EDITED BY – KIRTEE KAMAL DAS

LLB 4th SEMESTER (2022 batch)

UNIVERSITY LAW COLLEGE, GAUHATI UNIVERSITY

2016

Civil Procedure Code & Limitation Act

Paper: 4-2

Full Marks: 80

Time: Three hours

The figures in the margin indicate full marks for the questions.

1. Fill in the blanks with appropriate answer given in the brackets: 1×10=10

(a) Permission to sue as an indigent person once granted ____________ (cannot be withdrawn/can be
withdrawn under certain circumstances)

Ans: Can be withdrawn under certain circumstances.

(b) An appeal can be field by____________ (any one of the parties / any person aggrieved)

Ans: Any person aggrieved.

(c) In Nagaland, the Code of Civil Procedure, 1908 is____________ (fully applied in letter / applied in
spirit)

Ans: Applied in spirit

(d) In computing the period of limitation for instituting a suit against the Government or a Public Officer,
the period of notice has to be____________ (included / excluded)

Ans: Included

(e) ____________ must be sworn or affirmed before an authorised officer. (Affidavit / Verification)

Ans: Affidavit

(f) If a review application is rejected, the aggrieved party____________ (may file an appeal/cannot file
an appeal)
Ans: Cannot file an appeal

(g) Particulars____________ are to be furnished in pleadings (in each case/ depending on the
circumstances of each case)

Ans: In each case

(h) Limitation Act, 1963 does not apply to____________ (appeals / writ petitions)

Ans: Writ Petition

(i) Plea of Laches may be raised against____________ (the defendant only / either plaintiff or
defendant)

Ans: Either plaintiff or defendant

(j) An agreement or compromise in a representative suit can be entered when there is____________
(leave of the Court/consent of the Advocate General)

Ans: Consent of the Advocate General

2. Answer the following questions: 2×5=10

a) Explain the term "Garnishee Order".

Ans: A garnishee order is a method of enforcing a court judgment, allowing the recovery of money from
the judgment debtor. A garnishee order for debts is a court order that allows you to recover the
judgment debt from the other party's bank account or someone else who owes the other party money,
for example, rental income.

(b) What are the circumstances under which there may be appeal against consent decree?

Ans: A consent decree also creates an estoppel against the parties to the litigation and it cannot be
challenged subsequently on merits, except on the grounds of fraud, misrepresentation, undue influence
etc. Consent Decree Obtained Unlawfully Cannot Be Challenged In Appeal Or Separate Suit; Must Be
Challenged Before Court which Recorded Compromise: Delhi HC.

(c) Distinguish between stay and injunction.

Ans: Injunctions can be temporary or permanent, and they are often used to prevent harm or maintain
the status quo until a legal dispute is resolved. A stay order, on the other hand, is a court order that
suspends or postpones a legal proceeding.

(d) What is 'first hearing'?

Ans: The expression 'first hearing' means the date for filing written statement or for hearing mentioned
in the summons or where more than one of such dates are mentioned, the last of the dated mentioned.

At first hearing of the suit the court shall ascertain from each party or his pleader whether he admits or
denies such allegations of fact as are made in the plaint or written statement. Such admissions and
denials shall be recorded. The examination may be an oral examination.

(e) What is "acknowledgement" for the purpose of the Limitation Act, 1963?

Ans: An Acknowledgement is an admission by the writer that there is a debt owing by him, either to the
receiver of the letter or to some other person on whose behalf the letter is received, but it is not enough
that he refers to a debt being due from somebody.

An acknowledgement must be one from which an absolute promise to pay can be inferred, or an
unconditional promise to pay the specific debt, or that there must be a conditional promise to pay the
debt and evidence that the condition has been performed.

3. (a) Discuss the particulars to be furnished in a plaint.

Ans: Particulars of a Plaint (Order 6, Rule 1-8)

We can divide the above mentioned particulars in three essential parts:

 Part I – The Heading and Title

 Part II – The Body of the Plaint
 Part III – The Relief Claimed

Every plaint should contain the following particulars:

 The name of the court in which the suit is brought;

 The name, description and place of residence of the plaintiff;
 The name, description and place of residence of the defendant;
 Where the plaintiff or defendant is minor or a person of unsound mind, a statement to that
effect;
 The facts constituting the cause of action and when it arose;
 The facts showing that the court has jurisdiction;
 A statement of the value of the subject matter of the suit for the purpose of jurisdiction and
court fees;
 The reliefs claimed by the plaintiff, simply or in the alternative;
 Where the plaintiff files a suit in the representative capacity, the facts showing that the plaintiff
has an actual existing interest in the subject-matter and that he has taken steps that maybe
necessary to enable him to file such a suit;
  Where the plaintiff has allowed a set off or relinquished a portion of his claim, the amount so
allowed or relinquished;
 Where the suit is for recovery of money, the precise amount claimed;
 Where the suits is for accounts or mesne profits or for movables in the possession of the
defendant or for debts which cannot be determined, the approximate amount or value thereof;
 Where the subject-matter of the suit is immovable property a description of the property
sufficient to identify it, e.g. boundaries, survey numbers, etc.
 The interest and liability of the defendants in the subject-matter of the suit;
 Where the suit is time-barred, the ground upon which the exemption from the law of limitation
is claimed.

(b) Mr. X presents a plaint with insufficient Court-fee. How should the Court proceed in this case?

Ans: Sometimes the relief claimed by the plaintiff is properly valued, but the plaint is written upon a
paper insufficiently stamped and the plaintiff fails to pay the requisite court fees within the time fixed or
extended by the court. In that case, the plaint will be rejected. However, if the requisite court fees is
paid within the time extended by the court, the suit or appeal must be treated as instituted from the
date of presentation of plaint or memorandum of appeal for the purpose of limitation as well as
payment of court fee.

Whereas under section 149 of the Code of Civil Procedure which speaks about power to make up
deficiency of court fess which further states that “Where the whole or any part of any fee prescribed for
any document by the law for the time being in force relating to court-fees has not been paid, the court
may, in its discretion at any stage, allow the person by whom such fee is payable to pay the whole or
part, as the case maybe, of such court fees, and upon such payment the document, in respect of which
such fees is payable, shall have the same force and effect as if such fee had been paid in the first
instance.

The Section 149 of The Code of Civil Procedure confers power on the court to accept the payment of
deficit court-fee even beyond period of limitation prescribed for the filling off a suit, if the plaintiff is
otherwise filed within the period of limitation. However, exercise of the discretion by the court is
conditional upon satisfaction of court that plaintiff offered a legally acceptable explanation for not
paying the court fee within the period of limitation.

Smt. Damegunta Rajeshwaramma and Another V. Smt. Jayalakshmamma And Others

This is defendants' petition, questioning the order dated 4th May 2007 on objections regarding payment
of Court fees in O.S.No 3649/2007 pending on the file of XXIV Addl. City Civil Judge, Bangalore City.

Respondents are plaintiffs. They have brought a suit for declaration of title to the schedule 'A' and 'B'
properties and further declaration that the registered sale deed dated 18-11-2000 alleged to have been
exe- cuted by the plaintiffs in favour of defendant No. 2 in respect of 'B' schedule property as null and
void, not binding on the plaintiffs and other reliefs.
Initially the suit was valued under Section 24(b) of the Kamataka Court Fees and Suits Valuation Act,
1958 (hereinafter referred to as 'the Act') and fees of Rs. 57,860/- was paid. As regards to the decree for
in- junction, the Court fee was determined under Section 26(c) of the Act. The office raised an objection
as re- gard to the valuation of the property. Thereafter, plaintiffs were called upon to pay the deficit
Court fee on the basis of the market value and accordingly, plaintiffs valued the suit at Rs. 87,50,000/-
and the Court fees of Rs. 1,86,500/- was paid including an amount of Rs. 57,888/- already paid. The said
payment of Court fees was accepted by the Trial Court, as against which, the defendants raised an
objection by filing an application under Section 24 Clause (b) of the Act read with Order VII Rule 11 of
CPC interalia seeking for rejection of the plaint on the ground that the Court fees paid is insufficient and
the suit is not maintainable.

