Unit- I

Que. 1. Define Pleading. What are the essentials of Pleading ? On what stage pleading can be
amended.

Unit- II

Que. 2. What are the consequences of appearance and non appearance of parties to a suit?

Unit- III

Que. 3. Expalin the procedure to file a suit against Government.

Unit- IV

Que. 4. Discuss the concept of summary procedure under CPC.

Unit- V

Que. 5. Discuss the concept and objective of Limitation Act- 1963.

ANSWER 1

Pleading is a very essential concept in any legal jurisprudence. It is the way by which parties to a
dispute tell their case to the court and to the adverse party. 

Order 6 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter ‘CPC’) defines pleadings as
“plaint or written statement”. Plaint is the document submitted by the plaintiff, i.e. the aggrieved
party who states the material facts, reasons for filing the suit and what remedy or relief the
aggrieved person is claiming through the legal proceedings.

On the other hand, a written statement is a reply to the plaint wherein the defendant, i.e. the
opposing party against whom claims are being made by the plaintiff.
According to Mogha, “pleadings are statements in writing drawn up and filed by each party to a
case, stating what his contentions will be at the trial and giving all such details as his opponent
needs to know in order to prepare his case in answer”

Pleadings contain claims by the plaintiff, counterclaims by the defendant, questions and answers
and everything that is essential to lead the case to a certain end. Any ground or fact not
mentioned in the pleadings cannot be used or relied upon by the parties in court during the
judicial proceedings.

In Devki Nandan v. Murlidhar, 1957, the Supreme Court held that a finding of the court, i.e. any
point of determination established by the court is null and void if it is based on materials not
mentioned in the pleadings. Therefore, the pleading is the backbone of a suit on which the fate of
the suit rests.

Essential of pleadings

Order 6 Rule 2(1) states that “every pleading shall contain, and contain only, a statement in a
concise form of the material facts on which the party pleading relies for his claim or defence, as
the case may be, but not the evidence by which they are to be proved”. Thus, this provision
indicates that there are four basic or fundamental rules of documenting a pleading:

1. Pleadings ought to state the facts of the case and not the legal provisions applicable in the
case.

2. Pleadings must contain only material facts.

3. Pleadings should contain the relevant facts on which either party relies but it should not
state the evidence by which the fact is proposed to be proved.

4. Pleadings must contain a concise, i.e. brief facts that explains the details of the case in
short.

Now, these rules are discussed profusely as follows:

1. Pleadings ought to state the facts of the case and not the legal provisions applicable in the
case:
In Kedar Lal v. Hari Lal,1952, the apex court held that the parties to a civil suit are obliged
only to state the facts and situations that happened and on which they rely in the pleadings and to
apply the law is the duty of the judiciary. It means that the parties should state what their claims
are and why they should be granted to them.

For instance, in the earlier example where A complained about B hitting him, A should explain
only what caused the fight, what was A’s role in the fight, why did B hit him and should not
explain what offence has been committed by A by hitting B and which provision should apply
and what procedure should be followed.

However, the rule was expanded a little in Union of India v. Sita Ram Jaiswal, 1976,wherein the
apex court held that if there is a point of law which is in dispute or which has become part of the
dispute, the point of law must be explained in the pleadings with necessary reference to relevant
and vital facts of the case.

2. Pleadings must contain only material facts:

This the essential rule which states that facts which are material should find a place in pleadings.
The question that remains is what constitutes material fact and which fact is immaterial. There is
no specific definition of the expression ‘material fact’ either in the CPC or any other law.

Nevertheless, the apex court has explained the meaning of ‘material fact’ in Udhav Singh v.
Madhav Scindia,1977. The court averred that ‘material facts’ all those primary facts that are
relied on by the parties either to substantiate their claims and establish their cause of action or
used for their effective defence or counterclaim against the claiming party.

It has been observed by the courts that what type of facts or information would amount to
material fact is a subjective issue and shall be determined by the court on a case to case basis
depending upon the circumstances of the case.

