Limitation Act, 1908
Limitation Act 1908 (Act IX of 1908)
It is cardinal principle of law that the plaintiff is to prove his case and he must not rely on the weakness or defects of defendant's case. Moksed Ali Mondal being dead his heirs Md. Abdul Mannan vs Abdus Samad Mondal (M. M. Ruhul Amin. J) (Civil) 1ADC 203
We find the case of Abul Khair Mia vs Abdul Latif Sadar reported in 32 DLR (AD) 167 relevant wherein their Lordships held as under:
"If fraud is proved then there is no question of limitation. Reliance may be placed in the cases of Abdul Rauf vs Abdul Hamid Khan, 17 DLR (SC) 515 = PLD 1965 (SC) 671 and Saifur Rahman vs Haider Shah, 19 DLR (SC) 433. In view of above discussions, we find merit in this Rule Nisi." [73 DLR 323]
It is well settled that in the limitation Act, 1908 Article 182 requires 1st application for execution of decree to be made within 3 (three) years of the decree, and the each successive application is to be made within 3 (three) years of the final order. Hence, an application for execution has to satisfy firstly, Article 182 of the Limitation Act, 1908 being the earliest period prescribed and secondly, section 48 of the Code of Civil Procedure which prescribes the maximum period of limitation. In this context, it is apparent to note that if the execution petition is hit by any of the two provisions, it is to fail. [Ref. 36 DLR (AD) 5. BCR 1983 (AD) 418: 48 DLR (AD) 141: 53 DLR 78] [73 DLR 330]
But in the instant case as I have come across from the relevant papers that the executing court was not lawful in the proceedings of the Execution Case No. 8 of 2002, inasmuch as; the said execution case was time barred. Therefore, the subsequent acts of the executing court are not valid in the eye of law. It is crystal clear that the executing court proceeded with the execution proceedings without jurisdiction and, as such, the sub-kabala deed which was registered through court by the said execution proceeding is void ab initio, which need not be avoided. The kabala deed which was obtained through court by the aforesaid illegal proceedings was obtained fraudently and, as such, it is a nullity. [73 DLR 330]
Sections 4 to 25- Filing the suit for loss or damage to goods The period of limitation for filing any suit for loss or damage to goods that occurred in the course of carriage, will be one year from the date of delivery of the goods. The well- established principle of law based on this section is that the defendant's failure to plead the bar of limitation as a defence will not save the suit from being barred by limitation unless any of the provisions mentioned in sections 4 to 25 are applicable.
Hence, we find that the filing of the suit in Singapore on 05.05.2001 beyond the period of one year from the date when the goods were delivered, or at the latest from 05.03.2000 when the joint survey report was published, was barred by limitation. Even if the defendants do not plead the bar of limitation, the court cannot ignore the provisions of section 3 of the Limitation Act in the absence of the provisions of sections 4 to 25 of the said Act... Eximpo Trading Limited VS M.V. Banglar Kakoli, [9 LM (AD) 575]
Section 12(2)- The Limitation Act provides filing of appeal or any application challenging, any decree or order, whatsoever, of the court upon obtaining the certified copy of the same and section 12(2) of the Limitation Act provides that the time consumed in obtaining such copy shall be excluded. In the instant case, it appears that neither there is any statement as to delay or there is any prayer for condonation of delay nor there is any such finding by the court of appeal below. As such it can be safely construed that the application was filed within time. So there was no bar in allowing the application. As such Rule 19 is very much applicable in the present case. Hence we hold that the High Court Division committed error of law in not taking the above facts into consideration and as such came an erroneous finding that the re-admission was made without complying with the provision of law. Bangladesh VS= Abdul Barek Bepari, [3 LM (AD) 93]
Constitution of Bangladesh, 1972
Article 104 read with
The Limitation Act, 1908 (Act No.IX of 1908)
Section 5