Case Law: Anita Vij and another v. Deepak Kumar and another

In the abovesaid Civil Suit, the petitioners filed an application under Order 7 Rule 11 read with Section
151 CPC for rejection of the plaint on the ground that the plaintiffs had affixed insufficient Court fees of
Rs. 25/- only whereas, as the plaintiffs were seeking relief of joint possession, they were liable to affix ad
valorem Court fee at market value of the suit property of approximately Rs. 1,33,00,000/-. Plaintiffs filed
reply to the petitioners' application stating that such application was just a ploy to delay the
proceedings. However, vide impugned order dated 17.05.2019, learned Civil Judge (Senior Division),
Karnal dismissed the petitioners' application on the ground that plaintiffs were not a party to the
impugned sale deed and therefore, they could not be compelled to pay the ad valorem Court fees.
Hence, present Revision Petition.

Or

(a) Narrate the principles regarding "denial" by a defendant in his written statement as set forth in the
Code of Civil Procedure, 6+6=12

Ans: Denial to be Specific in Written Statement- As per Rule 3 of Order 8 of CPC, it shall not be sufficient
for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the
defendant must deal specifically with each allegation of fact of which he does not admit the truth,
except damages.

Denial of facts

 It must either deny or accept the allegations in the plaint. If an allegation is not denied, it is
deemed to have been accepted.
 According to Order VIII Rule 3 of CPC, it is important for the defendant to make an express and
specific denial. The defendant cannot simply make a general denial of the plaintiff’s allegations.
 As per Rule 4, evasive denial or denial that does not answer the substance does not qualify as a
denial. For instance, if the defendant wants to deny the allegation of the plaintiff that he had
received a certain sum of money, he has to expressly deny the receipt of the amount and also
specifically state the amount alleged. Evasive denial is taken as admission unless the plaint is
also vague and stated in general terms.
Denial to be Specific in Written Statement

As per Rule 3 of Order 8 of CPC, it shall not be sufficient for a defendant in his written statement to deny
generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each
allegation of fact of which he does not admit the truth, except damages.

Case Law

In Kailash v. Nankhu (2005), the Supreme Court held that the proviso to Rule 1 of Order 8 of CPC is
directory and permissive and not mandatory and imperative.

In Salem Advocate Bar Assn. V. Union of India (2005), the Supreme Court clarified that under Rule 10 of
CPC, the court has wide powers to ‘make such order in relation to the suit as it thinks fit.’ The order
extending the time to file a written statement cannot be made routinely. The time can be extended only
in exceptionally hard cases.

(b) In a suit the defendant seeks more than 90 days' time for submission of Written Statement. How
should the Court proceed? Cite case-law. 6+6=12

Ans: Order 8 Rule 1 of Code Of Civil Procedure, 1908 provides for a time limit for filing of written
statements by the defendant. The procedural provision provides appropriate time to the defendant for
filing a written statement after delivery of the summons and also ensures that it is not misused by the
defendant to harass the plaintiff by using this provision to delay the proceedings.

The provision states that once a summon is issued, then the defendant is given 30 days to submit his
reply called a written statement (subject to delivery of the summon to the defendant). If the defendant
does not file the written statement within 30 days, then the time period for submitting a written
statement can be extended up to 90 days and reasons for the extension have to be recorded by the
court.

Order VIII Rule 1 of Code of Civil Procedure 1908 provides for a time limit of a maximum of 120 days for
filing written statements after the service of summons is complete. Whether it is mandatory or directory
depends on the nature of the transaction or the subject matter of the case.

The interpretation of the said Order can be seen in the catena of judgments by the Hon’ble Supreme
Court. The Supreme Court has clearly stated that the maximum time provided for filing of written
statements cannot exceed 120 days (30 days after delivery of summons + 90 days grace period). The
restriction in this provision is strictly applicable to commercial suits only. In commercial suits the time
limit to file written statements within 90 days, is mandatory. The Commercial Courts Act, enacted in
2015 provides for amendment of Order VIII Rule 1 under Code Of Civil Procedure for commercial suits,
making mandatory filing of written statements within 90 days after summon has been received by the
defendant.
It can be said that in non-commercial suits the time limit to file a written statement under Order VIII
Rule 1 of the code is a directory and not mandatory. It means that it is up to the court’s discretion to
provide additional time beyond 120 days and depends on case to case basis. Some relaxation is provided
by law to non-commercial suits due to the fact that subject matter in dispute (amount or property value)
is not always high and also the risk is limited to specific individuals. Whereas in commercial suits, the
disputed matter is of high value along with a high-risk factor pertaining to hundreds of employees of a
company. The article will talk about the time limit to file written statements under CPC in both
commercial and non-commercial suits in the light of case laws.

Case Laws:

In “M/s SCG Contracts India Pvt. Ltd. v/s KS Chamankar infrastructure Pvt. Ltd. (C.A 1638/2019)“, the
Hon’ble Supreme Court of India has held that it is mandatory to file a written statement in a commercial
suit within 120 days from the date of service of summoning the defendants. In case the defendant fails
to submit a written statement within 120 days, then his right to submit a reply is forfeited. In such a
scenario, even the court cannot extend the time limit by using its inherent powers under Section 151 of
CPC. Therefore, it can be said that in commercial suits, the time limit to file written statements under
VIII Rule 1 of the Code Of Civil Procedure is mandatory.

In Salem Advocate Bar association v/s Union of India AIR 2005 SC 3353, the Apex court has held that
the court can grant an extension after the expiry of the 90-days period under Order VIII Rule 10 but it
should not grant such an extension so frequently. Therefore, the time limit to file a written statement
under Order VIII Rule 1 is a directory and mandatory.

In Atcom Technologies Ltd. v/s Y.A Chunawala and co. (2018) 6 SCC 639, the Hon’ble Apex court
reiterated that the court can grant an extension for filing written statements after the expiry of 90 days
in exceptional cases. The defendant shall provide very strong valid reasons to the court for requesting
the extension of the 90-day period.

In Deshraj v/s Balkishan 2020, the Hon’ble supreme court reiterated the dictum laid down in the case of
Atcom tech Ltd. v/s Y.A Chunawala 2018, for filing of the written statement in non-commercial suits. The
Supreme Court again emphasized the exceptional circumstances of a case as a valid reason for granting
permission for filing a written statement after the expiry of 90 days.

4. Enumerate different kinds of interim orders under the Code of Civil Procedure. What is the
procedure for granting ex-parte adinterim injunction? 4+8=12

Ans: Introduction

Generally, the term “interim” refers to temporary or provisional, that is a term which denotes anything
that is not final. Interim aka Interlocutory orders are those which are passed during the pendency of the
suit or proceedings (lis pendens) and the rights, liabilities of the parties are generally not substantially
decided as per the suit. These orders are not just those which decide the cause of action, but are those
which decide the interceding course of action provisionally.
The orders are those which come up with a temporary adjudication between the time of
commencement of suit and the final order thereof. These orders enable the protection of subject matter
of the suit and aid in the due assistance of parties.

Illustration- If the suit relates to a demolition of a building, and then an interim order may be passed to
stop the demolition, until the final order relating to the property is passed.

Different kinds of Injunction

The different kinds of interim orders under the Code of Civil Procedure can be classified as under:

1. Temporary Injunction

A temporary injunction is a legal remedy that temporarily restrains a party from performing a specified
act. This type of injunction can be granted until the disposal of the suit or until the court issues a further
order. The grant of an injunction is subject to the provisions of Order 39, Section 94 (c) and (e) of the
Code of Civil Procedure 1908& Section 37(1) of the Specific Relief Act 1963 and may be awarded at any
juncture of the legal proceedings.

