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Ramdhan S/O Bhuraji Vs. Kanmal S/O Nathuram - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal Nos. 457/72 and 581/71
Judge
Reported in1981WLN87
AppellantRamdhan S/O Bhuraji;brijlal S/O Ramnath
RespondentKanmal S/O Nathuram;kanmal S/O Nathuram
DispositionAppeal allowed
Cases ReferredRam Vilas v. Gopallal (supra
Excerpt:
torts - malicious prosecution and limitation act, 1908--article 23 (limitation act, 1963--article 74)--suit for compensation for malicious prosecution--starting point of limitation when prosecution terminates--where appeal or revision is filed original order is merged in order of superior court and limitation starts from order of superior court.;in our opinion, the starting point of the limitation for a suit for compensation for malicious prosecution is the date of the operative order whereby the plaintiff has been acquitted or the prosecution against him has terminated in his favour. in a case where the order of acquittal or the order whereby the prosecution is terminated in any other manner, is not challenged in appeal or revision before the superior court, the limitation will have to.....s.c. agrawal j.1. both these appeals raise common questions and are, therefore disposed of by a common judgment. special appeal no. 459/72 arises out of civil suit no. 956/1958(105/59), whereas special appeal no. 581/72 arises out of civil suit no. 549/1958. kanmal, who is the respondent in both these appeal, was the defendant in both the suits.2. the facts relating to the filing of the aforesaid suits are as under: ramdhan (appellant in special appeal no. 459/72) was a tenant of the respondent. brijlal (appellant in special appeal no. 581/72) was tenant of sheodayal, the brother of the respondent. on january 16, 1953 the respondent filed a complaint in respect of an offence under section 323 i.p.c., against appellants, ramdhan & brijlal, in the court of honorary magistrate first class.....
Judgment:

S.C. Agrawal J.

1. Both these appeals raise common questions and are, therefore disposed of by a common judgment. Special Appeal No. 459/72 arises out of Civil Suit No. 956/1958(105/59), whereas Special Appeal No. 581/72 arises out of Civil Suit No. 549/1958. Kanmal, who is the respondent in both these appeal, was the defendant in both the suits.

2. The facts relating to the filing of the aforesaid suits are as under: Ramdhan (Appellant in Special Appeal No. 459/72) was a tenant of the respondent. Brijlal (Appellant in Special Appeal No. 581/72) was tenant of Sheodayal, the brother of the respondent. On January 16, 1953 the respondent filed a complaint in respect of an offence under Section 323 I.P.C., against appellants, Ramdhan & Brijlal, in the Court of Honorary Magistrate First Class Ajmer. In the aforesaid complaint, the respondent alleged that the appellants had given him a beating after the cycle on which two appellants were riding, had dashed with the cycle of the respondent. The Honorary Magistrate, First Class, Ajmer, by his order dated 19th June, 1956, dismissed the said complaint and acquitted both the appellants. Not satisfied with the order passed by the Magistrate, the respondent went up in revision and the said revision petition of the respondent was dismissed by the Additional Sessions Judge, Ajmer, by his order dated 22nd September, 1956, on the view that the said revision was not maintainable and that the respondent ought to have approched the High Court in accordance with the provisions of Section 417(3) Criminal Procedure Code (old.). Thereupon, the respondent filed a further revision petition before this Court, which was dismissed by order dated 2nd August, 1957, on the view that the remedy under Section 417(3) Criminal Procedure Code (Old) was available to the respondent and further that there was no case for interference in revision with the orders passed by the Courts below. Thereafter, the suits giving rise to the present appeals were filed by the appellants against the respondent for recovery of damages for malicious prosecution.

3. Civil Suit No. 956/1958(105/59) was filed by the Appellant Ramdhan on 2nd August, 1958, in the Court of Civil Judge, Ajmer for the recovery of Rs. 800/- In the said suit, the Civil Judge, Ajmer on 11th March, 1961, passed a decree for Rs. 800/- with costs in favour of appellant Ramdhan. The respondent filed an appeal against the decree passed by the Civil Judge, Ajmer and the District Judge, Ajmer by his judgment & decree dated 13th July, 1964, partially allowed the said appeal of the respondent and reduced the amount of damages to Rs. 450/-. Being aggrieved by the judgment and decree passed by the District Judge, Ajmer, respondent Kanmal filed a Regular Second Appeal in this Court, whereas appellant Ramdhan filed Cross-objections.

4. Civil Suit No. 549/58 was filed by the Appellant Brijlal on 2nd August, 1958, in the Court of Civil Judge, Ajmer for the recovery of Rs. 2,100/-as damages. In the said suit, a decree for Rs. 1,000/- was passed by the Civil Judge, Ajmer on 29th August, 1961. Being aggrieved by the aforesaid decree passed by the Civil Judge, Ajmer, the respondent filed an anneal and appellant Brijlal filed cross-objections. The said appeal and cross-objections were disposed of by the District Judge. Ajmer by his judgment and decree dated 13th July, 1964, whereby the appeal of the respondent was dismissed and the cross-objections of appellant Brijlal were partially accepted and the amount of compensation/damages was raised from 1.000/- to 1.050/-. Against the aforesaid judgment and decree passed by the District Judge, Ajmer, the respondent filed a Regular Second Appeal in this Court and the appellant Brijlal filed cross-objections.

