Limitation for filing of suits and cases, Calculation of

limitation, condonation of delay with focus on section

28 and Articles 142 and 144 of the Limitation Act

Justice S.M. Saiful Islam

High Court Division
Supreme Court of Bangladesh

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 Limitation Act, 1908 (Act No. VIII of 1908)

General Discussion on Limitation

The law of limitation has its roots in the two maxims, namely:
1. Interest reipublicae ut sit finis litium (in the interest of the state as a whole
there should be a limit to litigation)
2. Vigilantibus non dormientibus jura subverniunt (law will assist only those
who are vigilant with their rights)

Historical Backgrounds:
The Limitation Act was first enacted in 1859 which came into operation in
1862
The Act of 1859 was repealed in 1871 and 1877 respectively
Lastly, for the purpose of consolidating and making it more effective, the Act
of 1908 was re-enacted which came into force on and from the 1 st January
1909.

Scheme of the Act:

The First Schedule has three divisions outlining limitation periods for:
1. Suits (Arts. 1- 149),
2. Appeals (Arts. 150- 157), and
3. Applications (Arts. 158-183)

Limitation under general, special law and criminal proceedings:

The general law of limitation is applicable only in general cases
If a local or special statute specifies a limitation period, the Limitation Act,
1908 does not apply.
The Limitation Act generally doesn’t apply to criminal cases unless the
statute sets a specific time limit for filing a complaint.

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 Limitation for Filing of Suits
Dismissal of suits, etc., instituted, etc., after the period of limitation [section-3]
Every suit instituted, appeal preferred and application made after the period
of limitation shall be dismissed.
It is obligatory to dismiss the suits, appeals and applications on the ground of
limitation, though not pleaded.

How to determine such an institution of suit, appeal or application?

 in case of suit: when the plaint is presented to the proper officer,
 in case of pauper: when the application for leave to sue as a pauper is made,
 in case of a claim against a company: when the claimant first sends in his
claim to the official liquidator.
Time barred suit must be dismissed:
Time barred suit must be dismissed and a rejection of plaint in such a case is a
dismissal of the suit. Hence, subsequent suit in respect of the same cause of action
and subject matter is barred by res judicata. [20 DLR WP 113]

Plea of limitation can be raised at any stage:

Failure to plead the bar of limitation in the original court does not prevent a party
from raising it later; even such plea can be raised at the court of last resort. But for
that, there must be sufficient material on the record to decide such question. [Agha
Mir Ahmed vs Agha Mir Yakub, PLD 1957 Karachi 258, Islamic Republic of
Pakistan Vs. Nazar Din Khattak, 21 DLR (WP) 367]

Court’s Duty to Dismiss Time-Barred Suits:

Omission by plaintiff to plead limitation does not preclude court from dismissing
time-barred suit [21 DLR WP 367]. Even if the issue of limitation has not been
pressed the court is legally bound to see and decide the issue [ Ferozi Vs Md Aslam
2001, MLR 401]
When question of limitation is a question of fact and not raised by the parties:
No doubt under section 3 of the Limitation Act, every suit instituted after the period
of limitation has to be dismissed even if limitation has not been set up as a defence,
yet it does not override the general rule of procedure that the court ordinarily
should not raise and decide a question of fact on its own motion. The question of
limitation may be one of fact or of law; if former the court is not bound to go into it
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unless raised by the parties, and, if later the court is as a general rule bound to raise
it and decide it, although not raise by the parties [ Umar Vs. Afridal PLD 1954
Peshwar 96]

Each claim is governed by its own period of limitation:

Where the plaintiff asked for two reliefs in the same suit and each of them had a
different period of limitation, each relief is governed by its own period of limitation.
[PLD 1956 WP Lahore 689]

Parties by consent, agreement or conduct cannot extend or alter the period of

limitation. [17 CWN 518]
When an objection is taken that a suit is time barred , the onus is on the plaintiff to
prove that it is within time [ 2 DLR 310 PC]
Where the court is closed when the period expires [section-4]
 If the limitation period ends on a day the court is closed, the case can be filed
on the day the court reopens.
 The court room may be open on a day, but it may not be possible to transact
any business therein on that day, just as on a holiday, and if that be so, the
court will have to be deemed to be closed on that day for the purposes of
section 4 of the Limitation Act. [ Nazar Muhammad vs Murad Ali, PLD
1960 (WP) Lahore 757]

Condonation of Delay
Condonation of delay, under Section 5 of the Limitation Act, 1908, refers to the
court's power to overlook a delay in filing a legal proceeding beyond the prescribed
limitation period. The court may condone the delay if the party seeking relief
demonstrates "sufficient cause" for the delay, meaning they had a valid reason for
not filing within the time limit.