2. Interlocutory Injunction

This is commonly referred to as interim injunction and falls within the category of temporary injunction.
It remains in effect for the duration of the legal proceedings before the court. Consequently, an
interlocutory injunction possesses the ability to either mandate or prohibit a party from engaging in
specific actions while awaiting the ultimate resolution of the case. The principal objective of utilising an
interlocutory injunction is to maintain the existing matters in the status quo.

3. Preliminary Injunction

A plaintiff may be granted a preliminary injunction, also referred to as an ad-interim injunction, prior to
a trial. This type of ad-interim injunction is a legal remedy that aims to maintain the status quo of the
subject matter in question, thereby preventing any potential infringement of the plaintiff’s rights and
enabling them to seek prompt relief. A preliminary injunction is granted at the outset of a legal
proceeding to preserve the existing status quo until a final determination can be rendered. The purpose
of its design is to safeguard the entitlements of the concerned parties until the resolution of the case.

4. Permanent Injunction

A permanent injunction, popularly referred to as perpetual injunction, can be granted by the court by
passing a decree made after hearing and upon the merits of the case. Once such decree is passed, the
defendant is permanently prohibited from the assertion of a right, or from the commission of an act,
which would be contrary to the rights of the plaintiff. The legal provision for perpetual injunctions is not
encompassed within the Code of Civil Procedure 1908 but rather falls under the purview of the Specific
Relief Act of 1963[Section 37(2).

5. Mandatory Injunction
This compels an individual to undertake a specific action and is mentioned in Section 39 of the Specific
Relief Act.Thereare two distinct categories of mandatory injunctions, namely restorative and enforcing.
The former pertains to the restoration of the status quo by compelling the defendant to undertake a
specific action, while the latter involves the performance of a positive act, typically on a continuous
basis.

6. Prohibitory Injunction

This is governed under Section 38 of the Specific Relief Act and is commonly referred to as a restrictive
injunction, which is a legal directive that mandates an individual or organisation to abstain from
performing a specific action. Mainly for the prevention of harm or infringement of rights.

7. Quia Timet Injunction

A Quia Timet Injunction was first discovered in an English jurisprudence and it can be used when a
Plaintiff’s right hasn’t been injured yet, but it is feared or threatened to be hurt. This order can be
permanent or temporary, prohibitive or mandatory. As per the court in Angela Drury v. Secretary of
State for the Environment, Food, and Rural Affairs, 2004, a Quia Timet injunction is given to avoid a
danger or expected violation of the rights of the plaintiff. Further, there must be clear and strong proof
that a real violation is likely to happen (Redland Bricks v. Morris).

8. Mareva Injunction

Commonly known as a freezing order oran interlocutory ad- personam injunction, is a legal remedy that
is frequently employed in instances of fraudulent activities or asset misappropriation.In the landmark
judgement of Nippon Yusen Kaisha v. Karageorgis and Mareva Compania Naviera S.A v. International
Bulkcariers S.A, was when such a relief was granted for the first time. Here, there is an implementation
of an asset preservation order which restricts a party from disposing of or dissipating their assets,
thereby ensuring their availability to satisfy a prospective judgement.

9. Anton Piller Order

Anton Piller Order is especially used in Intellectual Property cases that enables one party to gain access
to the premises of another party for the purpose of searching and confiscating infringement materials
and evidences. This is common practise with the aim of impeding the obliteration or displacement of
vital evidence.

10. Dynamic Injunction

In changing trend and to counter the growing effects of digital piracy, the Indian Courts have lately
granted “dynamic injunction” against rogue websites and URLs. This new concept of injunction aids in
the fight against digital piracy and offers efficient remedies to Intellectual Property holders. Justice
Pratibha Singh defined “dynamic injunction” in the matter of UTV Software Communication Ltd. and ors
v. 1337. It is as“an injunction order that is not static but dynamic”, because of this, even if the first
injunction order might only apply to one website, it will automatically extend to any mirror websites
that are made.

Laws Governing Injunctions

The laws of injunctions are explicitly covered under Indian jurisprudence. The legal provisions for
injunctions, including ex-parte ad interim and permanent injunctions, are outlined in Order 39 (1) and
(2). Meanwhile, interim measures, which may or may not involve injunctions, are addressed in Order 38,
with a particular focus on Rule 5, which pertains to the requirement for an individual to provide security.
Moreover, two types of injunctions (Temporary and permanent) are explained under Section 36 of the
Specific Relief Act, 1963

The legal implications of violating an injunction are outlined in Rule 2-A of Order 39 and Section 94(c) of
the Civil Procedure Code. According to the section, in the event of being held responsible for such
violation, the individual will be subject to imprisonment in civil prison and a directive to seize and
auction off their assets.

Conclusion

In recent changing times, the Indian Jurisprudence has evolved with various types of remedies for erring
litigants especially in granting immediate reliefs in the form of injunctions. It will be more interesting to
look forward to how effective it will be to assist the aggrieved parties.

Or

Discuss the principles for appointment of a receiver. Discuss the powers, duties and liabilities of a
receiver. 6+6=12

Ans: Introduction

According to the civil procedure code, the court before which the proceedings are pending can appoint a
receiver if it appears just and convenient to the court to appoint such receiver [section 51(d)]. It is within
the discretionary power of the court to appoint the receiver. For example, in a suit, the trial court can
appoint a receiver. Whereas, in appeal, the appellate court can appoint a receiver.

However, the discretion is not absolute, arbitrary or unregulated. The expression “just and convenient”
does not mean the appointment is based on the whims and wishes of the judge on any grounds which
stand against equity.

Principles for appointing a receiver

1. Appointment of a receiver is a discretionary power.

2. It is a protective relief to the plaintiff. The object is to protect and preserve the disputed
property till the time the suit is pending in the court.
3. A receiver should not be appointed unless the plaintiff shows prima facie that he has a strong
case against the defendant and it is more than likely that he will succeed in the suit.
 4. Appointment of a receiver is one of the hardest remedies as it deprives the defendant of his
right to possession before the final decree. Therefore, the court should not resort to it merely
on the ground that it will do no harm. There should be strong apprehension that there is a
danger to the property or the plaintiff will be in worse of a situation if the appointment of a
receiver is delayed.
5. The court should appoint a receiver only when there is a possibility of wrong or injury. Also, if it
is shown that the subject matter is not in the possession of any of the parties and it is in the
common interest of both the parties to appoint a receiver for the protection and preservation of
the property.
6. The court should look at the conduct of the party who makes the application for appointment of
a receiver. The party should come to the court with clean hands and their conduct should be
such that they are not disentitled to this equitable relief.
7. The above principles were introduced by the Madras Court in the case of T. Krishnaswamy
Chetty vs C. Thangavelu Chetty And Ors., AIR 1955 Mad 430. These principles are now well
established in the Indian jurisprudence.

Appointment of the receiver

Generally, a plaintiff files the application for appointment of a receiver but defendants can also file such
application. A third party is not allowed to file the application but if he is interested in the protection
and preservation of the property, he can also make an application after taking permission from the
court.

Receiver

A person who is independent, impartial and totally disinterested should be appointed as a receiver. Such
a person should not have any stake in the disputed property. Generally, parties to the suit are not
appointed as receiver by the court. But in extraordinary circumstances, a party to suit can be appointed
as receiver.

Powers of the receiver

Under order 40 rule 1(d) powers of the receiver are provided as following:

 Collection of rents and profits arising out of the property.

 Application and disposal of such rents and profits.
 Execution of documents as the owner himself.
 To institute and defend the suit.
 Such powers as the court may deem fit.

Also, there are indirect powers which a receiver enjoys being the hand of the court. For example, If a
person obstructs or interferes with the receiver’s right to possession, it will amount to obstruction in a
court proceeding and such a person can be made liable for contempt of court. Similarly, property in the
hands of the receiver cannot be attached without the leave of the court.
The court has the discretionary power to not confer all the rights on the receiver. Even if the court has
given all the powers to him, he should take the advice of the court in all important decisions related to
the property to protect himself.

