or cause of action is deemed to be a cause of like nature with a defect of jurisdiction.

In other words, while computing the period of limitation for any suit or application, the time taken to prosecute it in a wrong court shall be excluded, provided it was prosecuted in that court in good faith.

According to S.2(h) of the Limitation Act, “good faith” means that nothing shall be deemed to be done in good faith which is not done with due care and attention. In other words, an act is said to be done in good faith if it is done with care and attention.

***

(2) Effect of fraud or mistake (S.17)-

Where a person having a right to institute a suit or make an application has, by means of fraud, been kept away from the knowledge—

of such right; or
of the title on which the right is founded,

the limitation period shall be computed from the time when the fraud becomes known to the person defrauded.

Similarly—

where any document necessary to establish such right has been fraudulently concealed from him; or
where the suit or application is for relief from the consequence of a mistake,

the limitation period shall be computed from the time when he first had the means of producing the concealed document or compelling its production, and not from the date of the discovery of the document.

Thus, in order to get exemption under this section, the plaintiff must prove—

that his cause of action has been concealed from him by fraud;
that the fraud is that of the defendant or of a person through whom he claims;
that the suit is filed within time since the discovery of the fraud.

Exception-

Proviso to S.17 provides that 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—

in the case of fraud; or
in the case of mistake; or
in the case of a concealed document,

has been purchased for—

valuable consideration; and
a person who did not know or have reason to believe the defect.

Thus, the innocent purchaser of the property for value, without knowledge of the defect mentioned above, is protected.

According to sub-section (2) of S.17, where the execution of a decree or order within the period of limitation has been prevented by fraud or force of the judgment-debtor, the court may, on the application of the judgment-creditor made after the expiry of the limitation period, extend the period for execution of the decree or order. However, such an application must be made within one year from the date of discovery of the fraud.

***

3) Acknowledgment-

(1) Effect of acknowledgment (S.18)-

Where—

before the expiration of the prescribed period for a suit or application;
an acknowledgment is made—
1. in writing;
2. in respect of any property or right;
3. 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 acknowledgment was so signed (S.18).

In other words, every acknowledgment affords new proof of the existence of the debt. According to the section, the bar of limitation does not operate in a case where the existence of the claim is acknowledged by persons who are under liability.

Thus, the acknowledgment must have been made before the claim became time-barred (i.e., before the prescribed limitation period expires).

According to sub-section (2) of S.18, if the document containing the acknowledgment is undated, oral evidence may be given to prove the date on which it was signed. However, to prove the contents of such acknowledgment, oral evidence is not admissible (if the document is not on record).

An application for execution of a decree or order shall not be deemed to be an application in respect of any property or right (Explanation (c) to S.18).

Explanation (a) to S.18-

According to the explanation, an acknowledgment may be sufficient—

though it omits to specify the exact nature of the property or right; or
avers that the time for payment, delivery, performance or enjoyment has not yet come; or
is accompanied by a refusal to pay, deliver, perform or permit to enjoy; or
is coupled with a claim of set-off; or
is addressed to a person other than a person entitled to the property or right.

In other words, in the above circumstances, the court will presume that the debt stands acknowledged and a fresh period of limitation begins to run from that point.

In Saranghar Singh v. Lakshminarayan

The Court held that an acknowledgment of liability need not be express; it may be inferred by necessary implication.

Explanation (b) to S.18-

This explanation defines the term “signed”, which means signed either personally or by an agent duly authorized on his behalf.

In other words, the person himself or through his agent may acknowledge. An acknowledgment through an authorized agent is also a valid acknowledgment.

(2) Effect of payment on account of debt etc. (S.19)-

S.19 is another attribute of S.18.

It lays down that, where—

payment on account of a debt or of interest on a legacy;
is made before the expiration of the prescribed period;
by the person liable to pay the debt or legacy or by his agent duly authorized in this behalf;
a fresh period of limitation shall be computed from the time when the payment was made.

Explanation (a): Where the mortgaged land is in possession of the mortgagee, the receipt of rent or produce of such land shall be deemed to be a payment.

Explanation (b): The term “debt” in S.19 does not include money payable under a decree or order of a court.

Thus, there are two essential requirements of S.19: first, payment of debt or interest within the prescribed period; and second, acknowledgment thereof.

Example: A took a loan of Rs. 10,000 from B on 01/07/2007. He paid interest on 01/10/2010 (i.e., after 2 years and 3 months). The period of limitation to recover the amount is 3 years. Therefore, B can file a suit to recover the remaining principal and interest within the next 3 years from 01/10/2010 (or from the date of subsequent payment, if any).

