LIMITATION ACT, 1908, CASES

Section-5

Delay of 1038 days in presenting the appeal-on a perusal of the application of delay under Section 5 of the Limitation Act Annexure-B. it appears that cause shown or explanation made were very much loose. In paragraph No.2 of the said application it is stated that the learned Government Pleader at the relevant time did not notice the pronouncement of judgement recorded in suit and did not inform appellants-petitioners of the said judgement and decree and nor did he take any step to present an appeal before court and as such the appeal could not be presented before appellate court. In paragraph No.3 it is stated that respondent No.4 recently disclosed his success in the suit with respect to suit property and then present Government Pleader on 24.1.1999 went to Sheresta of Court became aware of the decree recorded in the suit. No other ground had beenassigned for condonation of delay. Even it is not stated on which date decree-holder respondent disclosed his victory in the suit about only stated recently (f*Tfa°0. This inordinate delay of 1038 days had not been at all attempted to have been explained properly and the explanation given in the application cannot be at all Characterised to be a satisfactory and a proper explanation for condonation of such an inordinate delay.

Deputy Commissioner & Ors. Vs. Md. Aswab Ali & Ors. 9BLT(HCD)-12

Section-5

The delay of 510 days in filing the revisional application — incidents of delays specially in the office of the Solicitor. Ministry of Law and also in the office of the Attorney General, who are presumed to be well aware of the consequence of the delay, are reprehensible. It will tantamount to give a premium to such gross laches and reckless conduct, on the part of the concerned official if condonation of delay is allowed in such circumstances — Petition is rejected.

A.D.C. (Rev) & Ors Vs. Sofir Ahmed Mia & Ors. 11 BLT (HCD)-457.

Section-5

It is not mandatory that an application filed under Section 5 of the Limitation Act must be supported by an affidavit.

Pachi Dashi Mondal Vs. A C. (Land) Ors. 11BLT (HCD)-187

Section-5

Condoning the delay of 1302 days -discretionary matter-it appears that the High Court Division condoned the delay holding that there was no negligence on the part of the Government-respondent but it was due to the negligent act of the then Assistant Attorney General. The High Court Division after considering several decision of the higher courts of the country as well as of the Indian jurisdiction found that the delay was unintentional and for no fault of the
respondents-petitioner. Mr. Zahedul Bari led us through the judgment of the High Court Division and tried to impress that there was an intentional delay and the Government respondent should not be treated separately as they have no special status. But from the judgment of the High Court Division it appears that this aspect of the matter has been fully considered and it is well settled that the condonation of delay under Section 5 of the Limitation Act is a highly discretionary matter and considering the facts and circumstances the High Court Division exercised the High Court Division exercised the discretion in favour of the Government-respondent.

Mohammad Khairullah Vs. A.D.C. (Rev) & Ors 10BLT (AD)-79

Section-5

Impugned judgment was delivered on 07.8.1996 and the relevant file was received by the Solicitor Wing on 26.08.1996. The process for opening of the past file for filing the leave petition was started on 19.05.1998 and it continued upto 20.05.2000. The petition was filed on 31.05.2000-Held: As litigant the Government stands on the same footing with ordinary litigants, yet considering the difficulties of the Government in various stages we take sympathetic and liner view and allow condonation of delay of Government cases in many cases. But unfortunately this is a case whether such inordinate delay should not be condoned which will only encourage the officers of the Solicitor Wing to be irresponsible and negligent in their official duties.

Govt. of Bangladesh Vs. Md. Salauddin & Ors 9BLT(AD)-138

Section-5

Appeal is filed four years nine months after the date of the judgement-In the application it is specifically stated that a salish was held between the parties where it was settled that the complainant will withdraw the case and the accused petitioner did not go to the court for the purpose and on that belief the petitioner did not go to the court-Held: To satisfy about the statements made in the petition under section of the Limitation Act. the learned Judge could examine the petitioner or the complainant or any salishder about the matter-we think that the accused petitioner may be given a chance to scrutinize his conviction and sentence after admitting his appeal and we also hold that ends of justice will be meet if we allowed the accused-petitioner given such chance.

