E-book: The Limitation Act, 1908 for BJS Written Exam. Chapter: I
📚 E-book: The Limitation Act, 1908 for BJS Written Exam
Chapter: I
General Principles,
Nature, Scope, and Object
This section covers the foundational aspects, purpose, and legal
nature of the Act.
·
Describe the nature, scope and object of the Limitation Act,
1908. (4th BJS, 2008)
·
What are the objects of Law of limitation? (5th BJS, 2010)
·
Discuss the policy behind the Limitation Act, 1908. (9th BJS,
2014)
·
The law of Limitation is an adjective law -Justify your opinion.
(9th BJS, 2014)
·
What are the perspectives of enacting the Limitation Act, 1908?
(15th BJS, 2022)
·
What are the differences between limitation and prescription?
(5th BJS, 2010)
⚖️ The Limitation Act, 1908: Nature, Scope, and Object
The Limitation Act, 1908, is a foundational law in the legal
system of Bangladesh (and was originally applicable in the broader Indian
subcontinent). It is concerned with the timeframe within which an aggrieved
party must approach a court for legal redress.
1. Nature of the Act
·
Adjective Law: The Act is primarily an adjective or procedural law, not a substantive law.
o
Meaning: It does not create or define any rights or causes of action
(which is the job of substantive laws, like the Contract Act). Instead, it
regulates the procedure for enforcing existing rights in a court of
law.
·
Bars the Remedy, Not the Right: A crucial principle is that the Act generally
only bars the remedy (the ability to sue in court) after the
prescribed time, but it does not extinguish the right
itself.
o
Example: If a debt becomes 'time-barred' (limitation period is over),
the right to recover the money through a lawsuit is lost. However, if the
debtor chooses to pay the debt later, they cannot demand the money back, as the
right to the money still existed.
2. Scope of the Act
The Act is comprehensive in its application to various legal
proceedings:
·
Applies to Civil Proceedings: It applies to all Suits,
Appeals, and Applications filed
in civil courts, subject to the specific time periods detailed in the Schedule.
o
The term "suit" does not include appeals or
applications.
·
Fixes Time Limits: The scope involves specifying a particular
period (e.g., 3 years for contract suits, 12 years for possession of immovable
property) within which a legal action must be initiated
from the date the cause of action arises.
·
Excludes Time: It also prescribes rules for the computation and exclusion of time, such as:
o
Exclusion of the time required to obtain copies of a
judgment/decree for filing an appeal.
o
Extension of the period in cases of legal disability
(like being a minor or of unsound mind) or when there is sufficient cause (like illness, or bona fide mistake in
choosing the court) for the delay.
3. Object of the Act
The Limitation Act is based on maxims of public policy and
equity. Its main objects are:
·
To End Litigation (Interest Republicae Ut Sit Finis Litium): The primary object is
to bring finality to disputes. The law aims to prevent grievances from being
kept pending indefinitely, ensuring that parties cannot prolong litigation for
an unreasonable time.
·
To Aid the Vigilant, Not the Indolent (Vigilantibus Non
Dormientibus Jura Subveniunt): The law protects people who are diligent and pursue their rights promptly. It
discourages negligence and 'sleeping on one's rights.' If someone fails to seek
legal remedy within the statutory period, they forfeit their chance.
·
To Prevent Disturbance of Vested Rights: Over time, possession
or the state of affairs may change. Allowing very old claims to be enforced
would destabilize ownership, peace, and security in society. The Act helps to
quiet title to property by ensuring long-undisturbed possession is protected
(e.g., through the acquisition of easements or ownership by
prescription/adverse possession).
·
To Preserve Evidence: After a long lapse of time, evidence (both
documentary and testimonial) is likely to be lost or unreliable. The Act forces
people to file cases when evidence is still fresh and available.
🎯 Objects and Policy of the Law of Limitation (The Limitation Act,
1908)
The Law of Limitation is a procedural law rooted deeply in
public policy. Its object is not to create or define rights, but to impose a
time-limit on how long a person can delay approaching the court to enforce
their existing rights.