Extension of period in certain cases [section-5]

An appeal, revision, review, or any other application can be admitted after the
prescribed limitation period if the appellant or applicant proves to the Court that
they had a valid reason for not filing within the time limit.

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What Constitutes a Sufficient Cause?
Sufficient cause can properly be said to be a cause which is beyond the control of
the party invoking the aid of the section. A cause for delay which by due care and
attention, the party could have avoided cannot be a sufficient cause. The test,
therefore, whether or not a cause is sufficient is to see whether it could have been
avoided by the party by the exercise of due care and attention. In other words,
whether it is a bonafide cause, inasmuch as nothing shall be deemed to be done
bonafide in good faith which is not done with care and attention. [Said Muhammad
Vs. Goma, PLD 1952 ]
 Section-5 does not apply to suits; it is applicable only to appeals and
applications.
 Whether the cause shown is sufficient or not depends on judicial discretion of
the court. But such discretion must be exercised judicially and not arbitrarily.
 If the delay is due to wrong legal advice, the court must be satisfied that the
advice was given in good faith, with due care and caution. [18 DLR WP 99]
 A person seeking condonation of delay must explain the delay for every day.
[9 MLR 08]
 Ignorance of the law, coupled with circumstances demonstrating good faith
and due diligence, may constitute a valid ground for condoning the delay..
[25 DLR 203]
 A lawyer's mistaken advice may constitute sufficient cause for condoning
delay in certain cases; however, once the limitation period expires, the
applicant must justify each day's delay. [45 DLR 381]
 Even in the absence of a separate petition, the court is entitled to condone
delay when it is necessary in a given circumstance [Hakim Ullah Vs Mutaleb
49 DLR 118, 40 DLR 239]
 While determining sufficient cause, the Court should be lenient and should
overlook some negligence that is an ordinary incident of human affairs, but
gross negligence cannot be condoned [ 10 DLR(WP)75]
 The Court has no power to condone the delay in filing those applications to
which section 5 of the Limitation Act has not been made applicable [Kaza
Romakotayya Vs Nimmagadda AIR (33) 1946 Madras 381 (DB)]
 Condonation with regard to Government- In dealing with the application
under section 5 of the Act, in case of Government, public interest has to be
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 duly considered and various authorities formalities and complications are
involved, and, as such, the Government require a longer time in making the
decisions and acting on it. If on behalf of the Government a reasonable
explanation of delay is given, there is no reason why it should not be
accepted [ Circle Officer Sutrapur Vs Mohammad 43 DLR 84]

Legal Disability and Limitation Periods [section-6]

1. Extension Due to Disability: If a person is a minor or insane, or mentally
disabled when the period limitation is to start, he can file a case or application
after the disability ends, within the same limitation period.
2. Multiple Disabilities: If a person has multiple disabilities, he can file the suit
or application within the same period after all disabilities end.
3. Disability Until Death: If the disabled person dies before the disability ends,
their legal representative gets the same period from the date of death.
4. Representative also Disabled: If the legal representative is also disabled, the
same rules apply to them.
 Section 6 has no application to a question of limitation where limitation is
prescribed by a special law [PLD 1952, Dhaka 79].
 Minors cannot get benefit of section 6 in preferring appeals [21
DLR(WP)140]
 Disability must exist at the time from which the period of limitation is to
be reckoned
Disability of one of several plaintiffs [section-7]

If one of several persons jointly entitled to institute a suit or proceeding is disabled:

If the others can act without the disabled person, time runs against all.
If they can’t act without the disabled person, time will not run against any of
them.

Special exceptions [section-8]

Sections 6 and 7 don’t apply to pre-emption suits and can’t extend the filing period
beyond three years after the disability ends or the person dies.

