Chapter 3: Law of Limitation (Concepts and Importance)

LIMITATION

It is the time period prescribed by law to appear in the court. Law sets the time limitation for initiation of a legal proceeding from the date of occurrence of issue.  It is the time limitation for bringing the case to the court having jurisdiction. 

A Statute of Limitations is a law which sets the maximum time in which the concerned parties have to initiate legal proceedings from the date of an alleged offense, whether civil or criminal. It is based on the Latin maxim ‘vigilantibus et non dormientibus jura subveniunt’ which means that the law aids those who are vigilant and not those who sleep upon their rights. It is also based on the principle, ‘justice delayed is justice denied’.

A statute of limitations, known in civil law system as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event which legal proceedings may be initiated. When the time specified in a statute of limitation passes, a claim might no longer be filed or if filed may be subject to dismissal if the defense against that claim is raised that the claim is time-barred as having been filed after the statutory limitation period.

Statute of limitations are enacted by the Legislature which may either extend or reduce the time limits, subject to certain restrictions. A court cannot extend the time period unless the statute provides such authority. Similarly, it can’t be extended or shortened as per understanding made by the parties.

A Statute of limitations is unconstitutional if it immediately curtails an existing remedy or provides so little time that it deprives an individual of a reasonable opportunity to start a lawsuit.

In general, time allowed under a statute of limitation varies depending upon nature of offense. The limitation period normally commences when the plaintiff’s cause of action arises, when the incident occurs causing violation of rights or when the plaintiff discovers the previous action amounting to violation of rights.

The limitation in a case varies as per:-

• Nature of case. 
• Gravity of case. 
• Matter of case.

In some of the cases, there is no limitation of time prescribed for bringing your case in the court. There are three basic aspects of limitation, they are:-

• Time to arrive in court to complain.
• Time to appeal.
• Time to enforce decisions.

Purpose of Limitation.

• To ensure lawsuits that can be dealt within a timely manner.
• To minimize the chances of destruction of evidence.
• Protection of victims.
• Protection of witness from disappearance.
• Long time duration may make changes of situation and remedy may be useless. In this relation, there is well known maxim, ‘delay defeats equity’.
• To create certainty.

The physical evidences may be deteriorated and become undiscoverable and oral evidences may weaken after passage of time. Some crime scenes are supposed to be investigated immediately for the collection of evidence before it gets contaminated. Offender can freely enjoy in society and victim will not get justice in time if time limitation is not prescribed. Moreover, the offender may destroy the evidence and abscond.

The Statute of limitations are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded and witnesses have disappeared. The theory is that even if one has a just claim, it is unjust not to put the adversary on notice to defend within period of limitation. Most importantly, the right to be free of stale claims in time, comes to prevail over right to prosecute them

Types of Limitation

1. Fixed/ Definite: Time limitation that can be clearly seen and separated to determine cause of action and the date on which such cases occur.
    
2. Indefinite: Limitation period in which cause of action cannot be determined or cannot be said to be clear with certainty.
    
3. Mixed: Limitation period which is created from date of knowledge or from the date of revelation or from date of cause of action.

Legal Provision: Sec 47-62 of Muluki Civil Procedure Code, 2074.

Case Laws

1. Nepal Government vs Mahesh Mahara, NKP 2076, DN-10178
   
   Supreme Court held that ‘from date of knowledge’ means that statute of limitation does not start when anyone else knows. It should be calculated from date when person or entity who has right to prosecute the case or has the right to do so knows.
    
2. Prakash Jung Rana vs Geeta Rani Hamal, NKP 2075, DN-9923
   
   Supreme Court held that whenever a dispute arises between two parties as regards rights of each other, the cause for instating a case shall also be deemed to have been created then and there. As soon as a cause for litigation starts, the limitation for seeking remedy shall also begin.

There are various types of limitations, they are as follows: -

a. Limitation in Criminal Offenses.

•  No limitation – offense against state (e.g. section 49-53 of penal code).
•  Within two years of knowledge of commission of crime- (e.g. section 54-56).
• Three months of lapse of time- (e.g. Section 118,119,120,121,122).
• Three months of knowledge of commission – (e.g. Sec.289,290). 
• Six months of knowledge of commission – (e.g. abortion (sec.188,189), prohibition of  sexual activities in public place sec 123).
•  One year of knowledge of commission – (e.g.  subsection 1 of section 230).
•  After the lapse of three months- (e.g. section 78,80,83,100).
• 1 year from the date of commission  – (e.g.  kutpit, acid attack section 192,193,194,195)

 
b. Limitation in Civil Disputes.