5. Both the second appeals, referred to above, were disposed of, by the learned Single Judge by a common judgment dated November 30, 1971, whereby the learned Single Judge has allowed the appeals filed by the respondent and has dismissed the suits of both of the appellants, on the view that the suits aforesaid were barred by 'imitation. In view of his finding that the suits were barred by limitation, the learned Single Judge dismissed the cross-objections filed by the appellants in both the appeals. The learned Single Judge was of the view that the period of limitation for filing the suits for damages for malicious prosecution had commenced from the date of the acquittal of the appellants by the trial Court and the fact that revision petitions were filed by the respondent against the order of acquittal could not extend the period of limitation for filing the suit in as much as proceedings for revision could not be treated as continuation of the proceedings in the trial Court. The learned Single Judge has drawn a distinction between an appeal and a revision and has observed that if an appeal is filed against an order of acquittal, under Section 417(3) Criminal Procedure Code, the period of limitation would have to be computed from the date of the decision in appeal. The learned Single Judge held that a revision petition stands on a different footing for the reason that in so far as an appeal is concerned, it is a continuation of the original proceeding, whereas a revision proceeding cannot be said to be continuation of the original proceedings.

6. Feeling aggrieved by the aforesaid judgment and decree passed by the learned Single Judge of this Court, the appellants have filed these special appeals after obtaining the leave of the learned Single Judge under Section 18 of the Rajasthan High Court Ordinance, 1949.

7. The main question which arises for consideration in these appeals, is as to whether in a case where the complainant files a revision petition against an order of acquittal, the period of limitation for filing a suit for damages for malicious prosecution, has to be computed from the date of the order of acquittal or from the date of dismissal of the revision petition filed against the order of acquittal.

8. The period of limitation for a suit for compensation for malicious prosecution was laid down in Article 23 of the Limitation Act, 1908 which reads as under:

Description of Suit Period of Limitation Time from which period

begins to run.

For compensation for When the plaintiff is

a malicious prosecution One Year acquitted or the

prosecution is otherwise

terminated.

9. The same provisions are now contained in Article 74 of the Limitation Act, 1963. From a perusal of the aforesaid provisions contained in Article 23 of the Limitation Act, 1908, it is clear that the period of limitation for a suit for compensation for malicious prosecution has to be computed from the date of acquittal or from the date of which prosecution is otherwise terminated.

10. Shri J. K. Singhi, the learned Counsel for the appellant in both these appeal, has submitted that the word, 'prosecution', in Article 23 of the Limitation Act would include the proceedings by way of appeal of revision filed by an unsuccessful complaint against an order of acquittal or discharge and that the prosecution can be said to have been terminated on when the appeal or revision against the order of the acquital or discharge is dismissed by the appellate or the revisional court and therefore, the period of limitation for filing a suit for compensation for malicious prosecution should be computed from the date of the order of the appellate or revisional Court on the appeal or on the revision filed by the unsuccessful complaint.

11. Shri I.C. Das Kapoor, the learned Counsel for the respondent has, on the other hand, submitted that the expression's prosecution is otherwise terminated', in Article 23 of the Limitation Act, should be construed in contradiction to the word, 'acquittal', and that it covers only these cases where the prosecution is terminated otherwise than an order of acquittal i.e. the accused is either discharged or the complaint is dismissed for some other reason. The submission of the learned Counsel for the respondent, is that as soon as the accused is either acquitted or the complaint against him is dismissed either by the discharge of the accused or for any other reason, the cause of action for filing a suit for compensation for malicious prosecution accrues and the period of limitation for filing a suit would begin to run and that subsequent filing of an appeal or revision against the order of acquittal or discharge by the complainant, cannot have the effect of extending period of limitation for the suit for compensation for malicious prosecution.

12. In view of the rival contentions of the learned Counsel for the parties, it is necessary to construe the expression 'the prosecution is otherwise terminated' contained in Article 23. The said expression has come up for consideration before the various High Courts but before referring to the said decisions, it would be appropriate to refer to the decision of the Judicial Committee of the Privy Council in Balbhddar Singh and Anr. v. Badri Sah and Anr. AIR 1926 PC. 46 wherein the Judicial Committee has laid down that in an action for malicious prosecution, the plaintiff has to prove: i) that he was prosecuted by the defendant, ii) that the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating iii) that the prosecution was instituted against him without any reasonable and probable cause, and iv) that it was due to a malicious intention of the defendant, and not with a mere intention of carrying the law into effect. While explaining the second requirement, namely, that the proceedings complained of terminated in favour of the plaintiff if from their nature they are capable of so terminating, the Judicial' Committee has observed:

This phraseology may be found in the judgment of Montague Smith, J., in Basebe v. Mathews (L.R. 2. C.P. 684 : 15 W.R. 839). But the practice was in accordance with these words long before that case. Under the old forms of pleading a declaration, if the law were really as the Judges in this case defined it, would in all cases where there had not be an actual acquittal have been bad if there were not added the statement that the plaintiff was innocent of the crime charged. The reports may be searched in vain for any declaration so found bad, though there were many cases where prosecutions had terminated without acquittal. There was controversy as to what terminated proceedings, as, e.g. whether a nolls prosequi of the Attorney General was a termination. But at any rate it was quite settled that a prosecution comes to an end when a Magistrate declines to commit.

13. In the said case, after recording evidence during the course of committal proceedings, the Magistrate had discharged the appellants before the Privy Council, on some doubts having arisen in the mind of Sessions Judge, summons were issued to the appellants to appear before him. The Sessions Judge again discharged the appellants. In these circumstances, the Judicial Committee has observed:

In the present case, it was sufficient for the appellants to prove, as they have done, that the criminal proceedings against the appellants threatened on account of the disclosure contained in the confessions of the witnesses ended so far as they were concerned when the Sessions Judge finally refused to commit them for trial.

14. Even though, in the aforesaid case, the Judicial Committee of the Privy Council was not concerned with the question with regard to limitation for filing the suit for compensation for malicious prosecution, but the aforesaid observations in the said case lend support to the submission of Shri Singhi, that the prosecution can be said to have been terminated in so far as the accused is concerned only when the proceedings against him have finally terminated.