The primary objects of the Limitation Act, 1908, are based on
several fundamental legal maxims:
|
Legal Maxim |
Meaning |
Object of the Act |
|
1. Interest Reipublicae Ut Sit Finis Litium |
It is in the interest of the state that there should be an end
to litigation. |
To Bring Finality to Disputes: The most important object is to prevent the
never-ending possibility of litigation. The law dictates that a dispute must
be resolved or put to rest within a fixed period, which ensures judicial
efficiency and public peace. |
|
2. Vigilantibus Non Dormientibus Jura Subveniunt |
The law aids the vigilant and not those who sleep upon their
rights. |
To Reward Diligence and Punish Laches: This object encourages
people who have a cause of action to pursue it promptly. If a person is
negligent or "sleeps on their rights" for an extended period, the
law will not help them. |
|
3. Delay Defeats Equity |
A person who delays in asserting a right will lose the court’s
help. |
To Promote Certainty and Security of Title: By extinguishing the
judicial remedy for stale claims, the law protects the current state of
affairs and the long-undisturbed possession of property. This prevents old
liabilities from hanging over individuals indefinitely, ensuring market
stability and security of title. |
Detailed Explanation
of the Objects
1. Preventing Stale
Claims (Preservation of Evidence)
The Act recognises that with the passage of time:
·
Evidence is lost or destroyed: Documents get misplaced, and witnesses may
die or their memories fade.
·
Defense becomes impossible: It becomes extremely difficult for a
defendant to defend a suit based on facts that are years or decades old.
The law sets a time limit to ensure that legal action is taken
when evidence is fresh and reliable, allowing for a just and fair trial.
2. Quieting Title and
Establishing Security (Adverse Possession)
·
The Act not only bars a judicial remedy (Section 3) but, in
certain cases involving property, also extinguishes the right itself
(Section 28).
·
For example, if a person remains in adverse possession
(hostile possession against the true owner) of immovable property for the
prescribed period (usually 12 years in Bangladesh), the right of the true owner
to recover that property is lost, and the possessor gains a new title.
·
This objective is crucial for maintaining the social order and
the certainty of property ownership.
3. Serving as a Rule
of Procedure (Adjective Law)
The Act serves a procedural object: it
provides the machinery to manage the flow of civil justice.
·
It makes the court's job clear: if a suit, appeal, or
application is filed after the expiry of the prescribed period, the court must dismiss it, even if the opposite party (the
defendant) does not raise the defense of limitation (Section 3). This mandatory
requirement ensures that the time limit is respected as a matter of law.
In essence, the Limitation Act is a benevolent law of peace and
repose. It sacrifices the private interest of a negligent person to sue in
favour of the larger public interest of finality, stability, and reliable
justice.
📜 Policy Behind the Limitation Act, 1908
The Law of Limitation is not just a collection
of deadlines; it is a vital part of the public policy governing civil justice. The policy behind the
Limitation Act, 1908, can be discussed under three main heads, which are
derived from classical legal maxims.
1. Policy of Repose (Interest Reipublicae Ut Sit Finis Litium)
This is the paramount policy, meaning: "It
is in the interest of the State that there should be an end to litigation."
·
Finality and Certainty: The law prevents the perpetual possibility of
lawsuits. If claims could be brought up at any time, uncertainty would reign
in business, property ownership, and personal affairs. The Act ensures that
after a specified period, a person can live without the threat of a potential
lawsuit regarding an old matter.
·
Judicial Efficiency: Courts would be overwhelmed with ancient
disputes where facts are hard to ascertain and evidence is lost. By
establishing a fixed cut-off date (like 3 years for contract suits or 12 years
for property suits), the Act allows the judicial system to focus on current,
timely disputes.
2. Policy Against Indolence (Vigilantibus Non Dormientibus Jura
Subveniunt)
This policy means: "The law assists
those who are vigilant, not those who sleep upon their rights."
·
Encouraging Diligence: The law is intended to be a shield for the
defendant, not a weapon for the plaintiff. It pressures the aggrieved party
(plaintiff) to seek their remedy through the court system promptly after the cause of action arises.
·
Protecting the Defendant: The defendant should not have to preserve
evidence, documents, and memories indefinitely.7 After the limitation period has passed, the defendant gains a kind
of "right to peace," knowing that the stale claim can no longer be
judicially enforced.
3. Policy of Evidence
Preservation and Security of Title
·
Reliable Justice: Time inevitably affects the quality of
evidence. Witnesses may forget details or die, and documents may be lost or
destroyed. If a case is filed years later, the court cannot arrive at a fair
and reliable conclusion. The Act enforces action while evidence is fresh.
·
Extinguishment of Rights (Adverse Possession): In certain crucial cases,
particularly those involving the possession of immovable property (Section 28),
the Act goes beyond barring the remedy; it extinguishes the right itself
of the true owner who failed to act within the prescribed 12-year period. This is the strongest
expression of the policy to quiet title and
protect long-undisturbed possession, thereby promoting social security and
stability.
Key Takeaway
The policy of the Limitation Act, 1908, is a pragmatic
compromise. While it may sometimes prevent the enforcement of a legitimate, but
delayed, right, it does so to serve the greater public good by promoting
certainty, discouraging negligence, and ensuring that judicial resources are
spent on current disputes where a fair trial, based on reliable evidence, is
still possible.