3. Pleadings should contain the relevant facts on which either party relies but it should not
state the evidence by which the fact is proposed to be proved:

According to this rule, the evidence must be omitted from the pleadings. In other words, the
party is not obliged to mention the documentary evidence or the witnesses which it proposes to
produce before the court to be used against the adverse party. This is to ensure the fairness of a
trial and assure the safety of the evidence. There are two types of facts according to
jurisprudence, i.e. facta probanda and facta probantia.

Facta Probanda means facts which are essential for either party to prove their case and
establish their cause of action or defence as the case may be. These facts are necessitated by
Order 6 Rule 2 to be mentioned in the pleading. Contrary to this, facta probantia  means facts
which are in the form of evidence. Any fact which is in the form of evidence and which shall be
used by the parties to prove the  facta probanda shall not be mentioned in the pleading.

4. Pleadings must contain a concise, i.e. brief facts that explains the details of the case in
short:

The last and final basic or fundamental rule which is also called the ‘rule of brevity’ requires that
the pleadings are short, unambiguous and not capable of multiple interpretations but only one
interpretation that the pleader desires to convey.

In Virendra Kashinath v. Vinayak N. Joshi,1999, the court observed that pleadings must be
brief and niggling should be avoided. However, it does not mean that essential facts need to be
omitted or missed in the attempt to achieve brevity. However, the court averred, if syntax errors
and drafting style is perfect, pleadings can be precise and legible.

Amendment of Pleadings

Rules 17 and 18 of Order VI of Code of Civil Procedure, 1908 deal with amendment of pleading.
These provisions aim towards achieving justice in the society. Rule 17 of the Code of Civil
Procedure, 1908 provides either parties may be ordered to amend or alter his pleading at any
stage of the proceeding in such manner which shall be fair and just and allow amendment when
necessary so as to determine the exact controversial question between the parties.

On the other hand Rule 18 deals with the issue of failure of amending the pleading. It deals with
the law that if court orders a party to make necessary and if he fails to do the same within the
given time limit given by the order or if no time is limited then within 14 days from the date of
the order, he shall not be permitted to amend after the expiration of such limited time as
aforesaid or of such 14 days, as the case may be, unless the time is extended by the Court.
Amendment of Pleadings when granted:

In the case of Kishan Das  Vithoba Bachelor, the court stated that there are two necessary
conditions to be satisfied before granting leave for amendment of pleadings:

1. This grant of leave should not leads to the injustice to other party.

2. This Amendment of pleadings is necessary for determining the real question of

controversy between parties.

In the case of  Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K. Sarawagi And Co. Pvt. Ltd.
And Anr, the honorable Supreme Court stated certain conditions when amendments of Pleadings
can be allowed they are:

 When nature of the case will change by allowing application for amendment of appeal

 When a new cause of action arise by allowing application of an amendment

 When Amendments of Pleadings defeats the law of limitation.

Other points on which Amendments of Pleadings is granted:

 When the application of amendment is filed to avoid multiplicity of suits.

 When parties in the plaint or written statements wrongfully described.

 When the plaintiff omits to add some properties to the plaint.

Amendment of Pleadings when refused:

1. Application of amendment of Pleadings is rejected by the court when this amendment is

not necessary for determining the real question of controversy between parties.

2. Application of amendment of pleadings is rejected when it leads to the introduction of a

totally new case. In the case of the Modi Spg. Mills v. Ladha Ram & sons, Supreme
Court held that “ the defendant cannot be allowed to change completely the case made in
certain paragraphs of the written statement and substitute an entirely different and new
case”.
 3. When the Plaintiff or defendant is negligent

4. When proposed alteration or modification is unjust

5. Application for Amendments of Pleadings is refused when it violates the legal rights or
cause injustice to the other party

6. Leave to amend is refused when it leads to the needless complications in the case.

7. Leave to amend is refused when there has been excessive delay by the parties in filing the
suit.

8. Application of Amendment is refused when it changes the nature of the disputes

9. The court will not grant application of amendment of pleadings if it is made with mala
fide intention.

10. Where several opportunities are given to parties to apply for amendment of pleadings.
But they failed to make an application.

