The Limitation Act, 1908: A Procedural Law for Public Peace and Legal Repose in Bangladesh
In Bangladesh the Limitation Act, 1908, stands as a cornerstone of the civil legal system , governing the timeframe within which an aggrieved party must approach a court for legal redress. It is not merely a collection of deadlines, but a vital part of the public policy governing civil justice.
- The Nature of the Act: Primarily Adjective Law
The Law of Limitation is overwhelmingly classified as adjective or procedural law. This classification is justified by several fundamental principles:
- Regulation of Procedure: The Act does not create or define any rights or causes of action, which is the role of substantive laws. Instead, it regulates the procedure for enforcing pre-existing rights in a court of law.
- Bars the Remedy, Not the Right: The most compelling evidence of its procedural nature is the crucial principle that the Act generally only bars the remedy (the ability to sue in court) after the prescribed time, but it generally does not extinguish the underlying substantive right itself.
- For instance, if a debt becomes ‘time-barred’ (the period for recovery is over), the right to sue is lost.
- However, the underlying debt (the right) still exists as a moral and legal obligation, meaning if the debtor later voluntarily pays the time-barred debt, they cannot demand the money back. This confirms the law is regulating the procedure and not the substance.
- Mandatory Judicial Direction: The entire Act is dedicated to regulating the timeline for approaching a court, which is a matter of procedure. Section 3 mandates that every suit, appeal, or application filed after the prescribed period must be dismissed, even if the defendant does not raise the plea of limitation. This mandatory instruction to the court governs the procedure of entertaining a case.
- Procedural Tools: The rules governing the exclusion of time (e.g., time taken for obtaining certified copies) and the extension of time (condonation of delay under Section 5) are purely procedural tools meant to ensure fairness within the judicial machinery.
The Single Substantive Exception: Despite its procedural nature, one major exception exists. Section 28 provides that when the period limited to institute a suit for possession of immovable property has expired, the right of the person to such property shall be extinguished. This lapse of time destroys the legal right entirely and is considered a substantive part of the Act.
- Scope and Comprehensive Application of the Act
The scope of the Limitation Act, 1908, is comprehensive in its application to various legal proceedings:
- Application to Civil Proceedings: It applies to all Suits, Appeals, and Applications filed in civil courts, subject to the specific time periods detailed in the Schedule.
- Fixing Mandatory Time Limits: The scope involves specifying a particular period (e.g., 3 years for contract suits, 12 years for possession of immovable property) within which a legal action must be initiated from the date the cause of action arises.
- Computation and Exclusion of Time: It prescribes rules for the computation and exclusion of time.
- This includes the exclusion of time required to obtain copies of a judgment or decree for filing an appeal.
- It also allows for the extension of the period in cases of legal disability (like being a minor or of unsound mind) or when there is sufficient cause (like illness, or a bona fide mistake in choosing the court) for the delay.
III. The Object and Policy of Enactment
The enactment of the Limitation Act, 1908, is rooted in deeply entrenched maxims of public policy , aimed at promoting certainty, discouraging negligence, and ensuring reliable justice. The policy behind the Act is derived from three main perspectives:
- The Policy of Repose and Finality (Public Interest)
This is the paramount policy and is captured by the legal maxim: Interest Reipublicae Ut Sit Finis Litium (It is in the interest of the State that there should be an end to litigation).
- Bringing Finality to Disputes: The primary object is to bring finality to disputes by preventing the never-ending possibility of litigation.
- Quieting Titles and Certainty: The law ensures that legal rights and disputes, especially concerning land and property, do not remain in perpetual suspense, thereby helping to quiet titles and secure the ownership and possession of those in long-undisturbed possession.
- Ensuring Judicial Efficiency: The Act prevents the judiciary from being overwhelmed with ancient disputes where facts are hard to ascertain, thereby allowing resources to be focused on current and timely matters.
- The Policy Against Indolence (Vigilance and Fairness)
This perspective is based on the legal maxim: Vigilantibus Non Dormientibus Jura Subveniunt (The law aids the vigilant and not those who sleep upon their rights).
- Discouraging Laches: The law protects people who are diligent and pursue their rights promptly, thereby discouraging negligence and ‘sleeping on one’s rights’.
- Protecting the Defendant: After the limitation period has passed, the defendant gains a kind of “right to peace”. The law protects the defendant from being unfairly surprised by a claim that is too old to be reliably contested, as they should not have to preserve evidence and memories indefinitely.
- The Policy of Practical Justice and Security
This perspective addresses the practical requirements for administering justice fairly and maintaining social order:
- Preserving Reliable Evidence: The passage of time leads to the destruction of documentary evidence and the fading or failure of human memory. The Act forces the institution of suits when the evidence is still fresh and available, thereby ensuring a more just and fair adjudication process.
- Preventing Disturbance of Vested Rights: Allowing very old claims to be enforced would destabilize ownership and peace in society. By extinguishing the judicial remedy for stale claims, the law protects the current state of affairs and the long-undisturbed possession of property.
- Distinction Between Limitation and Prescription
Limitation and Prescription are two legal concepts dealing with the effect of the lapse of time on legal rights. The Limitation Act, 1908, actually covers both concepts.
- Limitation:
- Nature: Primarily destructive or extinctive of the judicial remedy.
- Effect on Right: It bars the remedy but generally does not extinguish the substantive right. The right remains merely unenforceable in a court of law.
- Relevant Section: Governed by Section 3 of the Act.
- Prescription:
- Nature: Primarily acquisitive (creating a new right) or extinctive of the original right.
- Effect on Right: It extinguishes the original Right of the true owner and, often, creates a new right for the possessor. This is considered a matter of Substantive Law.
- Relevant Sections: Governed by Sections 26, 27, and 28 of the Act.
- Examples: This includes Positive Prescription, such as the acquisition of an Easement (e.g., a right of way) by continuous enjoyment for 20 years, and Negative Prescription (Adverse Possession), where the true owner’s right to property is completely extinguished.
In conclusion, the policy of the Limitation Act, 1908, is a pragmatic compromise. While it may sometimes prevent the enforcement of a legitimate but delayed right, it does so to serve the greater public good by promoting certainty, discouraging negligence, and ensuring that judicial resources are spent on current disputes where a fair trial, based on reliable evidence, is still possible.
Written By: Nazmul Hasan
Senior Judicial Magistrate/ Senior Civil Judge.
Professional Highlights
- Senior Judicial Magistrate/ Senior Civil Judge, 11th Bangladesh Judicial Service (BJS)
- Merit Position: 7th in the 11th BJS
Academic Qualifications
- LL.B. (Hons.) – First Class First, University of Rajshahi
- LL.M. – First Class, University of Rajshahi
Honors & Achievements
- Prime Minister Gold Medalist – 2017
- Agrani Bank Gold Medalist for Academic Excellence – 2023
Contact: [email protected]