15. Now we may refer to the decisions of the various High Court wherein the provisions of Article 23 of the Limitation Act have been considered.

16. In Narayya v. Seshayya and Anr. ILR XXIII Mad 24, a Division Bench of Madras High Court had taken the view that a suit for damages for malicious prosecution, which had been brought more than a year from the date of plaintiff's acquittal, but within a year from the dismissal of the revision petition filed against the order of acquittal, was barred by limitation on the view that the period of limitation began to run when the plaintiff was acquitted.

17. Another Division Bench of the Madras High Court had taken a different view in Tanquturi Sriramulu v. Nyapathi Subba Rao Pantulu Garu AIR 1920 Mad 151. In the said case, the Magistrate had passed an order of discharge under Section 253 Cr. P.C., and the complainant had filed an application under Section 437 Cr. P.C., before the District Magistrate on which the District Magistrate passed an order directing a re-trial before himself. The said order of the District Magistrate was set aside by the High Court, on the view that the order passed by the trial Court was in effect an order of acquittal. It was held that the period of limitation for filing a suit for damages for malicious prosecution is to the computed from the date of passing of the order of the High Court. The Learned Judges rejected the contention that when there has been an acquittal, the second part of Article 23 is necessarily excluded and held that the second part of the article was applicable to the case.

18. The aforesaid conflict between the Division Bench decisions of the Madras High Court was resolved by a Full Bench of the said High Court in Kulasekara Chetty and Anr. v. Tholasingam Chetty AIR 1938 Mad 349. In that case, a complaint had been filed against two persons. One of the accused persons was discharged and the other accused person was acquited by the bench of Magistrates. The complainant, being not satisfied with the aforesaid decisions of the Magistrates filed revision petitions before the District Magistrate against the order of discharge as well as the order of acquittal. The said revision petitions were dismissed by the District Magistrate. After the dismissal of the said revision petitions the accused persons filed a suit for damages for malicious prosecution before the expiry of the period of one year from the date of the Order dismissing the revision petitions. The said suit was dismissed by the lower court on the ground that it was barred by limitation, on the basis of the decision in Narayya v. Seshayya (supra). The full Bench of the High Court reversed the said judgment of the District Judge and, while affirming the decision in Sriramulu v. Subbarao (supra) overruled the decision in Narayya v. Seshayya (supra). The learned Judges have observed that the words, 'when the plaintiff is acquitted', cannot be divorced from the words, 'or the prosecution is otherwise terminated', and that Article 23 of the Limitation Act provides that the time shall run when the plaintiff is acquitted or when the prosecution comes to end in some other manner and that if the acquittal is followed by other proceedings, the prosecution is terminated not by the acquittal but by the order passed in the subsequent proceedings. The learned Judges have placed reliance on the following observations of Williams, Byles and Keating JJ in Gilding v. Eyre (1861) 10C. B (NS) 592:

It is rule of law, that no one shall be allowed to allege of a still depending suit that it is unjust. This can only be decided by a judicial determination or other final event of the suit in the regular course of it. That is the reason given in the cases which established the doctrine, that in actions for malicious prosecution or arrest, or the like, it is requisite to state in the declaration the determination of the former suit in favour of the plaintiff, because the want of probable cause cannot otherwise be properly alleged.

19. The learned Judges have observed that until the revision petitions that are filed against the orders of acquittal and discharge were dismissed, the prosecution case was before the Court and it did not lie in the mouth of the prosecutor to say that the proceedings had terminated so far as accused who had been discharged, on his discharge and as far as accused who had been acquitted, on his acquittal. According to the learned Judges, the proceedings had not terminated because the prosecutor took further steps with a view to securing their conviction. The learned Judges rejected the contention as against the accused who had been acquitted by the Magistrate, the time had begun to run from the date of the acquittal and held that the said argument ignored the wording of Article 23 and the reason for the rule that so long as proceedings are pending the accused shall not be allowed to use.

20. Before the Allahabad High Court, the question came up for consideration in Madan Mohan Singh v. Ram Sunder Singh : AIR1930All326 . In that case, a complaint under Section 500, I.P.C., had been filed which ended in discharge of the accused. The complainant thereafter filed an application before the Sessions Judge for ordering further enquiry under Section 436, Cr. P.C., which was ultimately dismissed and thereafter, the accused had filed a suit for damages for malicious prosecution more than a year after the order of the discharge but within one year of the dismissal of the application by the Sessions Judge. The said suit was dismissed by the Trial Court as well as the first Appellate Court on the ground that it was barred by limitation, but the High Court reversed the said findings and held that the suit could not be held to be barred by limitation. In the said case, the learned Judges have construed the expression, 'or the prosecution is otherwise terminated', in Article 23 of the Limitation Act as implying final termination. The learned Judges have observed that the word, 'prosecution' has a very wide significance and does not merely mean an actual trial or an enquiry which may result in conviction and the imposition of imprisonment or fine. According to the learned Judges, when the application under Section 436, Criminal P.C., is preferred before the Sessions Judge and a notice to show cause has been issued, the Judge, himself, has power to make such an enquiry and that while such proceeding is pending before the Sessions Judge, accused is being prosecuted. The learned Judges have further observed:

If this view were not accepted, the result would be that the discharged person would be compelled to institute his suit for damages even though the matter is still sub judice and is being considered by the Sessions Judge or by the High Court. It seems extraordinary that a plaintiff should be compelled to sue while it is yet a question whether his retrial is not going to be ordered. Of course as soon as the order of discharge was passed the prosecution in the Magistrate's court terminated. If no further proceedings are taken the prosecution must be deemed to have terminated on that date. But if, as a matter of fact, the matter is taken up in revision to a higher authority which has power of interference and proceedings sanctioned by the Criminal Procedure Code are being pursued, the prosecution can no longer be said to have finally terminated. Its final termination would be only when the proceedings in revision have come to an end in favour of the discharged person. One may take the case of a Government appeal from an acquittal as an illustration. The order of acquittal terminates the prosecution for the time being. The filing of an appeal does not ipso facto vacate that order; and yet while the appeal is pending it can hardly be said that revisional application is pending the prosecution must be deemed to be still the prosecution has terminated. We think that in the same way while a continuing and not finally terminated.

