Punjab-Haryana High Court
Bhim Singh vs Gurmit Singh And Others on 3 April, 2024
Neutral Citation No:=2024:PHHC:046041
RSA-289-1993 (O&M). -1- 2024:PHHC:046041
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH.
130
RSA-289-1993 (O&M).
Date of Decision: 03.04.2024.
BHIM SINGH
... Appellant
Versus
GURMIT SINGH AND OTHERS
... Respondents
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ.
Present: Mr. Gurcharan Dass, Advocate,
for the appellant.
Mr. B.S. Sidhu, Sr. Advocate, with
Mr. Divij Dutt, Advocate, for the respondents.
VINOD S. BHARDWAJ, J (ORAL).
A substantial question of law as to whether limitation for
institution of suit for damages under Article 74 has to begin from the date of
original order of acquittal or from the date of dismissal of revision petition,
arises for consideration of this Court.
2 Appellant-defendant No.1 has preferred the present Regular
Second Appeal against the judgment and decree dated 27.07.1990 passed in
Civil Suit No.243 of 26.09.1987 by the Court of Sub Judge First Class,
Samrala, and against the subsequent dismissal of Civil Appeal No.339/44 of
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1990, decided vide judgment and decree dated 03.11.1992 by the Additional
District Judge, Ludhiana.
3 Briefly summarized, the facts of the present case are that
respondent-plaintiff instituted a civil suit for recovery of Rs.5,000/- as
damages for malicious prosecution by the appellant-defendant No.1 Bhim
Singh by alleging that there was a host of litigation between the respondent-
plaintiff and the appellant-defendant No.1 Bhim Singh and that the
respondent-plaintiff defended the said litigation on the civil side. It was
averred that the respondent-plaintiff claimed to have purchased a house for
a valuable consideration. The appellant-defendant No.1 Bhim Singh
obtained an ex parte injunction order from the civil Court, which was later
declined after contest by the respondent-plaintiff. An appeal was preferred
against the said order which was also dismissed by the appellate Court.
Thereafter, a false complaint was alleged to have been lodged by the
appellant-defendant No.1 Bhim Singh against the respondent-plaintiff under
Sections 452, 504 and 506 of the Indian Penal Code. The respondent-
plaintiff faced the trial in that criminal complaint lodged by the appellant-
defendant No.1 Bhim Singh against him. The evidence was alleged to have
been fabricated by the appellant-defendant No.1 Bhim Singh to bolster his
claim on trumped up charges. The respondent-plaintiff faced the criminal
proceedings before the learned Judicial Magistrate First Class, Samrala and
had to incur expenses and face harassment and humiliation and invested
energy as well as finances to defend himself in the unfounded complaint
filed by the appellant-defendant No.1 Bhim Singh. The respondent-plaintiff
was eventually discharged by the Trial Court on 19.12.1985. Dissatisfied
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with the same, a revision petition was filed by the appellant-defendant No.1
Bhim Singh before the revisional Court which was also dismissed vide
order dated 06.07.1987. The respondent-plaintiff suffered huge loss to his
reputation and faced embarrassment for lowered reputation amongst the
general public and thus instituted a suit seeking compensation for institution
of false and malicious complaint by the appellant-defendant No.1 Bhim
Singh. A decree for recovery of Rs.5,000/- was sought as damages.
4 The suit was contested by the appellant-defendant No.1 Bhim
Singh by filing the written statement wherein it was averred that the suit
was not maintainable and was thus liable to be dismissed and that the
respondent-plaintiff had no locus standi to institute the said suit. The
allegations leveled in the plaint were denied and a prayer for dismissal of
the suit was made.
5 Replication to the written statement was filed by the
respondent-plaintiff whereupon the following issues were framed:-
1 Whether the suit is not maintainable in the present
form ?OPD
2 Whether the plaintiffs have no locus stsandi to file the
present suit? OPD
3 Whether the plaintiffs are estopped to file the present
suit by their act and conduct? OPD
4 Whether the plaintiffs are entitled to receive a sum of
Rs.5,000/- as damages for the malicious prosecution
and loss of reputation? OPP
5 Relief.
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6 Parties led their respective evidence and upon consideration of
the same, the Sub Judge First Class, Samrala, recorded a finding that the
respondent-plaintiff had to face an acute mental agony on account of false
prosecution and institution of the mischievous litigation. As a result thereof,
the respondent-plaintiff suffered overall damages of Rs.15,000/- and his
reputation was also lowered in the eyes of general public. The Sub Judge
First Class, Samrala, however, quantified the damages to the tune of
Rs.4,000/-. The suit was accordingly decreed for the said amount of
Rs.4,000/- towards damages for the malicious prosecution of the
respondent-plaintiff.