Without the permission of the court, the receiver cannot:

 Grant lease on the property.

 Bring suits except for suit for rent. A suit will be dismissed if not permitted by the court.

Duties of the receiver

Under order 40 rule (3), duties of a receiver are provided as follows:

 Furnish security to account for what he will receive from the property as income.
 Submit accounts (half yearly) for such period or form as directed by the court. The account
basically includes the income received and expenses incurred for the protection and
preservation of the property.
 Pay the amount due to the court.
 Take responsibility for any reduction in the value of the property because of the receiver’s
willful negligence.
 Discharge the duties personally and should not delegate or assign any of the rights entrusted to
him by the court.

The receiver has to fulfil all the duties and responsibilities entrusted to him by the court. Otherwise, the
court can take action against him and make him personally liable for any loss which might occur due to
his negligence or wilful failure to protect and preserve the property.

Liabilities of a receiver

According to Order 40 rule (4), When a receiver fails:

 To submit the reports as specified by the court or,

 To pay the amount due from him as directed by the court or,
 Causes loss to the property due to gross negligence.
 Any other duty which court directed him to do,

The court may order the attachment of property of the receiver to recover the loss caused due to his
willful default or negligence.

The court, after recovering all the losses from the proceeds received after selling receiver’s property,
will pay the balance (if any) to the receiver.

The receiver is bound in keeping down the expenses and taking care of the property in his possession as
a prudent man would observe in connection with his own property under similar circumstances.
Conclusion

Clearly, the receiver plays an important role whenever the court requires the receiver to manage the
subject matter in a suit to protect and preserve it till the time, the court decrees the suit.

The receiver is an officer of the courts and the subject matter managed by him is considered to be in
custody of the law. The court appoints a receiver when the court is of the opinion that neither of the
party should manage the property till the time the matter is decided. Any person can become a receiver
provided they fulfil the requirements set by the court.

5. Explain the following terms: 3×4=12

(a) Cross-objection

Ans: The expression "cross-objection" has not been defined in the Code. Stated simply, cross-objections
are filed by the respondent against the appellant in an appeal filed by the appellant against the
respondent. The expression "cross-objection" expresses the intention of the legislature hat it can be
directed by the respondent by the appellant. One cannot treat an objection by a respondent in which
the appellant has no interest as a cross-objection.

Filing Cross Objection

Cross-objections can be filed by the respondent

1) if he could have filed an appeal against any part of the decree: or

2) if he is aggrieved by a finding in the judgement, even though the decree is in his favour.

Cross appeals and cross-objections provide two different remedies for the same purpose since the cross-
objections can be filed on the points on which that party could have preferred a cross appeal. The right
to file cross-objections is substantive in nature and not merely procedural.

Against whom cross objection filed

Ordinarily, cross-objections may be filed only against the appellant. In exceptional cases, however, one
respondent may file cross-objections against other respondents; for example, when the appeal by some
of the parties cannot effectively be disposed of without opening the matter as between the respondents
inter se; or in a case where the objections are common as against the appellant and co-respondent.

Thus, where the relief sought against the appellant in cross-objections is intermixed with the relief
granted to the other respondents in such a way that the relief against the appellant cannot be granted
without the question being reopened between the objecting respondent and other respondents, cross-
objections by one respondent against the other respondents may be allowed.
The principle that no decision can be made against a person who is not a party to the proceedings
applies to cross-objections also. Hence, cross-objections cannot be allowed against a person whi is not a
party to the appeal.

Cross Objection (When filed)

The provisions of Order 41 Rule 22 contemplates right to file cross-objections only when an appeal is
filed and also when such appeal is admitted by the appellate court and notice is issued on the
respondent.

A stage of filing cross-objections arises only when an appeal is admitted and the court directs notice to
be issued to the respondent. No cross-objections, hence, can be filed if no appeal is filed by the
appellant or an appeal is filed but has not been admitted. Mere posting of preliminary hearing of an
appeal is not enough. Similarly, prior to the service of notice of hearing of appeal by the court, no cross-
objections would lie. That, however, does not make cross-objections suffer from legal infirmity.

(b) Substantial question of law

Ans: The expression “substantial question of law” has not been defined in any Act or in any of the
statutes where this expression appears, e.g., section 100 of the Code of Civil Procedure, the true
meaning and connotation of this expression is now well settled by various judicial pronouncements. It
was observed by the Supreme Court in Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd.,
that “a question of law would be a substantial question of law if it directly or indirectly affects the rights
of parties and/or there is some doubt or difference of opinion on the issue”. But “if the question is
settled by the Apex Court or the general principles to be applied in determining the question are well-
settled, mere application of it to a particular set of facts would not constitute a substantial question of
law” – Krishna Kumar Aggarwal v. Assessing Officer.

Section 100 of CPC deals with “Second Appeal” moreover it includes the Substantial Question of Law as
well. The proviso reads as follows:

Question of Law and Question of Fact:

Here dissimilarity between question of law and substantial question of law be required to understood
i.e. what can be the subject matter of an appeal under Section 100 can only be a substantial question of
law. It should involve a matter of general public importance or affect the rights of the parties
substantially. Where the determination of the issue depended upon the appreciation of evidence or
materials resulting in ascertainment of basic facts without application of any principle of law, the issue
merely raises a question of fact. Court observed in Mahavir Woollen Mills v. CIT A question of fact
becomes a question of law, if the finding is either without any evidence or material, or if the finding is
contrary to the evidence, or is perverse or there is no direct nexus between the conclusion of fact and
the primary fact upon which that conclusion is based. But, it is not possible to turn a mere question of
fact into a question of law by asking whether as a matter of law the authority came to a correct
conclusion upon a matter of fact. In Sree Meenakshi Mills Ltd. v CIT the apex Court has held that where
the determination of an issue depends upon the appreciation of evidence or materials resulting in
ascertainment of basic facts without application of any principle of law, the issue raises a mere question
of fact.

(c) Interference with concurrent findings.

Ans: If the appellate Court affirms the findings of the lower court then it is called as concurrent findings
of fact. If the appellate Court does not affirm the findings of the lower Court then it is called 'reverse
findings'.

Settled law on concurrent findings

It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be
interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure
Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second
appeal under Section 100 of the Code in the way he did as held by the Supreme Court in

Ramanuja Naidu Versus V. Kanniah Naidu And Ors.- 1996 (3) - Supreme Court.

In NAVANEETHAMMAL VERSUS ARJUNA CHETTY 1996 (9) TMI 632 SUPREME COURT the Supreme Court
held that the interference with the concurrent findings of the courts below by the High Court under
Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is
not expected to reappreciate the evidence just to replace the findings of the lower courts. Even
assuming that another view is possible on a reappreciation of the same evidence that should not have
been done by the High Court as it cannot be said that the view taken by the first appellate court was
based on no material.

In STATE OF RAJASTHAN AND ORS. VERSUS SHIV DAYAL AND ORS. 2019 (8) TMI 1793 SUPREME COURT,
it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded
de hors the pleadings or it was based on no evidence or based on misreading of the material on records
and documents. The Supreme Court held that when any concurrent finding of fact is assailed in second
appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the
pleadings or it was based on no evidence or it was based on misreading of material documentary
evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge
acting judicially could reasonably have reached.

When it can be interfered

In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High
Court unless the findings so recorded are shown to be perverse. The Supreme Court in SHIV SHARAN
DASS VERSUS RAJINDERA DEVI AND ORS. - 2017 (9) TMI 1992 HIMACHAL PRADESH HIGH COURT decided
on 05.09.2017, after having carefully perused the evidence as well as law laid down on the point, has
arrived at conclusion that there is total mis-appreciation, misconstruction of evidence, be it ocular or
documentary, adduced on record by respective parties and findings returned by the Courts below are
erroneous and perverse, it sees valid reason to interfere In the concurrent findings of fact recorded by
both the Courts below.