Pleadings form the backbone of any legal suit. The case is set out in the pleading. It guides the
parties to form the arguments and know the contentions of the other party so as to frame claims
or defence by either party respectively. It is guidance in the whole journey of the suit. They also
determine the range of admissible evidence which the parties should adduce at the trial. The
Code of Civil Procedure lays down the fundamental rules of pleadings along with the
amendments to the same. These provisions are aimed to strike a balance in the society and to
achieve the ultimate ends of justice.

ANSWER 2

Appearance and non-appearance of the parties in a civil suit is the important factor upon which
the fate of any case depends. A mere non-appearance of a party in front of the court on a
determined day may result in an adverse decision with respect to the non-appearing party. The
general provisions contained in the Civil Procedure Code of 1908 is based on the principle that
no proceedings which are detrimental to the interest of any of the parties to the suit shall be
conducted in the court of law.

The provisions with respect to the consequences in case of non-appearance of parties and other
related provisions are contained in the Order IX of Civil Procedure Code, 1908. The rules
regarding the consequences of appearance and non-appearance of parties to the suit under the
Order IX of CPC are as follows:

 Rule 2– the consequences of non-deposition of fees by the plaintiff.

 Rule 3 and Rule 4 - the consequences of non-appearance of both the parties to the suit.
 Rule 8, Rule 9 and Rule 9(A)– consequences of non-appearance of the plaintiff to the
court of law.
 Rule 6, Rule 13 and Rule 13(A)– provisions with respect to non-appearance of the
defendant to the court of law.

Appearance of parties

The word “appearance” under civil cases has a well-known meaning. It means the appearance of
the party to the suit before a court of law. The appearance can be by the party in person or
through his advocate or through any person along with the advocate of the party.

The mere presence of the party before the court of law is not what the word “Appearance” under
the Order IX of the CPC,1908 means. But the word “appearance” under CPC means the
appearance made by the pleader who is able to answer all the material questions which are
relevant to the judicial proceedings in question before the court of law in a duly prescribed and
recognized manner and on the date allotted by the court to each party unless the court has
adjourned the proceedings of the case to some other day.

Rule 1 of Order IX is related to the appearance of the parties on the date of first hearing of the
case. It declares the mandatory presence of the parties before the court of law on the day fixed by
the court under the summon issued on the defendant.
According to Rule 2 of the Order IX, the failure on the part of the plaintiff to submit any
processing fee determined by the court of law on any stipulated date. Then such a failure would
result in the dismissal of the suit by the court. However, no such dismissal to the case can be
made where the defendant in person or through his agent attend the proceedings of the court and
answers all the material questions possessed by the court.

Where neither party appears

Rule 3 and Rule 4 of Order IX of Civil Procedure Code, 1908 deals with the cases where neither
of the parties in a case appears before the court of law on the date fixed by the court of law.
According to Rule 3 of the Order IX of CPC. In such a case, the suit shall be dismissed by the
court and according to Rule 4, the plaintiff can file a new suit in the court of law if he is able to
satisfy the court that there was a sufficient cause for his non-appearance in court.

In Damu Diga v. Vakrya Nathu, the plaintiff sued the defendants, D1 and D2. on the date fixed
by the court for appearance of the parties to the suit only D2 appeared in the court. The
subordinate court erred while passing the order of dismissal of the case. However in an appeal
against the decision of the court. It was held that the present case comes under the purview of
Rule 4 of Order IX of CPC and court should take into consideration the fact that not only the
plaintiff in the case was absent from the proceedings. But, defendant number 1 was also absent
and the according to Rule 4, the court must allow the plaintiff to apply for an order setting aside
the dismissal of the case by the court.

Where only plaintiff appears

Rules 6 and 10 of the CPC talks about it, where the plaintiff appears and defendant does not
appear, the plaintiff has to prove service of summons on the defendant. If the service of
summons is proved, the court may proceed ex parte against the defendant and may pass a decree
in favour of the plaintiff if the plaintiff proves its case. This provision is however confined to
first hearing and does not per se apply to subsequent hearings.

