Bar of Limitation and Condonation of Delay
Chapter Fifty-Five
Syllabus topic 4.5, "Bar of limitation (S.3-5)"
Pages 326 to 330 of 365
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].
Bar of Limitation and Condonation of Delay
Clause (a)(ii) matters for [Suits by Indigent Persons]: time stops when the application for leave is made, not when the suit is later registered, which protects an indigent applicant from losing his claim during the inquiry into his means.
The court is closed: section 4
Section 4: where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court re-opens.
The Explanation: a court shall be deemed to be closed on any day within the meaning of the section if during any part of its normal working hours it remains closed on that day.
Two points. Section 4 is not an extension of the period: the period still expires on the day it expires, and the section simply permits the filing on the reopening day. And the Explanation is generous, since a court closed for any part of its normal working hours counts as closed.
Note also that section 4 applies to suits as well as appeals and applications, which section 5 does not. It is the only general relief a suit has.
Condonation of delay: section 5
Section 5: any appeal or any application, OTHER THAN an application under any of the provisions of Order XXI 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.
The Explanation: the fact that the appellant or applicant was misled 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 the section.
Take the section apart, because every limb is examinable.
It applies to appeals and applications only. It does NOT apply to suits. This is the single most important fact about section 5 and the most common error in answers. There is no condonation of delay for a suit.
It excludes applications under Order XXI of the Code, that is execution applications. The reason is practical: execution proceedings would never end if every application in them could be filed late on sufficient cause. See [Meaning of Execution and the Court which Executes].
The test is "sufficient cause". The Act does not define it, and it is deliberately elastic. What can safely be said is that the cause must explain the whole of the delay, must be shown by the applicant, and that the question is whether he acted with reasonable diligence rather than whether his explanation is ingenious. A party who was genuinely prevented has sufficient cause; a party who simply did not bother has not.
Bar of Limitation and Condonation of Delay
Admission is discretionary. The section says the appeal or application may be admitted. Sufficient cause opens the door; it does not compel the court to walk through it.
The Explanation supplies one accepted instance: being misled by an order, practice or judgment of the High Court in ascertaining or computing the period.
Order XLI Rule 3A of the Code supplies the procedure for a late first appeal: it must be accompanied by an application supported by affidavit stating the sufficient cause, and where the Court sees no prima facie case for condonation it may refuse to admit the appeal. See [Appeals from Original Decrees].
Section 4 against section 5
These two are the reliefs and they are constantly confused.
| Section 4 | Section 5 | |
|---|---|---|
| Applies to | Suits, appeals and applications | Appeals and applications only, not suits |
| Excluded | Nothing | Applications under Order XXI of the Code |
| Trigger | The period expires on a day the court is closed | The party had sufficient cause for the delay |
| What it gives | The right to file on the reopening day | A discretion to admit the late filing |
| Proof needed | The court's closure, a matter of record | Sufficient cause, to be established by the applicant |
| Nature | A right | A discretion |
The clean distinction to state: section 4 deals with a period that ended on a closed day, and section 5 with a party who was late.
A worked example
Omkar's period to file a suit for recovery of a debt expires on 26 January, which is a court holiday.
Is he out of time if he files on the 27th? No. Section 4 lets him institute the suit on the day the court re-opens. And by the Explanation, the court counts as closed if it was closed during any part of its normal working hours.
Suppose instead he simply filed three weeks late. Section 5 does not help him: it applies to appeals and applications, not to suits. Section 3 requires the court to dismiss the suit, and it must do so even if the defendant never raises limitation.
Suppose it were an appeal filed three weeks late. Section 5 applies. He must satisfy the court that he had sufficient cause for the whole period of delay, and admission is still discretionary. Under Order XLI Rule 3A his appeal must be accompanied by an application supported by affidavit stating that cause.
Bar of Limitation and Condonation of Delay
His reason is that he relied on a practice of the High Court in computing the period. The Explanation to section 5 says that may be sufficient cause.
Suppose it is an application under Order XXI to execute a decree. Section 5 is expressly excluded and the delay cannot be condoned under it.
Change the claim. Suppose Omkar is the defendant and wants to raise a set-off whose own period expired last month. Section 3(2)(b)(i): a set-off is deemed instituted on the same date as the suit in which it is pleaded, so what matters is whether it was in time when the plaintiff sued.
And if he raises it as a counterclaim instead? Section 3(2)(b)(ii): a counterclaim is deemed instituted on the date it is made in court, so it may well be time-barred where the set-off would not have been. That single difference can decide a case.
Suppose he applied for leave to sue as an indigent person before the period expired, and the inquiry into his means took months. Section 3(2)(a)(ii): the suit is instituted when the application for leave was made, so the delay in the inquiry does not defeat him.
What it does not mean
Section 3 is not a defence to be pleaded. The court applies it of its own motion.
Section 5 does not apply to suits. There is no condonation of delay in filing a suit.
Section 5 does not apply to execution applications under Order XXI.
Section 4 does not extend the period. It permits filing on the reopening day where the period expired on a closed day.
Sufficient cause does not entitle a party to admission. The section is discretionary.
A counterclaim does not relate back like a set-off. Section 3(2)(b) treats them differently on purpose.
Quick revision
Section 3(1): every suit, appeal or application after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Subject to sections 4 to 24.
Section 3(2): a suit is instituted when the plaint is presented to the proper officer; for an indigent person, when the application for leave is made; against a company in winding up, when the claim is first sent to the official liquidator. A set-off is deemed instituted on the date of the suit; a counterclaim on the date it is made in court.
Section 4: where the period expires on a day the court is closed, the proceeding may be brought on the day the court re-opens; a court is closed if shut during any part of its normal working hours.
Bar of Limitation and Condonation of Delay
Section 5: any appeal or application, other than an application under Order XXI of the Code, may be admitted after the prescribed period on sufficient cause being shown. Not available for suits. Admission is discretionary. Explanation: being misled by an order, practice or judgment of the High Court may be sufficient cause.
Test yourself
1. State the bar in section 3. Subject to sections 4 to 24, 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.
2. When is a suit instituted for the purposes of the Act? In an ordinary case 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 being wound up by the court, when the claimant first sends in his claim to the official liquidator: section 3(2)(a).
3. How are a set-off and a counterclaim treated? Each is treated as a separate suit. A set-off is deemed to have been instituted on the same date as the suit in which it is pleaded, and a counterclaim on the date on which it is made in court: section 3(2)(b).
4. What is the effect of the court being closed on the last day? Under section 4, where the prescribed period expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day the court re-opens. A court is deemed closed if during any part of its normal working hours it remains closed on that day.
5. Can delay in filing a suit be condoned? No. Section 5 applies only to appeals and applications, and not to suits. A suit filed after the prescribed period must be dismissed under section 3, subject only to the computation provisions and to section 4.
6. Which applications are excluded from section 5? Applications under any of the provisions of Order XXI of the Code of Civil Procedure 1908, that is applications in execution.
7. Give one instance the Act itself accepts as sufficient cause. The Explanation to section 5 provides that the fact that the appellant or applicant was misled 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 the section.
The rest of this subject
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