⚖️ Justification: The Law of Limitation is an Adjective Law
The statement that the Law of Limitation is an
Adjective Law (also called Procedural Law) is generally correct
and is supported by the fundamental principles of the Limitation Act, 1908.
Understanding the
Difference
To justify this, we must first understand the distinction
between the two main types of law:
|
Type of Law |
Function |
Example |
|
Substantive Law |
Creates, defines, and regulates rights, duties, and liabilities
(The 'What' of the law). |
The Contract Act defines what a valid contract is and the right
to sue for breach. |
|
Adjective Law (Procedural) |
Prescribes the method, machinery, and procedure for enforcing
those rights in a court of law (The 'How' of the law). |
The Code of Civil Procedure (CPC) dictates how a suit is filed
and conducted. |
Justification for the
Act being Adjective Law
The Limitation Act, 1908, is classified as an adjective law for
the following compelling reasons:
1. It Only Bars the Remedy, Not the Right
The most important justification is the
principle: The Limitation Act bars the remedy, but does not extinguish the
right (except in one specific instance under Section 28).
·
Remedy is Barred: After the prescribed time limit expires, the
court's doors are closed for the specific legal remedy (the power to
sue).
·
Right Persists: The underlying right or the legal
obligation itself remains.
o
Example: If a debt is time-barred (e.g., the 3-year period for recovery
has passed), the creditor cannot sue for it. However, if the debtor later
voluntarily pays the time-barred debt, they cannot demand the money back, as
the moral and legal obligation to pay (the right) still exists. This clearly shows the law is regulating the procedure (the
suit) and not the substance (the right).
2. It Regulates the Judicial Process
The entire Act is dedicated to regulating the
timeline for approaching a court, which is a matter of procedure.
·
Mandatory Dismissal (Section 3): The Act mandates that every
suit, appeal, or application filed after the prescribed period must be
dismissed, even if the defendant does not raise the plea of limitation.9 This
mandatory instruction to the court governs the procedure of entertaining a
case.
·
Computation and Extension: The rules governing the exclusion of time
(e.g., time taken for obtaining certified copies) and the extension of time in
certain cases (condonation of delay under Section 5) are purely procedural tools meant to ensure fairness within the
judicial machinery.
3. It Does Not Create Causes of Action
The Limitation Act does not define what a breach of contract is,
what negligence is, or what constitutes property ownership. These substantive
definitions are provided by other laws (like the Contract Act, Penal Code, or
Transfer of Property Act).
·
The Limitation Act simply takes the rights and causes of action
defined by substantive laws and puts a time constraint on their
enforcement.
Exception to the
General Rule (Substantive Aspect)
It is important to note the single major
exception where the Limitation Act does touch upon a substantive
right:
·
Section 28 (Extinguishment of Right to Property): This Section
specifically provides that when the period limited to institute a suit for possession of immovable property has expired, the right
of the person to such property shall be extinguished. This
provision is considered a substantive part of the Act, as the lapse of time
destroys the legal right entirely and allows the adverse possessor to acquire a
new, absolute title.
Conclusion: Despite the substantive element in Section
28, the overwhelming majority of the Act's provisions and its governing
principle—that it merely bars the remedy—confirm its nature as primarily an Adjective or Procedural Law.
📜 Perspectives of Enacting the Limitation Act, 1908
The Limitation Act, 1908, was enacted to consolidate and amend
the law relating to the time limit for civil suits, appeals, and applications.
The perspectives, or underlying reasons and policy considerations, for
establishing this law are centered on public utility, justice, and legal efficiency.
These perspectives can be grouped into the following three
fundamental policies:
1. The Perspective of
Public Peace and Finality (Public Policy)
This is the most dominant perspective and is
captured by the legal maxim: Interest Reipublicae Ut Sit Finis
Litium (It is in the interest of the state that there should be
an end to litigation).
·
Quieting Titles: The law ensures that legal rights and
disputes, especially concerning land and property, do not remain in perpetual
suspense. By imposing a deadline, it helps to quiet titles,
meaning it secures the ownership and possession of those who have been in long-undisturbed
possession.
·
Preventing Uncertainty: If there were no limit, every transaction or
event could theoretically lead to a lawsuit decades later. This would create
pervasive uncertainty and anarchy in personal and commercial life. The Act
ensures that liabilities have a fixed expiry date.
·
Judicial Repose: It brings a degree of "repose"
(peace) to society and the courts. It prevents the judiciary from being
burdened by "stale demands" or excessively old cases, thereby
allowing resources to be focused on current and relevant disputes.