Where only the defendant appears

Rule 8 of the Order IX of the CPC talks about the legal consequences of the non-appearance of
the plaintiff and the appearance of the defendant in the court of law. According to the rule, in a
case where the defendant makes an appearance in the court of law on the due date and the
plaintiff remains absent from the proceedings. The court shall make an order of dismissal of the
case unless the defendant admits a claim or parts thereof as in such a case the court can pass a
decree against the defendant upon such admission or where only the part of the claim is
admitted. If the case of the plaintiff has been dismissed by the court under Order IX of the CPC
then the plaintiff has two options to revive his case in the court of law. Which are as follows:

The plaintiff can file a fresh suit in the court of law if the same has not been barred by any law in
force; or

The plaintiff can file a petition under Rule 4 of Order IX of Civil Procedure Code, 1908.
According to Rule 4 of the Order where a case has been dismissed in pursuance of Rule 2 or
Rule 3 of the Order IX then the plaintiff can apply for an order for the dismissal of the case by
the court.

In the case of The Secretary, Department of Horticulture, Chandigarh and Anr. Vs. Raghu Raj,
the court held that the plaintiff should not suffer because of the non-appearance of the counsel
appointed by him with good faith that he will make an appearance without any reasonable cause
in the court of law whenever the plaintiff is called for in the court. As such non-appearance by
the counsel representing the plaintiff without any reasonable cause is not only unprofessional and
unfair to the plaintiff but is also unfair and discourteous towards the court of law. And so the
plaintiff should not suffer because of the fault of the counsel he has hired in good faith.

Ex parte decree

Rule 6(1)(a) of Order IX of the Civil Procedure Code empowers the court to pass any judgement
ex parte in case the defendant party in a case absents himself from the proceedings on the due
date fixed by the court of law which has been informed to him by the summon duly served on
him of the case. An Ex parte decree is neither void nor inoperative but it is voidable at the option
of one party which may seek the order of annulment of the decree.

Remedies

The Code provides the following remedies to the defendant against whom an ex parte decree by
the court has been passed:
  An application under Order IX, Rule 13 of the Code;
 Annulment of the decree under Section 12 of the Code by proving that the decree has
been obtained on the ground of any of the vitiating factors like a fraud;
 Filing of a review petition under Section 114 of the Code;
 Filing the application for rehearing of the case on the grounds of violation of the
principles of natural justice;
 Filing of an appeal under Section 96 of the Code.

ANSWER 3

Suits by or against the government or public officials in their official capacity is a type of special
cases in the code of civil procedure. Such suits are of a special type because the procedures
which are needed to be followed in the institution of the plaint are different from the procedures
which are to be followed in the civil suits which consists of private parties. For filing a suit
against the government or public official, the plaintiff needs to first serve a legal notice to the
public officer or to the Secretary to the Government.

After the service, the plaintiff needs to wait or two months to file the plaint in the Court. A lot of
formalities and procedures are needed to be taken care of to file the suit. However, in certain
situations, the Court may grant an exception, but it depends upon the facts and circumstances of
the case.

Analysis

Sections 79-82 and Order 27 of the Code of Civil Procedure, 1908, deal with the procedure
which needs to be followed in the process of filing of a suit against the government or public
officials. Code of civil procedures prescribes only the procedures. The rights and liabilities of the
parties are dealt by the Constitution of India, 1950.

The first step in the process of filing of suit in this case is service of notice to the
defendant. Section 80 of the Code of Civil Procedure, 1908 states that only after the expiry of
two months from the date of service of notice to the government officials, a plaint can be filed in
the Court of law.

In the case where the defendant is the Central Government the notice should be served to the
Secretary to the Government, in case the defendant is the Railways the General Manager, in case
of State Government the Secretary to that Government or to the Collector of the District, in case
of public officer the notice should be served to him and in case the defendant is the State of
Jammu and Kashmir the notice should be served to the Chief Secretary of the Government or any
other officer authorized by the government.

The main intention of the Legislative in the insertion of this section and adding this process in
the filing of suit is to make sure that the Government or the Public Officer knows the reasons,
demands or the concern of the Plaintiff for which the suit shall be instituted. By knowing the
distress of the Plaintiff, the Public official can act upon it and rectify the situation. The time
period of two months is also provided for the same reason.

The main objective of government is to serve the public and protect their rights. By providing the
notice along with the necessary time they can give more importance to the problem and settle the
dispute by not approaching the Court. This shall not only save the time of the Court, but also of
the government and the unnecessary legal expenses.