7 Aggrieved of the said judgment and decree passed by the Sub
Judge First Class, Samrala, an appeal was filed by the appellant-defendant
before the Court of District Judge, Ludhiana. The Civil Appeal No.339/44
of 1990 was dismissed by the Additional District Judge, Ludhiana, vide
judgment and decree dated 03.11.1992. The judgment passed by the Sub
Judge First Class, Samrala, was accordingly affirmed.
8 Hence, the present appeal.
9 Learned counsel appearing for the appellant-defendant No.1
Bhim Singh has argued that the suit was not maintainable as it was barred
by limitation. He submits that the criminal prosecution instituted by the
appellant-defendant No.1 were decided in favour of the respondent-plaintiff
on 18.12.1985. Thereafter, a revision petition was filed and the said revision
petition was dismissed on 06.07.1987. He contends that as per the law of
limitation, any suit for compensation on account of malicious prosecution is
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stipulated under Article 74 of the Schedule attached to the Limitation
Act, 1963 and a period of limitation of one year has been prescribed from
the date when the plaintiff is acquitted or the prosecution is otherwise
terminated. He thus contends that the limitation began to run w.e.f.
18.12.1985 when the respondent-plaintiff was discharged by the Judicial
Magistrate First Class. He further contends that the revision is not in the
nature of an appeal and cannot be construed as a continuation of the original
proceedings and as such, the limitation of one year came to an end on
17.12.1986.
10 Learned senior counsel for the respondent-plaintiff, on the
other hand, has argued that the revision petition was dismissed by the
revisional Court on 06.07.1987 and that the limitation is required to be
construed from the date of dismissal of the revision petition. Since the civil
suit was instituted on 26.09.1987, hence, the same was within limitation i.e.
within a period of 2½ months of dismissal of the revision petition.
Reference was also made to the judgment in the matter of Kehru and others
Vs. Chinto and others, reported as 1991 (2) R.R.R. 151, referred to by the
Additional District Judge, Ludhiana, for supporting his view. He further
contends that the above said objection as regards the maintainability was
not raised at the stage of filing of objections and as such, the appellant-
defendant No.1 cannot raise the said plea currently.
11 No other argument has been raised.
12 I have heard learned counsel appearing for the respective
parties and have also gone through the record with their able assistance.
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13 The primary question which arises for consideration of this
Court is as to whether the suit decreed by both the Courts was liable to be
dismissed being barred by limitation.
14 For adjudication of the same, it is relevant to refer to Article 74
in the schedule under the Limitation Act, 1963. The same is extracted as
under:-
Description of suit Period of Time from which period
Limitation begins to run
74. One year When the plaintiff is
For compensation acquitted or the
for a malicious prosecution is otherwise
prosecution terminated.
15 Further, Section 3 of the Limitation Act, 1963, mandates that
every suit instituted, appeal preferred or application made after the
prescribed period and subject to provisions contained in Section 4 to 24
(inclusive) shall be dismissed although limitation has not been set up as a
defence. The relevant Section reads thus:-
"3. Bar of limitation.
(1) Subject to the provisions contained in sections 4 to 24
(inclusive), every suit instituted, appeal preferred, and
application made after the prescribed period shall be
dismissed, although limitation has not been set up as a
defence.
(2) For the purposes of this Act,--
(a) a suit is instituted,--
(i) in an ordinary case, when the plaint is presented to the
proper officer;
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(ii) in the case of a pauper, when his application for leave to
sue as a pauper is made; and
(iii) in the case of a claim against a company which is being
wound up by Court, when the claimant first sends in his
claim to the official liquidator;
(b) any claim by way of a set off or a counter claim, shall be
treated as a separate suit and shall be deemed to have been
instituted--
(i) in the case of a set off, on the same date as the suit in
which the set off is pleaded;
(ii) in the case of a counter claim, on the date on which the
counter claim is made in court;
(c) an application by notice of motion in a High Court is
made when the application is presented to the proper officer
of that court."