The limitation in civil disputes can be described as follows: -

• Filing of case within the given specific time limitation.
•  Filing case at any time in cases having no specified time limitation.
•  Filing of case within the knowledge of commission.
• Right of juvenile in the respect of limitation of time starting only after the completion of 18 years of age.
• Limitation of time in regard to acts done in foreign land.
• If the final day of limitation of time becomes a holiday, then the time limitation goes for the next day.

c. Limitation in Contractual Obligation.

Contract is a legally enforceable agreement. The contractual element should be legally enforced, and it should not collide with the law. Contract should consist of remedy for the breach of contract, where to file the case for remedy and time limitation for executing a case.

But if there has not been mentioned about the limitation then it is deemed to be as per the provisions of general laws like civil and criminal code of 2074. 

For example : -

• On the tort cases -  6 months, Section 684 of National Civil (Code) Act 2017
• Remedy for the breach of contract – within 2 years
• Labor related case – within 3 months, Section 647 of National Civil (code) Act 2017 
• Other cases – within 35 days

d. Principle of Laches.

The term ‘laches’ is derived from the French word ‘laschesse’ which means slackness. The doctrine of laches states that if someone unreasonably delays in seeking a legal remedy, and that delay causes harm to the other party, the claim may no longer be enforced or allowed. Once the reasonable time has lapsed, the claim becomes stale. It is based on two maxims ‘delay defeats equity’ and ‘vigilantibus non dormientientibus aequitas subvenit’ which means equity assists vigilant, not those who sleep upon their rights.

The principle of laches is applied in writ procedures. It is based on the principle that if an individual's rights are violated and if he or she enters the court with delay then such a person’s right cannot be stored again. The court cannot help the person who is not conscious about their own rights.

The principle of laches is also known as the principle of equity. Laches means that there has been unreasonable delay by the plaintiff in regard to bringing a lawsuit before the court. It signifies that the party was slipping over its own right.

The court must check if the petitioner’s delay has given the other party any legal rights. The longer someone waits to file a case, the more likely the other party’s rights have become established. When deciding, the court should consider both the petitioner’s rights and any harm to the other party. A delay is acceptable only if granting the request would not harm the other party.

Laches is not determined by the Parliament. It is propounded by the competent Court to deliver equitable justice. It is applied in writ petitions. Laches should not be measured mechanically or mathematically as a fixed time limit set by law, like a statute of limitations. Nor is there any direct or indirect connection between the prevailing law on limitation periods and the doctrine of delay. Laches do not count days, months and years like in Limitation. It is a relative notion and varies depending upon the nature and gravity of the case. Whether a principle of laches is attracted or not in a particular case is a matter of discretion and is decided by judges accordingly.

The principle of laches does not apply in the constitutional question because any laws inconsistent with the constitution, to the extent of such inconsistency is void. Similarly, if the court has already resolved the dispute, waiting for the relevant government bodies to implement the decision will not be considered an unreasonable delay. To claim laches as a defense, defendants need to show that their status has changed because of the unreasonable delay by the plaintiff in filing the lawsuit. They also need to demonstrate that the delay is putting them in worse position than if the claim had been filed within a reasonable period of time.

The laches applies in : -

• If there has been a delay in bringing the claim for remedy rights or claim before the court.
• The delay was unreasonable.
•  If one performs negligence, then he/ she shall have to bear the consequence.
• Latches never count as day, month and year like limitations.
• Applied only in writs.
• After Pradhan Nyayalaya Act 2008 the concept of principle of laches has been developed.
• It is the court’s discretionary power.

 Case Laws

1. Jhamak Bahadur Niraula vs HMG, NKP 2055, DN-6491

   Supreme Court has held that it shall not be reasonable to retain a bad decision by quashing a writ on the basis of principle of laches when an ultravires and legally flawed decision has been made that has directly infringed on the rights conferred by the Constitution. Hence, the principle of laches should be applied in consideration of factors such as the nature of case, conduct of parties, nature of decision, etc.

2. Om Bahadur Gurung vs Ministry of water resources, NKP 2069, DN-8763
   
   Supreme Court held that principle of laches is not a demarcating theory of rigid nature like that of limitation. No time limit can be fixed here by counting the days. In case the rights of a third party have already been created in the subject matter of dispute, then the time period of filing a writ shall be worth pondering. However, when the rights of a third party have already been created, then the principle of laches may attract, if an undue delay is seen in filing a petition.

e. Difference between limitation and notice.

Generally, 

Limitation- it is for plaintiff 

Notice- it is for defendant 

Date of appearance- it is for both plaintiff and defendant. 

                                                                                                                        Prepared and Edited by Sujina dhonju.