In the case of State of Madras v. C.P. Agency,1960 the Court had also given this reasoning as
well as the Supreme Court supported this by giving its own analysis in the case of Bihari
Chowdhary v. State of Bihar,1984. This provision helps the Government, the Court of law as
well as the public however misuse of this provision can also occur which would demolish the
main objective of law i.e. to impart justice.

In the Fourteenth Law Commission Report, the commission witnessed how the Government and
the Public Officials misused this provision and quashed the claims of the citizens by delaying the
process and taking the technical defense. It was also seen that in other nations governed by the
system of Anglo Saxon, no country has this kind of provision. In a democratic form of
government this kind of statutes does not need to be in use. It is the right of the citizens to raise
questions against the government for their in – efficiency and mal – feasance and if needed they
have the right to sue the government.

The government is for the people, by the people and of the people. Hence it is essential that they
should be accountable and they should serve to their best. However, no amendment had come to
amend this section and hence it is still in use.

Section 80 of the Code of Civil Procedure, 1908 also states the contents of the notice which
should be served to the government of the public official. The most essential contents of the
notice should have the name, description, place of residence of the plaintiff and the cause of
action and the relief sought. The service of the notice should be delivered to the office of the
concerned person or served directly to him.

After the expiry of two months if the aggrieved party wishes to file the suit in the Court of law,
he or she would need to produce a written statement which should state the way in which the
notice was served.  The service of the notice has a strict application and is mandatory process. It
should be done expressly and not impliedly. The Supreme Court had held so in the case of State
of A.P. v. Gundugola Venkata,1965 and also expressed that if proper service of the notice does
not happen then the suit would entail a dismissal.
However, this statute should be reasonably construed and should be interpreted by looking at the
objective of it. Mere error not affecting the objective of it should not result in dismissal of the
plaint.

The notice should comply with the minimum requirements according to the statute.  If the case is
against a public officer and the relief is prayed for an act which the officer will have to do in near
future, proper service of notice becomes mandatory. The sentence act to be done by the Public
Officer includes those acts which can be done in his Official capacity. It does not include acts
which are beyond his or her official capacity.

The service of notice is of a procedural form and it is not a substantive statute. The object of the
service of notice is to make sure that the government is aware of the problems of the Plaintiff and
the course of action which he intends for. The service of notice is for the benefit of the
government and it is upon the government to take support of it. If the government does not
require the service and expresses it, the Court may allow the plaint without the service of notice.
However, this totally dependsupon the facts and circumstances of the case.

Section 80(2) of the Code of Civil Procedure, 1970 allows private individuals to file a suit
against the government without serving the notice to the public officer if the matter is of an
urgent nature. This section acts as an exception for sub-section 1 of Section 80 of the Act. The
main objective of inserting this exception is to make sure that miscarriage of justice does not
happen in urgent cases by delay in the proceedings. The urgency of the matter is judged by the
Court by considering the facts and circumstances. The Court should hear both the private
individual and the government in judging whether the matter is of an urgent nature.

Writ Petitions against the Government is exempted from the service of notice under Section 80
of CPC as writ petitions do not fall under the category of suits. Writ Petitions are filed under
Article 32 and 226 to the Supreme Court and High Court respectively.

After filing of suit against the government, the plaint and the written statement should be signed
by a person appointed by the government. The person should be authorized and be a recognized
agent according to the Code. The agent shall have the power to receive summons and the
government does not need to attach the Vakalatnama.

A proper and reasonable time is given to the Government to file the Written Statement and in
every suit against the government the court needs to assist the government in coming to a
settlement with the private individual. The procedure under Order 27 of the Code of Civil
Procedure, 1908 applies to only government and not to other agents or instruments which falls
under the category of State according to Article 12 of the Constitution of India, 1950. If the suit
proved a substantial question of law related to the interpretation of the Constitution, the Court
needs to issue a notice to the Attorney General of India if the question related to the Central
Government and to the Attorney General of the concerned State if it relates to a State
Government.