In SUKHBIRI DEVI AND ORS. VERSUS UNION OF INDIA (UOI) AND ORS. 2022 (10) TMI 627 SUPREME
COURT, the Supreme Court observed that interference with the concurrent findings in an appeal under
Section 236 of the Constitution is to be made sparingly, that too when judgment is absolutely perverse.
On appreciation of evidence another view is possible also cannot be a reason for substitution of a
plausible view taken and confirmed.

Or

Distinguish between: 3×4=12

(a) Review and Appeal

Ans:

Basis Appeal Review

Meaning An appeal is filed when one of the parties to a An aggrieved party may request
court ruling is unhappy with the decision and a review in order to have a court
wants to challenge the verdict. of law reconsider its decision or
ruling. The review process is
used when there is no appeals
process available

Legal Sections 96-105, CPC 1908. Section 114, CPC 1908.

Applicability

Order Under CPC Order 41 to 45 of CPC 1908. Order 47 of CPC 1908.

Right Right to appeal is substantive right. Right to review is discretionary.

Grounds Significant question of legal issue. Finding of new evidence.

Matters In appeal, both matter of facts and matter of In review, only matters of law
Considered laws are considered. are considered.

Continuation of Appeal is a continuation of original proceeding. Review is not a continuation of

Proceedings original proceeding.

Court Appeal lies in the superior court. Review lies in the same court.

Judge Appeal is referred to a different judge Review is referred to the same

judge.
(b) Necessary Party and Proper Party

Ans: There are some distinctions between the necessary party and proper party, which are as follows:-

1. Necessary party is one whose presence is indispensable to the constitution of the suit, whereas, in
case of a proper party, it is not so.

2. A necessary party is without whom no effective order can be passed, whereas, A proper party is one,
in whose absence an effective order can be passed.

However, like Necessary party, the presence of a proper party is also necessary for complete and
final decisions on the question involved in the preceding. His presence, however, enables the Court to
adjudicate more “effectively and completely”.

In case of Kasturi versus Iyyamperumal, AIR 2005 SC 2813 the two test have been provided for
determining the question whether a particular party is a necessary party to the proceeding OR not:-

1. There must be right to some relief against such party in respect of the matter involved in the
proceeding in question; and

2. It should not be possible to pass an effective degree in the absence of such a party.

(c) Legal Set-off and Equitable Set-off.

Ans:

Particulars Legal Set off Equitable Set off

1. Concept The concept of legal set off is The concept of equitable set off
provided in Order VIII Rule 6(1) is provided under “equity,
under Code of Civil Procedure, justice, good conscience”.
1908.

2. Legal Aspect The legal set off shall be claimed The equitable set off is granted
as a matter of right. on the facts and circumstances
and on the discretion of the
court.

3. Recovery of Money In the legal set off the amount In the equitable set off the
which is recovered is ascertained amount which is recovered must
and within the pecuniary be ascertained and the case is
jurisdiction of the court. admitted at the discretion of the
court.

4. Court Fees In legal set off the court fees are In the equitable set off the court
to be paid by the defendant. fees may not be paid by the
 defendant and it depends on
different facts and circumstances
of the case.

5. Limitation Period It is within the limitation period. The claim for equitable set off is
accepted beyond the limitation
period, it is at the discretion of
the court.

6. Discuss the provisions relating to suits by or against Government. 12

Ans: Introduction

Under the Civil Procedure Code, the subject of suits by or against public officers in their official capacity
has been recognized under Section 79, Section 80 and Order 27 of CPC. Firstly, it should be understood
that Section 79 of CPC is a procedural provision and hence, it does not deal with rights and liabilities
enforceable by or against the government. But at the same time, it declares a mode of the procedure
when the cause of action arises. On the other hand, Section-80 of CPC is not a procedural provision but a
substantive one, the rules involved in it and working of Section 80 will be discussed further. Lastly, Order
27, includes under its ambit various rules and subjects like that of recognized agents, attorney general
and the procedure to be followed while the suit is being filed by or against the government or public
officers in their official capacity. This article tries to analyze the three sections in detail and provide an
overview of the same in a clear-cut way.

Analysis

Section 79 and 80 are defined as follows under the Procedure of Civil Code

Section 79- This Section defines the concept of suits by or against the government: Whenever a case is
filed against a government or if it is filed by the government, the plaintiff and the defendant who will be
named in the case will be as provided under:
Whenever the case is instituted by or against the central government, the Union of India will be
represented as the required plaintiff or defendant respectively.

Whenever the suit is filed by or against the state government, the state government will be required to
act as the plaintiff or the defendant.

Section 80: This section deals with the concept of Notice. According to this Section, there exists no onus
for the institution of a suit against the government without issuing a notice regarding the same; this
includes the state of Jammu and Kashmir. With respect to institution of a suit against a public officer
with respect to the act done by him in his official capacity, there is again a need for issuance of notice
regarding the same. Further, the notice should be served two months prior to the institution of the suit
and it should be made sure that such a notice was delivered or left at the office of:
  Whenever the case is against the central government, and it does not relate to the railways
then, the notice should be delivered to the secretary of the government.
 Whenever a case has been instituted against the central government and it relates to the
railways then, the notice is to be served to the general manager of that railway.
 Whenever the case is instituted against any of the state governments then, the notice is to be
served either to the secretary to that government or to the collector of the district.

Scope of Section 79

For the purpose of better understanding of Section 79 of Civil Procedure Code, there arises a need for
further fragmentation of the Section into various subtopics like that of the jurisdiction of Section 79 and
the institution of suit against the railways which will be looked into in the next part of this article.

Section 79

Section 79 lays down the procedure whereby the suits are brought by or against the government but at
the same time, it does not deal with the rights and liabilities enforceable by or against the government
body. In the case of Jehangir v. Secretary of State, an important observation was made which was that
this section gives no cause of action but only decrees the mode of the procedure when the cause of
action arises.

Jurisdiction

Under Section 79, only the court within whose local limits, the cause of action arose, has the jurisdiction
to try the suit and otherwise it cannot. In the case of Dominion of India v. RCKC Nath & Co, it was held
that words like ‘dwell’ or ‘reside’ or ‘carry on business’ which are mentioned in Section 18, 19 and 20 of
code do not apply to the government.

Suit against Railway

If the railway is administered by the union of India or a State, then any suit to enforce a claim against
railway administration can be brought against the Union of India or State, and this may not include
making the railway administration a part of the suit. But on the other hand whenever there is a
requirement for a suit for freight for carrying goods, then such a suit can be instituted by the Union of
India, and this was held in the landmark case of Union of India v. RC Jall.

In the case of Secretary of State v. Rustom Khan, there was a significant observation made regarding the
liability to be sued, under Section 79 of CPC. No suit could lie against the East India Company in respect
of the act of state or acts of sovereignty, and therefore no suit in respect of such acts would be
competent.

The amendment made in Section 80 is seen as that of a significant one, as it has acted as an added
advantage while dealing with the case, clause (2) and (3) were added to Section 80 by the amendment
of 1976. Sub Clause (2) has been inserted to permit the institution of the suit without notice, but it must
be accepted only after giving a reasonable opportunity of showing cause in respect of relief claimed
[16]. Sub-section (3) on the other hand prohibits the dismissal of a suit where the notice has been
served but suffers from certain technical deficiencies.

It should also be taken into consideration that there exist various instances where there were
widespread abuse and misuse of the concerned section by the government and public officials in order
to dispose of the litigation on the grounds of technicality, and this aspect of the provision should be
given more attention in order to overcome the negative aspects which exist in it. Moreover, sub-section
(3) was included in the Section in order to offer a better clarification that no suit against the government
or a public officer can be dismissed merely on the grounds of existence of defect or error in the notice.

Conclusion

Hence, all the three provisions which bring to light the various procedures and rules involved in the suit
by or against the government or a public officer have been discussed and analyzed in detail. It can be
said that the applicability of these sections must be determined by the law as it stands. Further, if the
procedure lay down by the rule in these sections is not followed, then the court is to proceed with the
footing that there is no appearance of government pleader on behalf of the public officer. And lastly, the
rules laid down in Order 27 are to be strictly abided by while filing a suit.

