Sec. 5 Limitation Act – An overview

Sec. 5 Limitation Act - An overview

Extension of prescribed period of limitation An appeal and an application other than an execution application under Order 21 of CPC, may be admitted even after the prescribed period, if the appellant o the applicant satisfies the court that there was sufficient cause for not preferring the appeal or application within time. If he was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period is a sufficient cause within the meaning of Sec.5 The words "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to the applicant [State of WB v. Administrator, Howrah Municipality AIR 1972 SC 749]. Sec. 5, which is a corollary to sec.3, is applicable only to appeals or applications and not to suits. It is so because the maximum period available or permitted to prefer an appeal or an application is already fixed from 1 to 6 months and in case of a suit it will vary from 3 to 12 years. For example, to set aside an ex-parte decree, the applicant should move the Court within 30 days, as mandated by law. And to institute a money claim based on a promissory note, the maximum period allowed is 3 years. If Sec. 5 is invoked in preferring suits, the very purpose of introduction of period of limitation for institution of suits will be frustrated and it will be as good as if there is no period of limitation. The expression 'sufficient cause' should be considered with laxity in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay [State (NCT of Delhi) v. Ahmed Jaan 2008 (10) JT 179(SC)]. The power given to the Courts under Sec.5 is discretionary, yet it has to beexercised in a judicious manner keeping in view the special circumstances ofeach case. The guiding principles can be summarized as follows;

• Ordinarily a litigant does not stand to benefit by lodging an appeal late
• Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when the delay is condoned, the highest can happen I that a cause would be decided on merits after hearing the parties;
• "Every days delay must be explained", does not mean that a pedantic approach should be made. Why not every hours delay or every seconds delay? The doctrine must be applied in a rational common sense, pragmatic manner.
• When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done of a non-deliberate delay
• There is no presumption that delay is occasioned deliberately or on account of culpable negligence, or on account of malafides; A litigant does not stand to benefit by resorting to delay.
• It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds, but because it is capable of removing injustice and it is expected to do so [Collector, L A v.. Mst. Katiji AIR 1987 SC 1353; Sandhya Rani v. Sudha Rani AIR 1978 SC 537]

Sufficient Cause. Under Section 5 of the Act, if the applicant satisfies the court that, he has the sufficient cause for not making the application within the prescribed period, then the court may extend the period of limitation, if it thinks fit and proper to do so. According to section 5 "any appeal or any application, other than an application under any of the provision of Order 21 of the Code of Civil Procedure, 1908, 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". Explanation: - The fact that the appellant or the applicant was mislead by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period, may be sufficient cause within the meaning of this Section. Thus, if Sec. 5 is analysed, it can be very well seen that,

• Section 5 applies to any appeal or any application other than an application under Order 21 CPC.
• The section does not apply to fresh suit.
• The appellant/ applicant shall satisfy the court the reason for the dealy
• The reason must be sufficient
• The appellant applicant was mislead by any order, practice, or judgment of the High Court in ascertaining or computing the prescribed period;
• The Court shall exercise its discretion if it satisfied that each and day's delay is properly explained.

The term sufficient cause implies that the cause of delay mast be reasonable and just.. There shall not be any negligence or inaction or want of bonafide intention on the part of the applicant. It is the exercise of discretionary power of the court to admit the plea of sufficient cause. Sufficient cause is the cause beyond the control of the party invoking the aid of Sec. 5 of the Act. So the test whether it is a bonafide cause, is as much as nothing shall be taken to be done bonafide or in good faith, which is not done with due care and attention. The law recognizes some particular situations as sufficient causes, if explained satisfactorily. The most important situation among them are illness, mistake of court, mistake of counsel, mistake of law etc. The burden of proof is heavy upon the person who wants to get the protection under Sec. 5. Legal disability Disability is the want of legal qualification to act, inability is want of physical power to act. Thus legal disability is want of legal qualification, to sue owing to minority, lunacy, idiocy etc. Law recognises no other ground except minority. lunacy, idiocy and the effect of legal disability is that it extends the period of limitation, but it does not prevent the period from running. Successive disability is meant a disability which is followed by anotherdisability without leaving any gap.

• Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceases, as would otherwise have been allowed from the time specified therefore in the third column of the Schedule.
• Where such person is, at the time from which the prescribed period it to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so specified.
• Where the disability continues up-to the death of that person, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified.
• Where the legal representative referred to in sub-section (3) is, at the date of the death of the person whom he represents. Affected by any such disability, the rules contained in sub-sections (1) and (2) shall apply.
• Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died.

