By: Vani Kaushik
The general principle followed in the law of limitation is that the limitation commences from the earliest possible time a suit can be instituted. However, an exception to this is laid down under section 23 of the Limitation Act, 1963 (hereinafter ‘the Act’), which states that where there exists no independent cause of action, the limitation starts running from the time an act or omission of the defendant results in a specific injury to the plaintiff. The term ‘injury’ in section 23 also includes a ‘legal injury’.
The article deals with the relationship between section 22 and section 23 of the Act, and whether these two sections are applicable in an alternative manner.
THE RELATIONSHIP BETWEEN SECTION 22 AND SECTION 23 OF THE LIMITATION ACT, 1963
Section 22 of the Act provides that a new cause of action arises each time the breach of contract or tort continues, and consequently a fresh period of limitation begins to run at every such instance. By placing reliance on this section, the aggrieved party can wait, and claim all the damages arising out a continuous wrong together, instead of instituting numerous suits for each injury suffered.
There is some inconsistency regarding the fact that whether there is a relationship between Section 22 and Section 23 of the Act. While the former is applicable to continuing breaches of contract or tort, the latter comes into play only when there is no independent cause of action, and an action can be brought only when the plaintiff has suffered a specific injury and the period of limitation starts from the time such injury has happened.
In Maharani Rajroop Koer v. Syed Abdul Hossein, it was held that each and every time the wrong-doer was taking away the plaintiff’s water from the channel as a diversion he was indulging in a fresh wrong. Consequently, a fresh cause of action lay every time on account of continuing wrong within the meaning of section 22 of the Act. To understand whether a wrongful act is a continuing one, it is imperative to make a distinction between the continuance of an injury and the continuance of the effects of an injury. When the act of a wrongdoer results in an injury which is complete, the wrongful act is not a continuing one even if the damage caused by the injury continues. A wrongful act will be termed as a “continuing act” when the resultant injury caused by it itself continues. For example, the act of the defendant to park her car, which resulted in the plaintiff not being able to use that space, was a continuing wrong under section 22 of the Act. At every instance the defendant parked her car, it gave rise to a fresh cause of action. On the other hand, where a wall was constructed on the plaintiff’s land by the defendant, it was held not to be a continuing wrong, and hence, not covered by the provision of section 22 of the Act. The reasoning adopted by the Court was that the building of the wall was of a permanent nature and the injury was deemed to be complete on its construction even if the damages arising out of the injury still subsisted. Therefore, it can be concluded that whenever a wrongful act results in a permanent state of things, section 22 of the Act is inapplicable in such instances.
The Supreme Court elaborated on this point, and in Balakrishna Savalram Pujari v. Shree Dnyaneshwar held that an action amounting to ouster or dispossession constitutes a complete injury. Consequently, such an act would not fall under the ambit of section 22 of the Act. In that case, it was held that the act of the plaintiff to obtain possession from the defendant by way of litigation was held to not constitute a continuing wrong as the decree had ousted the plaintiff and the injury was complete and effective, even though the damages continued subsequently.
It is suggested that in the case of ouster or dispossession from the property, as the injury is complete and effective (and not a continuing wrong), it should fall within the ambit of section 23 of the Act. Thus, section 23 of the Act should be applied in the abovementioned case of Balakrishna Savalram, and the period of limitation should start from the date the decree (the execution proceedings which ousted the plaintiff from his property) was passed.
Additionally, in a situation where a right is completely extinguished, the issue whether a wrong has been committed does not arise. In certain scenarios, the trespass and obstruction, carried on for a long period of time, thereby cease to be a wrong. Under section 25(1) of the Act, a person (defendant) accrues an easement right in twenty years. Further, section 27 read with Article 136 of the Act, provides that the right to property of the plaintiff extinguishes after 12 years. Consequently, there is no right for removal of defendant for possession or for removal of the obstruction. This implies that where the defendant commits the wrong of depriving the plaintiff of her property, it is a continuous wrong. However, the plaintiff cannot institute a suit for recovery of possession after 12 years due to the operation of section 27 of the Act because her right to the property has extinguished. Thereafter, the plaintiff does not have any right to institute a suit as the defendant’s action ceases to be a wrongful act. Consequently, no continuing wrong exists anymore. Here, the plaintiff can only institute a suit for the last injury suffered, before the act of the defendant ceased to be a wrongful act. It is suggested that this situation should also be governed by section 23 of the Act which provides that the period of limitation begins from the time when some specific injury has been caused.
The Bombay High Court in Govind Narayan Kaade v. Rangnath Gopa Rajopadhyeheld that the limitation period started from the day the balance sheet was released, which documented the exact loss caused to the bank due to the wrongful act of its directors. This was the earliest date when the specific injury arose within section 23 of the Act, and thus, the right to sue accrued to the plaintiff on that date. It was observed that the losses caused to the bank were happening for a long period of time, but were only ascertained on the date the balance sheet was published. Thus, the period of limitation started from that date under section 23 of the Act. Further, it was also mentioned that if hypothetically assuming that section 23 was not applicable, then the present scenario would be governed by section 22 of the Act. This is because, the wrongful actions of the directors were happening for a long period of time, and each time they committed a wrongful act which caused loss to the bank, it gave rise to a new cause of action. This wrongful act was a continuing act, which lasted until the date the balance sheet was released.