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  An extension of up to three years under Section 8 is available only if the
usual limitation period for filing suits is shorter than three years. [Abdullah
Kunjipokkarukutty vs Ayyappan Ravunnoy AIR 1973 Kerala, 192, 195]
 Plaintiff whose property has been alienated by his mother during his minority
need not set aside the transfer which is void, but he can institute a suit for
possession within twelve years from the date of sale or within three years
from the date of his attainment of majority whichever may be the later date. If
the suit is not so instituted his title in the property would be extinguished
under section 28 of the Act and the subsequent suit would be barred by
limitation. [Kasem Molla Vs. Fajel Sheikh, PLD 1952 Dhaka 347]

Continuous running of time [section-9]

Once the limitation period begins, no later disability can halt its course.

Suits against express trustees [section-10]

No suit against a trustee or his representative in respect of the trust property or
proceeds shall be barred by any length of time.

Suits on foreign contracts (section-11]

Suits instituted in Bangladesh on foreign contracts are subject to the rules of
limitation and no foreign rules of limitation shall be defence in such a case.

Extinguishment of right to property [section-28]

Upon expiry of the prescribed limitation period for a suit for possession, the
individual's legal right to the property is extinguished.
 Section 28 is the exception to the general principle of the limitation law that
the lapse of time only bars the remedy but does not extinguish the right.
Under section 28 both the right and the remedy to get back the possession of
property are lost on the expiry of certain time.
 Permissive possession, however long, cannot bestow title upon the
possessor. [52 DLR (AD)121].
 A transferee in adverse possession for over 12 years, even under an invalid
transfer, gains an indefeasible title. [1 MLR (AD) 71]

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  There is no adverse possession where the relationship is that of landlord and
tenant even when the tenant continues to be in possession after termination of
the lease. [6 BLD (AD) 297]
 Possession of a co-sharer in a joint land for even more than 12 years shall not
constitute adverse possession as against other co- sharers [ Probir Kumar Vs.
Abdus Sabur 14 BLC (AD)28]

Articles 142 and 144 of the Limitation Act

Article 142: It deals with a case when a plaintiff while in possession of his property
has been dispossessed or discontinued the possession. Such a suit must be brought
within twelve years from the date of dispossession. Therefore the plaintiff who sues
for recovery of possession of the land alleging that while in possession of such
property he was dispossessed, Article 142 applies. The burden of proving the date
of dispossession would be on plaintiff, who in order to succeed must show that the
dispossession was not prior to 12 years before the suit was filed.

Article 144: It is a residuary article and applies to all other suits for possession
which are not specifically covered by other articles. A plaintiff who was never in
possession but has acquired a title which entitled him to possession and brings a suit
for possession then the limitation would be governed by Article 144 of the
Limitation Act. Under this article, the period of limitation is 12 years which runs
from the date when the possession of the defendant becomes adverse to the plaintiff.
Calculation of Limitation

Exclusion of time in legal proceedings [section-12]

1. The day from which the limitation period starts is excluded.
2. For appeals, leave to appeal, or review applications, the day the judgment
was pronounced and the time to get a copy of the decree/order are excluded.
3. For appeals or review applications, the time to get a copy of the judgment on
which the decree is based is excluded.
4. For setting aside an award, the time to obtain a copy of the award is excluded.

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  Time starts from the date of the judgement and not from the decree. The time
that elapses between the date of judgement and the signing of the decree is
the time requisite for obtaining copy of the decree and should be excluded,
provided application is made before signing of the decree. The day on which
the copies are applied for and the day on which they are delivered are
excluded.
 A time once exhausted can not be called back. Therefore to keep alive the
ordinary period of limitation provided by section 12(2) of the Limitation Act,
it is essential that an application to obtain the requisite copy must be made
before the ordinary period of limitation for the appeal comes to an end.
 The date of the decree is the date when the judgment is signed even though
the decree may be signed at a later date [Falan Chandra Vs Monmohon, 8
DLR 597, Baroda Prosonno Vs Kobbad Mia 13 DLR 765]
 For the purpose of computing the period of limitation, the starting point is the
date on which decree is signed and not the date on which judgment is signed [
19 DLR (SC) 236].

Exclusion of time of defendant’s absence from Bangladesh and certain other

territories [ Section 13]
In computing the period of limitation, the time during which the defendant has
been absent from Bangladesh shall be excluded.

Exclusion of time of proceeding bona fide in Court without jurisdiction

[section-14]
1. While calculating limitation for a suit, time spent by the plaintiff diligently
pursuing a related civil case (on same cause of action) in a wrong court—due
to lack of jurisdiction or similar issue—is excluded, if done in good faith.
2. The same rule applies to applications seeking the same relief against the same party.

