Limitation Bars Suit, Not Defence

A defendant in a suit can raise any legitimate plea in his defence available to him to resist the claim of the plaintiff. Such a plea of the defendant might have been barred by limitation had he raised the same as plaintiff in a suit instituted by him. But limitation does not stand on his way when he raises the very same plea in his defence as defendant in a suit to resist plaintiff"s claim(AIR 1916 P.C. 172,2006(II)CLR 527.

Such an issue came for consideration before Sir Asuthos Mookerjee and Mr. Rankin, two eminent judges of the Calcutta High Court(AIR 1923 Cal 521), and it was held that when an old deed is challenged as fictitious or invalid by a defendant to resist plaintiff's claim based upon the said deed, it cannot be said that the defence plea has become time-barred. Justice B.K. Mukharjee and Justice Blank later concurred the same view(AIR 1942 Cal 514). The Patna High Court followed this view in its decision reported in AIR 1973 Pat 352.  The Supreme Court later accepted this as the correct view (AIR 1999 S.C. 1441 & AIR 2004 S.C. 2546)

The full bench of Madras High Court held (ILR 30 Mad 169) that where a transaction is voidable at the instance of a defendant, he can, on this ground, defend a suit wherein the plaintiff seeks to enforce the transaction against him, although the period of limitation for a suit to set aside the transaction has expired..

The Allahabad High Court has held (AIR 1927 All 355) that where in a sale deed the property intended to be sold is by mistake wrongly described, but the Vendee gets into possession of the right property and the Vendor subsequently sues to eject him from such property on the ground of the said property not having been sold to him according to the sale deed, the Vendee can show that the said property was really intended to be conveyed under the deed and that by mistake it was wrongly described in the deed, although a suit by him for rectification of the deed has become time barred.

An intended Vendee entered into possession of a land in part performance of contract with the true owner complying all the requirements of sec. 53-A of the T.P. Act and remain in such possession for 60 years. The true owner then filed a suit against him for declaration of title and recovery of possession. The High Court decreed the suit as the possession of the defendant was all along permissive in character and he did not file any suit in time against the plaintiff for specific performance of contract enforcing him to execute a regular sale deed in his favour conveying title to him thereunder. The supreme Court reversed the finding of the High Court accepting the defendants plea that though such a suit by the defendant has become time-barred, his resistance of possession (without title) is a good defence against plaintiff's claim (1997 (I) O.L.R.(S.C.)1]. The full bench of Bomaby High Court (AIR 2004 Born 378)later concurred this view.

Where a tenant is dispossessed by the landlord of a portion of the tenanted holding, he can set up such dispossession in his defence in a suit for rent by the landlord although a suit by the tenant for recovery of possession of the dispossessed protion has become time barred(AIR 1926 Pat. 513)

In a suit for redemption of mortgage against a mortgagee in possession, the mortgagee-defendant can claim the mortgage money from the plaintiff although a suit for such money would have been barred by limitation. (AIR 1967 Raj 258)

Although the period of limitation for a suit to set aside a decree obtained by fraud has expired, still then the fraudulent character of the decree can be set up in defence when the decree is sought to be enforced.(I.L.R.27 Cal 11, AIR 1928Cal.810)

Thus the defendant stands in a privileged position than the plaintiff in the setting up his plea in the context of the law of limitation. This is however subject to the accuracy in the drafting of the Supreme Court the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the document in question, the evidence led by the parties in the suit and other attending circumstances. (AIR 1999 S.C. 1441).