MERE REPRESENTATION DOES NOT EXTEND LIMITATION

[Mr. M. GOVINDARAJAN]

Limitation

Section 2(j) of the Limitation Act, 1963 (‘Act’ for short)  defines the expression ‘period of limitation’ as the period of limitation prescribed for any suit, appeal or application by the Schedule, and ‘prescribed period’ means the period of limitation computed in accordance with the provisions of this Act.  Section 3 of the Act provides that any suit or case filed after the limitation period either prescribed in the Limitation Act or in any other Act that is required to be followed in respect of limitation, the same will be dismissed.  When no limitation is prescribed in any act then the provisions of Limitation Act will be applicable to the said law.

Condonation of delay

Section 4 of the Act provides that an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Likewise if limitation is prescribed in any act there may also be provisions for delay condonation.  If the applicant is not able to file petition/appeal etc. within the time prescribed in the Act, then he may file an application for condonation of delay in filing the petition/appeal etc belatedly.  The said person is to satisfy the Court that he has sufficient grounds in non filing of petition/appeal etc. in time.  The Act may provide limitation period for allowing delay condonation.  For example one Act may provide the delay in filing appeal may be condoned for further period of 30 days if he is able to satisfy the Court that he could not be file appeal within the limitation period.  In such cases the delay cannot be condoned beyond 30 days.  If no such period is mentioned there is no restriction to condone delay without any limit but at reasonable time.

Exclusion from limitation

• Legal proceedings - In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.   W
• Pauper - Where an application for leave to sue or appeal as a pauper has been made and rejected, the time during which the applicant has been prosecuting in good faith his application for such leave shall be excluded.       
• Exclusion of time proceedings  bona fide in Court without jurisdiction.
• In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.

Fresh cause of action

Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

Such fresh cause of action will not be there for mere representations.  This has been upheld by various High Courts and Supreme Court.

Case laws

In MOHD SULEMAN VERSUS NDMC & ORS. [2022 (3) TMI 311 - DELHI HIGH COURT], the appellant has constructed a shop in Delhi in the year 1972.  He had paid damages to Delhi Development Authority (‘DDA’ for short) till 1975.  During 1975 – 76 the building of the appellant was demolished.  But he has not been allotted any alternative shop. 

The appellant filed a writ petition in MOHD. SULEMAN VERSUS NORTH DELHI MUNICIPAL CORPORATION (NDMC) AND ORS [2022 (3) TMI 352 - DELHI HIGH COURT] before the Single Judge.  The Single Judge dismissed the petition as being barred by delay and laches on 07.12.2021.  Against this order the appellant filed the present appeal.  In the present appeal the appellant contended that-

• On 11.10.1977, DDA framed a policy for allotment of alternative place or shops to Motia Khan Steel Merchants, who were evicted from Motia Khan area as their shops were demolished during the same demolition drive.
• The Single Judge has erred in not granting the said relief and has erroneously dismissed the writ petition as being barred by delay and laches.
• The respondents never responded to his representations over the years and therefore, the petition was not barred by delay.

The High Court found no reason to interfere with the order of Single Judge due to the following reasons-

• The shop in question was demolished in the year 1975 and the writ petition was filed in 2021 after a lapse of 46 years.  No reason is adduced by the petitioner for such delay except for a bald assertion that his several representations were pending with the DDA and his matter for allotment of alternative shop/site was under consideration.
• The respondent, for the letter dated 02.06.2010, informed the appellant that the  request of the appellant was considered and there was no scope for new entrants in the existing plan and therefore did not accede to the request of the appellant.
• The appellant choose to file the writ petition even 11 years after 2010 during which his request was disposed.
• The appellant filed the writ petition for a direction to dispose his representation dated 11.10.2019.  The Single Judge observed that the appellant made an attempt to create a fresh cause action so as to overcome the delay and laches.
• There is no explanation to condone the huge delay in filing the writ petition.

Therefore the High Court dismissed the appeal and upheld the order of Single Judge of High Court.

In SURJEET SINGH SAHNI VERSUS STATE OF U.P. AND ORS.[ 2022 (3) TMI 317 - SUPREME COURT], the Supreme Court also confirmed the view of the High Court that mere representation does not extend the period of limitation.  In this case the appellant executed  a sale  deed on 19.09.2001 with NOIDA Authority, whereby the appellant sold a plot under Industrial Area Development Act.  The sale deed provided a condition that 10% of the plot should be sold to the appellant on payment of 10% of the amount paid on the entire plot. 

The appellant, after a lapse of 10 years from the date of sale deed, on 10.03.2010 requested to allot a plot to him as agreed in the sale deed.  He also filed a writ petition before the High Court with a prayer for directing the Authority to allot 10% of the plot for abadi purposes.  Though the writ petition is filed after a lapse of 11 years the High Court directed the NOIDA to decide the representation of the petition.  The NOIDA considered the representation but rejected the request of the appellant on 23.05.2017.  Against the said order the appellant filed a writ petition before the High Court.  The High Court dismissed the writ petition on the following grounds-

• The Writ Petition arising out of contract between parties is not maintainable and petitioner should have filed a Suit for specific performance; and
• The Writ Petition has been filed after a delay of 16 years and delay is fatal for challenge to acquisition or for any claim arising out of it;
• Clause 12 of Sale Deed provided for allotment of land to original Khatedar and as the petitioner has purchased land in 1970 therefore it's clear that petitioner is not original agriculturist; and the establishment of NOIDA in 1976 shall have no bearing on the matter.

Being aggrieved against the order of High Court, the appellant approached the Supreme Court.  The Supreme Court observed that for the first time, the petitioner made a representation for allotment of 10% plot as per Clause 12 of the Sale Deed dated 19.09.2001 in the year 2010, i.e., after a period of 10 years from the date of execution of the Sale Deed.  If the suit would have been filed for specific performance, the same would have been barred by limitation.

The Supreme Court further observed that when the earlier writ petition was filed in the year 2011 which was also barred by delay and latches, the High Court ought not to have entertained the same.  Instead, the High Court entertained the said writ petition and directed the NOIDA to decide the representation of the petitioner, which as such was made after a period of 10 years, expeditiously and it gave the fresh blood to the litigation, which otherwise was barred by delay and latches.  When such orders are passed by the High Courts either relegating the petitioner to make a representation and/or directing the appropriate authority to decide the representation, the High Courts have to consider whether the writ petition is filed belatedly and/or the same is barred by latches and/or not, so that in future the person who has approached belatedly may not contend that the fresh cause of action has arisen on rejection of the representation.

The Supreme Court held that mere representation does not extend the period of limitation and the aggrieved person has to approach the Court expeditiously and within reasonable time.  If it is found that the writ petitioner is guilty of delay and latches, the High Court should dismiss it at the threshold and ought not to dispose of the writ petition by relegating the writ petitioner to file a representation and/or directing the authority to decide the representation, once it is found that the original writ petitioner is guilty of delay and latches.   Such order shall not give an opportunity to the petitioner to thereafter contend that rejection of the representation subsequently has given a fresh cause of action.

The Supreme Court held that there is no substance in the present special leave petition and the same deserves to be dismissed and is accordingly dismissed.