Section 81 of the Code of Civil Procedure, 1908 exempts the public officer to appear in person in
the Court against whom the case has been filed. This exception is acceptable only if the Court is
satisfied if the Court is convinced to the need of the Officer to be present in his duty related to
Public Service. The code also grants protection from arrest and from attachment of his property
in execution of the decree.

Conclusion
Suits by or against government or public officers constitutes a lot of formalities and also
provides a lot of protection and defences to the Government. These protections allow the
government to take actions in providing remedies to the private individual and save the Court’s
time.
However at the same time these protections become a great problem and hurdle in the process of
imparting justice. Hence, in my point of view, instead of bringing in amendments to the Statute
for example, totally exempting the process of servicing notice to the government, the Court
should judge the facts and circumstances of the case and come to the conclusion to whether the
service of notice is a necessity in the case.

ANSWER 4

Summary suit or summary procedure is provided under order XXXVII of the Code of Civil
Procedure, 1908. The summary suit is a unique legal procedure used for enforcing a right in an
efficacious manner as the courts pass judgement without hearing the defence.

A summary suit under order 37 of the Code of Civil Procedure is a legal procedure used for
enforcing a right that takes effect faster than ordinary suits as unlike in ordinary suits the courts
do not hear the defence.

The object underlying the summary procedure is to ensure an expeditious hearing and disposal of
the suit and to prevent unreasonable obstruction by the defendant who has no defence or a
frivolous and vexatious defence and to assist expeditious disposal of cases, as held in the case of
Kocharabhai ishwarbhai patel v. Gopal bhai C patel, 1973.

INSTITUTION OF SUMMARY SUITS

In order to institute a suit under summary procedure, the nature of suit must be among the
following classes:-

Suits upon bill of exchange, hundies and promissory notes

Suits for recovering a debt or liquidated demand in money, with or without interest, arising:-

1. On a written contract, or

2. On an enactment (the recoverable sum should be fixed in money or it should be in the

nature of a debt other than a penalty), Or

3. On a guarantee (here the claim should be in respect of a debt or liquidated demand only)

A summary suit is instituted by presenting a plaint in an appropriate civil court.

THE PROCEDURE OF SUMMARY SUITS

Rules 2 and 3 provide the procedure of summary suits. Under rule 2 after the summons of the
suit has been issued to the defendant. The defendant is not entitled to defend Summary suit
unless he enters an appearance.

In default of this, the plaintiff will be entitled to an ex parte decree which is on a different footing
to an Ex Parte decree passed in ordinary suits (the differences have been analyzed subsequently).

In the case that the defendant appears, the defendant must apply for leave to defend within ten
days from the date of service of summons upon him and such leave will be granted only if the
affidavit filed by the defendant discloses such facts as may be deemed to entitle him to defend.

The cases where leave to defend should and shouldn’t be granted have been analyzed
subsequently.

Detailed procedures
  After institution of a summary suit, the defendant is required to be served with a copy of
the plaint and summons in the prescribed form.

 Within 10 days of service of summons, the defendant has to enter an appearance.

 If the defendant enters an appearance, the plaintiff shall serve on the defendant a
summons for judgment.

 Within 10 days of service of such summons, the defendant has to apply for leave to
defend the suit.

 Leave to defend may be granted to him unconditionally or upon such terms as may
appear to the Court or Judge to be just.

 If the defendant has not applied for leave to defend, or if such an application has been
made and refused, the plaintiff becomes entitled to the judgment forthwith.

 If the conditions on which leave was granted are not complied with by the defendant then
also the plaintiff becomes entitled to judgment forthwith.

 Sub-rule (7) of Order 37 provides that save as provided by that order the procedure in
summary suits shall be the same as the procedure in suits instituted in an ordinary
manner.

DECREE IN SUMMARY SUITS

The plaintiff is entitled to a decree of a sum not exceeding the sum mentioned in plaint, together
with interest and cost in following conditions:-

(a) If the defendant does not enter an appearance (ex parte decree)
(b) If the defendant has not applied for leave to defend
(c) If the defendant has applied for leave to defend but it is refused
(d) If the leave to defend is granted then the suit proceeds as an ordinary suit and decree
is granted as per the CPC.