In addition to all the above-mentioned aspects, the sections regarding suits by or against the
government and public officers also specify the procedure to be followed while filing of a writ and also
what steps to be taken when there is permanent suit on appeal or if there is a revision.

Or

Discuss the provisions relating to suits by or against minors and lunatics. 12

Ans: Introduction

Order XXXII of the Code of Civil Procedure, 1908 deals with SUITS BY OR AGAINST MINORS AND
PERSONS OF UNSOUND MIND. Order XXXII contains special provisions applicable only in cases where
either the suit is:

 To be instituted at the cause of a minor/person of unsound mind

 To be instituted against a minor/person of unsound mind

In the Code of Civil Procedure, the main object behind the enactment of Order XXXII is the protection of
the interests of minors and persons of unsound mind. The origin behind this concern rests in Common
Law. The Common Law position is that persons who are unable to understand the nature and
consequences of their actions (of immature intelligence and discretion) ought not to be liable for their
actions so undertaken. This legal position stands firm even today except where his status is that as a
cestui qui trust.

Quoting Pollock
An infant is not absolutely incapable of binding himself, but is, generally speaking, incapable of
absolutely binding himself by contract.

The law will, as a general principle, treat all acts of infants which are of his benefit on the same footing
as those of adults, but will not permit him to do anything prejudicial to his own interests.

In Ram Chandra v. Man Singh it was held that a decree passed against a minor or a lunatic without
appointment of a guardian is a nullity and void, not merely voidable. [4] Now that the origin of the
concerned aspect of law is intelligible, it next becomes important to describe who it pertains to.

A minor is, for purposes of civil litigation in India, defined to mean a person who has not attained
majority under the provisions of the Indian Majority Act, 1875, that is a person who has not completed
the age of eighteen years and in the case of a minor of whose person or property a guardian has been
appointed by a court, or whose property is under a court of wards, a person who has not attained the
age of 21 years.

Similarly, a person of unsound mind is a person who is declared after competent examination to be
unable to understand the nature and consequence of his actions due to the presence of a mental
disease or infirmity.

Rules 1 - 14 of Order XXXII apply not only to minors and persons, adjudged to be of unsound mind, but
also, those, who are found to be, by a Court upon inquiry to be incapable, by reason of any mental
infirmity, of protecting their interest when suing or being sued. This is based on the natural law principle
that both parties to a suit must be heard equally before a suit is adjudicated upon.

The next legal problem that arises is how best to ensure that such disadvantaged persons are not taken
advantage of by means of vexatious litigation or misuse of provision. This was addressed by the concept
of next friend or guardian. The concept is framed on the assumption that a next friend or guardian,
being an adult of reasonable prudence will act to ensure that the disadvantaged persons interests are
not misdirected.

Concept of Next Friend/ Guardian

The object behind having a next friend or guardian ad litem is that a minor is deemed to be incapable of
defending himself and therefore it is imperative that his interests in the suits should be supervised by an
adult person. This person, in case the minor is a plaintiff, is to be called the next friend and when the
minor is a defendant, is called a guardian ad litem or guardian for the suit. However, neither the next
friend nor guardian ad litem is a party to the suit.The power of the person so assigned is limited to the
proceedings for which he is recognised by the court.

Who can be appointed as Next Friend/Guardian

Every suit by a minor should be instituted in his name through his guardian or next friend. If the same is
not done, the plaint will be taken off the file. Any person who has attained majority and is of sound
mind, may act as a guardian or next friend, provided his interest is not adverse to that of minor, who is
not the opposite party in the suit and who gives consent in writing to act as a guardian or next friend. In
the absence of a guardian who is fit and willing person to act as a guardian, the court may appoint any of
its officers as guardian in that particular suit.

Provisions to ensure that interests of minors are safeguarded during the suit - Rule 5 of Order XXXII
states that every representation made before the court other than under Rule 10(2) must be made by
his next friend or guardian. Where an order is passed without such representation, the same may be
discharged with. Further, by way of Rules 6 and 7, without the leave of the court, no guardian or next
friend can:

 Receive any amount or movable property on behalf of the minor

 Enter into any agreement on behalf of the minor
 Reach any sort of compromise in the suit on behalf of the minor

The guardian must apply for leave of the court in all of the above cases and the application must be
accompanied with a pleaders certificate and affidavit. Any agreement entered into, without the leave of
the court is voidable at the instance of the minor. Rules 6 and 7 have been designed in order to
safeguard the interests of a minor during the pendency of a suit against hostile, negligent or collusive
acts of next friend or guardian.

The principle these rules follow is that infant litigants become wards of court and therefore it becomes
the duty of the court to ensure that guardians act properly and bona fide in the interests of the minor.
The protection however, is only during the pendency of the suit.

Duty to Act in Best Interest of Minor

As already stated in rule 4 any person complying with the qualifications under Rule 4 may become
guardian or next friend. The guardian or next friend however, must ensure that he acts in best interests
of the minor or unsound person. A guardian must ensure that the discretionary powers exercised by him
in his capacity as guardian including the employment/dismissal of legal counsel etc. must be in the best
interests of the minor and not to advance his own cause or interests.

However, in certain cases it may be allowed for the guardian and the minor to have common interest in
the suit. As in the case of Ranganathan Chettiar v. Perrkarriappa Chettiar where the mother was allowed
to bring a suit concerning certain properties to be inherited by her and her minor son which had been
wrongfully claimed by the brother of the deceased husband.

 When a minor attains majority, he can choose either to proceed with a particular suit or to
abandon it, if he had moved the court through a next friend/guardian. Therefore:
 Where he elects to proceed with the suit - he must apply for an order from the court discharging
the next friend or guardian and for leave to proceed with the suit in his own name.
 Where he elects to abandon the suit - he must apply for dismissal of suit on repayment of costs
to defendant or next friend/guardian as the case may be.
  Where minor co-plaintiff desires to repudiate suit - he may repudiate the suit and apply to have
his name as co-plaintiff stuck off. The court after examination of the circumstances may remove
his name from the suit on finding that he is not a necessary party or may make him a defendant
instead.
 Where minor desires that suit instituted in his name be dismissed on the ground that it was
unreasonable/improper - he may by application move the court for dismissal on such grounds.

It is important to mention that Order XXXII does not expressly provide for provisions when a defendant
would attain majority because a defendant cannot terminate the suit.

Application of Order XXXII to persons of unsound mind - Rule 15 of the Code states that the provisions of
Order XXXII (Rules 1 to 14) shall squarely apply to persons of unsound mind as they do to minor with
exception of Rule 2A which relates to the furnishing of certain securities by guardian.

Conclusion

Order XXXII is another example of exemplary legal framework which is part of a larger code and process
of litigation that has been operating since the inception of the Code in 1908. The rules under the order
have also been amended from time to time to ensure that relevance is maintained.

Situations such as fraud, collusion and adverse interest have been considered. The judicial opinion as to
negligence of guardian have changed over time and is an interesting field where there is more scope to
expand minor s rights. However, Order XXXII is quite complete in its treatment of the legal problem on
how to ensure fair representation of minors and persons of unsound mind.

7. "Limitation bars the remedy but does not extinguish the right." Explain. 12

Ans: Introduction

The law of limitation finds its roots in the maxim Interest Reipublicae Ut Sit Finis Litium which means
that in the interest of the state as a whole there should be a limit to litigation and vigilantibus non
dormientibus Jura subveniunt which means the law will assist only those who are vigilant with their
rights and not those who sleep upon it.

The Limitation Act, 1963 (Act hereafter) prescribes different periods of limitation for filing of suits,
appeals or applications.The statute of limitation are statutes of repose because they extinguish stale
demands and quiet titles. They secure peace by ensuring the security of rights and justice as by lapse of
time, evidence may get destroyed.

