Bar of Limitation and Condonation of Delay

In one line

Section 3 is the bar, and it is mandatory. Sections 4 and 5 are the only two general reliefs from it: the court being closed on the last day, and sufficient cause for delay in an appeal or application.

The bar: section 3

Section 3(1): subject to the provisions contained in sections 4 to 24 inclusive, every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

Three things are packed into that sentence and each earns marks.

"Shall be dismissed." The bar is mandatory. The court has no discretion once it finds the proceeding is out of time.

"Although limitation has not been set up as a defence." It is the court's duty, not the defendant's option. This is what separates limitation from an ordinary defence, and it is why a defendant cannot waive it by silence.

"Subject to sections 4 to 24." The bar is absolute only after the rest of the Act has been applied. The prescribed period is the Schedule's figure as computed under those sections, so exclusions and disability come first and the bar comes last.

Note the asymmetry the section creates. Sufficient cause under section 5 saves an appeal or an application. Nothing saves a suit. A suit filed even one day late is dismissed, subject only to the computation provisions and section 4.

When a suit, appeal or application is "instituted": section 3(2)

The bar depends on a date, so the Act fixes it.

Section 3(2)(a): a suit is instituted:

(i) in an ordinary case, when the plaint is presented to the proper officer (ii) in the case of a pauper, when his application for leave to sue as a pauper is made (iii) in the case of a claim against a company being wound up by the court, when the claimant first sends in his claim to the official liquidator

Section 3(2)(b): any claim by way of set-off or counterclaim is treated as a separate suit and deemed instituted:

(i) in the case of a set-off, on the same date as the suit in which it is pleaded (ii) in the case of a counterclaim, on the date on which the counterclaim is made in court

Section 3(2)(c): an application by notice of motion in a High Court is made when it is presented to the proper officer of that court.

Clause (b) is the one worth dwelling on, because it explains something that otherwise looks arbitrary. A set-off relates back to the date of the plaintiff's suit, while a counterclaim does not: it runs from the day it is actually made. That is consistent with what the two devices are. A set-off is defensive and answers the claim as it stood; a counterclaim is a cross-suit and is treated as filed when it is filed. See [Set-off and Counterclaim].