|Case No:||(AC-Revision-200-1960)||Type:||Court of Appeal|
|court type:||1960|Civil practice and procedure—Starute.barred claim to be disallowed by court even .if this defence is not pleaded—Civil Justice Ordinance. s. 56 (d)—Prescription and Limitation Ordinance. S.7. Contract—Effect of lapse of time to extinguish right and not merely to bar remedy.
Where a claim is statute-barred, but this defence is not specifically pleaded, the court may dismiss the claim on this ground by its own motion. Sudan. English and Indian statutory provisions compared.Judgment:
(COURT OF APPEAL)
YASSIN EL GAILY v. MOHAMED ABDEL HAG AND ANOTHER
Advocate: Sir El Khatim Au Omer……. for applicant. The respondent was not represented.
August 21. 1960. M. A. Hassib J.: —The application is without merits and should be summarily dismissed. The question for the consideration of this court is whether a court can, after allowing an action, dismiss the claim because it was statute-barred without such a defence being specifically pleaded.
Plaintiff in his petition stated that the claim was due on a current account for value of goods bought from him by the defendant and that ctirrent account was closed on March 2, 1956, when the balance was £S.128.085m/ms He further stated that the said claim was further admitted on June 23, 1957, and ever since no claim or admission has taken place. The court of the District Judge allowed an action for the plaintiff when the facts as set out in tl plaint showed that the claim was statute-barred. The court further proceeded with the suit till issues were framed and the issues included one, which says: Was the claim statute- barred? This last issue was not specifically pleaded but it was added by the court of its own motion.
On the date fixed for hearing the defendant failed to appear and only the plaintiff appeared. The District Judge, irrespective of the plaintiff’s advocate’s objection, decided the issue in favour of the defendant and dis missed the claim on the ground that it was statute-barred. The plaintiff applied for revision and the learned Judge of the High Court dismissed the application summarily. Hence this application to this court..
The learned Judge of the High Court said:
“Iam not clear about the position of the law. In England a defendant is required to plead the statute of limitation but in India is not.”
By the Indian Limitation Act, 1908, it is clear that a suit instituted after the expiry of the period of limitation shall be dismissed, though limitation has not been set up as a defence—MuIla, 12 ed, p. 622. At common law lapse of time does not affect contractual rights but the remedies arising from its violation are withdrawn after a certain lapse of time. The remedies are barred though the right is not extinguished. The law in England was in a state of confusion but the Act of 1939 has simplified the law. That Act provided that an action founded on simple contract must be founded witnin a certain period trom the date on which the cause of action arises.
In the Sudan we have two provisions dealing with the question, namely:
(a) Civil Justice Ordinance, s. 56 (d), which deals with the plaint, and
(b) The Prescription and Limitation Ordinance, 1928, s. 7, which deals with extinction of the rights by lapse of time.
By (a) the court is required to reject the plaint if the right of action is barred. It reads:
“The court shall reject the plaint and an order giving reasons shall be recorded.”
Section 7, referred to under (b), reads:
“No action shall lie for the enforcement of the rights or claims specified in the first column of the Schedule hereto save within the period of limitation.”
In the light of the above-mentioned provision of Sudan law I think no court is allowed to entertain an action where the right of action is barred by any law. From the title of Part II of the Prescription and Limitation Ordinance it is clear that the right of action itself is extinguished by the lapse of time. Unlike the English provision the right and not the remedy is barred according to our own law. It seems the legislator in the Sudan followed the provision of the Indian law. I therefore come to the conclu sion that the court in the Sudan is not allowed to entertain an action when the right is gone by lapse of time and if an action was allowed by oversight it can dismiss it without interference of the parties. Therefore there is no need for the bar to be specifically pleaded.
M. A. Hossib J. sitting summarily