First Appeal filed before the High Coun Division with an application under Section 5 of the Limitation Act for condonation of delay of 845 days in presentation of Memorandum of appeal - The High Court Division issued rule upon condonation of delay and after hearing, made the Rule absolute and condoned the delay of 845 days by order dated 27.05.2003 with a direction to pay a cost of Tk.1,000/- (one thousand) only to respondents within I(one) month and to produce before the Court the relevant receipt and other documents evidencing payment of the same. There was, however, a default clause in the order that in the event of any default to pay the said amount within the stipulated time, the Rule would stand discharged.- Although the petitioners paid the aforesaid amount of Tk.1,000/- to the respondents by Challan No.12146 dated 07.06.2003 but due to inadvertence it was not produced before the High Court Division in time. therefore, by the order dated 06.07.2003 treated the aforesaid Rule discharged for non- compliance of its order dated 27.05.2003. - first appeal could not be registered being barred by limitation. - the petitioners filed a petition before the High Court Division with a prayer for recalling the aforesaid order dated 27.05.2003 stating that the petitioners in fact deposited the aforesaid amount within time by Challan No.12146 dated 07.06.2003 but inadvertently the same could not be produced in Court in time leading to discharge the Rule. But the High Court Division rejected the said petition by the order dated 22.08.2004. For which the petitioners preferred Civil Petition for Leave to Appeal and there was a delay of 11 days in filing the same. But Appellate Division refused to condone the delay and dismissed the Civil Petition.
Held; we decide to condone the delay of 11 days and consider the Civil Petition for Leave to Appeal at least for doing complete justice in exercise of its power under Article 104 of the Constitution. The earlier judgment of this Division is reviewed. The impugned judgments and orders of the High Court Division dated 06.07.2003 and 22.08.2004 treating the Rule is discharged and refusing its recalled the said order respectively are hereby set aside. [Para-22 & 24] [31BLT (AD) (2023) 44]
Since Bangladesh Supreme Court (High Court Division) Rules, 1973 does not prescribe any time limit for preferring appeal before the High Court Division against the order passed by the Registrar under the Act, 2009 as such, the time frame as prescribed in Rule 50(1) of the Rules of 2015 is applicable. (Para 10)
Section 100 (2) of the Trade Mark Act, 2009 read with Rule 50(1) of the Trade Mark Rules, 2015:
In view of Section 100 (2) of the Act, 2009 read with Rule 50(1) of the Rules, 2015 the limitation period for preferring appeal before the High Court Division is 2 (two) months to be computed from the date of receipt of the certified copy of the order or decision of the Registrar and that vide Rule 15(8) the date on which the decision of the Registrar, so passed under Rule 15(6), is sent to the applicant in Form TMR-19 shall be deemed to be the date of decision of the Registrar. (Para 25)
Time period for preferring appeal under Section 100(2) of the Trade Mark Act, 2009 read with Rule 50(1) of the Trade Mark Rules, 2015 is 2(two) months and time starts from the date of receipt of the certified copy of the order or decision of the Registrar passed under Rule 15(6) read with Rule 15(8) of the Rules, 2015:
The time period as prescribed in Rule 15(7) has no role to play, for, vide Rule 15(7) the Registrar on receipt of the application in Form TM-15, if there be any, shall inform the applicant the reason of his decision so taken under Rule 15(7). In other words, sub rule (6) of Rule 15 deals with the decision "a" of the Registrar which is duly notified to the applicant on behalf of the Registrar in Form TMR-19 and Rule 15(8) deals with the date of the said decision for preferring appeal under Section 100 (2) read with Rule 50(1) of the Rules, 2015. Conversely, Rule 15(7) deals with supply of reasons f for taking the said decision by the Registrar, provided any prayer is made to that effect by the applicant. No where within the four corners of Section 100(2) of the Act, 2009 read with Rule 50(1) of the Rules, 2015 the time period so consumed for supply of the certified/copy of the reason "" of the said decision in Form TM-15 has been made inclusive. Be that as it may, we have no manner of doubt to find that time period for preferring appeal under Section 100(2) read with Rule 50(1) is 2(two) months and time starts from the date of receipt of the certified copy of the order or decision of the Registrar passed under Rule 15(6) read with Rule 15(8) of the Rules, 2015. (Para 26 & 27)