16 It is evident from the above that the Limitation Act, 1963
obligates dismissal of a suit/appeal/application which is time barred
notwithstanding that such a defence has not been raised. Hence, the
obligation has been cast on the Court seized of an issue to determine as to
whether a cause has been brought before it within the prescribed time
schedule or not.
17 The position in law is also well settled to the effect that the plea
of limitation can be examined even at the appellate stage, being a legal
argument. A person is not mandated to take a plea of the claim being barred
by limitation and in the event a party is able to establish that the
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proceedings were in violation of the limitation prescribed under the law,
such plea can be entertained and examined at subsequent stages as well.
18 The question which arises next for consideration by this Court
is as to the date with effect from which the limitation is to be computed i.e.
whether from the date of dismissal of complaint i.e. 18.12.1985 or from the
date of dismissal of revision petition on 06.07.1987.
19 Reliance placed by the respondent-plaintiff was on the
judgment of Kehru and others Vs. Chinto and others (supra), and the
relevant extract of the said judgment reads thus:-
"3. Learned Counsel for the appellants has not assailed the
finding of the first appellate Court holding that the plaintiffs
are the heirs of Jai Mal deceased and they are entitled to
succeed to the property left by the deceased, along with their
brother Jagir Singh. He submitted that the suit filed by the
plaintiffs was barred by time. This plea was neither taken in
written statement nor was it raised before the Courts below. It
has been raised in this Court for the first time. The question of
limitation, no doubt, is a pure question of law and it can be
allowed to be raised in second appeal when the facts are patent
on the record and no evidence is required for adjudicating the
plea of limitation. Section 5 of the Punjab Limitation (Custom)
Act, 1920 (for short the Act) says that subject to the provisions
contained in Sections 4 to 25 (inclusive) of the Indian
Limitation Act, 1908, and notwithstanding anything to the
contrary contained in the first schedule of the said Act, 1920
(for short the Act) says that subject to the provisions contained
in Sections 4 to 25 (inclusive) of the Indian Limitation Act,
1908, and notwithstanding anything to the contrary contained
in the first schedule of the said Act, every suit, of any
description specified in the schedule annexed to this Act,
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instituted after the period of limitation prescribed therefor in
the schedule shall be dismissed, although limitation has not
been set up as a defence. It is in a mandatory form. Even if the
bar of limitation is not pleaded, the Court has to take judicial
notice of the fact whether the suit which falls within purview of
this Act is within limitation. The period of limitation for a suit
for possession, where declaratory decree has been obtained, is
provided in the schedule appended to the Act. Article 2 of the
Schedule reads as under :-
Description of suit Period of Time from which period
Limitation begins to run
--- --- ---
2. A suit for
possession of
ancestral
immovable
property which
has been
alienated on the
ground that the
alienation is not
binding on the
plaintiff according
to custom-
(a) If no 6 years The date on which the
declaratory alienation comes to the
decree of the knowledge of the
nature referred to plaintiff.
in Article 1 is
obtained
(b) If such 3 years The date on which the
declaratory right to sue accrues or
decree is obtained the date on which
declaratory decree is
obtained whichever is
later."
A suit for possession has to be filed if a declaratory decree has
been obtained under the provisions of Punjab Customs (Power
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to Contest) Act within three years from the date on which the
right to sue accrued or the date on which the declaratory
decree is obtained, whichever is later. In the instant case, the
right to recover possession accrued on the death of Jai Mal.
The regular second appeal was decided by this Court on 16th
January, 1970, affirming a declaratory decree passed by the
first appellate Court. If the limitation is counted from the date
of decision of second appeal by this Court, the suit for
possession ought to have been filed on or before 15th January,
1973. If the limitation is to be counted from the date of death of
Jai Mal deceased, which took place on 24th July, 1969, the suit
for possession ought to have been filed by 23rd July, 1972. The
suit in the instant case was filed on 15th/17th December, 1973.
The regular second appeal was decided on 16th January, 1970
and if the limitation period of three years is counted from this
date, the suit could be filed on or before 15th January, 1973,
but it was filed on 14th December, 1973, although it was
registered on 15th/17th December, 1973, obviously after the
expiry of three years. The suit was filed beyond the period of
limitation. The conclusion arrived at by the first appellate
Court that the plaintiffs had succeeded in establishing their
relationship with Jai Mal deceased is unexceptional and the
learned counsel for the appellants has not assailed the
conclusion arrived at by the first appellate Court. However, as
observed earlier, the suit was filed beyond limitation and is
liable to be dismissed on the this ground alone."