Object of the Act

The Law of limitation prescribes a time period within which a right can be enforced in a Court of Law.
The time period for various suits has been provided under the schedule of the Act. The main purpose of
this Act is to prevent litigation from being dragged for a long time and to quickly dispose of cases which
leads to effective and easy litigation and disposal of cases.
Period of Limitation

Section 2(j) of the Act defines the period of limitation and prescribed period. Period of limitation refers
to the time period which is prescribed for any suit, appeal or application by the Schedule of the
Limitation Act, 1963. The prescribed period is the period of limitation computed in accordance with the
provisions of this Act.

Section 3 of the Act describes the Bar of limitation as 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 defense.

When Period of Limitation Starts

The time from which the period of limitation begins depends on the case's subject matter, and a specific
starting point of such period is provided extensively by the Schedule in the Act. It generally starts from
the date when the summons or notice is served, or the date on which the decree or judgment is passed,
or the date on which the event that forms the basis of the suit takes place.

Bar of Limitation Under Section 3

Section 3 of the Act provides that any suit, appeal, or application must be made within the limitation
period specified in the Limitation Act.

If any suit, appeal or application is made beyond the prescribed period of limitation, it is the duty of the
Court not to proceed with such suits irrespective of the fact whether the plea of limitation has been set
up as a defence or not. The provisions of Section 3 are mandatory, and the Court can suo motu take
note of question of limitation. The question whether a suit is barred by limitation should be decided on
the facts as they stood on the date of presentation of the plaint. It is a vital section upon which the
whole Limitation Act depends for its efficacy. The effect of Section 3 is not to deprive the Court of its
jurisdiction. Therefore, decision of a Court allowing a suit which had been instituted after the period
prescribed is not vitiated for want of jurisdiction. A decree passed in a time barred suit is not a nullity.

Limitation Bars Remedy but doesn't Extinguish Right

The law of limitation only bars the remedy by way of the suit i.e., if the period of limitation expires, the
party entitled to file a suit for the enforcement of a right is debarred from doing so.

However, the original right on which the suit was to base is not barred. Thus, limitation only bars the
judicial remedy, but it does not extinguish the right.

For example, where the recovery of a debt has become time barred by the lapse of the prescribed
period, the right to the debt is not extinguished.

If the debtor, without being aware of the bar of time, pays the debt, he cannot sue the creditor to
refund the money to him on the grounds that his claims for the recovery of the debt had become time
barred. There is one exception to the aforesaid rule contained in Section 27 of the Limitation Act, 1963.
It provides that where a person’s right to institute the suit for the possession of any property has
become barred by limitation his right to the property itself shall be extinguished.

Extinguishment of Right

General Rule that the law of limitation only bars the remedy but does not bar the right itself.

Section 27 is an exception to this rule. It talks about adverse possession. Adverse possession means
someone who has possession over another’s land for a long time can claim a legal title over it. In other
words, the title of the property will vest with the person who resides in or is in possession of the land or
property for a long period. If the rightful owner sleeps over his rights, then the rights of the owner will
be extinguished, and the possessor of the property will confer a good title over it. Section 27 is not
limited to physical possession but also includes de jure possession. As per the wordings of this Section, it
applies and is limited only to suits for possession of the property.

Doctrine of Sufficient Cause

Sufficient cause means there should be adequate reasons or reasonable ground for the court to believe
the applicant was prevented from proceeding with the application in a Court of Law.

Section 5 allows the extension of prescribed period in certain cases on sufficient cause being shown for
the delay. This is known as doctrine of “sufficient cause” for condonation of delay which is embodied in
this section. Condonation of delay means that extension of time given in certain cases provided there is
sufficient cause for such delay. Section 5 of the Act talks about the extension of the prescribed period in
certain cases. It provides that if the appellant or the applicant satisfies the court that he had sufficient
cause to not prefer the appeal or application within that period, such appeal or application can be
admitted after the prescribed time.

In State of West Bengal v. Administrator (1972), the Supreme Court held that the extension of time is a
matter of concession and can not be claimed by the party as a matter of right.

It is difficult and undesirable to precisely define the meaning of sufficient cause. It must be determined
by the facts and circumstances of each case. However, a sufficient cause should fulfill the following
essentials:

 It must be a cause which was beyond the control of the party invoking it.
 He must not be guilty of negligence.
 His diligence and care must be shown.
 His intention must be bonafide.

Exception

Section 5 is not applicable to applications made under any of the provisions of Order XXI of the Code of
Civil Procedure, 1908 (states that the decree must be signed by the judge, and then the decree must be
entered in the register of decrees and further states that the decree should be dated and authenticated
by the judge's signature) and to suits.

The Court has no power to admit a time barred suit even if there is a sufficient cause for the delay. It
applies only to appeals or applications as specified therein.

Plea of limitation: Duty of Court

The Court is under an obligation to dismiss a suit if it is filed beyond the time prescribed by the
Limitation Act. The provisions of Section 3 are mandatory, and the Court will not proceed with the suit if
it is barred by time.

Case Laws

 Craft Centre v. Koncherry Coir Factories (1990):

It was held by the Kerala High Court that the plaintiff's duty is to convince the Court that his suit is within
time. If it is out of time and the plaintiff relies on acknowledgments to save the limitations, he must
plead or prove them, if denied. The Court further held that, provision of Section 3 is absolute and
mandatory and if a suit is barred by the time, the court is under a duty to dismiss the suit even at the
appellate stage though the issue of limitation may not have been raised.

 ICICI Bank Ltd v. Trishla Apparels Pvt Ltd (2015):

It was held by Madras High Court that there is no doubt that the court is duty-bound to dismiss the suit
in a case it is barred by time even though no such plea has been taken by the opposite party.

Limitation Period When the Court is Closed

Section 4 of the Limitation Act deals with the provision and mentions:

When a court is closed on a certain day and the period of limitation expires on that day, then any suit,
appeal or application shall be taken up to the Court on the day on which it reopens.

This means that a party is prevented not by his own fault but because of the Court being closed on that
day.

For instance, if a Court reopens on 1st January and the time for filing the appeal expires on 30th
December (the day on which the Court remains closed) then the appeal can be preferred on the 1st of
January when the Court reopens.

Or

Explain the terms

(a) Sufficient cause

Ans: The doctrine of “Sufficient Cause” for time extension is the same as the condonation of delay. In
order to seek condonation of delay, one must show the “sufficient cause” of delay. We have already
seen the general rule, which is to approach the court within the prescribed period of limitation.

However, there can be some exceptions to this general rule and an application or appeal can be
admitted by the Court even after the period of limitation by condoning the delay. In order to seek
condonation of delay, a party must satisfy the court that they had been obstructed by some sufficient
cause from filing the application or appeal within the prescribed time frame.

There is no per se definition of the term ‘sufficient cause’ in the limitation act, giving it a much wider
scope of interpretation.

In the case of Municipal Corporation of Ahmedabad v. Voltas Ltd, the High Court of Gujarat opined that
sufficient cause must be interpreted liberally to ensure substantial justice to the parties.

The interpretation should be able to ensure that no injustice is done to the judgement debtor by
depriving him of his right to appeal on the basis of some circumstances that were out of his control.
However, the cause has to be reasonable and bona fide. The Court stated that sufficient cause could
differ from case to case and providing a definition to such wide doctrine would limit its scope.

Also, in the case of Balwant Singh v. Jagdish Singh, the Court held that a party seeking condonation of
delay must show that they were acting bona fide and had taken all possible measures within their power
and control and did not approach the court with any unnecessary delay.

Further, in the case of Collector Land Acquisition v. Mst. Katiji & ors, the Supreme Court held that:

“The term ‘sufficient cause’ in the provision is reasonably flexible, allowing courts to apply the law in a
meaningful manner. This allows the Courts to serve justice, which was why they were formed. However,
the Courts lower in the hierarchy seem to not be exercising this power much.”