(3) Effect of acknowledgment or payment by another person (S.20)-

S.20 explains the expression “agent duly authorized in this behalf” mentioned in Ss.18 and 19. It clarifies that such agent includes—

in the case of a person under disability—
1. his lawful guardian;
2. committee or manager; or
3. an agent duly authorized by such guardian to sign, acknowledge or make the payment.

However, one of several joint contractors, partners, executors or mortgagees shall not, merely by reason of acknowledgment or payment, render the other joint contractors, partners, executors or mortgagees liable (Sub-section (2) of S.20).

Explanation S.20 (3) (a)-

An acknowledgment signed or a payment made, in respect of any liability, by or by the duly authorized agent of any limited owner (such as a widow, etc.) governed by Hindu Law, shall be a valid acknowledgment or payment against a reversioner.

Similarly, where the liability has been incurred by or on behalf of a Hindu Undivided Family, an acknowledgment or payment made by the duly authorized agent of the manager of the family for the time being shall be deemed to have been made on behalf of the whole family.

***

4) Continuing breaches and torts (S.22)-

In the case of—

continuing breach of contract; or
continuing tort,

a fresh period of limitation begins to run at every moment of the time during which the breach or tort continues.

In other words, this section deals with computing the period of limitation in cases of continuous breach of contract or violation of a right (i.e., tort).

The object of this section is to prevent multiplicity of suits and to enable one action to be brought for all loss suffered during the whole period the breach continued.

Continuing breach of a contract-

Where the terms of a contract create rights and duties, a breach of such duty is a wrong called a “breach of contract”.

For example, a breach of contract for quiet possession of property is a continuing breach, and a suit on such breach would not be barred so long as the breach continues. Similarly, a breach of covenant by a tenant to repair the premises of his landlord is a continuing breach so long as the premises remain unrepaired.

Continuing tort-

Where rights and duties are created otherwise than by contract, the breach of such duty is a wrong independent of contract, which is called a “tort”.

In Municipal Board v. Sukhdev Prasad

Facts: Some shops were constructed in the front portion of B’s house, thereby obstructing A’s right of frontage and passage. B filed a suit after approximately 20 years for removal of the obstruction.

Held: The injury was a continuing wrong to B’s right; hence, the suit was not barred by limitation.

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[1] मुदतीची गणना / अवधीची गणना

[2] कायदेशीर प्रक्रियेत गेलेला वेळ वगळणे [कानूनी कार्यवाही में लगा समय को छोड़कर]

[3] निर्धन व्यक्ती म्हणून दावा किंवा अपील करण्यासाठी अर्ज केला असल्यास तो काळ वगळावा [यदि एक निर्धन व्यक्ति के रूप में दावा करने या अपील करने की अनुमति के लिए आवेदन किया जाता है, तो अवधि को हटा दिया जाएगा]

[4] दावा दाखल करण्यास स्थगिती दिली असल्यास त्या स्थगितीचा कालावधी वगळावा [यदि दावा दाखिल करने पर स्थगन दिया जाता है, तो स्थगन की अवधि को समय सीमा से घटा दिया जाता है]

[5] दावा दाखल करण्याचा हक्क प्राप्त होण्यापूर्वी किंवा झाल्यावर मृत्यू झाल्यास त्याचा परिणाम [मुकदमा दायर करने के अधिकार के निहित होने से पहले या बाद में मृत्यु का प्रभाव]

[6] नुकसान झाल्याशिवाय कारवाई न होणाऱ्या कृत्यांबद्दल भरपाईची दावे

[7] अधिकार नसलेल्या न्यायालयातील कार्यवाहीचा काल वगळणे [क्षेत्राधिकार के बिना अदालतों में कार्यवाही के लिए समय का समायोजन]

[8] AIR 1978 Cal. 100.

[9] पावती / स्वीकार [स्वीकृति / पावती]

[10] AIR 1956 Pat. 320.

[11] कर्ज खात्यावर रकमेचा भरणा केल्याचा परिणाम [ऋण खाते पर राशि के भुगतान का प्रभाव]

[12] अन्य व्यक्तीने केलेल्या रकमेत किंवा स्वीकाराचा परिणाम [किसी अन्य व्यक्ति द्वारा भुगतान या स्वीकृति का प्रभाव]

[13] सततचे उल्लंघन, सततचे कराराचे उल्लंघन [लगातार उल्लंघन, अनुबंध का लगातार उल्लंघन]

[14] सततचा अपकृत्य [लगातार दुष्कृत्य]

[15] 1980.

ACQUISITION OF OWNERSHIP BY POSSESSION

ACQUISITION OF OWNERSHIP BY POSSESSION [1]

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