20 A perusal of the aforesaid para fails to substantiate as to how
and in what manner, the same would supplement the claim of the
respondent-plaintiff into computing the limitation from the date of dismissal
of the revision petition. An illustration had apparently been given in the said
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para as regards the computation of the limitation from different date but
there was no ratio laid down to the effect as to whether the limitation is to
be computed from the date of dismissal of the revision or the same has to be
computed w.e.f. the date when the cause of action originally accrued.
Besides, the said judgment reiterates the position in law that question of
limitation is a pure question of law and can be allowed to be raised even in
second appeal when the facts are patent on record and no evidence is
required for adjudicating the said plea of limitation.
21 On the other hand, it is necessary to refer to certain judicial
pronouncements by different High Courts as regards the computation of
period of limitation under Article 74 of the Limitation Act, 1963 and as to
when such a cause of action would commence. Reference may be made to
the judgment of Orissa High Court in the matter of Chanda Chandra Dash
Vs. Niranjan Panda and others, decided on 24.12.1993, in S.A. No.200 of
1984. The relevant extract thereof reads thus:-
"5. There is no dispute that a suit for malicious prosecution
is governed by Art. 74 of the Limitation Act and the period
prescribed is one year. But the dispute centres round the
question as to when does that period begin to run. the third
clause of Art. 74 is to the effect:-
"When the plaintiff is acquitted or the prosecution
is other- wise terminated."
6. The controversy, therefore, is as to whether it is original
order of acquittal from which the period of one year has to
be counted or an appeal having been filed against the order
of acquittal, the period of one year has to be counted from
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the appellate order. As the conclusion would be that it is the
date on which the order of acquittal was passed by the
Magistrate from which one year has to be counted, then
obviously the suit would be barred by limitation inasmuch as
the order of acquittal was passed by the Magistrate in
complaint case No. 83/77 on 24-9-1978. But if it would be
the appellate order of the High Court which was passed on
18-9-1981 then the suit will not be barred by limitation. The
lower appellate Court relying upon a decision of the
Allahabad High Court came to hold that it is the date of the
appellate order from which the period of one year has to be
counted and accordingly held that tits suit is not barred by
limitation.
7. Mr. Mohanty appearing for the appellant contends that the
expression "when the plaintiff is acquitted" in third column
of Art. 74 would obviously mean the original order of
acquittal and the limitation would start from that date and
filing of an appeal against the said order of acquittal will not
operate as a suspension of the running of time for
enforcement of the decree. According to the learned counsel
time begins to run from the date of the final judgment -of the
Magistrate by which the criminal case ended in acquittal.
8. On these questions there is divergence of views, the
Madras High Court taking the view that if the matter is taken
up in revision or appeal to a higher authority, the prosecution
terminates when the proceeding in the revision or appeal
comes to an end in favour of the discharged person. In the
case of Soora Kulasekara Chetty and Anr. v.
Tholasingam Chetty (AIR 1938 Madras 349) the Full
Bench of the Madras High Court interpreting Art. 23 of the
Limitation Act, 1908 which corresponds to Art. 74 of the
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Limitation Act, 1963 came to hold that the words "when the
plaintiff is acquitted" cannot be divorced from the words "or
the prosecution is otherwise terminated" and where therefore
a person who is prosecuted is either discharged or acquitted
and the revision petition filed by the complainant against the
discharge or acquittal is dismissed, the prosecution
proceeding terminates only when the revision petition is
dismissed and not on the discharge or acquittal and,
therefore, it was held that the limitation for a suit for
malicious prosecution begins to run from the dismissal of
revision petition and not from the discharge or acquittal
passed by the Magistrate.
xxx xxx xxx
13. On a conspectus of the aforesaid authoritative decisions
of the different High Courts, I am in respectful agreement
with the views expressed by the Bombay and Allahabad
High Courts and the reasoning advanced by the Division
Bench of this Court referred to supra also supports the
aforesaid view of the Bombay High Court and consequently
the suit not having been filed within one year from the date
of the order of acquittal passed by the Magistrate, the suit
must be held to be barred by limitation. The lower appellate
Court committed an error of law in holding that the suit is
not barred by limitation."