2. The Perspective of
Vigilance and Fairness (Equity)
This perspective is based on the legal maxim: Vigilantibus Non Dormientibus Jura Subveniunt (The
law aids the vigilant, not those who sleep upon their rights).
·
Discouraging Indolence: The Act assumes that a genuinely aggrieved
and diligent person will seek legal redress promptly. By imposing a time bar,
the law punishes the party who is careless, negligent, or delays pursuing their
legal remedy (laches).
·
Protecting the Defendant: After a long time, it becomes increasingly
difficult for the defendant to effectively defend themselves. They may have
lost witnesses, destroyed documents, or forgotten critical details. The law
protects the defendant from being unfairly surprised by a claim that is too old
to be reliably contested.
3. The Perspective of
Practical Justice (Procedural Necessity)
This perspective addresses the practical requirements for
administering justice.
·
Preserving Reliable Evidence: The passage of time leads to the
destruction of documentary evidence and the fading or failure of human memory.
The Act forces the institution of suits when the evidence is still fresh,
reliable, and available, thereby ensuring a more just and fair adjudication
process.
·
Consolidation and Amendment: The Preamble of the 1908 Act explicitly
states that it was enacted "to consolidate and amend
the law relating to the limitation of suits, appeals and certain applications
to Courts; and... to provide rules for acquiring by possession the ownership of
easements and other property." This highlights the legislative intent to
create a single, clear, and uniform framework for time limits across the entire
civil judiciary.
In summary, the Limitation Act was enacted to balance the right
of the claimant to sue with the public need for finality and security, deciding
that beyond a reasonable time, the interest of the public and the defendant
outweighs the right of the negligent claimant.
⚖️ Differences Between Limitation and Prescription
Limitation and Prescription are two legal
concepts that deal with the effect of the lapse of time on legal rights.1 While they are related and often confused, they operate
differently and have distinct effects on the underlying legal right.2 The Indian/Bangladesh
Limitation Act, 1908, actually covers both concepts,
though its title only refers to Limitation.
Here are the key differences:
|
Feature |
Limitation (e.g., Suit for
Debt Recovery) |
Prescription (e.g., Adverse
Possession, Easements) |
|
Nature of Operation |
Destructive or Extinctive of the
judicial remedy. |
Acquisitive (creating a new right) or Extinctive
of the original right. |
|
Effect on Right |
Bars the Remedy, but generally does
not extinguish the substantive Right. |
Extinguishes the original
Right
of the true owner and, often, creates a new right for the possessor. |
|
Type of Law |
Primarily Adjective/Procedural Law.
It regulates the process of enforcement. |
Substantive Law. It deals directly with the
creation or destruction of a right. |
|
Relevant Section in the Act |
Governed by Section 3 of the
Limitation Act, 1908. |
Governed by Sections 26, 27, and 28
of the Limitation Act, 1908. |
|
Example |
After the limitation period for recovering a
simple debt (usually 3 years) expires, the creditor cannot sue, but the debt
remains a moral obligation. If the debtor pays it, they cannot recover
the money. |
If a squatter occupies land openly and
continuously for the prescribed period (e.g., 12 years), the original owner's
title is extinguished, and the squatter acquires a new, legal title by
adverse possession. |
|
Basis |
Based on the maxim: Vigilantibus non
dormientibus jura subveniunt (Law aids the vigilant, not the sleepy). |
Based on the maxim: Quieting titles
(Bringing certainty to ownership through long possession). |
Detailed Explanation
1. Limitation (Barring the Remedy)
Limitation applies to most civil actions like
suits for breach of contract, money recovery, or compensation for torts.
·
Principle: Time simply runs against the plaintiff (the
person suing). If they fail to file the suit within the stipulated time, the
court is barred from providing relief.
·
Result: The right is merely unenforceable in a court of law.5 It still exists
outside of court (e.g., a time-barred debt can be a valid consideration for a
new contract, or payment of the debt cannot be claimed back as undue payment).
2. Prescription
(Acquiring or Extinguishing the Right)
Prescription deals mainly with immovable property and specific
non-possessory rights (like easements).
·
Positive Prescription (Acquisitive): This is the process where a
person acquires a new right by exercising it continuously, openly, and without
interruption for a defined period.
o
Example: Acquisition of an Easement (right of way, right to light)
by continuous and uninterrupted enjoyment for 20 years (Section 26). The
claimant gains a substantive right over another's property.
·
Negative Prescription (Extinctive): This is where the
right of the original owner is completely extinguished due to
their failure to assert it against an adverse possessor for the prescribed
period (Section 28).
Crucial Point: In prescription cases
like adverse possession, the lapse of time does far more than just bar the
remedy; it creates a substantive shift in ownership and rights.
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