Is Limitation in the air? Supreme Court, bar Council & Associations Sleeping?
Mir Abdul Halim:
Law of Limitation defines a time limit for different kinds of suits within which an aggrieved person is able to approach the judicial mechanism for justice. If a claim is filed after the expiry of time limit, usually struck of by the Court on the ground of limitation that the claim is time-barred except certain situation where court allow the suit with condonation of delay.
In Bangladesh, The Limitation Act, 1908, a British colonial legislation is the current legal framework which sets out the maximum time after an event within which legal proceedings may be initiated with some exceptions. The intention was to make laws relating to the limitation of suits, appeals and certain application to Courts and to provide rules for acquiring by possession the ownership of easements and other property.
Because of COVID-19, lives & livelihood are greatly impacted around world touching Bangladesh. Government actions & instruments like work stoppage, lockdown or restrictions & court closure will have effects on limitation period and what happens if limitation expires for such extra ordinary closure? Will the court accept condonation of delay due to Coronavirus Pandemic? A fairly new phenomenon & truly unforeseeable event?
In response of such difficulties, other countries are taking legal steps and issuing temporary orders that how the court should answer limitation period in current circumstances including India & Pakistan. Bangladesh Government and the Supreme Court may aware this situation and people feels to have new orders to remove legal difficulties in the courts where millions of SUITS, APPEALS and APPLICATIONS are waiting to be filed soon.
The Indian Supreme Court on 23rd March/20 directed the suspension of the limitation period running under all general and special laws, with effect from March 15, 2020. In this regard, the order passed by three-Judge Bench comprising of Chief Justice SA Bobde and Justices L Nageswara Rao and Surya Kant reads in SUO MOTU WRIT PETITION (CIVIL) No(s).3/2020, IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION.
This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State).
“To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.”
The Bench passed the order invoking its special powers under Article 142 of the Constitution of India. Further, it held that the same shall be binding on all Courts/Tribunals as per Article 141 with direction that this order be brought to the notice of all High Courts and subordinate Courts/Tribunals.
The Pakistan Supreme Court on 26th March/20 issued a NOTIFICATION which declares a certain period from 22.03.2020 to 21.04.2020 shall be deemed as closed day to comply with S.4 of the limitation Act as well as there shall be no bar on filing APPLICATIONS, PETITIONS and APPEALS etc. within the statutory period of limitation due to coronavirus pandemic which reads as follows.
In order to deal with difficulties faced by litigants who are hampered in filing SUITS, APPLICATIONS, PETITIONS and APPEALS etc before various legal fora provided by laws, on account of partial/complete lockdown announced by the federal/provincial governments, by reason of a spread of pandemic Novel Coronavirus (COVID-19) in different parts of the country.
Whereas the supreme court of Pakistan including its institutions branches are functioning all over the country while observing various safety protocols; and whereas on account of curtailment of movement and non-availability/scarcity of means of transportation, it is difficult for litigants to file suits, applications, petitions and appeals etc for reasons beyond their control. And whereas it is expedient to facilitate filing of suits, applications, petitions and appeals etc. before the fora provided by various laws.
Now therefore, in exercise of powers available under Article 191 of the Constitution of the Islamic Republic of Pakistan, 1973 read with Order II Rule I and Order XXXIII Rules 1, 3,4 & 6 of the Supreme Court Rules, 1980 it is hereby notified As follows.
1. for the purposes of Section 4 of the Limitation Act 1908, (the Act) for the purpose of calculation of limitation, provided under the Act or any other law, the institution branch of this Court, at the Principal seat and the branch Registries, shall be deemed to be closed from 20.03.2020 till 21.04.2020 (unless withdrawn earlier) for those litigants who are unable to approach this Court on account of lockdown announced by the federal/provincial Governments.
2. Notwithstanding the above, there shall be no bar on filing of applications, petitions and appeals etc. within the statutory period of limitation.
Article 142 of the Indian Constitution is defined as the enforcement of decrees and orders of Supreme Court in the exercise of its jurisdiction as is necessary for doing complete justice. Article 191 of the Pakistan Constitution defined as Rules of Procedure: Subject to the Constitution & Law, the Supreme Court may make Rules regulating the practice & procedure of the Court.
Is there any similar Article in Bangladesh Constitution? Some explains Article 111 may be invoked in this current situation, in absence of any legislation. Article 111 of the constitution proclaims the doctrine of binding judicial precedent. According to the article, the law declared by the Supreme Court of Bangladesh, including its Appellate Division and the High Court Division, are binding in all subordinate courts.
So, we wish attention of our Supreme Court Authority that whether it may take steps being inspired with the foreign countries having the same British legacy of Limitation Acts. If our apex court clarifies this COVID-19 pandemic through legal instruments that would reduce manifold legal complexity might stand up soon. The Bar Council & Bar Associations should work on the attention of the authority for wellbeing of the community & ensuring Justice. Millions of voices calling you, please do not pretend to sleep whereas Limitation is flying in the air!
Author: Advocate of Supreme Court & Coordinator of Bangladesh Legal Tech Society