Section 5 of the Limitation Act, 1908 cannot be applied for condoning delay in preferring appeal under Section 100(2) of the Trade Mark Act, 2009: It is the established principles of law that under special law when time period has been prescribed for preferring appeal Section 5 of the Limitation Act, 1908 cannot be applied unless incorporated by the Legislature in express terms. Trade Mark Act, 2009 being a special law and having prescribed specific period for preferring appeal before the High Court Division as such, in the absence of incorporation of Section 5 of the Limitation Act, 1908 it shall have no manner of application for condoning delay in preferring appeal under Section 100(2) of the Act, 2009. (Para 28) [18 SCOB [2023] HCD 1]
Editors’ Note
In this case the Government made a delay of 403 days in filing a revisional application before the High Court Division against the judgment and decree of the Appellate Court in which a bil (water body) recorded in Khas Khatian was decreed in favour of the respondents. The High Court Division, however, refused to condone the delay and discharged the Rule. The Government preferred this petition against the judgment and order of the High Court Division. Appellate Division held that the delay was made due to exhaustion of the official formalities which was beyond the control of the Government and it was not an inordinate delay which could not be condoned. Consequently, the Appellate Division set aside the judgment and order of the High Court Division and condoned the delay made by the Government.
Section 5 of Limitation Act, 1908;
The delay caused in filing the revisional application by the Government was due to the exhaustion of the official formalities which was beyond its control and it was not an inordinate one, so it should have been condoned: The facts and circumstances clearly indicate that the different offices of the Government are so connected that one cannot work without co-operation and assistance from the other. In the instant case, it appears that the office of the Deputy Commissioner, Netrokona, initiated the proposal to file a revisional application before the High Court Division but it could not do so without obtaining the necessary papers and the opinion of the Government pleader and concerned authority. However, it appears that the record was sent to the office of the Solicitor and thereafter, the record was sent to the office of the learned Attorney General and then an Assistant Attorney General was entrusted to take all necessary steps regarding filing of the same in the High Court Division under section 115(1) of the Code of Civil Procedure. In these circumstances, the reasons for delay of 403 days in filing the revisional application as stated in the application under section 5 of the Limitation Act by the defendant[1]petitioners cannot be disregarded and discarded simply because the individual would always be quick in taking the decision whether he would pursue the application for condonation of delay since he is a person legally injured. Whereas, the state being impersonal machinery has to work through different offices or servants and from one table to another table in different offices. In view of the facts and circumstances of the case it appears that the delay caused in filing the revisional application was due to the exhaustion of the official formalities and as such, the same is beyond the control of the defendant petitioners and moreover, the aforesaid delay of 403 days is not an inordinate one and as such, if the same is not condoned the defendant leave petitioners shall be led to irreparable loss and injury. (Para 16, 17, 18) [Govt. of Bangladesh & ors Vs. Md. Abdul Jalil & ors (Md. Abu Zafor Siddique, J) 17 SCOB [2023] AD 74]
Section 5-State being impersonal machinery has to work through different offices or servants and from one table to another table in different offices. The delay caused in filing the revisional application was due to the exhaustion of the official formalities and, as such, the same is beyond the control of the petitioners and moreover, the delay of 403 days is not an inordinate one. Government of Bangladesh vs Md Abdul Jalil (Civil) 75 DLR (AD) 161
The Limitation Act (IX of 1908)
Section 5
That while the learned Advocate claims to have not been Present in Dhaka on 7.2.1996, he being in Noakhli but in the order book dated 7.2.1996 when the matter came up in the Daily Cause list his appearance was there when the order was passed allowing 2 weeks time for compliance of the office note... years and the petitioner having filed to make out case for recalling the order of dis- charge the application for restoration was rejected. Administrator Gammon Bangladesh Ltd -vs- ToW Mia (Fazlul Haque, J) (Civil) IADC 427
The Limitation Act (IX of 1908)
Section 12
Regulation 43 (8) of the Regulations
Day on which show cause charge sheet was communicated to a delinquent employee of an organization, herein the appellant, the said date is to be excluded since the same is in consonant with the rules of computation of period either for the purpose of limitation of legal proceeding or enquiry before the Tribunal or for the departmental enquiry, Md. Ashequr Rahaman vs B.A.R.1.R.M. Chairman (Md Ruhul Amin J)(Civil) IADC 324
Limitation
Section 14 of the Limitation Act is not applicable to proceedings before the Administrative Tribunal. Abdus Sukkur Vs. Chairman, National Board of Revenue and others, 17BLD (AD) 43
Section 26
The trial Court by its judgment and de- cree dated 11.03.1984 decreed the suit declaring plaintiff's title in the suit land. Being aggrieved by the judgment and decree of the trial Court the defendants preferred Other Class Appeal No.47 of 1984 before the District Judge, Sirajganj. The learned Subordinate Judge, Sirajganj who heard the appeal by the Judgment and decree dated 09.03.1989 allowed the appeal and dismissed the suit. Md. Rakubuddin Talukder vs. Bangladesh (Md. Abdul Wahhab Miah J) (Civil) 8 ADC 969
Section 28 read with Article 142-When the result of the earlier suit reached its finality by dismissing the Civil Petition, the terminus a quo to claim possession from the defendant began and the plaintiff ought to have file the suit for recovery of khas possession within 12 years from the date or disposal of the civil petition. Since the suit was filed on 16-3-1998, the suit is within 12 years from the date of terminus a quo. If the period during which the plaintiffs were litigating for their rights is deducted, their suit is in time. Jasmeen Ershad vs Shahar Banoo Mohsin Asgar (Civil) 75 DLR (AD) 275
The Limitation Act (IX of 1908)
Section 48, 120
LIM accounts. Therefore, the plaintiff did not acquire any right and title over the goods. The plaintiff was a mere assignee of the goods and goods. remained with the Bank. Janata Bank vs Abdus Salam (Md. Fazlul Haque, J(Civil) 1 ADC 406
Limitation
In a case where limitation has not been specifically prescribed, the pronouncements by superior Courts, particularly by the Supreme Court are that as a rule nobody can be made to suffer any harm to his rights including those relating to property, person and reputation, without giving him opportunity to show cause. Md. Siddique Vs. The State, 13BLD (HCD) 579 Ref: 39DLR(1987)164; 42DLR15; PLD 1970 (Lahore) Cited
Limitation
As a matter of long standing practice in the High Court Division 60 days limitation as provided under Article 155 of the First Schedule of the Limitation Act for appeal, is being followed for revision. But there is not legal bar to entertain in the interest of justice such revisional application even after the aforesaid period of 60 days provided the applicant can show that he was prevented by sufficient cause to move the High Court Division within the said period of 60 days. Md. Reazuddin Ahmed Vs. The State and another, 17BLD (AD) 123
The Limitation Act( IX of 1908)
Article 113
Abandoned properties under Ordinance 54 of 1985. Promulgation of President's Order No. 16 of 1972.Time limitation will start from the date of refusal expressly or by conduct when there is no express refusal. Secretary Ministry of works vs Md. Yusuf Ali Khan (K. M. Hasan. 3) (Civil) IADC 312
Limitation
14 BLC(AD)101: Binapani Kandu Vs. Chairman, Vested and Non- Resident Property: Article 144 of the Limitation Act, 1908: The trial Court dismissed the Title Suit No.383 of 1978 and decreed the Title Suit No.623 of 1979 in favour of the present respondent and declared that the defendant Nos 2-5 acquired ownership of the suit house by adverse possession and they are entitled to retain (mt) their possession of the same On appeal the appellate Court affirmed the judgment and decree of the trial Court and dismissed the appeal and the High Court Division on revision affirmed the judgment of the Courts below and discharged the Rule. (Para 5. Mr. Justice Md. Abdul Matin).
