Indian Evangelical Lutheran Church Trust Association vs Sri Bala & Co.

Held: The Limitation Act, 1963 consolidates and amends the law of limitation of suits, appeals and applications and for purposes connected therewith – The law of limitation is an adjective law containing procedural rules and does not create any right in favour of any person, but simply prescribes that the remedy can be exercised only up to a certain period and not beyond – The Limitation Act therefore does not confer any substantive right, nor defines any right or cause of action – The law of limitation is based on delay and laches – Unless there is a complete cause of action, limitation cannot run and there cannot be a complete cause of action unless there is a person who can sue and a person who can be sued. [Para 9]

Law of Limitation – Right of plaintiff:

Held: The barring of the remedy under the law of limitation on the expiry of the limitation period would not imply plaintiff’s right being extinguished – Only the possibility of obtaining a judicial remedy to enforce the right is taken away – However, in certain cases, the expiry of the period of limitation would extinguish the plaintiff’s right to seek remedy entirely. [Para 9.2]

Limitation Act, 1963 – Art. 113 – Residuary Article – Omnibus Article:

Held: If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fall within the residuary article – The purpose of the residuary article is to provide for cases which could not be covered by any other provision in the Limitation Act – The residuary article is applicable to every variety of suits not otherwise provided for under the Limitation Act – It prescribes a period of three years from the date when the “right to sue” accrues – Under Article 120 of the erstwhile Limitation Act, 1908, it was six years, which has been reduced to three years under Article 113 of the present Act – Article 113 of the Limitation Act is an omnibus Article providing for a period of limitation not covered by any of the specific Articles. [Paras 9.4, 9.6]

Limitation Act, 1963 – Art. 113 – When the ‘right to sue’ accrues: Held: The right to sue under Article 113 of the Limitation Act accrues when there is an accrual of rights asserted in the suit and an unequivocal threat by the defendant to infringe the right asserted by the plaintiff in the suit – Thus, “right to sue” means the right to seek relief by means of legal procedure when the person suing has a substantive and exclusive right to the claim asserted by him and there is an invasion of it or a threat of invasion – When the right to sue accrues, depends, to a large extent on the facts and circumstances of a particular case keeping in view the relief sought – It accrues only when a cause of action arises and for a cause of action to arise, it must be clear that the averments in the plaint, if found correct, should lead to a successful issue – The use of the phrase “right to sue” is synonymous with the phrase “cause of action” and would be in consonance when one uses the word “arises” or “accrues” with it. [Para 9.8]

Limitation Act, 1963 – Arts. 54 and 113 – The second suit was filed after rejection of the plaint in the earlier suit for seeking specific performance of a contract – What is the period of limitation of filing second suit:

Held: In the present case, the earlier suit was filed by the respondent/plaintiff in July, 1993 on the basis of Article 54 and the plaint in the said suit was rejected on 12.01.1998 – The second suit being O.S. No. 49/2007 was filed on the strength of Order VII Rule 13 of the Code for the very same cause of action and for seeking the very same relief of specific performance of the agreement dated 26.04.1991 as the plaint in the earlier suit was rejected on 12.01.1998 – Therefore, it cannot be said that the second suit namely O.S. No. 49/2007 was filed as per Article 54 of the Limitation Act – Since this is a suit filed for the second time after the rejection of the plaint in the earlier suit, in view of this Court, Article 54 of the Limitation Act does not apply to a second suit filed for seeking specific performance of a contract – Then, the question is, what is the limitation period for the filing of O.S. No. 49/2007 – One have to fall back on Article 113 of the Limitation Act – Article 113 of the Limitation Act is an omnibus Article providing for a period of limitation not covered by any of the specific Articles – Article 113 of the Schedule to the Limitation Act provides for a suit to be instituted within three years from the date when the right to sue accrues. [Paras 9.6, 9.7, 9.9]