In Firm Sitaram Bindraban v. Governer General Council, the plaintiff delivered certain goods to the railway authorities (defendant) for transportation, which were damaged due to rain. Thereafter, the defendant did not make any effort to prevent the goods from incurring more damage. Also, it rejected multiple requests of the plaintiff to take his goods back. After about a month, the plaintiff was allowed to remove his goods and take them back. However, the goods were damaged by then and the plaintiff filed a suit for compensation for the loss caused to him. It was held that the period of limitation started from the date the plaintiff took his goods back and the plaintiff was entitled to claim total damages up to the date on which he was allowed to take his goods back. The Court reasoned that the loss caused to the goods did not happen all at once; the goods were first damaged due to rain and thereafter their condition deteriorated owing to the continued negligence of the defendant. Each passing day aggravated the injury to the goods. The wrongful act of the defendant continued till the time the plaintiff was not allowed to remove his goods from the platform. Thus, it was a continuing cause of action and section 22 of the Act was applicable in the present case. Further, it was also stated in the alternative that section 23 of the Act was applicable to the extent that a specific injury occurred to the plaintiff. The “specific injury” was the damage caused to the goods due to the rain.
However, I feel that the learned judge erred in this conclusion because if this is followed then the period of limitation would have started (under section 23 of the Act) from the date the goods were first damaged by the rain. In the present scenario, the injury to be considered for the purpose of section 23 of the Act should have been that which occurred to the goods till the time the plaintiff did not take his goods back. This follows from the fact that there is a distinction between a continuing injury and the continuing effects of an injury. Here, it is the latter i.e. the further deterioration in the condition of the goods was the effect of the initial damage caused due to the rain. Following the judgment in Govind Narayan Kaade, (which held that the injury occurred on the day the balance sheets were released which documented the exact loss caused to the bank), it can be concluded that in the present case as well, the injury should have been that which occurred to the goods for the whole time the goods were in the defendant’s possession. Consequently, if in the alternative the case falls under section 23 of the Act, the period of limitation ought to start from the last day the defendant was in possession of the goods. The specific injury to be considered here is the cumulative damage that happened to the goods for the whole period of time they were under the defendant’s possession.
It is evident from the above discussion that there exists some kind of a relationship between section 22 and section 23 of the Act. Theoretically, these two provisions represent two very different concepts. This is clear from the fact that there is a difference between a continuing injury and the continuing effects of an injury. The former is applicable to cases under section 22 of the Act, while the latter usually comes into play under section 23 of the Act. However, in the practical sense, courts have often applied these two provisions of the Limitation Act in an alternative manner, as can be seen from the cases of Govind Narayan Kaade and Firm Sitaram Bindraban discussed above. Further, in the case of complete dispossession or ouster from the property, section 22 of the Act is inapplicable due to the fact that the injury is effective and complete. It is suggested that in such a scenario, section 23 of the Act must be applicable wherein the period of limitation starts from the date the plaintiff suffers from the specific injury, i.e. ouster from the property. Additionally, in a scenario when the wrongdoer (defendant) herself accrues a right (for instance an elementary right after 20 years), thereafter the defendant no longer commits a wrongful act; thus, it ceases to be a continuing wrong within section 22 of the Act. It is recommended that section 23 should operate in this case and the plaintiff can claim compensation for injury only for the last wrongful act of the defendant. From the abovementioned cases, it is evident that the provisions of section 22 and section 23 have been applied by the Court in an alternative manner.
Therefore, it is clear that though in a strictly theoretical sense these two provisions represent different concepts, in the practical and real world they can be construed harmoniously to fill the gaps that exist in the current law.
 Reevas v Builder (1891) 2 QB 509, 511.
 The Limitation Act, 1963, s 23.
 Chodhary Bibhuti Narayan Singh v Maharaja Sir Guru Mahadev Ashram Prasad Sahi Baaduri  ILR 19, 213.
 The Limitation Act, 1963, s 22.
 Law Commission of India, Eighty-Ninth Report on Limitation Act, 1963,72.
 Maharani Rajroop Koer v Syed Abdul Hossein, (1880) LR 7 IA 240.
 ibid 213.
 Balakrishna Savalram Pujari Waghmare v Shree Dhavaneshwar Maharaj Sansthan AIR 1950 SC 798.
 MR Sethi v Gurmauj Saran Baluja 1972 SCC Online Del 53.
 Ashutosh Sadukhan v The Corporation of Calcutta (1916) 49 Ind Cas 93.
 Chodhary Bibhuti Narayan Singh v Maharaja Sir Guru Mahadev Ashram Prasad Sahi Baadur  ILR 225.
 Balakrishna Savalram Pujari Waghmare v Shree Dhavaneshwar Maharaj Sansthan AIR 1950 SC 798.
 Chodhary Bibhuti Narayan Singh v Maharaja Sir Guru Mahadev Ashram Prasad Sahi Baadur  ILR 224.
 Limitation Act, 1963, s 25(1).
 Limitation Act, 1963, s 27.
 Chodhary Bibhuti Narayan Singh v Maharaja Sir Guru Mahadev Ashram Prasad Sahi Baadur  ILR 229.
 ibid 230.
 Govind Narayan Kaade v Rangnath Gopa Rajopadhye (1930) 32 BOMLR 232.
 ibid 253.
 Firm Sitaram Bindraban v Governer General Council AIR 1947 Nag 224.
 ibid 225.
 ibid 227.
 ibid 226.
 ibid 227.
(Vani is currently a student at West Bengal National University of Juridical Sciences, Kolkata.)