21. In the said case, the learned Judges have however, drawn a distinction between a case of an acquittal and a case of discharge and have observed that in a case where the prosecution ended in an 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 and in such a case, it is not necessary to consider when the prosecution is to be terminated.

22. The aforesaid view expressed in Madan Mohan Singh v. Ram Sunder Singh (Supra) was re-considered by another Division Bench of the same High Court in Madholal v. Hari Shanker and Anr. ILR 1969 AH (Vol II) 390. In the said case, a criminal complaint had been filed against the plaintiffs respondents by the defendant-appellant and in the said complaint, the plaintiffs were acquitted by the Magistrate. The defendant had filed a revision petition against the order of acquittal which was dismissed. The suit for damages for malicious prosecution was filed more than a year after the order of acquittal, but before trie expiry of the period of one year from the date of the dismissal of the revision petition. The High Court affirmed the judgments of Courts below and held that the suit was not barred by limitation and expressly disapproved the observations made in Madan Mohan Singh v. Ram Sunder Singh (Supra) that in a case where the prosecution has ended in acquittal, the period of limitation has to be comouted from the date of the acquittal and that it is not necessary to consider when the prosecution terminated. In Madholal v. Hari Shanker (Supra), the learned Judges have expressed their agreement with the view propounded by the Full Bench of the Madras High Court in Kulasekara Chetty v. Tholasingam Chetty's case (supra), that the words, 'when the plaintiff is acquitted', cannot be divorced from the words, 'or the prosecution is otherwise terminated', and that Article 23 provides that the time shall ran when the plaintiff is acquitted or when the prosecution comes to an end in some other manner and if the acquittal is Mowed by other proceedings the prosecution is terminated not by the acquittal but by the order passed in the subsequent proceedings. The learned Judges have observed that the distinction drawn between cases of acquittal and cases of discharge so far as the limitation for filing a suit for damages for malicious prosecution is concerned, was illogical and that such an interpretation would, in many instances, give rise to hardship, for when the plaintiff is obliged to institute his suit without waiting for the appeal or revision against the acquittal to be decided, he may find that he has wasted his time and money if the appeal or revision eventually succeeds and the acquittal order is set aside. The learned Judges have further observed as:

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 revision 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 for 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.

23. In Bhikkam Singh v. Darshan Singh ATR 1942 Oudh 489 the Division Bench of Oudh Chief Court has taken the same view as has been taken by the Full Bench of the Madras High Court in Kulasekara Chetty v. Tholasingam Chetty (supra). In the said case, it has been held that in a case where the accused has been acquitted and the complainant had filed a revision petition which was dismissed, the suit for damages for malicious prosecution could be instituted within one year from the date of the rejection of the reference by the High Court. In the said case, the Oudh Chief Court held:

Limitation begins to run when the proceedings are terminated by acquittal or otherwise and the proceedings cannot be said to have terminated when they are pending in any appellate or revisional Court.

24. In S. K. Mehtab v. Balaji and Anr. AIR 1946 Nag 46 a learned Judge of the Nagpur High Court has taken the same view as has been taken by the Full Bench of Madras High Court in Kulasekara Chetty v. Tholansingam Chetty (supra) and by the Division Bench of Oudh Chief Court in Bhikkam Singh v. Darshan Singh (Supra). The learned Judge has observed that the word 'prosecution' in Article 23 of the Limitation Act, is used in the general and not in the technical sense and that it has been used in a wider sense than a trial and would include criminal proceedings by way of appeal or revision before a District Magistrate, a Sessions Court or a High Court. The learned Judge has observed that a prosecution is terminated when it is brought to an end or is concluded and that the prosecution, in order that it may furnish a cause of action for malicious prosecution, must end either in an acquittal or in an order of discharge or dismissal. The learned Judge has further observed that the order of acquittal or order of discharge is not final and is liable to be set aside in appeal or revision, as the case may be, by an order of the appellate or revisional Court and that so long as these proceedings are pending, no action lies on the ground that they have been wrongfully instituted.

25. The aforesaid decisions show that the High Courts of Madras, Allahabad, and Nagpur and the Chief Court of Oudh have taken the view that the expression, 'or the prosecution is otherwise terminated', comprehend cases where an appeal or a revision has been filed against an order of acquittal or of discharge and that in such cases the prosecution can be said to have been terminated only when the appeal or revision has been finally disposed of and the period of limitation for filing a suit for damages for malicious prosecution, has to be computed from the date of disposal of the appeal or revision.

26. The only High Court, has taken a contrary view, is the Bombay High Court. In Purshottam Vithaldas Shet v. Raoji Hari Athavlae AIR 1922 Bom 209. It was laid down that in a case where the accused has been discharged, the period of limitation for suit for damages for malicious prosecution shall begin to run from the date of discharge of the accused and the said suit must be brought within one year and that the cause of action will not be suspended merely on the ground that proceedings may be taken either by Government or by the complainant in order to get the order of discharge set aside.

