“Limitation”- A preliminary issue

“Vigilantibus non dormientibus jura subveniunt”

i.e. the laws aid the vigilant and not those who slumber.

This is one of the principal underlying the Limitation Act, 1963 (“Limitation Act”) which prescribes a maximum period within which a person is required to bring forth his claim.

The basic concept of limitation is relating to fixing or prescribing of the time period for barring legal actions. According to Section 2 (j) of the Limitation Act, 1963, ‘period of limitation’ means the period of limitation prescribed for any suit, appeal or application by the Schedule, and ‘prescribed period’ means the period of limitation computed in accordance with the provisions of this Act.

Section 3 lays down that a suit, an appeal, or an applica­tion filed beyond the prescribed period of limitation shall be dismissed, although limitation has not been pleaded as a defense. This means that where the court finds that a suit or other proceed­ing has been instituted after the prescribed period of limitation, is must be dismissed.

But this rule is applicable only where the question of limitation is purely one of law capable of deter­mination on the facts admitted or proved before the court and not where the question of limitation raises issues of facts not arising from the plaint.

Thus, the core question that emerges for consideration is whether an issue of limitation could at all have been taken up as a preliminary issue?

Sub-rule (2) of Order 14 Rule 2 CPC lays down that where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (2) (a) the jurisdiction of the court, or (2) (b) a bar to the suit created by any law for the time being in force.

The Hon’b Apex court in Ramesh. B. Desai and others v. Bipin Vadilal Mehta and others reported in (2006) 5 SCC 638 while dealing with the issue of limitation, the Court opined that a plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. The Court further proceeded to state that a plea of limitation is a mixed question of fact and law. On a plain consideration of the language employed in sub-rule (2) of Order 14 it can be stated with certitude that when an issue requires an inquiry into facts it cannot be tried as a preliminary issue.

Whether the point of limitation can be considered by the court in order to reject the plaint filed under Order VII Rule 11 of CPC, particularly under the facts and circumstances of the case?

In the case of Mr. Jagadish Poonja Vs. The South Canara Hotel Complex Pvt. Ltd., Bengaluru and others, reported in 2015(3) KCCR 2754(DB), Hon’bleHigh Court of Karnataka held that: When in the plaint the plaintiff specifically avers that the suit is filed within the time of limitation and hence the suit is in time, the Court cannot embark upon an enquiry on an application filed by the defendant under Order 7, Rule 11(d) to find out whether the statement is correct or not and then decide the said issue. The plaint to be rejected on the ground of bar of limitation under Section 3 what has to be seen is only the plaint averments. If the plaint averments do not disclose that the suit is barred by limitation, then the question of rejecting the plaint under Order 7, Rule 11(d) would not arise. When the defendant raises the plea of bar of limitation, the Court is bound to frame an issue regarding limitation. As the issue regarding limitation cannot be tried as a preliminary issue, the said issue has to be decided after recording of evidence upon all the issues framed in the suit including the issue regarding limitation. It is only thereafter the Court could decide the question whether the suit is barred by the law of limitation. Therefore, the question of the Court going into the question of bar of limitation on an application filed under Order 7, Rule 11(d) CPC would not arise. Rejection of the plaint on the ground that the suit is barred by limitation is ex-facie illegal and cannot be sustained. In that view of the matter, the order passed by the trial Court cannot be sustained.”

Normally all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit. Though there has been a slight amendment in the language of Order 14 Rule 2 CPC by the amending Act, 1976 but the principle enunciated in the above quoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue.