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2019 DIGILAW 59 (TRI)

Chandan Debnath v. Suniti Nath

2019-11-25

ARINDAM LODH

body2019
JUDGMENT : 1. Heard Mr. D.C. Roy, learned counsel appearing for the appellant as well as Mr. P. Roy Barman, learned counsel appearing for the respondents. 2. At the time of admission, the following substantial question of law was formulated: "Whether the interpretation of the first appellate court in para 19 of the said judgment is tenable in law inasmuch as the effect of Section 12(4) of the Limitation Act, 1963 was not at all considered?" 3. The solitary issue involved in this second appeal is that, whether the institution of the suit for malicious prosecution by the appellate court is time barred? Both the courts below held that the suit instituted by the appellant is time barred. 4. The short facts are that, the respondent no.1 has filed a criminal case against the present appellant. The prosecution was carried on and the appellant was found to be acquitted. The judgment and order of acquittal was passed on 23.04.2014. Thereafter, the appellant had instituted a suit for malicious prosecution and for damage. From the order of the trial court, it is apparent that the suit was instituted on 23.6.2015. However, the suit was proceeded to be carried on. At the time of hearing, the matter was brought to the notice of the court that it is a time barred suit since the suit for malicious prosecution and damage has to be filed within a period of one year from the date of order of acquittal in terms of Article 24 of the Limitation Act. The suit was dismissed by the trial court. The appellant, being aggrieved, have preferred an appeal before the Additional District Judge, Kamalpur, Unakoti Judicial district. The first appellate court also found that the suit was time barred and the same was dismissed as not maintainable by the judgment and decree dated 12.09.2017 in connection with Title Appeal 04 of 2016. Being dis-satisfied with the said judgment and decree dated 12.09.2017 passed in Title Appeal 04 of 2016 by the first appellate court, the appellant has preferred the present second appeal. 5. The question of limitation is a pure question of fact and law. Article 76 of the Limitation Act speaks about the period of limitation for institution of suit for compensation for malicious prosecution. The period of limitation is prescribed as one year when the plaintiff is acquitted or the prosecution is otherwise terminated. 6. 5. The question of limitation is a pure question of fact and law. Article 76 of the Limitation Act speaks about the period of limitation for institution of suit for compensation for malicious prosecution. The period of limitation is prescribed as one year when the plaintiff is acquitted or the prosecution is otherwise terminated. 6. It is clear in the instant case that, the order of acquittal was passed on 23.04.2014 by the court of Judicial Magistrate, 1st class, Kamalpur but, the suit for compensation was instituted on 23.06.2015. The period of limitation, being a question of fact and law, can be taken up at any stage during proceeding of the suit, in view of section 3 of the Limitation Act. Section 3 of the Limitation Act reads as follows: "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; (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 the 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". 7. The Additional District Judge, Kamalpur, Unakoti Judicial District at para 19 of the judgment has observed thus: "The term 'Prosecution' is the institution and carrying on of the legal proceedings against a person. A prosecution exists until terminated in the final judgment of the Court, to writ, the sentence, discharge or acquittal. 7. The Additional District Judge, Kamalpur, Unakoti Judicial District at para 19 of the judgment has observed thus: "The term 'Prosecution' is the institution and carrying on of the legal proceedings against a person. A prosecution exists until terminated in the final judgment of the Court, to writ, the sentence, discharge or acquittal. In the case at hand, admittedly the plaintiff (appellant) was acquitted from the criminal case bearing no. GR 160 of 2012 by judgment and order dated 23.04.2014 and the suit for compensation for malicious prosecution was filed on arose out of the aforesaid criminal proceeding on 23.06.2015. On calculation it appears that the suit was filed after more than one year when the plaintiff (appellant) was acquitted. The learned trial court while deciding the issue no. 1 and 2 regarding maintainability of the suit and cause of action for filing of the suit it was observed thus as follows: "(e) Section 3 of the limitation Act casts a duty upon the court to dismiss a time barred suit even though the point of limitation has not been set up as a defence. Hence, I find it appropriate to discuss the point of limitation also while deciding the present issue. As per Article 74 of schedule of the Limitation Act, 1963, limitation period for filing of a suit praying for compensation for malicious prosecution is one year from the date of acquittal of the plaintiff or otherwise termination of prosecution. In the present case, as it appears from the plaint, he was acquitted by the court of Ld. Judicial Magistrate, 1st class, Kamalpur, Unakoti by judgment and order dated 23.04.2014. The present suit has been instituted on 23.06.2015 i.e. after more than one year of the judgment. Hence, it is barred by limitation." 