SETTING ASIDE DECREE IN SUMMARY SUITS

In the CPC, rule 13 of order IX deals with setting aside the ex parte decree. The defendant has to
satisfy the court that the summons was not duly served or he was prevented by any sufficient
cause from appearing in the hearing. Rule 7 of Order 37 says that except as provided in the order,
the procedure in suits under Order 37 shall be the same as the procedure in suits instituted in an
ordinary manner. Rule 4 of Order 37 specifically provides for setting aside the decree, therefore,
provisions of Rule 13 of Order 9 will not apply to a suit filed under Order 37.

Under rule 4 of order XXXVII, the court has the power to set aside the ex parte decree passed in
summary suit. The court is empowered to stay the execution of such a decree. Under this rule, an
application is made either because the defendant did not appear in response to summons and
limitation expired, or having appeared, did not apply for leave to defend the suit in the prescribed
period. To set aside ex parte decree, the defendant has not only to show special circumstances
which prevented him from appearing but also facts which would entitle him to leave to defend.

SPECIAL CIRCUMSTANCES V. SUFFICIENT CAUSE

The two terms have been lucidly juxtaposed in Karumili Bharathi v. Prichikala
Venkatchalam. The reasons offered by the defendant to explain the special circumstances
should be such that he had no possibility of appearing before the Court on a relevant day.

For instance, there was a strike and all the buses were withdrawn and there was no other mode of
transport. This may constitute “special circumstances”. But if the defendant were to plead that he
missed the bus he wanted to board and consequently he could not appear before the Court.

It may constitute a ‘sufficient cause’, but not a ‘special circumstance’. Thus a ‘special
circumstance’ would take with it a ‘cause’ or ‘reason’, which prevents a person in such a way
that it is almost impossible for him to attend the Court or to perform certain acts which he is
required to do.

Thus the ‘reason’ or ‘cause’ found in “special circumstances” is stricter or more stringent than in
“sufficient cause” and depends on the facts of each case.

It is humbly opined that summary suits act like an ingenious solution to help prevent
unreasonable obstructions by a defendant who has no tenable defence. Summary suits would be
beneficial to businesses as unless the defendant is able to demonstrate that he has a substantial
defence, the plaintiff is entitled to a judgment. Order 37 engineers an appropriate mechanism that
ensures that the defendant does not prolong the litigation especially as in commercial matters
time is of the essence and helps further the cause of Justice.

ANSWER 5

The word limitation in its literal term means a restriction or the rule or circumstances which are
limited. The law of limitation finds its root in the maxims  “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 law of
limitation specifies the statutory time frame within which a person may initiate a legal
proceeding or a legal action can be brought. If a suit is filed after the expiry of the time
prescribed it will be barred by the Limitation. It means that a suit brought before the Court after
the expiry of the time within which a legal proceeding should’ve been initiated will be restricted.

The Salient Features are

 The Limitation Act contains 32 Sections and 137 Articles. The articles have been divided
into 10 parts. The first part is relating to accounts, the second part is relating to contracts,
the third part is relating to declaration, the fourth part is relating to decrees and
instrument, the fifth part is relating to immovable property, the sixth part is relating to
movable property, the seventh part is relating to torts, the eighth part is relating to trusts
and trust property, the ninth part is relating to miscellaneous matters and the last part is
relating to suits for which there is no prescribed period.

 There is no uniform of limitation for the suits under which the classifications has been
attempted.

 The limitation period is reduced from a period of 60 years to 30 years in the case of suit
by the mortgagor for the redemption or recovery of possession of the immovable property
mortgaged, or in case of a mortgages for the foreclosure or suits by or on the behalf of
Central Government or any State Government including the State of Jammu and
Kashmir.
 Whereas a longer period of 12 years has been prescribed for different kinds of suits
relating to immovable property, trusts and endowments, a period of 3 years has been
prescribed for the suits relating to accounts, contracts and declarations, suits relating to
decrees and instruments and as well as suits relating to movable property.

 A period varying from 1 to 3 years has been prescribed for suits relating to torts and
miscellaneous matters and for suits for which no period of limitation has been provided
elsewhere in the Schedule to the Act.