Explanations:
1. Both the filing and closing dates of the earlier proceeding are included in the
exclusion.
2. A person defending an appeal is also considered to be prosecuting a
proceeding.

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 3. Misjoinder of parties or causes of action is treated like a jurisdictional defect.

To invoke Section 14 of the Limitation Act, the plaintiff must show:

1. Diligent prosecution of the earlier suit in a court lacking jurisdiction,
2. The previous suit was based on the same cause of action.
3. It was prosecuted in good faith. The expression good faith involves due care
and attention.
4. The court couldn't entertain it due to a jurisdictional defect or similar reason.

Exclusion of time during which proceedings are suspended [section-15]

1. If a suit or execution of decree is stayed by an order or injunction, the
duration of the stay, including the start and end days, is excluded from the
limitation period.
2. If a suit requires prior legal notice, the period of such notice is also excluded
in computing the period of limitation. Entire period of notice under section
80, CPC must be excluded from period of limitation.

Exclusion of time during which proceedings to set aside execution-sale are

pending [section-16]
In a suit for possession by a purchaser at a sale in execution of a decree, time spent
in the proceeding to set aside the sale is excluded.

Effect of death before the right to sue accrues [section-17]

1. If a person entitled to sue or apply dies before the right arises, limitation
starts when a legal representative is available.
2. If the person to be sued dies before the right arises against him, limitation
starts when their legal representative is available.
3. This doesn’t apply to pre-emption suits or suits for possession of immovable
property or hereditary offices.
Effect of fraud [section-18]
When a person’s right to file a suit or make an application is concealed due to fraud
—either by hiding the right itself or by withholding a key document—then:
 The time limit to sue against the person responsible for the fraud, or anyone,

who claims through them otherwise than in good faith, begins only when the

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 affected person first becomes aware of the fraud or gains access to the
concealed document.
 If fraud is proved, then there is no question of limitation and it will run from
the date when fraud was detected [32 DLR (AD) 167]
 To constitute fraud, there must be some abuse of confidential positions, some
intentional imposition or some deliberate concealment of facts, a designed
fraud by which a party knowing to whom the right belongs, conceals the facts
and circumstances giving the right.

Effect of acknowledgement in writing [section-19]

1. If a written acknowledgment of liability in respect of right or property is
made before the limitation period ends, a fresh limitation period starts from
the date the acknowledgment is signed.
2. If the acknowledgment is undated, oral evidence can show when it was
signed, but the contents cannot be proved by oral evidence.
Explanations:
 An acknowledgment may be sufficient even if it doesn’t specify the property

or right, or is accompanied by refusal to pay or with claims for set-off.

 "Signed" means either personally or by an authorized agent.

 An application for execution of decree or order counts as an application

regarding a right.
 Acknowledgement made after expiry of the period of limitation: Limitation

cannot be extended [ PLD 1959 (WP) Karachi 611]

 Acknowledgement to third person is sufficient: Acknowledgement need not

be addressed to the creditor himself, but can be made to anybody.

 No cause of action can be founded on acknowledgement. An

acknowledgement gives a fresh start, it only extends period, but does not
confer title.
 When a person admits that a claim once existed, but also says that it has been

paid, the acknowledgement is not sufficient, although plaintiff proves that the
claim has not been paid.

Effect of payment on account of debt or of interest on legacy [Sec. 20]

Where payment on account of debt or interest on a legacy is made before the
expiration of the prescribed period by the person liable to pay or by his agent, a
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fresh period of limitation shall be computed from the time when the payment was
made.
Effect of substituting or adding new plaintiff or defendant [section-22]
1. If a new plaintiff or defendant is added or substituted in a suit, the suit is
considered to have started as regards them when they were added.
2. This doesn’t apply if a party is added or substituted due to assignment,
devolution of interest, or if a plaintiff becomes a defendant or vice versa.

Continuing breaches and wrongs [section-23]

For a continuing breach of contract or a continuing wrong (independent of
contract), a new limitation period begins each time the breach or wrong continues.

Suit for compensation for act not actionable without special damage [section-24]
For compensation suits where injury must occur to create a cause of action, the
limitation period starts from when the injury actually happens.

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