Explanation. For the purposes of this section 'minor' includes a child in the womb. [ Sec. 6]. So, in effect,

• (a) A person who is entitled to file a suit or make an application for execution of a decree is in any disability mentioned above; he may file the suit or institute the application, within the same period after the cessation of such disability.
• (b) If a person under disability suffers or is affected by another disability, he

can file the suit or institute application after cessation of both the difficulties

• (c) If the legal disability continues till the death, his legal representative can initiate proceedings within the same period after the death of the disabled person.

• (d) If the legal representatives are also affected by any of the said disability,the limitation will start running after the recovering from such disability.
• (e) Where a person under disability dies after the disability ceases, but within the period of limitation, his legal representatives may initiate the proceedings within the same period after his death, as would have been available to that person, had he not died.

Minor includes a child in the womb.

Disability of one of several persons Sec.7 is supplementary to Sec.6. When there are several persons jointly entitled to file a suit or make an application for execution a decree, and a discharge can be given even without the consent of one of them, who is under legal disability, period of limitation will run against them all. It is so because, disability of one of them in no way affecting the rights of others to sue or to sue a valid discharge. But if no such valid discharge cannot be given by others without the concurrence of such person under disability, period of limitation will not start running until that person becomes capable of giving valid discharge or concurrence. Sec.7 is applicable to a discharge from every kind of liability including liability with respect to any immovable property. A manager of a Hindu Undivided Family governed by Mitakshara Law will be deemed to be capable of giving a valid discharge, only if he is in the actual management of the joint family property

Continuous running of time

Sec.9 provides that, where once the time has begun to run, no subsequent disability or inability to institute a suit or make an application stop it. It is provided that, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues. Sec.3 provides that subject to the provisions contained in Sec.4 to 24, every suit instituted, appeal preferred or application made after the prescribed period shall be dismissed, though limitation has not been set up as a defence. So if on the date at which the cause of action arose, the plaintiff was under no disability, or inability, then time will run against him, since there is no reason no to invoke the mandate of Sec.3. To the rule that once the time began to run, no subsequent disability or inabilityto institute a suit or make an application stops it, there are some statutory exceptions. They are-

• (1) When the letters of administration to the estate are granted to his debtor [Sec.9 Proviso]
• (2) In computing the period of limitation, prescribed for an appeal, an application for leave to appeal, and an application for a review of a judgment, the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised shall be excluded [Sec. 12].
• (3) The time taken for prosecuting an application for leave to sue as pauper shall be excluded if such leave is necessary [Sec.13].
• (4) When the plaintiff has been prosecuting another proceeding bonafide in a Court without jurisdiction [Sec. 14].
• (5) When the defendant is absent from India [Sec 15].
• (6) When an injunction or order has been obtained to stay the institution ofthe suit [Sec. 15].
• (7) When notice has been given before the institution of the suit in accordance with the law, the running of period of limitation will be suspended during the period of notice [Sec. 15].
• (8) In a suit for possession by a purchaser at an execution sale, the limitationwill be suspended during the time for which proceeding to set aside the sale hasbeen prosecuted [sec. 15].
• (9) Where the person dies on or before the accrual of the right to sue, till the legal representatives initiates the proceedings [Sec. 16].

Exclusion of time in legal proceedings In effect, Sec. 12 would provide that while computing the period of limitationfor any suit, appeal or application,

• (a) The day from which the period of limitation is to be reckoned,
• (b) The day on which the judgment complained of was pronounced,
• (c) The time requisite for obtaining the copy of the decree, sentence, or order appealed from or sought to be revised or reviewed, (d) The time requisite for obtaining the copy of the judgment on which thedecree or order is founded,
• (e) The time requisite for obtaining a copy of award-

shall be excluded.

Exclusion of time in calculating the period of limitation.- In computing the period of limitation for the purpose of calculating the period of limitation, the following days can be excluded. 1. Regarding a suit - the day on which the time begins to run. 2.Regarding an appeal-

• (a) the day on which the time begins to run,
• (b) the day on which the judgment was pronounced, (e) the time needed for obtaining the copy of the decree, judgment, or order as the case may be.

3. Regarding an application for review, revision or leave to appeal-

• (a) the day on which the period begins to run,
• (b) the day on which the judgment was pronounced,
• (c) the time required for obtaining a copy of the decree or order as the case may be.

4. Regarding an application to set aside an award etc.

• (a) the day on which the period of limitation begins to run,
• (b). the time needed to obtain the award or as the case may be, and

5. Regarding any other applications

the day on which the time begins torun shall be excluded.