8. In view of Article 74 of the Limitation Act and Section 3 of the Limitation Act, 1963, I find the finding arrived at by the courts below do not suffer from any infirmities. However, it is apt to take note of Section 12(4) of the Limitation Act, in view of the substantial question of law, as framed by this court, at the time of admission of this appeal. For convenience, Section 12(4) of the Limitation Act reads as follows: "12. However, it is apt to take note of Section 12(4) of the Limitation Act, in view of the substantial question of law, as framed by this court, at the time of admission of this appeal. For convenience, Section 12(4) of the Limitation Act reads as follows: "12. Exclusion of time in legal proceedings.- (1) xxxxxx (2) xxxxxx (3) xxxxxx (4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded. Explanation.-In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded". 9. In this regard, the Hon'ble Gauhati High Court in State of Assam vs. Gobinda Chandra Paul reported in AIR 1991 Gau 104 has observed that "it is now well settled that under section 12(2) of the Act, read with the explanation, the appellant is not entitled to exclude the time that had elapsed from the date of the judgment till signing of the decree prior tohis application for a copy thereof in computing the period of limitation prescribed for filing the appeal". Again, the Apex Court in State of Uttar Pradesh vs. Maharaja Narain, reported in AIR 1968 SC 960 , has observed that "in computing the period of limitation prescribed for an appeal, the day on which the judgment or order complained was pronounced and the time taken by the court available the copy applied for have to be excluded. There is no justification for restricting the scope of that provision". 9. Mr. P. Roy Barman, learned counsel appearing for the respondent no.1 has submitted that there is no pleading in the plaint explaining the details of time consumed by the appellant for obtaining the certified copy of the judgment and order of acquittal dated 23.04.2014 passed by the Judicial Magistrate, 1st class, Kamalpur, Unakoti Judicial District. 10. After perusal of the pleadings averred in the plaint, I find substantial force in the submission of learned counsel appearing on behalf of the respondents. In my considered view, pleadings are the foundation of each and every claims raised by the parties to the suit. No court can go beyond pleadings. 10. After perusal of the pleadings averred in the plaint, I find substantial force in the submission of learned counsel appearing on behalf of the respondents. In my considered view, pleadings are the foundation of each and every claims raised by the parties to the suit. No court can go beyond pleadings. On the basis of such foundation, evidences are laid to concretize the substance encrypted in plaint and written statement. There is nothing on record in regard to the time consumed by the appellant in obtaining the certified copy of the judgment and order of acquittal dated 23.04.2014 passed by the Judicial Magistrate, 1st class, Kamalpur, Unakoti Judicial District. 11. It is the obligation of the parties to disclose all the facts in respect of the plaint at the respective dates. Order VII Rule 1 of the CPC, postulates the particulars to be contained. Order VII Rule 1 of the CPC reads as under: "1. Particulars to be contained in plaint.- The plaint shall contain the following particulars- (a) the name of the Court in which the suit is brought; (b) the name, description and place of residence of the plaintiff; (c) the name, description and place of residence of the defendant, so far as they can be ascertained; (d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect; (e) the facts constituting the cause of action and when it arose; (f) the facts showing that the Court has jurisdiction; (g) the relief which the plaintiff claims; (h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and (i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits." 12. In the instant case, to get the benefit of section 12(4) of the Limitation Act, 1963, it was mandatory as well as obligatory to the plaintiff to assert all the facts and make specific statement relating to the time consumed for obtaining the certified copy of the judgment and order of acquittal dated 23.04.2014 passed by the Judicial Magistrate, 1st class, Kamalpur, Unakoti Judicial District. In absence of such statement, the benefit of section 12(4) of the Limitation Act shall not be available to the plaintiff. In absence of such statement, the benefit of section 12(4) of the Limitation Act shall not be available to the plaintiff. There must be some foundation against each and every steps which are necessarily to be described in the plaint or written statement by the respective parties. The court cannot presume or assume anything which is not stated in the pleading. 13. Having held so, the findings returned by the Courts below dismissing the suit of the plaintiff-appellant do not call for interference and thus, judgment and decree passed by the Ld. Trial court, upheld by the first appellate court remains unaltered and thus, further affirmed by this Court. Consequently, the present second appeal stands dismissed. However, there shall be no costs.