1. By consent the second appeal is dismissed with costs.
2. An order was made dispensing with the filing of the judgment of the lower Court. There is, therefore, no question of limitation. Appellant is not entitled to read an affidavit of which he did not give notice to the other side; the question of non-appearance of the Vakil cannot, therefore, be considered. We are not, therefore, prepared to interfere with the discretion of the lower Appellate Court as to costs.
3. The second appeal is dismissed with costs.
4. The first point argued is that the suit is barred by Article 23 of the Limitation Act. The order passed by the Magistrate purported to be a discharge under Section 253 of the Criminal Procedure Code, and the complainant made an application to the District Magistrate under Section 437 for further enquiry and the latter holding, that the order was one of discharge, directed a re-trial before himself which he had jurisdiction to do upon the facts found by him. There was, therefore, a prosecution pending at the instance of the complainant. Upon an application to the High Court, it was held that the order parsed by the first Court was in effect an order of acquittal and the order of the District Magistrate was set aside. If the first part of Article 23 applied, time would begin to run from the date of the order of the first Court, [Narayya v. Seshayya 23 M.P 24 : 8 Ind. Dec. (N.S.) 411 but We think that owing to the proceedings resulting in an Order for fresh enquiry they did not terminate until the order of the High Court. We cannot agree with the argument that when there has bean an acquittal, the second part of the article is necessarily excluded. The decision in Narayya v. Seshayya 28 M.P 24 : 8 Ind. Dec. (N.S.) 411 is not an authority for that proposition, since it does not appear that the proceedings which had terminated had been subsequently revived and the learned Judges refused to consider the question of the effect of an appeal from an acquittal. In the present case the enquiry bad been re-opened and did not terminate until the passing of the order of the High Court and we think that the second part of the article is applicable.
5. We see-no reason why we should not accept the findings of the lower Appellate Court as to malice and want of reasonable and probable cause. The second appeal is dismissed with Costs.