‘Dura Lex, Sed Lex’ – A Jurisprudential Inquiry of its Inviolability in the Context of the Law of Limitation

Introduction

“A law may be harsh, but it is still the law and ergo requires obedience” is the gist of the legal maxim ‘dura lex, sed lex’. The maxim particularly holds relevance in the realm of the Law of Limitation where Courts have (usually) exhibited a tendency to apply the said maxim mechanically with no scope for exceptions. That is, the law of limitation must be applied “in all its rigour” and that the Court has “no power to extend the period of limitation on equitable grounds” irrespective of any hardship or inconvenience it may cause to a particular litigant[i].

Are there really no exceptions to the said maxim? This is an essential question sought to be answered hereinafter. It is submitted that the maxim does brook exceptions in specific situations, and hence, observations made by the Courts to the contrary are erroneous to a certain degree. The present study focuses on the equitable exceptions to the legal maxim of ‘dura lex, sed lex’ and makes a case against its inviolability.

Overview of ‘Dura Lex, Sed Lex’ in the Law of Limitation- A Tussle between Law and Equity

A realization may have dawned upon the readers that, the present discussion is an element of the universal discourse of the tussle between strict adherence of law and application of the principles of equity to subserve the attainment of justice for which laws are enacted in the first place. Dura lex, sed lex, a maxim of Latin origin is the go-to legal maxim constantly placed reliance upon with respect to cause(s) of action barred by limitation. This maxim can rightly be placed as a perfect guinea pig to examine the everlasting tussle and the broader discourse of law versus equity. That is, how far, should judges appreciate equitable considerations in their decisions, for strict application of law may not necessarily result in just decisions. Hence, chiselling in considerations of equity, a judicial decision may be modified with respect to the application of law, to suit the facts and circumstances of a certain case.[ii]

“Equity can only supplement the law, but it cannot supplant or override it” was an observation by the Supreme Court in one of the cases[iii] which dealt with the issue of whether a litigant Bank should be permitted to recover its dues from a defaulter if the execution petition is filed beyond the prescribed statutory period of twelve years. The Court observed that, the debt is rendered time-barred, and hence execution petition is not maintainable.  Herein, the Court observed that, in accordance with the maxim dura lex, sed lex, in a conflict between law and equity, the law has to prevail. As such, the Court opined that though equity was clearly in favour of litigant bank, the law was in favour of the defaulter, and as the claim is time-barred, the litigant bank is barred from recovering its dues.

In fact, from a scrutiny of the judicial decisions, it would emerge that, where the failure to comply with the limitation period is wholly attributable to the litigant itself, the Courts have applied the maxim dura lex, sed lex in its full force and vigour, and denied any relief to such litigant, no matter the equity tilted in their favour. As a matter of fact, the Courts have displayed a formalistic attitude in usage of dura lex, sed lex in determination of whether a suit or a cause of action is within the time-frame prescribed under the limitation law where the litigant is wholly at fault for failure to comply with statutory prescribed period of limitation.

But such an approach can rightfully considered to be overbearing, unfair, inequitable and problematic in situations where no fault can be attributed to a particular litigant (emphasis supplied). As a matter of fact, there are maxims of equity, specifically, ‘lex non cogit ad impossabilia’ or “law does not compel to do the impossible”, and ‘actus curiae neminem gravabit’ or “act of Court shall prejudice no one”, which moderate the rigour of this (dura lex) maxim and shall be explored hereafter.

A Challenge to The Rigour of Dura Lex, Sed Lex – A Case for Equitable Exceptions

“Law does not compel the performance of impossible acts” is one such exception to the maxim dura lex, sed lex, based on equitable considerations. This maxim can be interpreted to override statutes, specifically the law of limitation.  In the context of the law of limitation, there are times whereby a litigant is unable to adhere to the statutory timelines on account of reasons beyond his or her control. This particularly holds true where the reason for the delay is not due to the act of the litigant but due to the laggard pace of the Government Department or even the Courts themselves. For instance, should the litigant be made to suffer for a delay in acquiring a certified copy of an order or judgment required to file an appeal[iv] where the litigant duly applied for the same in time, upon pronouncement of an impugned order[v], but the delay occurred on account of the department/registry in providing the same? The answer, undoubtedly, should be in the negative.