Abdul Mannan Vs. The State 8 BLT (HCD)-270.

Section-14 and Section-29(2) read with  Administrative Tribunals Act, 1980

Second Proviso to Sub-Section-(2) ofSection-4

It is clear from the wording of the second proviso to sub-section (2) of Section 4 of the Administrative Tribunals Act that the legislative intendment behind this provision is to exclude the proceedings governed by the Administrative Tribunals Act from the operation of the benefit conferred by sub­section (2) of section 29. The petitioner cannot,
therefore, the benefit of Section-14 of the Limitation Act while computing the period of limitation in filing his application before the Administrative Tribunal.

Abul Bashar Vs. Investment Corporation of Bangladesh & Ors. 9BLT (AD)-21

Section 28

Extinguishment of right to property

In 1927 Habu Khalifa, father of the plaintiffs entered into possession of the suit land on the basis of an oral settlement, and possessed till his death in 1965 with clean animus that he became the absolute owner of the suit land and in complete negation of any right or title of any person including the rent receivers and then, on his
death the plaintiffs have similarly been continuing and enjoying their possession on assertion of their own right and title overtly and openly and without any attempt at concealment. Such long continuous possession with clean animus of an absolute owner must be held to be hostile to anybody including the defendants. To make such possession hostile, and consequently, adverse the plaintiffs were never required to announce/publicize their hostility by beat of
drums.

Md. Mahmood Alam & Anr. Vs. Moklesur Rahman Bhuiyan 10BLT(HCD)235

Article-95

It is Article 95 of the First Schedule to the Limitation Act which governs a suit to set aside a decree obtained by fraud or for other relief on the ground of fraud. It provides 3 years from the time when fraud comes known to the party w rouged.

Govt. of Bangladesh Vs. Ramananda Sarker 9 BLT(AD)-30.

Article-113

Period of Limitation in filing a suit for specific performance of the contract.

Limitation will run according to Article 113 of the Limitation Act from the date when the plaintiff noticed that the performance is refused, and the suit is to be filed within 3 years from the date of first refusal, the limitation will not be extgended for subsequent refusal or recurring refusal or on the basis of cause of action as founded on the last date of refusal. [Para-8]

Panna Khan & Ors. Vs. Birendra nath Haider & Ors. 8BLT(HCD)-305

Section-148

The plaintiff filed a suit for redemption of mortgage and both the courts below found that a suit for redemption of mortgage is maintainable and the same having been filed within 60 years from the accrual of the cause of action the suit was not barred by limitation. The learned Single Judge wrongly held that the suit for redemption is barred by limitation. A reference to Article 148 of the Limitation Act clearly shows that the limitation of filing such a suit is 60 years and as such the learned single Judge wrongly held that the suit was barred by limitation.

Asmat Ali Vs. Abdur Rafique Mridha & Ors. 9 BLT (AD)-12

Artiele-155 First Schedule

Period of Limitation in filing Criminal Revision

Neither the Code of Criminal Procedure nor the Limitation Act. 1908 prescribes any period of Limitationfor filing criminal revision before the High Court Division but following be the long standing practice, which has by now become a rule of law, this Court regards 60 days as the period of limitation for filing a criminal revision, In spite of this practice, this Court usually takes a lenient view in condoning any reasonable delay whenever it finds the applicant not guilty of deliberate laches and negligence in prosecuting his case.

Md. Khadem Ali Vs. The State 8BLT (HCD)-189

Law on Pre-emption

Muslim Law — If appear that the pre-emptee No. 5 is the mother and pre-emptees No. 1-4 sons. The purchase was made by one kabala. There is no presumption of jointness in the Muslim Law. The presumption under the Muslim Law is that the Muslim families are separate. The purchase made by the mother and the sons are indedendent purchases and accordingly the purchase made by the pre-emptee Nos. 1-4 who are strangers, is pre­emptible excluding the purchase made by the mother by the selfsame kabala. This will not amount to partial pre-emption.

Md. Korban Ali & Ors Vs. Asalat Khan & Ors. 11 BLT(HCD)-138

 

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