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Madho Lal Vs. Hari Shanker and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1729 of 1957
Judge
Reported inAIR1963All547
ActsLimitation Act, 1908 - Schedule - Article 23
AppellantMadho Lal
RespondentHari Shanker and anr.
Advocates:Baleshwari Prasad, Adv.
DispositionAppeal allowed
Excerpt:
limitation - calculation of time - article 23 of limitation act, 1908 - malicious prosecution - suit for malicious prosecution - start of limitation - held, trial court pass an order of acquittal of the plaintiff. - .....23 leaves no room for argument, as it provides specifically that limitation is to run from the date of acquittal.' this observation of the division bench supports the view which is expressed above. 6. in the madras case, air 1938 mad 349, it was thought that the words 'when the plaintiff is acquitted' could not be divorced from the words 'or the prosecution is otherwise terminated'. it appears that the full bench, which overruled the earlier view of that court, thought that the two phrases were inter-dependent. with great respect to the learned judges, i am unable to agree with that view. the purpose of the legislature is obvious by using two expressions 'acquittal' or 'otherwise termination of prosecution'. if the two expressions were inter-dependent or were meant to give starting.....
Judgment:

M. Lal, J.

1. This second appeal filed by the defendant arises out of a suit for malicious prosecution. The Suit has been decreed by both the Courts below.

2. The only point, which has been argued in this appeal, is that the present suit having been instituted more than one year after the order of acquittal was barred by time.

3. A complaint under Sections 323/324/452, I.P.C. was filed by the defendant-appellant against the plaintiffs respondents on 8th June 1950. That complaint was dismiss ed and the plaintiffs were acquitted by an order dated 29th December, 1950. A revision against the order of acquittal was filed, which was dismissed on 31-8-1951. Thereafter the present suit was filed on 20-8-1952. The point for determination is whether the limitation in the case began to run from the order of acquittal passed on 29th December 1950 or from the order dated 31-8-1951 when the revision was dismissed.

4. I have heard learned counsel for the appellant. The respondents in this case are unrepresented. Under Article 23 of the Indian Limitation Act the period of limitation for a suit for compensation for malicious prosecution is one year from the date when the plaintiffs were acquitted or the prosecution is otherwise terminated. In this case the question is when the plaintiffs should be deemed to have been acquitted, whether from the date of the order of dismissal of the complaint or from the date of the dismissal of the revision. The learned counsel in support of his view has relied upon the case of Madan Mohan Singh v. Ram Sunder Singn : AIR1930All326 and the case of Shankar Prasad v. Sheo Narain AIR 1935 Oudh 392. These two authorities were not cited before the Courts below. The have relied upon the Full Bench case of the Madras High Court, Kulasekara Chetty v. Tholasingam Chetty AIR 1938 Mad 349.

5. A perusal of Article 23 of the Limitation Act goes to show that that Article deals with two alternative cases one envisages acquittal and the other, termination of the prosecution. So far as the second alternative or the expression 'termination of the prosecution' goes that is not applicable to the present case. That governs such cases as those of discharge. It is the first alternative which will govern the case of acquittal; and acquittal would mean acquittal from the Trial Court or if there is conviction from a Trial Court, then the order of acquittal was passed in appeal or revision. In a case where acquittal has been ordered be the Trial Court and the complainant has filed revision, the filing of revision cannot affect the order of acquittal already passed. It will remain an order of acquittal till the acquittal is converted Into an order of sentence. It would thus appear that under Article 23 of the Limitation Act, the limitation would run from the date when the plaintiffs were acquitted by the Trial Court or in appeal if there was conviction from the Trial Court. Filing of a revisian against an order of acquittal cannot suspend the period of limitation, which start red, running from the date of the order of acquittal. This view is fully justified by the case of Shankar Prasad, AIR 1935 Oudh 392.

In that case the prosecution of the plaintiff ended in acquittal. There was also a revision against the order of acquittal, and it was held by the learned Judge, who decided that case, that the limitation started running from the date of the order of acquittal and the filing of revision did not give a fresh start to the period of limitation; and so the suit, if brought more than one year after the order of acquittal passed by the Trial Court would be beyond time. I respectfully agree with this view.

The case of Madan Mohan Singh : AIR1930All326 , was a case of discharge and so that case was covered by the second alternative of Article 23. But the Division Bench, which decided that case, also observed at p. 887 (of All L J) : (at p. 327 of AIR):

'Moreover in a case where the prosecution ended in acquittal the language of Article 23 leaves no room for argument, as it provides specifically that limitation is to run from the date of acquittal.'

This observation of the Division Bench supports the view which is expressed above.

6. In the Madras case, AIR 1938 Mad 349, it was thought that the words 'when the plaintiff is acquitted' could not be divorced from the words 'or the prosecution is otherwise terminated'. It appears that the Full Bench, which overruled the earlier view of that Court, thought that the two phrases were inter-dependent. With great respect to the learned Judges, I am unable to agree with that view. The purpose of the legislature is obvious by using two expressions 'acquittal' or 'otherwise termination of prosecution'. If the two expressions were inter-dependent or were meant to give starting point of limitation on termination of the prosecution, it was unnecessary for the legislature to use the expression 'when the plaintiff is acquitted'; it would have been sufficient to say when the prosecution is terminated'. The legislature obviously maintained a distinction between 'acquittal' and 'otherwise termination of the prosecution'.

7. In this view of the matter, when there was acquittal of the plaintiffs on 29th December, 1950, they should have filed the suit within one year of that date and not within one year of the dismissal of the revision. The present suit was thus beyond time. The appeal must succeed.

8. The appeal is allowed, but no order is made as tocosts, as the respondents have remained unrepresented. Theplaintiffs' suit is hereby dismissed with costs.


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