In the interests of justice, a litigant should not be made to suffer where the statutory dicta to approach the courts of justice was hamstrung due to the inefficiency of the instrumentalities of the State or of a third party. For it would amount to calling upon the performance of an impossible act upon a litigant.  On the same reasoning, another equitable maxim that joins the fray is “actus curiae neminem gravabit” or act of the Court shall prejudice no one.

The  aforesaid maxim a signifies that the Courts have an obligation to undo a wrong done to a party arising from the actions of the Court itself. It mandates rectification of harm suffered by a litigant from judicial errors or delays.[vi] This maxim, founded on equity, underscores that no prejudice shall accrue to a litigant for no fault of theirs because of judicial delays. This maxim serves to moderate the strictness of the disciplinarian maxim, dura lex, sed lex.

A useful reference may be made to the case of Satish Buba Shetty vs. Inspector General of Registration and Collector of Stamps and Ors.[vii] (Bombay High Court) for appreciation of the aforementioned argument. Herein, a litigant’s application for refund of stamp duty paid on the registered agreement for sale was rejected by the appropriate authorities under the Stamp Act on the ground that the agreement for sale was not cancelled by a registered cancellation deed within the statutory prescribed period of five years for claiming the refund. The Court noted that, it took the aggrieved litigant more than five years for the Deed of Cancellation executed in his favour, by pursuing his legal remedies before Courts of Law. Hence, it was observed that, it was impossible that the execution of cancellation deed could have been done before five years.

Accordingly, no prejudice could accrue to litigant on this front of impossibility in consonance with ‘lex non cogit ad impossibilia’. However, apart from the impossibility to adhere to the aforesaid statutory prescribed period of five years, the Court also observed that delay arising from the time spent in pursuing legitimate legal remedies, in absence of bad faith, cannot be arrayed against the litigant, in consonance with ‘actus curiae neminem gravabit’. Therefore, the time lost before Courts of law cannot be reckoned for computation of limitation of five years. For a party who does all under his power and control for redressal of his grievances, including getting reliefs out of Courts of law, such party cannot be prejudiced by statutory prescribed period of limitation.

Conclusion

The jurisprudential position regarding the maxim dura lex, sed lex in the context of law of limitation can be summed up thus: -where the reason for the delay to abide by the limitation period is wholly attributable to the litigant itself, then in such a scenario, equity cannot prevail and must give may to the timeline prescribed under the statue. However, in scenarios where failure is attributable to the acts of the State or the Court, then equity prevails over law, and no prejudice can be inflicted upon the litigant.

To sum up, both the discussed maxims, ‘Lex non cogit ad impossibilia’ and ‘actus curiae neminem gravabit’ can be considered as the twin pillars to withstand the roof of the strict application of the limitation law that is on the verge of collapse for going past its limitation lifespan in situations where no fault can be attributed to a litigant for appearing under it.

(This post has been authored by Anesley Andrew, who holds an LL.M. Degree from National Law School of India University, Bengaluru.)

CITE AS: Anesley Andrew, “Dura Lex, Sed Lex’ – A Jurisprudential Inquiry of its Inviolability in the Context of the Law of Limitation” (The Contemporary Law Forum, 15 April 2024) <dura-lex-sed-lex-a-jurisprudential-inquiry-of-its-inviolability-inthe-context-of-the-law-of-limitation> date of access.

[i] Popat Bahiru Govardhane and Ors. vs. Special Land Acquisition Officer and Ors., (2013)10 SCC 765.

[ii]John Tasioulas, ‘Justice, Equality, and Rights’ in Roger Crisp (ed), The Oxford Handbook of the History of Ethics (Oxford University Press 2013).

[iii] Raghunath Rai Bareja and Ors. vs. Punjab National Bank and Ors., (2007)2 SCC 230.

[iv] Heera Mani vs. State of H.P. and Ors, ILR 2016 5 HP 889.

[v] V. Nagarajan vs. SKS Ispat and Power Ltd. and Ors, AIR 2021 SC 513.

[vi] Vineet Kumar vs. Mangal Sain Wadhera, (1984) 3 SCC 352.

[vii] Satish Buba Shetty vs. Inspector General of Registration and Collector of Stamps and Ors., Writ Petition No. 9657 of 2022