Delhi High Court
Laxmi Narayan Soni vs Roop Chand Soni And Anr. on 17 July, 2002
Equivalent citations: 99(2002)DLT186
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. This civil revision is directed against the order dated 31.7.1998 passed by the Additional District Judge in Suit No. 521/95 whereby and whereunder the Court in purported exercise of jurisdiction under Order 7 Rule 11, CPC rejected the plaint filed by the petitioner wherein he claimed damages for malicious prosecution against the defendant. The defendant had filed a complaint under Sections 406/420, IPC alleging that the petitioner wanted to cause injury to him whereupon the same was registered as Complaint Case No. 87/87.
2. By judgment dated 11.8.1992 the petitioner was acquitted in the said criminal case by the Judicial Magistrate, Sujan Garh, Rajasthan. Against the said order, the complainant filed a revision petition before the High Court and also filed an appeal before the Sessions Judge. The revision petition was dismissed on the ground that it was not maintainable. By order dated 27.4.1995 the appeal was dismissed by the Additional Sessions Judge. Petitioner filed the above suit on 20.12.1995. It is not in dispute that the limitation for institution of suit would be covered by Article 74 of the Schedule appended to the Limitation Act, 1963.
"74. For compensation for a malicious prosecution.
one year When the pltff. is acquitted or the prose-caution is otherwise terminated"
3. The contention which was raised before the Court below was that having regard to the fact that the revision petition was dismissed by this Court on 24.11.1994, the time for institution of the suit was to run there from and not from the date when the appeal was dismissed by the Additional Sessions Judge on 27.4. 1995. The said contention was raised by the defendant, opposite party. The District Judge by reason of the impugned judgment rejected the plaint holding :
"On a perusal of the copy of this order of the Court of Sessions, which has been placed on record, it is apparent that this appeal was preferred against the order of Munsif Magistrate, Sujan Garh dated 11.8.1992 whereby the learned Magistrate had orders for return of a Dak to the brother of the accused-plaintiff Shri Radhey Sham. Said appeal and order has nothing to do with the trial, conviction or acquittal of the plaintiff in the case. I am, therefore, of the considered opinion that there is no question of reckoning the period of limitation from the date of this judgment of the Court of Sessions which was passed on 27.4.1995 and the trial of the plaintiff came to an end with the decision of the revision petition before the Hon'ble High Court of Rajasthan which was decided on 24.11.1994. In the circumstances the period of limitation in the present case has to be reckoned from 24.11.1994 and the suit filed by the plaintiff on 20.12.1995 is apparently barred by time as the period of limitation for filing of such like cases is one year."
4. Counsel for the petitioner would submit that the Court below committed a manifest error of law in so far as it misinterpreted and misconstrued the words "otherwise terminated" occurring in Article 74 of the Limitation Act. In support of the said contention, reliance has been placed on a judgment of the Madras High Court in Soora Kulasekara Chetty v. Tholasingam Chetty AIR 1938 Madras 349.
5. Nobody appears for the defendant, opposite party. Before proceeding to deal with the matter, I may observe that the procedure adopted by the learned Court below does not appear to be correct. If the written statement has been filed and an issue has been framed in relation to maintainability of suit where for factual foundation may be based in the written statement and not on the statements made in the plaint the provisions of Order 7 Rule 11, CPC could not have been taken recourse to. A suit may be dismissed on a preliminary issue and a decree is to be prepared and thus an appeal there-against would be maintainable.
6. The Court below, however, despite the fact that a written statement was filed and a preliminary issue was framed took recourse to Order 7 Rule 11, CPC.
7. Having regard to the fact that the complainant had preferred an appeal, the order of acquittal could not be said to have attained finality .Expression "prosecution has otherwise terminated" must, therefore be interpreted in that context. It is only when the order of acquittal attains finality the cause of action would arise for filing a suit for compensation on the ground of malicious prosecution. In this view of the matter the learned Court below had committed manifest error in holding that the date of judgment by the Appellate Court was not relevant.
8. The Chief Justice speaking for Madras High Court in inter alia held :
"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 but by the order passed in the subsequent proceedings and this construction was placed on the Article by a Bench of this Court consisting of Bakewell and Phillips, JJ. in AIR 1920 Mad. 151 : 57 IC 635."
9. For the reasons aforementioned the impugned judgment cannot be sustained. It is set aside accordingly. The Trial Judge will proceed to deal with the matter on merits. Having regard to the fact that the matter is pending for a long time, the Trial Judge shall dispose of the suit as expeditiously as possible preferably within four months from the date of communication of this order. The civil revision is allowed.
As nobody appears for the respondent, there shall not be any order as to costs.