S.N. Modi, J.
1. This is a plaintiff's second appeal in a suit for damages for malicious prosecutor. The suit was decreed by the learned Civil Judge, Chittorgarh, for a sum of Rs. 1922/-. The defendants then went in appeal and the learned District Judge, Partapgarh (camp Chittorgarh), by his judgment dated 17-5-66 dealt with the preliminary question only whether the suit was barred by limitation and held that the suit was so barred. He accordingly dismissed the suit. Aggrieved by judgment and decree of the learned District Judge, Partapgarh, the Plaintiff's have filed this second appeal.
2. The only point involved in this appeal is whether the suit filed by the plaintiffs was barred by time. In order to appreciate the point involved it is necessary to state a few facts.
3. On 30-5-60 the defendant respondent Gopal Lal lodged a report at the police Station, Chhotisadri that the plaintiff-appellants along with some others broke open the look of his house, gave beating to him and committed criminal trespass. The police after investigation put up a challan against the plaintiff-appellants and others in the court of the Munsiff Magistrate, Chhotisadri, who after trial acquitted the plaintiff-appellants on 31-10-61 and convicted the rest. The defendant Gopal Lal was not satisfied with the acquittal of the plaintiff-appellants and therefore he filed a revision against the acquittal order which was dismissed on 31-5-62. The present suit for damages was instituted on 31-5-63 against Gopal Lal and four others. The suit was resisted by the defendants and on the pleadings of the parties, certain issues on merits were stuck by the trial court. No plea of limitation was raised on behalf of the defendants in their written statement and consequently no issue was framed on that point. The trial court after evidence decreed the suit as stated above, but on appeal by the defendants a new point was raised that the suit was barred by time. The learned District Judge allowed the defendants to raise the point of limitation for the first time in appeal and held that under Article 23 of the Limitation Act, 1908, the suit ought to have been filed within one year from the date of acquittal, that is, 31-10-61, and since the suit was filed after the expiry of one year's period on 31-5-63, the suit was clearly barred by time. He placed reliance on the decisions in Madholal v. Harishanker and Anr. AIR 1663 All 547, Lal Badrisingh v. Mahesh Prasad and Ors. AIR 1955 VP 28 and M.S. Chettiyar Firm v. S.E. Bholat AIR 1934 Ran 329.
4. The relevant Article of the Limitation Act, 1908 is Article 23 which prescribes a period of one year for filing a suit for compensation for malicious prosecution and on; year priori of limitation began to run 'when the plaintiff is acquitted or the prosecution is otherwise terminated'. The question that falls for determination is whether this one year period should be computed from 31-10-61 when the plaintiffs were acquitted by the Magistrate or whether it should run from 31-5-62 when the order of acquittal was confirmed by the dismissal of the revision petition. If the period of limitation is calculated from the order of acquittal, that is, 31-10-61, the suit filed on 31-5-63 was clearly beyond time. But in case the period of one year is calculated from 31-5-62, the suit will be within time. The learned District Judge has taken the view that where an order of acquittal is passed, time will begin to run from the actual order of acquittal irrespective whether an appeal or revision is filed against that order. The view taken by the learned District Judge is no doubt supported by a Single Bench decision of the Allahabad High Court in Madho Lal v. Hirishanker and Anr. (supra), but it appears that is has not been followed subsequently by a Division Bench of that very High Court in Madho Lal v. Shyam Sunder Vaish and Anr. 1969 ALJ 587. Broome J. while delivering the judgment in that case, observed as follows:
Our conclusion is that the phrase used in Article 23 fixing the point of time from which the period of limitation begins to run as 'when the plaintiff is acquitted or the prosecution is otherwise terminated', must be construed as equivalent to 'when the prosecution of the plaintiff is terminated by acquittal or otherwise', and termination of the prosecution by acquittal should be deemed to occur only when all appeals and the revisions that may have been filed against the basic order of acquittal have been finally disposed of. This interpretation obviates the necessity for making an illogical distinction between cases of acquittal and cases where the prosecution is terminated by discharge; and it has the further merit of avoiding the possibility of hardship of the plaintiff by permitting him to wait until his acquittal has been placed beyond doubt before he files his suit for compensation for malicious prosecution.