22 Further, reference may also be made to the judgment of
Allahabad High Court in the matter of Madho Lal Vs. Hari Shanker and
another, passed in Second Appeal No.1729 of 1957 decided on
28.09.1962. The relevant extract thereof reads thus:-
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"2. The only point, which has been argued in this appeal, is
that the present suit having been instituted more than one
year after the order of acquittal was barred by time.
xxx xxx xxx
5. A perusal of Article 23 of the Limitation Act goes to show
that that Article deals with two alternative cases one
envisages acquittal and the other, termination of the
prosecution. So far as the second alternative or the
expression 'termination of the prosecution' goes that is not
applicable to the present case. That governs such cases as
those of discharge. It is the first alternative which will
govern the case of acquittal; and acquittal would mean
acquittal from the Trial Court or if there is conviction from a
Trial Court, then the order of acquittal was passed in appeal
or revision. In a case where acquittal has been ordered be
the Trial Court and the complainant has filed revision, the
filing of revision cannot affect the order of acquittal already
passed. It will remain an order of acquittal till the acquittal
is converted into an order of sentence. It would thus appear
that under Article 23 of the Limitation Act, the limitation
would run from the date when the plaintiffs were acquitted
by the Trial Court or in appeal if there was conviction from
the Trial Court. Filing of a revision against an order of
acquittal cannot suspend the period of limitation, which start
red, running from the date of the order of acquittal. This
view is fully justified by the case of Shankar Prasad, AIR
1935 Oudh 392.
In that case the prosecution of the plaintiff ended in
acquittal. There was also a revision against the order of
acquittal, and it was held by the learned Judge, who decided
that case, that the limitation started running from the date of
the order of acquittal and the filing of revision did not give a
fresh start to the period of limitation; and so the suit, if
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brought more than one year after the order of acquittal
passed by the Trial Court would be beyond time. I
respectfully agree with this view.
The case of Madan Mohan Singh, 1930 All LJ 885: (AIR
1930 All 326), was a case of discharge and so that case was
covered by the second alternative of Article 23. But the
Division Bench, which decided that case, also observed at p.
887 (of All L J) : (at p. 327 of AIR):
"Moreover in a case where the prosecution ended in
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."
This observation of the Division Bench supports the view
which is expressed above.
xxx xxx xxx
7. In this view of the matter, when there was acquittal of the
plaintiffs on 29th December, 1950, they should have filed the
suit within one year of that date and not within one year of
the dismissal of the revision. The present suit was thus
beyond time. The appeal must succeed."
23 Similarly, the Delhi High Court in Regular First Appeal
No.311 of 2011, titled as 'Mohan Banerjee Vs. State of Delhi and others,
decided on 07.12.2012, also reiterated the said position in law. The relevant
extract thereof reads thus:-
5. In that matter, the learned court below concluded that
compensation was claimed by the appellant in the suit on the
basis of malicious prosecution; for which the period of
limitation prescribed is one year under Article 74 of the
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Limitation Act to be counted from the date of acquittal from
prosecution. It has held that, even after excluding the period
when the writ petition was pending before this Court between
10.3.2010 & 23.04.2010; as well as the time spent in obtaining
the certified copy of the judgment of the trial court acquitting
him, the suit is still barred by limitation.
xxx xxx xxx
11. Even counsel for the appellant concedes that if Article 74
were to apply, the suit is beyond limitation. Therefore, the only
question that remains is under what provision the case of the
appellant is covered. His case appears to be that this is not a
case for compensation for malicious prosecution; and that it is
simply a claim for damages. It is, however, obvious that the
basis of that claim for damages appears to be malicious
prosecution. In fact, counsel for the appellant is unable to
demonstrate any other basis for the suit brought by his client.
12. In this case, the time began to run w.e.f. 4.10.2008, when
the appellant was acquitted of the charge leveled against him.
It expired on 3.10.2009, i.e. after a period of one year in terms
of Article 74 of the Limitation Act. But the appellant had filed
the suit on 6.10.2010, which shows that there is a delay of 368
days.
xxx xxx xxx
15. Except for a general submission, which is repeated many
times, that the period of limitation in such a case is three
years; Counsel for the appellant is unable to show any other
provision of the Limitation Act which may apply to the matter
instead of Article 74 thereof."
