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Adi Bapuji Rabadi Vs. Saradindu Banerjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 998 of 1979
Judge
Reported inAIR1981Cal3
ActsCode of Civil Procedure (CPC) , 1908 - Order 7, Rule 11
AppellantAdi Bapuji Rabadi
RespondentSaradindu Banerjee
Appellant AdvocatePratap Chatterjee, Adv.
Respondent AdvocateGinwalla and ;Sudipta Sarkar, Advs.
DispositionPetition allowed
Excerpt:
- .....application has been taken out by the defendant for dismissal of the suit on the ground that the suit filed by the plaintiff is barred by the law of limitation.2. the present suit has been filed by the plaintiff adi bapuji rabadi against saradindu banerjee, also known as shute banerjee, for damages suffered by the plaintiff due to malicious prosecution launched by the defendant. the facts of this case, shortly, are that the 'shute banerjee benefit cricket match' was held for the benefit of the defendant saradindu banerjee. after such benefit cricket match was held, it was the case of the defendant, there was misappropriation of funds from the sale proceeds of the said match and the defendant lodged a first information report with the hastings police station for criminal breach of trust.....
Judgment:
ORDER

Padma Khastgir, J.

1. This application has been taken out by the defendant for dismissal of the suit on the ground that the suit filed by the plaintiff is barred by the law of limitation.

2. The present suit has been filed by the plaintiff Adi Bapuji Rabadi against Saradindu Banerjee, also known as Shute Banerjee, for damages suffered by the plaintiff due to malicious prosecution launched by the defendant. The facts of this case, shortly, are that the 'Shute Banerjee Benefit Cricket Match' was held for the benefit of the defendant Saradindu Banerjee. After such Benefit Cricket Match was held, it was the case of the defendant, there was misappropriation of funds from the sale proceeds of the said match and the defendant lodged a First Information Report with the Hastings police station for criminal breach of trust committed by the plaintiff in respect of the said Benefit Cricket Match sale proceeds. Thereafter the Hastings police station conducted investigation and initiated criminal proceedings against the plaintiff. The plaintiff was arrested and thereafter released on bail. After the submission of the report by the Investigating Officer, the Chief Metropolitan Magistrate found that no prima facie case could be madeout against the plaintiff and that the said proceedings came to an end in favour of the plaintiff. By an order dated the 20th December, 1978 the Metropolitan Magistrate discharged the plaintiff of the offences charged against him. The present suit has been filed by the plaintiff on the 21st December, 1979 against the defendant for a decree of Rs. 1 lakh for damages suffered by the plaintiff as a result of the said proceedings. In a suit for damages for malicious prosecution, the period of limitation is one year from the date of the termination of the proceedings in favour of the plaintiff. From the dates indicated above it would appear that the present suit has been filed one day later than the period prescribed by the Limitation Act. Hence, this application has been taken out by the defendant for dismissal of the suit as it is barred by the law of limitation, as claimed by the defendant. Mr. Pratap Chatterjee appeared in support of this application and submitted that an order should be made as prayed for and he also submitted that an application was taken out by the plaintiff in this suit for amendment of the plaint and for inclusion of certain pleadings in the plaint to make this case of the plaintiff for damages for malicious prosecution into a case for damages suffered by the plaintiff for maliciously procuring the arrest of the plaintiff by the defendant in the said proceedings. Such application for amendment was dismissed and no order was passed by his Lordship Mr. Justice T.K. Basu. Mr. Chatterjee submitted that a suit for damages on account of malicious arrest can only be filed in respect of an arrest made in a civil matter and where a complaint is made and as a result whereof arrest Is made by the police in a criminal proceedings, such an action does not He. In that respect Mr. Chatterjee referred to Atkins Pleadings Vol. 11 page 108 and also Form No. 12. He also relied on James on Principles of Tort page 331 and submitted that an action for damages due to an arrest can only be filed in respect of an arrest which is made in civil matters and not in criminal proceedings. Mr. Ginwalla with Mr. Sudipta Sarkar appeared on behalf of the plaintiff and opposed this application. According to Mr. Ginwalla a suit for damages for maliciously procuring arrest is not confined to civil matters only but it also applies to criminal proceedings. In that respect he referred to 71 Appeal Cases page 470 and submitted that there are sufficient averments in theplaint which would entitle the plaintiff to contend that it is also a suit for damages filed by the plaintiff against the defendant for maliciously procuring the arrest of the plaintiff. So far as a suit for damages for malicious arrest is concerned, there is no specific provision in the Limitation Act, hence the residuary clause in the Limitation Act would apply and the plaintiff's case in that event would not be barred by the law of limitation. Mr. Ginwalla further submitted that this application is also bad as in the prayer portion it has asked that the suit should be dismissed which cannot be done at this stage until and unless the issues are raised and gone into and then only a suit can be dismissed. In this connection Mr. Ginwalla points out that under Order 7, Rule 11 an application can be made for rejection of the plaint on the grounds enumerated under Order 7, Rule 11.

3. Under Order 7. Rule 11, Sub-section (d) it has been provided that a plaint should be rejected where a suit appears from the statement in the plaint to be barred by any law. From the averments as made out in the plaint in this suit it would appear that the plaintiff has filed a suit for damages for malicious prosecution. Although there are averments in the plaint that as a result of the complaint filed by the defendant, the plaintiff was put under arrest by the police but there are no averments that such arrest has been caused to be made by the defendant through the police maliciously or it was a malicious abuse of the process of the Court. Moreover, in paragraph 5 of the plaint the plaintiff has averred that the plaintiff had suffered damages to the tune of one lakh of rupees for the reasons as stated in sub-paragraphs (a) and (b) of paragraph 5. From the said sub-paragraphs it would appear that the plaintiff has made out a rase that he has suffered damages not because of wrongful or malicious arrest caused to be made by the defendant but because of interrogations made by the police and because of such reporting in the newspaper and as the plaintiff was prevented from attending to his work, he has suffered damages. There are no averments anywhere in the plaint that because of the wrongful arrest caused to be made by the defendant the plaintiff has suffered damages. Hence, the averment of such a case of malicious arrest of the plaintiff has not been made out in the plaint. As there is no pleading ofa case for damages suffered due to malicious arrest by the police caused to have been made by the defendant, it is not necessary for me to decide as to whether damages for malicious arrest could arise also in a criminal case. I am of the view that there are no averments made in the plaint for such a case. In any event if no such case has been made out by the plaintiff in the present plaint, the plaintiff can always file a suit against the defendant for damages suffered by the plaintiff for any wrongful or malicious arrest caused to have been made by the defendant through the police. Hence, I am of the view that the prayers as asked for in the petition should be allowed as from the plain reading of the plaint it would appear that the plaintiffs present suit for malicious prosecution is barred by the laws of limitation as only one year's time has been granted by the Limitation Act and the present suit was filed beyond that period of limitation.

4. Hence, under the provisions of Order 7, Rule 11 Sub-section (d) I reject the plaint filed by the plaintiff and I order that the plaintiff should pay the costs of this application. There will, however, be a stay of operation of this order for a fortnight from date.


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