Upon reading the judgements, we can infer that sufficient cause must be some situation that is beyond
our control. There can not be any one-and-proper definition of ‘sufficient cause’ as the Courts have
complete liberty to decide whether the cause is sufficient or not. It may differ from case to case.

Mistake by the counsel, mistake of law, illness of the party, death of the party’s family members, global
pandemic, death of the counsel, etc, could be some instances of sufficient cause. Ignorance of law and
carelessness can never be sufficient cause.

Section 5 of the Act makes it clear that to grant condonation for the delay is totally upon the discretion
of the Court, and the burden to prove sufficient cause lies upon the party claiming such condonation.

(b) Continuous running of time

Ans: The Limitation Act is a statute that sets out the time limits within which legal proceedings must be
brought in relation to a specific cause of action.
In general, the Limitation Act aims to ensure that legal disputes are resolved promptly and that the
passage of time does not undermine the integrity of legal proceedings. One of the key provisions of the
Limitation Act is the concept of "continuous running of time." This refers to the idea that the time limit
for bringing a legal claim begins to run from the date that the cause of action arises, and continues to
run until the claim is brought or until it is barred by the expiration of the time limit.

Basis of Section 9 of Limitation Act

This section is founded on the general principle that when once limitation has commenced running, it
will continue to do so unless it is stopped by virtue of any express statutory provisions. Once the period
of limitation commences it cannot be stopped or be avoided by introducing another cause of action or
relief in the suit or by reformulating them

Continuous Running of Time U/S 9 Limitation Act

The rule as to the continuous running of time is one of the fundamental principles of the law of
limitation, this rule says that where once time has begun to run, it runs continuously and without any
break or interruption until the entire prescribed period has run out, and no disability or inability to sue,
occurring subsequently to the commencement will stop it running. This rule is embodied in section 9 of
the Act which applies to suits as well as applications although the words used are inability to sue.

Essentials Of Section 9 Of The Limitation Act:

(i) Time Has Begun to Run:

For the applicability of section 9, it is necessary that time has begun to run. Generally, the time begins to
run when the cause of action accrues and the true test to determine when the cause of action has
accrued is to ascertain the time when the plaintiff could have first maintained his action to a successful
result.

(ii) Disability or Inability to Sue:

This includes disability to make applications for execution as well. Disability means the want of legal
qualification to act and inability means the want of physical power to act. This disability is the state of
being a minor insane or an idiot, whereas illness, poverty, etc. are instances of inability

(iii) Subsequent Disability or Inability:

To apply this section. it is necessary that the disability or inability must accrue subsequent to the cause
of action.

(iv) Disability or Inability of Plaintiff:

The expression disability or inability to sue refers to something which pertains to the plaintiff.
Scope of Section 9:

Section 9 is based on the general principle that once time has begun to run, it will continue to do so
unless stopped by virtue of any express statutory provision. Section 9 does not affect any exemption
from the limitation which may operate without stopping time from running.

(c) Legal disability.

Ans: The ‘Law of Limitation’ provides an aggrieved party with the time limit for different suits within
which the party can approach the court for relief.

The suit is dismissed by the competent court where the time limit provided by the limitation act expires.
A situation may exist where, due to his physical or mental condition, the person is not able to file a suit
or make an application.

In such cases, the law may not be the same and additional rights and benefits may be accorded to
individuals with disabilities.

The concept of legal disability is provided under Section 6 of the Limitation Act,1963 which further
extends to Sections 7, 8 and 9.

Section 6 of the Limitation Act,1963

Legal disability —(1) Where a person entitled to institute a suit or make an application for the execution
of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an
idiot, he may institute the suit or make the application within the same period after the disability has
ceased, as would otherwise have been allowed from the time specified there for in the third column of
the Schedule.

(2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by
two such disabilities, or where, before his disability has ceased, he is affected by another disability, he
may institute the suit or make the application within the same period after both disabilities have ceased,
as would otherwise have been allowed from the time so specified.

(3) Where the disability continues up to the death of that person, his legal representative may institute
the suit or make the application within the same period after the death, as would otherwise have been
allowed from the time so specified.

(4) Where the legal representative referred to in sub-section (3) is, at the date of the death of the
person whom he represents, affected by any such disability, the rules contained sub-sections (1) and (2)
shall apply.
(5) Where a person under disability dies after the disability ceases but within the period allowed to him
under this section, his legal representative may institute the suit or make the application within the
same period after the death, as would otherwise have been available to that person had he not died.

Explanation —For the purposes of this section, ‘minor’ includes a child in the womb.

The section deals with following types of disabilities:

 Minority
 Insanity
 Idiocy
 Minority

Minor is a person who has not attained the age of 18 years according to Indian Majority Act, 1875.

The calculation of the age has to be done according to Section 3(2) of the Majority Act, 1875 - In
computing the age of any person, the day on which he was born is to be included as a whole day and he
shall be deemed to have attained majority at the beginning of the eighteenth anniversary of that day.

Insanity

It means unsoundness of mind or lack of the ability to understand that prevents someone from having
the mental capacity required by law to enter into a particular relationship, status, or transaction or that
releases someone from criminal or civil responsibility.

In the case of S.K.Yadav v. State of Maharashtra (2009), the concept of insanity has been dealt with in
detail by the Supreme Court and the court opined that only legal insanity is recognized by law and not
the medical insanity.

Another case on the point of insanity is that of Hari Singh Gond v. State of Madhya Pradesh (2008) in
which the Supreme Court categorized insanity into further four categories:

 When one is an idiot;

 When one is made non compos by illness
 When one is a lunatic or a mad man and
 When one is drunk.

Idiocy

A person who acts in an extremely foolish way is said to be an idiot. Idiocy is not an acquired form of
mental instability, rather a person is an idiot since his/her birth.

Computation of Limitation Period in case of Legal Disability

Persons with insanity, minority and idiocy as disabilities are exempted under Section 6 to file a suit or an
application for the execution of the order in the time prescribed by the law. They are allowed to file a
suit or an application when their disability has ceased and counting the period starts from the day their
disability comes to an end.

Section 7 of the Limitation Act,1963

Disability of one of several persons.—Where one of several persons jointly entitled to institute a suit or
make an application for the execution of a decree is under any such disability, and a discharge can be
given without the concurrence of such person, time will run against them all; but, where no such
discharge can be given, time will not run as against any of them until one of them becomes capable of
giving such discharge without the concurrence of the others or until the disability has ceased.

Explanation I —This section applies to a discharge from every kind of liability, including a liability in
respect of any immovable property.

Explanation II —For the purposes of this section, the Manager of a Hindu undivided family governed by
the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the
other members of the family only if he is in management of the joint family property.

Section 7 had to be taken as an exception to the general principle set out in Section 6 and provides that
if there were several persons who were jointly entitled to file suits and if one of them were disabled, the
time would not run against either of them until the disability ceased to exist. But if one of the persons
entitled to institute a suit was competent to grant discharge without concurrence from others, then
time would begin to run against both of them.

Conclusion

Legal disability under Limitation Act includes minority, insanity or mental disability. It serves as a
safeguard to protect individuals who are unable to fully comprehend their legal rights and
responsibilities. By temporarily suspending the ability to initiate legal proceedings, it ensures that
vulnerable individuals are not taken advantage of during periods of diminished capacity. Moreover, it
allows for a fair and equitable legal process, as it requires parties to possess the necessary competence
to actively participate in legal proceedings.

The Limitation Act incorporates various sections, namely Sections 6, 7, 8 and 9, to address different
aspects of legal disability. These sections collectively define the parameters within which legal disability
operates. Section 6 serves as the primary provision, while Sections 7, 8 and 9 further expand on specific
situations where legal disability under Limitation Act may apply.

EDITED BY – KIRTEE KAMAL DAS

LLB 4th SEMESTER (2022 batch)

UNIVERSITY LAW COLLEGE, GAUHATI UNIVERSITY