5. The same view has been taken by a Full Bench of the Madras High Court in Soora Kulasekara Chetty v. (sic) Chatty AIR 1938 Mad 349. In that case, while referring to Article 23 of the Lmitation Act, it was observed as follows:
The wording 'when the plaintiff is acquitted' cannot be divorced from the words 'or the prosecution is otherwise terminated'. In our opinion the Article provides that time shall run when the plaintiff is acquitted or when the prosecution comes to an end in some other manner. If the acquittal is followed by other proceedings the prosecution is terminated not by the acquittal (sic) by the order passed in the subsequent proceedings.
This view, it may be noted, was followed by the Oudh Chief Court in Bhikam Singh v. Darshan Singh AIR 1942 Oudh 489. The Bombay High Court in Bhaskar Narhar Deshmukh v. Kishanlal Sadasukhdas and Anr. : AIR1968Bom21 following its earlier decisions in Venu v. Coorya Narayan ILR 6 Bom 376 and Purshottam Vithaldas v. Ravji Hari AIR 1922 Bom 208 took the view that in a case of acquittal the terminal point from which the time begins to run under Article 23 of the Limitation Act is the date of order of acquittal and in such a case the position is not altered even if the complainant files a revision application against the order of acquittal or the State files an appeal against the order of acquittal. The learned Judges of the Bombay High Court further held that the latter part of the provision 'the prosecution is otherwise terminated' is intended to meet cases such as where the criminal proceedings are terminated by an order of discharge or by dismissal of the complaint and not where an order of acquittal has been passed. The learned judge also did not place reliance on the Full Bench decision of the Madras High Court in Soora Kulasekra Chetty v. Tholasingam Chetty (supra) on the ground that once the period begins to run there could be nothing to suspend the running of time. The view taken by the learned single Judge of the Allahabad High Court in Madholal v. Harishanker and Anr. AIR 1663 All 547 supra is similar to that taken by the Bombay High Court in Bhaskar Narhai Deshmukh v. Kishanlal Sadasukhdas : AIR1968Bom21 supra. The other two decisions relied upon by the learned District Judge, namely, Lal Badrisingh v. Mahesh Prasad and Ors. AIR 1955 VP 28 and M.S. Chettyar Firm v. S.E. Bholat AIR 1934 Ran 329 supra do not deal with Article 23 of the Limitation Act. They are therefore distinguishable and have no relevancy in the present case.
6 With great respect, I prefer to follow the decisions in Madholal v. Shyamsunder Vaish 1969 ALJ 587 and Scora Kulasekara Chetty v. Tholasingam Chetty AIR 1938 Mad 349 skupra to those in Bhaskar Naihar Deshmukh v. Kisanlal Sadasukhdas : AIR1968Bom21 and Madholal v. Harishanker AIR 1663 All 547 supra. The phrase used in Article 23 fixing the time from which the period of limitation begins to run as 'when the plaintiff is acquitted or the prosecution is otherwise terminated', must be interpreted as meaning 'when the prosecution of the plaintiff is terminated by acquittal or otherwise' and the termination of the prosecution by acquittal should be deemed to occur only when the appeals or revisions that may have been filed against the order of acquittal have been finally disposed of. I am further of the opinion that the words used in Article 23 of the Limitation Act 'when the plaintiff is acquitted' must not be read independently of the words 'or the Prosecution is otherwise terminated'. The illogical distinction pointed out by the Bombay High Court between the cases of acquittal and those where the prosecution is terminated by discharge would only lead to hardship and one will have to incur expenditure of filing the suit even before the order of acquittal passed in his favour is still subjudice under appeal or revision filed by the complainant or the State. Judging from this point of view, the period of one year in the present case ought to be counted from the date when the revision was dismissed, that is, 31-6-62, and the suit is within time.
7. I accordingly allow the appeal, set aside the judgment and decree of the learned District Judge, Partrpgarh, & remand the case to him for decision of the case on merits. Since the respondent has not opposed this appeal, I leave the parties to bear their own costs in this Court.