27. The aforesaid decision was re-affirmed by a Division Bench of the Bombay High Court in Bhaskar Narhar Deshmukh v. Kisanlal Sadasukhdas and Anr. : AIR1968Bom21 In the said case, the appellant before the High Court had filed a complaint against the respondents and in the said complaint the respondents were acquitted by the trial Court and the complainant had applied for leave to appeal before the High Court and leave to appeal was granted but after hearing the parties the appeal was subsequently dismissed. The plaintiffs filed the suit for damages for malicious prosecution after the expiry of period of one year from the date of the order of acquittal by the trial Court but before the expiry of the period of one year from the date of order of the High Court dismissing the appeal. The High Court held that the suit was barred by limitation on the view that in a case of acquittal. Article 23 provides a terminal point from which the time begins to run and that the said terminal point is the acquittal and that acquittal is an acquittal whether or not the complainant files a revision application against the order of acquittal or an appeal or the State files an appeal. According to the learned Judges:

Prosecution may end, either in acquittal or conviction. If it is the first, then it is governed by the first part of this provisions and if it is the second, there can be no case for a suit. It may also result in an order of discharge, or in a dismissal of the complaint, if the complainant is absent on the date fixed for the hearing of the complaint. The latter part of the provision 'the prosecution is otherwise terminated' is intended to meet such cases, and here again, it is the end of that proceeding which is operative for all intents and purposes and governs the point of time when the period begins to run.

28. The learned Judges have expressed their agreement with the view of the Madras High Court in Narayya v. Seshayya (supra), but have expressed their disagreement with the view taken by the Full Bench of the Madras High Court in Kulasekara Chetty v. Tholasingam Chetty (supra), as well as that taken by the Allahabad High Court in Madan Mohan Singh v. Ramsunder Singh (supra) and by the Nagpur High Court in S.K. Mehtab v. Baldji Krishna-rao (supra).

29. The reasons which have weighed with the learned Judges of the Bombay High Court, in taking the aforesaid view, in Bhaskar Narhar Deshmukh v. Kishanlal (Supra) may be summarised as under:

i) The legislature has not used the word, 'finally'; before the word 'acquitted', or the word 'finally' before the word 'terminated' in Article 23 of the Limitation Act and there was no justification for importing the said words;

ii) Once the period of limitation has been to run, there is nothing which could suspend the running of the time and that inspite of the filing of an appeal or a revision application, the original order of discharge of acquittal is operative for all intents and purposes.

30. We regret our inability to concur with the aforesaid decision of the Bombay High Court in Bhaskar Narrhar Deshmukh v. Kisanlal (supra). In our opinion, the starting point of the limitation for a suit for compensation for malicious prosecution is the date of the operative order whereby the plaintiff has been acquitted or the prosecution against him has terminated in his favour. In a case where the order of acquittal or the order whereby the prosecution is terminated in any other manner, is not challenged in appeal or revision before the Superior Court, the limitation will have to be computed from the date of the passing of the said order. But in cases where the said order of acquittal or the order terminating the prosecution is challenged in appeal or revision before the Superior Court, by virtue of the applicability of the doctrine of merger, the original order is merged in the order that is passed by the superior Court in appeal or revision and the operative order would be the order of the superior court and therefore, the period of limitation will have to be computed from the date of the order of the Superior court in appeal or revision. In this context, reference may be made to the decision of the Supreme Court in U.J.S. Chopra v. State of Bombay wherein it has been held that a judgment pronounced by the High Court, in exercise of its appellate or revisional jurisdiction, after issue of notice and a full hearing in the presence of both the parties, would replace the judgment of the lower court, thus constituting the judgment of the High Court, the only final judgment to be executed in accordance with law by the court below. In the said case, the Supreme Court has also laid down that in cases where the appeal or revision has been dismissed by the High Court summarily or 'in limine' the order passed by the High Court would not tantamount to a judgment replacing that of the lower court. This would mean that in a case where an appeal or revision has been filed against an order of acquittal or an order terminating the prosecution in any other manner and the appellate or the revisional court, after issuing a notice and a full hearing in the presence of both the parties, has affirmed the said order of acquittal or the order terminating the prosecution, the order passed by the appellate or the revisional court would replace the order of acquittal or the order terminating the prosecution passed by the lower court and the only operative order of acquittal or order terminating the prosecution would be the order passed by the appellate or the revisional Court and in such a case the starting point of limitation for a suit for compensation for malicious prosecution would be the date of the passing of the order passed by the Appellate or the revisional Court.