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24 A reference may also be made to the judgment of Jammu and
Kashmir High Court, in the matter of Krishna Gupta and others Vs. D.S.
Sadhotra and others passed in CIA Nos.36 of 1999, 25 of 2000 and 43 of
1999 decided on 07.11.2007. The relevant extract of the same reads thus:-
"3. The said FIR was also investigated by said Amrik Singh,
where after a charge-sheet for seeking trial of the plaintiff,
D.D. Sadhotra came to be filed before the Court of Special
Judge, Anti Corruption, Jammu. The plaintiff after being
charged was put on trial for commission of the said offence.
He was, however, acquitted of the charges by the learned
trial Court vide its judgment dated 20-12-1980.
4. The State on 21-2-1981 filed acquittal appeal before this
Court and the same was also dismissed by order dated 12-4-
1983 and the acquittal of the plaintiff came to be upheld.
5. The plaintiff, Shri D.D. Sadhotra alleging malicious
prosecution filed suit for damages and compensation against
the defendants on 31.3.1984, which has been decreed by the
trial Court vide its judgment impugned.
6. The defendants through an application filed before the
trial Court during the trial prayed for dismissal of the suit,
as, according to them, the same was barred by limitation.
Xxx xxx xxx
8. The learned trial Court rejected the prayer and held the
suit to be within time by observing:
"These arguments of the learned Advocate for the
defendant are simply to be rejected because the decision
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of our own Hon'ble High Court being the limitation in
such case starts not from the date of acquittal but from
the date of dismissal of the revision or appeal. So, if the
limitation is to be taken from the date of dismissal of
appeal or revision against the order of acquittal, then
there is no question of reckoning the limitation from the
date of acquittal, and as such, it is held that the
plaintiff's suit is within limitation and the application is
misconceived and decided accordingly."
9. For holding so, the learned trial Court relied upon the
case A.K. Wattal v. Kh. Mohd Sidiq and others, 1965 KLJ
64.
xxx xxx xxx
14. If order of acquittal or discharge of the person
prosecuted is followed by an appeal or revision, whether
starting point of limitation would remain suspended during
the pendency of such appeal or revision?
15. So for as revision against the order of acquittal is
concerned, a learned Single Bench of this Court in A.K.
Wattal v. Kh. Mohd.Sidiq, 1965 KLJ 64, while relying upon
AIR 1938 Madras 349 (FB) and AIR 1942 Oudh 489, took
the following view:
"About the limitation in such cases there was conflict of
opinion as to wherefrom. limitation should be computed.
Under Art 23 of the Limitation Act time runs in such
suits from the date of the order of acquittal or
termination of the prosecution. It has now been finally
settled that the limitation in such cases starts not from
the date of acquittal but from the date of dismissal of the
revision petition. (Vide AIR 1938 Madras 349 FB and
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AIR 1942 Oudh 489). Therefore the suit of the plaintiffs
is within time and this issue is decided against the
defendant."
16. There being no difference between appeal and revision
for the purposes of computation of period of limitation,
therefore, if the above view is to be accepted as correct
preposition of law, then the limitation in case of an acquittal
followed by an appeal or revision would start to run from
the date of dismissal of the acquittal appeal or revision, as
the case may be.
17. However, with great respect, I may say so that the view
expressed in Wattal's case (supra) does not state the correct
position of law.
18. It is a settled principle of Law of Limitation that once the
prescribed period of limitation starts to run, then no
subsequent disability or inability to sue stops it. Section 9 of
the Act reads as follows:-
"9. Continuous running of time
Where once time has begun to run, no subsequent
disability or inability to sue stops it:
Provided that, where letters of administration to the
estate of a creditor have been granted to his debtor, the
running of the time prescribed for the suit to recover the
debt shall be suspended while the administration
continues."
19, Under Article 23, the starting point for limitation in case
of acquittal is the date on which the acquittal order is
passed. No provision either in Article 23 or in other sections
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of the Limitation Act has been made for providing automatic
suspension of the period of limitation prescribed in the
event of appeal or revision being filed against the acquittal
order.
20. Mere filing of appeal or revision for questioning the
legality of the acquittal of plaintiff, who seeks to sue for
damages on account of his malicious prosecution, perse
does not result in suspension, exclusion or extension of the
period prescribed.