Period of leave to sue or appeal as pauper The time during which the applicant has applied for leave to sue as a 'pauper shall be excluded. Application must have been made for permission to sue as a pauper in a suit and same is rejected. Such time, which the applicant has spent in good faith for obtaining permission, shall be excluded, in computing the prescribed period, upon payment of courtfees-Sec. 13. Proceedings in incompetent court In computing the period of limitation prescribed for a suit or application, the time during which the plaintiff has been prosecuting with due diligence in another civil proceeding should be excluded. The proceedings in such a case should have been founded upon the same cause of action and is prosecuted in good faith in the court which, from the defect of jurisdiction, or other cause of like nature, is unable to entertain it-Sec. 14, The essential requisites for the applicability of Sec. 14 are that, the party seeking the benefit under Sec. 14 had to affirmatively show that

• (1) he had been prosecuting the previous suit with due diligence;
• (2) the matter in issue in theprevious suit and the new suit are the same;
• (3) the previous suit was prosecuted in good faith, and
• (4) the court was unable to entertain that suit on account of defect of jurisdiction or other cause of a like nature.

Effect of prosecution before a wrong Court on limitation. According to Section 14 of the Limitation Act, if a person has been prosecuting a Civil Proceeding in a Court of wrong jurisdiction in a bonafide manner, then for computing the period of limitation for such suit, the period during which the plaintiff was prosecuting in a wrong court shall be excluded. In other words, it is a statutory protection given to a person who is doing his best to get his case tried on merits in a wrong court. In order to get the benefits of Section 14, the person must have been prosecuting a Civil proceedings, the defendants in the latter suit are the same as in the case of the former suit, the cause of action of the suits are one and the same, the former proceedings were initiated in good faith and due diligence and the earlier Court where the former suit was being tried lacks jurisdiction or other infirmities. If a party to suit or proceedings satisfies all these conditions, the delay caused in proceeding in the wrong court will be excused by the latter court subject to the fulfillment of other conditions applicable for entertaining the latter suit or proceedings. Death on or before the accrual of the right to sue Sec. 16 is applicable only to suits and applications. Where a person dies on or before the date on which the right to sue accrues to him, sec. 16 says that the period of limitation shall be counted from the time when there is a legal representative of the deceased, capable of instituting a suit. Sec.16(2) provides for those cases where a suit has to be instituted against somebody who dies before the institution of such suit or before the accrual of the right. In such cases also, limitation is to be counted from the time, when the legal representative becomes capable of resisting the suit or taking necessary steps for defence. Sec. 16 is not applicable in the cases of -

• (1)pre-emption suits
• (2) suits for possession of immovable property and
• (3) suits for possession of hereditary office.

Effect of fraud or mistake The period of limitation shall be computed from the time, when the fraud became known to the person defrauded. If any person by exercising fraud over the other, kept away him from the knowledge that he has a right to file a suit, limitation will be computed from the time, when such fraud became known to the person so defrauded. Where any document necessary to establish such right has been fraudulently concealed from him, or where the suit or application is for the relief from the consequence of a mistake, period of limitation shall be computed from the time when he first has the means of producing the document or compelling its production, and in a latter case, when the plaintiff or the applicant has discovered the mistake or could have discovered it, it should be from the date of the discovery of the document. So in order to avail the benefits of Sec. 17,

• (i) the cause of action of the plaintiff has been concealed from him by fraud,
• (ii) the fraud has been done by the defendant or a person through him or who claims under him;
• (iii) the plaint has been filed in time since the fraud is discovered.

There are exceptions to Sec. 17 and it is provided that, 'nothing in Sec.17 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,

• (1) in the case of fraud, has been purchased for valuable consideration by aperson who was not a party to the fraud and did not at the time of the purchaseknow or have reason to believe, that any fraud had been committed;
• (2) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made by a person who did not know, or have reason to believe that, the mistake has been made: or
• (3) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed

Thus Sec. 17 aims at keeping the right of a person to sue suspended so long as he is not made aware of the fraud committed against him. Such a period is excluded from the prescribed period of limitation. It is based on the principle that a person should not be deprived of his legal right to sue simply because the period of limitation expired and he could not have the knowledge of fraud exercised over him or likely to be done with him. Sec.17(2) further provides that, where the execution of a decree or order within the period of limitation, has been prevented by fraud or force of the Judgment Debtor, court may, on application of the Decree Holder or Judgment Creditor, made after the expiry of period of limitation, extend the period for the execution of decree or order. Such an application must be made by the Decree Holder or the Judgment Creditor within one year from the date of discovery of fraud or the cessation of force, as the case may be.