31. In order to hold that the starting point of limitation should be computed from the date of the order of acquittal or the order terminating the prosecution passed by the first Court, the learned Judges of the Bombay High Court have placed reliance on the decision of the Supreme Court in Sita Ram Goel v. Municipal Board, Kanpur : [1959]1SCR1148 In Sitaram Goel's case (supra), an employee of a Municipal Board had been dismissed from service by the Municipal Board and he had filed an appeal before the State Government against the said order of dismissal which was dismissed. Thereafter he had filed a suit challenging the legality of the order of dismissal. Under the U.P. Municipalities Act, the period of limitation prescribed for such a suit was six months next after the accrual of the cause of action and it was necessary to give a two month's notice before instituting the suit. The suit of the employee had been filed before the expiry of the period of eight months from the date of the order of the State Government dismissing the appeal but it was filed after the expiry of the aforesaid period of eight months from the date of the order of dismissal passed by the Municipal Board. The Supreme Court held the suit to be barred by limitation on the view that the cause of action for the suit had accrued on the date of passing of the order of dismissal by the Municipal Board. Before the Supreme Court it was urged on behalf of the employee that after the dismissal of the appeal against the order of dismissal, the said order of dismissal had merged in the order passed by the State Government on the appeal and that the period of limitation for the suit must be computed from the date of the order of the State Government dismissing the appeal. The Supreme Court negatived the said contention of the employee on the basis of its earlier decision in State of U.P. v. Mohd. Noor AIR 1926 P.C. 46 wherein it has been laid down that the analogy of the decree of the trial court merging into a decree of the appellate court, does not apply to departmental enquiries even though they culminate in decision on appeals or revisions. It may be pointed out that the observations in Mohd. Noor's case (supra) which have been referred to in Sita Ram Goel's case (supra) came up for consideration before the Supreme Court in its subsequent decisions in Madan Gopal v. The Secretary, to the Government of Orissa AIR 1962 SC 1513 and Collector of Customs v. East India Commercial Company AIR 1963 SC 1184, wherein the Supreme Court has laid down that the said observations in Mohd. Noor's case (supra) should be confirmed to the special facts of that case and the doctrine of merger was held to be applicable to appellate or revisional orders parsed in departmental proceedings. For the purpose of the present case, it is not necessary to examine the impact of these later decisions on the decision in Sita Ram Goel's case (supra) because in our view the decision in Sita Ram Goel's case (supra) has no application to a case, like the present case, relating to orders passed by the courts to which the principle of merger admittedly applies. As regards order passed by the courts, the Supreme Court in Mohd. Noor's case (supra) has referred to the decisions of the Privy Council in Batuk Nath v. Munni Dei AIR 1914 PC 65 : 41 Ind. App. 104 and Jowad Hussain v. Gendan Singh AIR 1926 PC 93 (I) : 53 Ind. App. 197 and has observed that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed on revision for the purpose of computing the period of limitation for execution of the decree or for computing the period of limitation for an application for final decree in a mortgage suit. The decision in Sita Ram Goel's case (supra) cannot, therefore, have any bearing on the interpretation of the provisions of Article 23 of the Limitation Act.

32. While construing the provisions of Article 23 of the Limitation Act it has to be borne in mind that the said article prescribes the period of limitation for a suit for compensation for malicious prosecution and that in such a suit the plaintiff has to prove that the prosecution has terminated in his favour and that the prosecution was instituted against him without any reasonable and probable cause. The cause of action for such a suit is thus dependent on the result of the proceedings complained of. The principle that would be applicable in such a case is the one enunciated by Sadasiva Aiyer J., in Muthu Korakki Chetty and Ors. v. Mohamad Madar Ammal and Ors. AIR 1920 Mad 1, in the following words:

Wherever proceedings are being conducted between the parties bonafide in order to have their mutual rights and obligations in respect of a matter finally settled, the cause of action for an application or for a suit, the relief claimable wherein follows naturally on the result of such proceedings, should be held to arise only on the date when those proceedings finally settle such rights and liabilities.

33. The aforesaid principle was deduced by Sadasiva Aiyar J., from the decision of the Judicial Committee of the Privy Council in Baijnath Sahai v. Ramgut Singh 23 IA 45. In Baijnath Sahai v. Ramgut Singh (supra) a suit had been filed for setting aside a sale and the question was whether it was barred by limitation. The period of limitation that was prescribed Under Article 12 of the Limitation Act, 1877 was twelve months from the date when the sale was confirmed or would otherwise have become final and conclusive had no such suit been brought. In the said case, the sale was made by the Collector on September 24, 1882 and it was confirmed by the Commissioner on January 25, 1884. The said order of the Commissioner was set aside by the Board of Revenue on August 12, 1884. But by subsequent Order dated August 21, 1886 the Board of Revenue cancelled their order dated August 12, 1884 as wrong in law and thereby revived the order of the Commissioner dated January 25, 1884 confirming the sale. Thereafter the suit giving rise to the appeal before the Privy Council was filed on July 26, 1887. The Privy Council held that the period of limitation for filing the suit should be computed from the order of the Board of Revenue dated August 21, 1886 and that the suit was not barred by limitation and have observed:

Their Lordships are of opinion that there was no final, conclusive and definitive order confirming the sale while the question whether the sale should be confirmed was in litigation, or until the order of the Commissioner of January 25, 1884, became definitive and operative by the final judgment of the Board of Revenue on August 21, 1886, or (in other words) that for the purpose of the law of Limitation there was no final and/or definitive confirmation of the sale until that date.

34. In Dwiiendra Narain v. Joges Chandra De AIR 1924 Cal. 600 a division bench of the Calcutta High Court has reaffirmed the aforesaid principle enunciated by Sadasiva Aiyar J., in Muthu Korakki Chetty and Ors. v. Mohamad Madar Ammal and Ors. (supra) and have observed that the said principle had been tersely and accurately enunciated from the decision of the Privy Council in Baijnath v. Ramgut Singh (supra).

35. If the provisions of Article 23 of the Limitation Act are construed in the light of the aforesaid principle enunciated by Sadasiva Aiyar J., in Muthu Korakki Chetty v. Mahamad Madar Ammal (supra) the conclusion is inevitable that the starting point of the period of limitation for a suit for compensation for malicious prosecution is the date when the proceedings, which constitute the basis for the action of malicious prosecution, are terminated finally. The language used in Article 23 does not mitigate against such a construction.

36. The term 'prosecution' in Article 23 of the Limitation Act implies a prosecution which can afford the cause of action for an action for malicious prosecution. For the purpose of an action for malicious prosecution, a prosecution is not confined to proceedings either by way of indictment or information in the criminal courts in order to put an offender upon his trial before a court and it includes proceedings under section 107 Cr.P.C., proceedings under Section 145 Cr.P.C, and an application for grant of sanction to prosecute. This shows the term 'prosecution in Article 23 has not been used in a restricted technical sense but in a wider general sense. Once it is held that the term 'prosecution' has been held in a wider and general sense in Article 23, there appears to be no reason to confine it to original proceedings only and to exclude criminal proceedings by way of appeal and revision. The filing of an appeal or revision against an order of acquittal or discharge also involves the prosecution of the accused person before the appellate or the revisional court. The expression 'or the prosecution is otherwise terminated' contained in Article 23 of the Limitation Act would, in our opinion, include cases where an order of acquittal or discharge is followed by an appeal or revision before the superior court and in such cases the prosecution can be said to have terminated only when the appeal or revision is finally disposed of by the appellate or the revisional Court.

