1. This is an appeal from a decree of the Subordinate Judge of Palghat. The plaintiff sued the three defendants for damages for malicious prosecution. The second defendant has been exonerated by the Subordinte Judge and the 1st and 3rd have been cast in damages. The Subordinate Judge in his finding says that the 1st defendant himself launched this prosecution and conducted it himself in conspiracy with and with the abetment of the 3rd defendant.
2. The facts of the case put briefly are: The 1st defendant having undergone imprisonment for some offence, a certain section of his community declined to associate with him on the ground of his incarceration. The 3rd defendant is closely related to him he sympathized with him and endeavoured to get the ban withdrawn, and the people to associate with him. On one occasion, i.e., on the occasion of the funeral of the 1st defendant's brother's wife, one Seshu Vathiar was induced to officiate and the 1st defendant took some part in the ceremony. Subsequently, this Seshu Vathiar was compelled to undergo a prayaschitam or purification ceremony on the ground of his having associated with the 1st defendant at the funeral ceremony. That was on the 22nd Jane 1903. On the 7th July 1903, there appeared in a Calicut paper Kerala Sanchari, a notice over the name of the plaintiff, in which it was alleged, that he, the writer or author of it, had caused a prayaschitam or purification ceremony to be performed in order to purify Seshu Vathiar free from the stain of his having associated with the 1st defendant who was described by several opprobrious epithets in the notice. The 1st defendant prosecuted the plaintiff under the Penal Code for defamation, as well as the Editor and Publisher of the paper. The Magistrate, after hearing only the prosecution evidence, discharged all the accused, apparently accepting the plaintiff's contention that he knew nothing about the notice, that he had not signed it or sent it to the paper, and believing that the author or one of the authors of it was the 1st defendant himself. The plaintiff then brought this suit against the 1st and 3rd defendants and the 2nd defendant, who is the son of the third. The 1st and third, as I have stated, have been cast in damages by the Subordinate Judge as having joined in instituting the prosecution maliciously and without reasonable and probable cause and the 2nd defendant has been exonerated. The Sub-Judge finds in effect that the 1st and 3rd defendants themselves published the defamatory notice in order to try to get a decision of a Court that the 1st defendant was not a person who should not be associated with. The 1st defendant has not appealed to this Court. The appellant before us is only the 3rd defendant.
3. Mr. Govindaragava Iyer has raised a preliminary objection that the suit was barred by limitation. The plaint was presented on the 19th September 1901. The order of the Magistrate, which directs the discharge of the accused before him, is dated 19th September 1903. So that the suit was filed in time, i.e., within one year after the accused in that case was discharged if the discharge was on the 19th of September. But the appellant's contention was that the accused had been discharged by an oral order on the 14th September and so this suit was filed six days. out of time. The Subordinate Judge has found that the 19th September was the day on which the accused were actually discharged. That is the date of the Magistrate's order and the date on which in the table at the head of that order the trial is stated to have been closed. There is nothing in the record of the inquiry to indicate that the accused were discharged on the 14th, although it may be that the Magistrate on that day expressed an opinion that the evidence for the prosecution was insufficient to warrant him in putting any of the accused on his trial. No doubt, there is evidence that the Editor, one of the accused, published some statement on the 16th September in his paper to the effect that the accused had been discharged the day before yesterday' i.e., the 14th, and there is an application for copies which refers to the discharge as having been on the 14th, but we do not think that that will be sufficient to warrant us in holding that the Magistrate actually pronounced the order of discharge on the 14th. The Subordinate Judge is right in his finding that the suit is not barred by limitation.
4. The learned Judge then discussed the evidence as to the complicity of the 3rd with the 1st defendant and found that the 3rd defendant was not abettor with nor joined 1st defendant in the prosecution of the plaintiff and continued:
5. That being so, the decree of the Subordinate Judge must be set aside and the suit as against the 3rd defendant must be dismissed with costs.
6. The memo, of objections is also dismissed with costs.
Abdur Rahim, J.
7. I agree.