21. If a cause of action arises on the passing of an order by
an authority then that cause of action does not get suspended
or deferred by mere filing of an appeal or revision against
that order, unless there is something in the provision
regulating the appeal or revision for suspending the order
appealed against or sought to be revised or for rendering it
inoperative on the reason of filing the appeal or revision.
22. In case of acquittal, the cause of action for filing the suit
for damages on the ground of malicious prosecution arises
on the date of passing of the acquittal order in terms of
Article 23. Article 23 no where provides that the cause of
action to sue will remain suspended during the pendency of
an acquittal appeal or revision against the order. Acquittal
appeal lies under Section 417 Cr.P.C. There is no provision
in the Cr.P.C. which provides for automatic suspension or
staying of the acquittal order on mere filing of the appeal.
Likewise, the Court of Session and High Court have been
vested with revisional jurisdiction under Sections 435 and
439 respectively for examining the legality or propriety of an
order passed by a criminal court subordinate thereto. There
is no provision for providing automatic suspension or
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staying of the order sought to be revised. Therefore, merely
because against the acquittal order an appeal or revision
has been filed, the filing of the same does not stop the
limitation to run. However, on filing of the appeal or
revision against the acquittal order, if the appellate court or
revisional court stays the operation of the acquittal order, in
that event the period during which the stay remains in force
gets excluded in terms of the provision contained in Section
15 of the Limitation Act. Section 15 reads:-
"Exclusion of time during which proceedings are
suspended.
(1) In computing the period of limitation prescribed for
any suit or application for the execution of a decree, the
institution prescribed for any suit or application for the
execution of a decree, the institution or execution of
which has been stayed by injunction or order, the time of
the continuance of the injunction or order, the day on
which it was issued or made, and the day on which it was
withdrawn, shall be excluded.
(2) In computing the period of limitation prescribed for
any suit of which notice has been given in accordance
with the requirements of any enactment for the time
being in force, the period of such notice shall be
excluded."
23. Section 15(1) thus safeguards the interest of a person
who is precluded from exercising his right to institute the
suit by injunction or order of stay passed in appeal or
revision. In the absence of stay order in appeal or revision,
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the fact of filing of the same by itself can have no effect on
running of the limitation.
xxx xxx xxx
30. In my considered opinion the view expressed by High
Courts of Allahabad and Bombay is the correct preposition
of law. Therefore, the ratio of the decision rendered in
Wattal's case (supra) requires reconsideration by a large
Bench."
25 Reference can also be made to the judgment of Bombay High
Court in the matter of Vasantrao Vs. Raghunathrao and another, passed
in Second Appeal No.208 of 1988 decided on 31.07.1989. The relevant
extract thereof reads thus:-
"1. This appeal by the original plaintiff against the judgment
and decree dismissing the suit for compensation on account of
malicious prosecution, as beyond the period of limitation
raises a question as to what would be the terminal point of a
prosecution for the purposes of Article 74 of the Limitation Act,
(the Act)?
2. The respondents 1 and 2-original defendants prosecuted the
appellant-plaintiff for an offence punishable under Section 500
of the Indian Penal Code. The learned Magistrate by a
judgment dated 28.5.1985 acquitted the plaintiff. The
defendants appealed against the order of acquittal. This Court
on 12.12.1984 dismissed the appeal.
The plaintiff thereupon on 5.12.1985, filed a civil suit against
the defendants claiming damages of Rs. 25,000/- for
prosecuting him maliciously. The learned trial Court observed
that the cause of action for a claim arose on the date of
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acquittal i.e. 25.5.1984. The period for limitation under Article
74 of the Act, began to run from that date, the suit filed on
5.12.1985 is as such beyond one year, a period of limitation as
prescribed. The learned trial Court, therefore, dismissed the
suit. In appeal, the same was confirmed.
xxx xxx xxx
5. In view of the rulings cited supra, the learned Counsel
reiterated that filing of an appeal is an attempt subsequent to
secure conviction of the accused. It, therefore amounts to
continuation of a prosecution initiated by prosecuting a
complaint.
The Criminal Procedure Code does not define the term
'prosecution." In AIR 1946 Nagpur 46 (Sk. Mehtab v. Balaji),
relying on the dictionary meaning, it is observed that a
prosecution means institution or carrying on of legal
proceedings. The term "prosecution" as used in Article 74 of
the Act does not appear to be of that wide import. As such, it
cannot be assigned with the meaning of an universal sense. The
term is used, according to me, with a restricted and definite
meaning. It conveys only prosecution for a criminal offence.
