Limitation in Pakistani Civil Practice: Reading the Act of 1908

The Limitation Act 1908 is the shortest route to losing a good case, and it is read less carefully than almost any statute of comparable consequence. It extends to the whole of Pakistan, it has not been replaced, and its structure is worth holding in the head rather than looked up once a period has already run.

Section 3 does not wait to be asked

The operative provision is section 3, and its sting is in the last clause:

Subject to the provisions contained in sections 4 to 25 (inclusive), every suit institute, appeal preferred, and application made, after the period of limitation prescribed therefore by the first schedule shall be dismissed, although limitation has not been set up as a defence.

Limitation is not an ordinary defence that is waived by not pleading it. The court is required to dismiss whether or not the point is taken, and an opponent who has failed to plead it has given away nothing. That is the first thing to understand, because it means the calculation has to be done before filing rather than after a written statement discloses that somebody noticed.

The Explanation to the section fixes the moment of institution: in ordinary cases, when the plaint is presented to the proper officer. Not when it was drafted, and not when it was signed.

Section 4 supplies the one obvious relief. Where the period expires on a day the court is closed, the suit, appeal or application may be filed on the day the court re-opens.

Section 5 is not for suits

This is the most common error in practice and it is worth stating flatly. Section 5 allows the court to admit, after the prescribed period, an appeal, an application for revision or review, an application for leave to appeal, or any other application to which the section is made applicable by or under an enactment, where sufficient cause for the delay is shown.

A suit is not in that list. There is no condonation of delay for a time barred plaint. Where a plaintiff has run out of time, the answer is never an application under section 5; it is either an exclusion under Part III of the Act or nothing.

The Explanation to section 5 is worth knowing for its own sake. Being misled by an order, practice or judgment of the High Court in computing the period may itself be sufficient cause.

The provisions that actually save cases are in Part III

Part III governs computation, and this is where a period that looks expired frequently is not.

Section 12 excludes the day from which the period runs. For an appeal, an application for leave to appeal or an application for review, it also excludes the day the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order. That last exclusion is routinely worth weeks and is routinely forgotten when the copy was applied for late.

Section 14 excludes the time spent prosecuting, with due diligence and in good faith, another civil proceeding founded on the same cause of action against the same defendant, in a court which from defect of jurisdiction or other cause of a like nature was unable to entertain it. The clause carries real conditions and each of them has to be pleaded and proved. It is the provision that rescues a plaintiff who filed in the wrong forum, and it does nothing for a plaintiff who simply filed late.

Section 18 deals with fraud. Where a person entitled to sue has by fraud been kept from knowledge of the right, or where a document necessary to establish it has been fraudulently concealed, time runs from when the fraud first became known to the person injuriously affected.

Section 19 is the acknowledgment provision, and it is the one that most often changes the arithmetic in a recovery matter. Where, before the period expires, an acknowledgment of liability in respect of the property or right is made in writing and signed by the party against whom the claim is made, a fresh period runs from the date of the signature. Two limits sit inside that sentence and both matter: the acknowledgment must be in writing and signed, and it must be made before the original period has run out. An acknowledgment after expiry revives nothing.

Section 29 and the special statutes

Section 29(2) governs what happens when another statute prescribes its own period. Where a special or local law prescribes a period different from the First Schedule, section 3 applies as if that period were in the Schedule, and only sections 4, 9 to 18 and 22 of the Act apply, and then only so far as they are not expressly excluded by the special law. The remaining provisions do not apply at all.

The practical consequence is that section 5 does not travel automatically into a special statute. Whether delay can be condoned under a rent law, a service law or a recovery ordinance is a question about that statute, not a question about the Limitation Act.

Two articles worth memorising

The First Schedule is long and mostly consulted rather than remembered, but two entries earn their place in the head.

Article 113 gives three years for a suit for specific performance of a contract, running from the date fixed for performance or, where no date is fixed, from when the plaintiff has notice that performance has been refused. The second limb is the one that gets litigated, because an oral refusal starts the clock and is rarely documented.

Article 120 is the residuary entry: six years for any suit for which no period is provided elsewhere in the Schedule, running from when the right to sue accrues.

A working habit

Compute limitation at the first conference, from the Schedule article rather than from memory, and write the computation into the file with the exclusions identified. If the period is close, identify which Part III provision is being relied on before the plaint is settled, because every one of them requires facts that must be pleaded. And where the claim arises under a special statute, read that statute's own limitation provision first and section 29 second.

The Act is federal and applies in Islamabad and in all four provinces alike, which is one of the few areas of civil practice where the answer does not change when you cross a provincial line.