37. The principle laid down in Section 9 of the Limitation Act that once the time begins to run, there is nothing which could suspend the running of the time, to which reference has been made by the learned Judges of the Bombay High Court in Bhaskar Narhar Deshmukh v. Kisan Lal (Supra), would, in our view, not be attracted if on a proper construction of the provisions of Article 23 of the starting point of limitation of the suit is held to be the date of the order by which the plaintiff has been finally acquitted or the prosecution against him to run only when the appeal or revision against the order of acquittal or discharge has been disposed of by the appellate or the revisional Court.

38. At this stage it may be observed that if the starting point of limitation for a suit for compensation for malicious prosecution is held to be date of the order of acquittal or discharge passed by the original court, as held by the Bombay High Court in Bhaskar Narhar Deshmukh v. Kisanlal (Supra), the result would be:

(i) that in a case where a person has been acquitted or discharged by the trial Court and an appeal or revision has been filed by the complainant against the order of acquittal, or discharge, the suit for compensation for malicious prosecution will have to be filed without waiting for the decision in the appeal or revision and the plaintiff must take the risk of an adverse decision against him in the appeal or revision and lose the amount spent by way of court fee and expenses in instituting the suit:

(ii) that the said suit for compensation for malicious prosecution will remain stayed till the appeal or revision filed by the complainant against the order of acquittal or discharge is disposed of by the appellate or the revisional court; and

(iii) that after the dismissal of the appeal or revision against the order of acquittal or discharge the plaintiff will have to file another suit for compensation for malicious prosecution arising out of the aforesaid appellate or revisional proceedings.

39. The aforesaid consequences show that the construction placed by the Bombay High Court on the provisions of Article 23 of the Limitation Act would not only give rise to multiplicity of legal proceedings but would also result in hardship as well as inconvenience to the plaintiff. The said consequences would be avoided if the provisions of Article 23 are construed to mean that the starting point of limitation for a suit for compensation for malicious prosecution is the date when the prosecution finally comes to an end. It is a settled rule of statutory construction which does not result in inconvenience or hardship must be preferred over the construction which results in inconvenience or hardship. In this context, reference may be made to the recent decision of the Supreme Court in Maimoona Khatun and Anr. v. State of U.P. and Anr. : (1980)IILLJ164SC . In the said case, the Supreme Court has laid down that in cases where an employee is dismissed or removed from the service and is reinstated either by the appointing authority or by virtue of the order of dismissal or removal being set aside by a Civil Court, the starting point of limitation under Article 102 of the Limitation Act of 1908 would be not the date of the order of the order of dismissal or removal but the date when the right actually accrues, that is to say, the date of the reinstatement by the appointing authority where no suit is filed or the date of the decree where a suit is filed and decreed. In the said case, the Supreme Court has observed as under:

It seems to us that if we take the view that the right to sue for the arrears of salary accrues from the date when the salary would have been payable but for the order of dismissal and not from the date when the order of dismissal is set aside by the Civil Court, it will cause gross and substantial injustice to the employee concerned who having been founded by a court of law to have been wrongly dismissed and who in the eye of law would have been deemed to be in service would still be deprived for no fault of his, of the arrears of his salary beyond three years of the suit which, inspite of his best efforts he could not have Maimed, until the order of dismissal was declared to be void. Such a course would in fact place the Government employees in a strange predicment and give an undeserving benefit to the employers who by wrongfully dismissing the employees would be left only with responsibility of paying them for a period of three years prior to the suit and swallow the entire arrears beyond this period without any legal or moral justification

40. The aforesaid observations of the Supreme Court would show that the Supreme Court has taken note of the gross and substantial injustice that would be caused to the employee concerned, if limitation for a suit for arrears of salary was to be computed from the date when the salary would have been payable but for the order of dismissal and not from the date when the order of dismissal is set aside by the Civil Court. Similarly, while construing the provisions of the Article 23 of the Limitation Act it would be relevant to take note of the inconvenience and hardship, that would be caused to the plaintiff, if it is held that the period of limitation for a suit for compensation for malicious prosecution has to be computed from the date of the passing of the order of acquittal or discharge even though an appeal or a revision petition is pending against the said order of acquittal or discharge. For the reasons aforesaid, we are unable to accept the contentions urged by the learned Counsel for the plaintiff-respondent, on the basis of the decision of the Bombay High Court in Bhaskar Narhar Deshmukh v. Kishanlal (supra).

41. Now we may come to the judgment of the learned Single Judge. The learned Single Judge has held that an appeal is a continuation of the proceeding of the trial Court and that once an order of trial court is made the subject matter of the appeal, that is put in jeopardy and it is on y when the appellate Court affirms it that it can be taken to be final, and therefore, the prosecution, the accused-plaintiff was undergoing, would continue during the course of an appeal. The learned Single Judge has therefore, held that in cases where the appeal has been filed, the period of limitation for filing a suit for compensation for malicious prosecution, would commence from the date of the disposal of the appeal. The learned Single Judge has, however, distinguished the revisional proceedings from an appeal and has observed that the revisional proceedings could not be said to be a continuation of the proceedings at the trial, and the order of acquittal passed by the trial Court would not cease to be final and the period of limitation would start running and would not be interrupted in the absence of any provision to that effect under the law of limitation The learned Single Judge has, however, left the question open with regard to the revision petition filed against an order of discharge. In our opinion, no valid distinction can be drawn between an appeal against an order of acquittal and a revision against an order of acquittal or discharge in view of the decision of the Supreme-Court in UJ.S. Chopra v. State of Bombay (supra). The said decision shows that orders passed by the High Court in exercise of its appellate or revisional jurisdiction, stand on same footing and after the said order is passed it has effect of replacing the judgment of the lower court. If the period of limitation for filing a suit for damages for malicious prosecution starts from the date of the judgment in appeal, in a case where an appeal has been filed, there is no reason why the limitation for such a suit should not be computed from the date of the judgment in the revision petition against an order of acquittal or discharge in a case where a revision has been filed against the order of acquittal.