 It is to be taken as the minimum period of seven days of the Act for the appeal against the
death sentence passed by the High Court or the Court of Session in the exercise of the
original jurisdiction which has been raised to 30 days from the date of sentence given.

 One of the main salient feature of the Limitation Act, 1963 is that it has to avoid the
illustration on the suggestion given by the Third Report of the Law Commission on the
Limitation Act of 1908 as the illustration which are given are most of the time
unnecessary and are often misleading.

 The Limitation Act, 1963 has a very wide range considerably to include almost all the
Court proceedings. The definition of ‘application’ has been extended to include any
petition, original or otherwise. The change in the language of Section 2 and Section 5 of
the Limitation act, 1963 includes all the petition and also application under special laws.

 The new Act has been enlarged with the definition of ‘application’, ‘plaintiff’ and
‘defendant’ as to not only include a person from whom the application. Plaintiff or
defendant as the case may be derives his title but also a person whose estate is
represented by an executor, administrator or other representatives.

 According to Sections 86 and Section 89 of the Civil Procedure Code, it requires the
consent of the Central Government before suing foreign rulers, ambassadors and envoys.
The Limitation Act, 1963 provides that when the time obtained for obtaining such
consent shall be excluded for computing the period of limitation for filing such suits.
  The Limitation Act, 1963 with its new law signifies that it does not make any racial or
class distinction since both Hindu and Muslim Law are now available under the law of
limitation as per the existing statute book. In the matter of Syndicate Bank v. Prabha D.
Naik, (AIR 2001 SC 1968) the Supreme Court has observed that the law of limitation
under the Limitation Act, 1963 does make any racial or class distinction while making or
indulging any law to any particular person.

Retrospective Operation

In BK Education Services Private Limited v. Parag Gupta and Associates, the Supreme
Court clarified that since the law of limitation is procedural in nature, it will be applied
retrospectively. The Supreme Court in Thirumalai Chemicals Ltd v. Union of India observed
that statutes of limitation are retrospective so far as they apply to all legal proceedings brought
after their operations for enforcing causes of action accrued earlier. In Excise and Taxation v.
M/S Frigoglass India Private Ltd, the Punjab and Haryana High Court ruled that It is well-
settled that the law of limitation is a procedural law and operates retrospectively unless it has
been provided differently in the amending statute. In other words, unless there is a contrary
intention manifested by express or necessary implication of the legislation itself, procedural law
is generally retrospective law.

Limitation Bars Remedy

Section 3 lays down the general rule that if any suit, appeal or application is brought before the
Court after the expiry of the prescribed time then the court shall dismiss such suit, appeal or
application as time-barred. The law of limitation only bars the judicial remedy and does not
extinguish the right. In other words, It means that the statute of limitation prescribes only the
period within which legal proceedings have to be initiated. It does not restrict any period for
setting up a defence to such actions. Hence, the original right to suit is not barred. However,
Section 27 is an exception to this rule.

The Supreme Court in Punjab National Bank and Ors v. Surendra Prasad Sinha held that the
rules of limitation are not meant to destroy the rights of the parties. Section 3 only bars the
remedy but does not destroy the right which the remedy relates to.
Limitation Does Not Bar Defence

The law of limitation does not restrict the defendant if he raises a legitimate plea in his defence
even though the suit is time-barred. It was held in Rullia Ram Hakim Rai v. Fateh Singh, the
bar of limitation does not stand in the way of defence. It only bars action and it is only its
recovery that is time-barred. There is no provision that prohibits or prevents a debtor from
clearing his time-barred outstandings.

The Supreme Court observed in Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba

Suryavanshi, the Limitation Act takes away the plaintiff’s remedy to enforce his rights by
bringing an action in a court of law, but it does not place any restriction on the defendant to put
forward his defence though such defence is barred by limitation and is unenforceable in the
Court.

In conclusion, the law of limitation prescribes the time within which a person can enforce his
legal right. This Act keeps a check on the cases so that they are not dragged for over a long time.
This Act also recognizes the fact that there are situations when persons instituting a suit or
preferring an appeal for a genuine cause are unable to institute a suit within the time prescribed
in the Act and the same criteria cannot be applied to every situation.