14 BLC 220: Bangladesh Vs. Rafeda Khatun & others: Section 149 of the Limitation Act, 1908: In order to acquire title by way of adverse possession the plaintiffs must prove their possession for more than 60 years as provided in Article 149 of the Limitation Act. 1908. The rokka pattan by which the plaintiffs' predecessor claimed to have taken pattan though not proved even if taken into consideration for the purpose of possession it appears that the same is dated 18th Kartic 1351 BS corresponding to 2/3 November, 1944 and the suit was instituted on 02.1.2005, that is, before 60 years. Therefore, the plaintiffs did not acquire any title to the suit land by virtue of their possession. (Para-12, Mr. Justice Md. Delwar Hossain), Ref: 10 MLR(AD)313.
Article 113
Mr. Abdul Wadud Bhuiyan, the learned Senior Advocate appearing for the petitioner has made submissions to the effect that in this case it is rather an admitted fact that the petitioner is in possession of the land in question, that the petitioner has proved the alleged bainapatra by adducing necessary wit- nesses. Aminul Islam vs. S. M. Habib alias Dulal (Nazmun Ara Sultana J) (Civil) 8 ADC 728
Article 113- Limitation and genuineness of the agreement- In a case for specific performance of contract where the written agreement for sale is not registered, the oral evidence of witnesses with regard to execution of the agreement, payment of consideration money, offer of remainder of consideration money, if any, and the refusal to execute and register the deed of sale assumes primary importance. In the instant case the oral evidence in support of the plaintiff's claim is all the more important because the defendants deny the deed of agreement altogether.
The plaintiff's case is that the bainanama was executed on 04.11.1985. The deed of sale was to be registered within three years. We note that the stipulation in the deed of agreement is that if the defendant fails to register the deed of sale within three years, then the plaintiff had the option to file a suit in Court on depositing the balance consideration money and could thus get the property registered through Court. The plaintiff, therefore, could have filed the suit any time after 04.11.1988, but did not do so. Sending a legal notice to the defendants in 2001 will not save the suit from being barred by limitation unless the plaintiff can prove that he offered the balance consideration money and asked for execution and registration of the deed within the period stipulated in the agreement for sale and the suit was filed within statutory limitation thereafter. Hence, the suit filed in 2001 is barred by limitation. Aminul Islam(Md.) alias Md. Amin -VS- Md. Ataur Rahman, [10 LM (AD) 148]
The Limitation Act, 1908
Section 115
In its judgment, the High Court Divi- sion observed that the plaintiff had filed rent receipts to show that he paid the land revenue and Municipal taxes and also proved that the other rooms situated on the suit plots are being pos- sessed by him. The defendant No.1 neither claimed that the other rooms situated on the suit plots are possessed by him nor he stated as to how those rooms were being possessed by the plaintiff. The High Court Division further ob- served that the defendant No.1 proved that the P.S. record was prepared in the name of Shaila Bala and her husband but the subsequent B.S. Khatian in re- spect of the suit plot was prepared in the name of Santosh Kumar Shil (vendor of the plaintiff). The High Court Division also observed from the evidence and materials on record that the plaintiff succeeded in proving oving his uninterrupted possession in the suit land since 1946 till his dispossession by the defendant. The High Court Division finally ob- served from the evidence on record that Hemanta Bala died in 1968 but till date the defendant had not taken any step against the deed of gift dated 9.7.1946. Although subsequently Santosh Kumar Shill transferred some portion of the suit plot by several registered deeds, from the evidence it appeared that the defendant No.1 entered into one room in the suit plot by dispossessing the plaintiff on 20.11.1991. As per Article 141 of the Limitation Act this reversioner had to file a suit within 12 years from the date of death of Hemanta Bala in 1968 but he failed to take any step and, therefore, the plaintiff's predecessor had acquired valid right and title in the suit land on the basis of the deed of gift and the plaintiff had acquired an adverse title in the suit land. Biplob Shil vs. Dulal Chandra Shil (Muhammad Imman Ali 1) (Civil) 9 ADC 1005
