Question

Whether the court is bound to dismiss a suit when a plea of limitation is not raised

Answer 1

In a civil suit when a plea which should have been raised by a party as a defendant in a suit or respondent in an appeal or as an opposite party in an application is not raised by him the court may take no notice of it but the case with regard to the plea of limitation is different inasmuch as by virtue of section 3, the court is under a duty to raise the point itself and dismiss the suit, appeal or application if it has been filed beyond the time prescribed for it by the first schedule of the Limitation Act.

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

ADVERTISEMENTS:

Where the plea of limitation has not been taken and the case has passed out of the court of first instance and is before a court of appeal, then the first appellate court or the second appellate court is generally bound to listen to a plea of limita­tion if it can be decided without further inquiry ; but the Appellate or Second Appellate Court is justified in refusing to entertain a plea of Limitation which was not taken in the first court not in the grounds of appeal in the Appellate Court but is urged for the first time in argument in the latter Court, where the plea for its proper decision involves further inquiry into facts.

But if the point of limitation arises upon the facts of the case, or is obvious on the record, and does not stand in need of being developed by fresh evidence, it must be heard and determined by the Appellate Court, though it does not appear on the pleadings, or in the grounds of appeal or appeal for the first time in the memorandum of appeal.

Objection as to limitation can be taken at any stage of a suit a or proceeding including the appellate state. But it should be noted that if the plea of limitation is not taken in the ground of appeal, the party urging it cannot argue it except on obtaining the permission of the Court and the Appellate Court should not refuse to grant the permission whether the point arises on the face of the plaint and no question of fact has to be enquired into to enable the Court to dispose it of.