Every legal proceedings, therefore, cannot be equated or held
analogous to prosecution.
6. Appeal (against the order of acquittal) is a remedy to the
complainant, provided by the Code, Appeal questions the
legality, propriety or otherwise correctness of the findings of
acquittal. The higher judicial forum in appeal, scrutinises the
material made available during the course of a trial as well as
the relevant provisions of law, to approve or disapprove the
findings of acquittal. However, the scope in such appeal is very
limited. True it is, the Appellate Court in exercise of power
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under Section 386, while dealing with appeal against acquittal
under Section 378 of the Code is empowered amongst other, to
order retrial. Still proceeding in appeal cannot logical be
equated with the prosecution of an accused for an offence.
Hence prosecuting a remedy of an appeal does not amount to
continuation of a prosecution.
Xxx xxx xxx
8. The Legislature, while drafting Article 74, has with a
definite significance, used the phraseology "prosecution is
otherwise terminate" or "on and connection. The term "the
prosecution is otherwise terminated," does not take within its
sweep, an acquittal in appeal. The Legislature has, therefore,
in addition inserted a term "on acquittal". Therefore, to
construe that the prosecution culminates when acquittal attains
finality in appeal or revision, would be derogatory to the object
of Legislature. Moreover, "on acquittal" as referred to in
Article 74 connotes acquittal at the first instance may be at the
stage of an appeal. It does not whishper either final or
confirmed acquittal. Now the question is as to when the
prosecution comes to an end?
Under the scheme of Criminal Procedure Code, the
prosecution against the accused commences when the
Magistrate issues a process under Section 204 after
taking cognizance under Section 190. The prosecution
comes to an end either on conviction or on acquittal of
the accused under Section 255. The prosecution could be
otherwise terminated in an eventuality of a discharge
under Section 227, on acquittal for non-appearance of
the complainant under Section 256 withdrawal of the
complaint under Section 257, release of accused under
Section 258, on compounding of the offence under
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Section 320 or acquittal under Section 232 of the Code.
Section 300 of the Code prohibits trial of a person for
the same offence.
xxx xxx xxx
10 As discussed, "on acquittal" as contemplated under
Article 74 means the only acquittal at the first instance and
that would be the starting point for limitation. In AIR 1922
Bombay 209 (Purushottam Vithaldas Shet v. Raoji Hari
Athavle) and 1967 Mah. LJ 1971 (Bhaskar Norhar Deshmukh
v. Kishanlal Sadasukhdas and another), this Court has held
that appeal or revision is of no consequence to suspend the
period of limitation. The time once began to run cannot be
deferred or kept in abeyance.
11. In view of this discussion. I hold that the starting point of
limitation for the accused for a civil action to claim
compensation for malicious prosecution would be from the
date of a acquittal as in the instant case 28.5.1984. The suit
presented on 5.12.1985 is clearly beyond the period limitation
under Article 74 of the Act. The learned Courts below have
rightly dismissed the same."
26 It is evident from the perusal of the above said judgments by
different High Courts that Article 74 prescribes limitation to commence
when the plaintiff is acquitted or the prosecution is otherwise terminated
and said period commences from the date of the judgment passed in original
proceedings/the first order of acquittal or termination. The institution of a
revision does not extend the period of limitation under Article 74.
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27 Thus applying the said ratio, the order of discharge in the
present case was passed on 18.12.1985 and as such, the limitation
prescribed for institution of the proceedings for damages for malicious
prosecution being one year, the same came to an end on 17.12.1986. The
suit having been instituted in September 1987 was clearly barred by
limitation. The other aspects on merits arising in the present case thus do
not require any further consideration, at this juncture.
28 The present appeal is accordingly allowed. Judgment and
decree dated 27.07.1990 passed by the Court of Sub Judge First Class,
Samrala, and the judgment and decree dated 03.11.1992 passed by the
Additional District Judge, Ludhiana, affirming the judgment passed by the
Court of Sub Judge First Class, Samrala, are set aside and the suit of the
respondent-plaintiff is ordered to be dismissed.
29 Office to draw up the decree.
30 Pending, misc. application(s), if any shall also stand(s)
disposed of accordingly.
April 03, 2024. (VINOD S. BHARDWAJ
raj arora JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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