The Limitation Act
Article 142
Declaration of title in respect of 30 decimals of land and recovery of khas pos- session of different quantity of land. Rowshan Ara Begum vs. Sitakundu Chandra Nath Chatuspaty Tole (Md. Ruhul Amin J) (Civil) 6 ADC 720
Article 142
Suit for declaration of title to the suit lands and further declaration that the de- cree passed in Title Suit No. 730 of 1962 to be void, fraudulent and not binding upon him. Most. Monowara Begum vs. Malanch Bibi (S. K. Sinha J) (Civil) 7 ADC 271
Article 142- The suit is governed by Article 142 of the Limitation Act and as such there has been miscarriage of justice. The High Court Division it appears exceeded its jurisdiction by reversing the concurrent findings of fact arrived at by the Courts below specially the appellate Court which is final Court of fact when there was no misreading and non-reading of the material evidence on record and misconstruction of the documents. There is also legal infirmity in the judgments of the Courts below. We are of the view that the High Court Division was not justified in making the Rule absolute and the same accordingly requires interference by us. The appeal is allowed without any order as to costs...... Sufia Begum -VS- Md. Tariqul Alam, [5 LM (AD) 428]
Article 148-60 years limitation for the mortgagor to bring a suit to recover possession from the mortgagee when the right so accrued.
The Appellate Division held's that the present suit for redemption was filed under the above quoted provision of law. The limitation for such suit is 60 years as per Article 148 of the Limitation Act. This suit, therefor, is well within the statutory period of limitation...... Khanje Ali Sikder =VS- Hazi Mozaharuddin & others, [1 LM (AD) 51]
Article 148- The suit for redemption of mortgage was not maintainable in law- The plaintiffs are not in possession of the suit land, rather it is defendant Nos.14-20 who are in possession of the suit land. Therefore, the suit for redemption of mortgage was not maintainable in law. The trial Court on misconception and misreading of the case as well as the provision of article 148 of the Limitation Act held that the suit was maintainable. The crucial fact to be decided in the suit was whether the mortgagor returned back the money to the mortgagee within 5(five) years as stipulated in the deed of reconveyance or not, but the plaintiffs failed to prove the said fact and thus after the expiry of the said period of 5(five) years the transaction became a past closed one. But the trial Court and the High Court Division failed to consider the said fact. We find merit in the appeal and accordingly, the same is allowed....Golzar Hossain -VS- Abdul Kadir, [9 LM (AD) 74]
Barred by limitation- It is crystal clear that the plaintiffs miserably failed to prove their title to the suit land. Admittedly, the plaintiffs filed Title Suit No.63 of 1954 for declaration of title in respect of the suit land which was dismissed. Subsequently, the plaintiffs filed Title Appeal No.64 of 1957 before the learned District Judge, Sylhet, which was also dismissed. Therefore, it appears that instant Title Suit No.112 of 1972 filed by the plaintiffs is hopelessly barred by limitation. Israil Kha & others VS Syed Anwar Hossain & others. [1 LM (AD) 277]
Article 182-As per Article 182 of the Act, the very first execution case must be filed within 3 (three) years of the date of decree. Admittedly as well as documentarily the title execution case in question bearing was filed on 20-10-1993 where as the original suit was decree ex-parte on 15-4- 1989 which makes the title execution hopelessly barred by limitations. Terab Ali vs Syed Ullah (Civil) 75 DLR (AD) 233