42. We may observe that since after the decision of the learned Single Judge in the present appeals, the provisions of Article 23 of the Limitation Act came up for consideration before another learned Judge of this Court in Ram Vilas v. Gopallal, 1973 RLW 92, wherein the learned Judge has followed the decision of the Madras High Court in Kulasekara Chetty v. Tholasingam Chetty (supra), and of the Allahabad High Court in Madholal v. Shyamsunder (supra), in preference to the decision of the Bombay High Court in Bhaskar Narhar Deshmukh v. Kishanlal (supra). The aforesaid decision of this Court in Ram Vilas v. Gopallal (supra) is in consonance with the review taken by us.

43. In the present case, the revision petition filed by the respondent was disposed of by this Court by his order dated 2nd August, 1957 on merits after hearing both the sides. In our view, therefore, the period of limitation for filing the suit for damages for malicious prosecution, has to be computed from the date of the order dated 2nd August, 1957, passed by this Court, whereby the revision petition filed by the respondent had been dismissed. There is no dispute that if the period of limitation is computed from the date of the order of this Court dismissing the revision petition of the respondent, the suits filed by the appellants, were within limitation.

44. We, therefore, hold that the learned Single Judge has erred in allowing the appeals of the respondents and in dismissing the suits of the appellants on the ground that they were barred by limitation. The learned Counsel for the respondent was not able to show any infirmity in the judgment of the District Judge which might justify interference by this Court in second appeal. The second appeals of the respondent are therefore, liable to be dismissed.

45. But this does not conclude the matter because the cross objections filed by the appeallants in the said second Appeals require consideration. The said cross-objections relate to the quantum of damages awarded to the appellants and raise the question as to whether the damages awarded to the appellants by the District Judge are inadequate and should be enhanced.

46. In so far as the special appeal of Ramdhan is concerned he had claimed Rs. 800/- as compensation in the suit, and the said claim was decreed fully by the Civil Judge, Ajmer. The District Judge, in appeal, reduced the amount of damages to Rs. 450/-. The aforesaid amount of Rs. 800/-, which was claimed by the appellant Ramdhan consists of Rs. 300/- paid as fees of the counsel, Rs. 30/- as expenses incurred for traveling and diet expenses of witnesses, Rs. 70/- as expenses incurred for obtaining certified copies etc., and Rs. 200/-on account of damages for loss of pay and Rs. 200/- on account of damage for mental and physical pain suffered and for loss of reputation. The District Judge, Ajmer has allowed Rs. 300/- towards fees paid to the counsel and Rs. 50/-towards expenses incurred in obtaining certified copies etc; and for travelling and diet expenses. The District Judge has disallowed the claim for Rs. 2000/-towards loss of pay, on the ground that the appellant had failed to prove that he has sustained such loss. The District Judge has allowed a sum of Rs. 100/- as damages for mental and physical pain suffered for loss of reputation, on the view that it is trival case, which involved no loss of reputation and that in such a petty case there could be no mental and physical pain. We are unable to accept the aforesaid finding recorded by the District Judge that this was a trivial case which involves no loss of reputation and there could be no mental and physical pain to the appellant. The fact that the appellant had to undergo the agony and inconvenience of a protracted trial covering three courts in which he was required to appear for about 50 to 53 times, is a sufficient ground for awarding him damages of 200/- on account of general damages. We would, therefore, enhance the amount of damages awarded to Rs. 550/- and would partly allow the cross objections of the appellant Ramdhan to that extent.

47. In so far as the special appeal of Brijlal is concerned, he has claimed Rs. 2,100/- as damages, out of which Rs. 1500/- has been claimed as special damages and Rs. 600/- as general damages. The special damages consist of fees paid to the counsel, expenses incurred for traveling expenses incurred in obtaining certified copies etc., and damages on account of loss of pay. The Civil Judge awarded Rs. 900/- towards special damages and Rs. 100/- on account of general damages. The District Judge, Ajmer increased the figure of special damages to Rs. 950/- but retained the general damages as Rs. 100/-. So far as the special damages are concerned, we do not find any reason to interfere with the decision of the District Judge. But with regard to general damages, we are unable to agree with the view of the courts below that sum of Rs. 100/- is quite adequate. Appellant Brijlal was employed as a teacher in a Government School. In connection with the criminal case he was required to attend courts viz., trial court, sessions courts as well as High Court on various dates of hearing covering four and half years. In our view, taking into consideration the facts and circumstances of the case, the amount of Rs. 100/- awarded as general damages on account of mental and physical rain and loss of reputation is too inadequate and that the said amount of compensation should be increased to Rs. 500/-. We would, therefore, partly allow the cross-objection and enhance the amount of damages from Rs. 1050/- to 1450/.

48. In the result, these special appeals are allowed, and judgment and decrees passed by the learned Single Judge are set aside, the Second Appeals filed by the respondent, are dismissed and the cross objections filed by the appellants are partly allowed to the extent indicated above. The appellant would be entitled to their costs.


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