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2023 DIGILAW 157 (TS)

Vijayendra Jain v. B. Swarnalatha Reddy

2023-02-17

A.SANTHOSH REDDY

body2023
ORDER : 1. This civil revision petition under Article 227 of the Constitution of India is directed against the order dated 01.05.2018 in I.A.No.969 of 2017 in O.S.No.452 of 2016, on the file of the I Senior Civil Judge, City Civil Court, Hyderabad, wherein the said application filed by the petitioner herein (defendant) under Order VII Rule 11(d) CPC seeking rejection of plaint, was dismissed. 2. Heard the learned counsel for the petitioner. None appears for the respondent despite service of notice. Perused the record. 3. The revision petitioner is defendant in a suit filed by the respondent-plaintiff in O.S.No.452 of 2016 for malicious prosecution. It is alleged by the respondent in the suit that the petitioner filed a complaint against her under Section 138 of the Negotiable Instruments Act in C.C.No.135 of 2011, on the file of the XIX Additional Chief Metropolitan Magistrate, Hyderabad and the same ended in acquittal on 17.02.2012. Thereafter, the petitioner preferred Crl.A.No.276 of 2012 before the VII-Additional Metropolitan Sessions Judge, Nampally and the same was dismissed by judgment dated 18.09.2015 and the respondent-plaintiff was acquitted. It is stated in the complaint that the respondent hails from a reputed family in Hyderabad. The respondent alleged that the petitioner herein filed false criminal cases, apart from filing civil suits for recovery of money. The petitioner made the respondent to appear before the Court on several adjournments and she suffered mental agony and incurred huge monetary loss and as such, she claimed an Rs.10 lakhs for damages and compensation from the petitioner herein for malicious prosecution. 4. On appearance, the petitioner filed an application in I.A.No.969 of 2017 under Order VII Rule 11 (d) CPC for rejection of plaint filed by the respondent-plaintiff in O.S.No.452 of 2016 stating that there are no merits in the contention of the respondent-plaintiff and the appeal filed against the order of acquittal is pending and the suit for compensation for malicious will remain stayed till the appeal filed by her against the order of acquittal is disposed of by the appellate Court. From the averments of the plaint, the suit filed by the respondent-plaintiff is barred by law, as the judgment of the trial court dated 17.02.2012 is on merits and the suit is filed on 26.06.2016. From the averments of the plaint, the suit filed by the respondent-plaintiff is barred by law, as the judgment of the trial court dated 17.02.2012 is on merits and the suit is filed on 26.06.2016. The limitation has to be computed from the date of the order i.e., 17.02.2012 and mere filing of the appeal cannot affect the original acquittal recorded and it cannot, therefore, suspend the period of limitation. 5. The respondent resisted the petition stating that the cause of action for filing the suit arose on 30.10.2015, the date of dismissal of Crl.A.No.276 of 2012 by the Additional Metropolitan Sessions Judge, Hyderabad and the date when the respondent-plaintiff got issued legal notice dated 30.10.2015. The limitation is calculated from the date when the appeal was disposed of, but not from the date of original judgment dated 17.02.2012 in C.C.No.135 of 2011. After calculating the limitation period, the suit is filed within limitation as per law and it is not barred by limitation and prayed to dismiss the application filed by the petitioner for rejection of the plaint. 6. On a consideration of the material on record and by relying on the decision of this Court in Subramanyam’s case (infra), the trial Court dismissed I.A.No.969 of 2017 holding that the period of limitation for filing the suit has to be counted from 18.09.2015 and, therefore, the suit which is filed on 26.02.2016 is within a period of one year from that date, and as such it cannot be said at that stage that the suit is barred by limitation and that the aspect of limitation is a mixed question of fact and law which has to be adjudicated during the course of trial. 7. Mr.Vedula Srinivas, learned senior counsel for the petitioner, vehemently contended that as per Article 74 of the Limitation Act of 1963, Schedule I prescribes one year of limitation for claiming compensation for malicious persecution and the time begins to run from the date of acquittal or the prosecution is otherwise terminated; that the suit filed by respondent-plaintiff is barred by limitation, as the trial Court acquitted the respondent by judgment dated 17.02.2012 on merits and the limitation would commence from that date and mere filing of the appeal will not suspend the period of limitation. Learned senior counsel placed reliance on the following decisions: i. NILKANTH BALIRAM SAWARKAR v. VIDYANAND BALKRISHNA OGALE, 2018 (5) BCR 146. ii. BHASKAR NARHAR DESHMUKH v. KISANLAL SADASUKHDAS AND ANOTHER, AIR 1968 BOMBAY 21 iii. SUBRAMANYAM v. GOVERNMENT EMPLOYEE COOPERATIVE HOUSING BUILDING SOCIETY LTD., CHITTOR, REP. BY ITS SECRETARY, 2017 (6) ALT 283 (SB) 8. Thus, on hearing learned counsel for the petitioner and on perusal of record, the points that arise for consideration are: i) what is the starting point for counting the commencement of limitation – whether it is the date of judgment of the trial Court or the date of disposal of the appeal or the date when the appeal was decided? ii) Whether the suit filed by the respondent for malicious prosecution is barred by limitation and the plaint is liable to be rejected under Order VII Rule 11(d) CPC? 9. A perusal of the record would disclose that the respondent-plaintiff filed by the suit for malicious prosecution alleging that the petitioner herein filed a complaint against her for the offence under Section 138 of the Negotiable Instruments Act vide C.C.No.135 of 2011 before the XIX Additional Chief Metropolitan Magistrate, Hyderabad and the same ended in acquittal on 17.02.2012. Subsequently, the petitioner preferred Crl.A.No.276 of 2012 before the VII-Additional Metropolitan Sessions Judge, Nampally and the same was dismissed by judgment dated 18.09.2015 on merits. Subsequently, the present suit is filed by the respondent-plaintiff on 26.02.2016. 10. In the decision in NILAKANTH (supra) relied on by learned senior counsel for the petitioner, the High Court of Bombay while considering the limitation aspect in a suit for malicious prosecution in similar facts and circumstances held at paragraph 15 that Article 74 of the Limitation Act is pari materia with Article 23 of the earlier Limitation Act. The period of limitation is one year and the time period of one year begins to run when the plaintiff is acquitted or the prosecution is otherwise terminated. It was further held in that case that since there was no order of acquittal, the second part applies, which states that the period begins to run when the prosecution is otherwise terminated. 11. The Limitation Act prescribes one year’s period of limitation for compensation for a malicious prosecution under Article 74 and the time begins to run when the plaintiff is acquitted or the prosecution is otherwise terminated. 12. 11. The Limitation Act prescribes one year’s period of limitation for compensation for a malicious prosecution under Article 74 and the time begins to run when the plaintiff is acquitted or the prosecution is otherwise terminated. 12. In BHASKAR NARHAR DESHMUKH (supra), a Division Bench of the Bombay High Court held thus: “Article 23 of the Limitation Act, Schedule I, prescribes one year's period of limitation for compensation for a malicious prosecution and the time begins to run "when the plaintiff is acquitted, or the prosecution is otherwise terminated". A[art from authority, the language of this provision would seem to be plain. In the case of an acquittal, it provides a terminal point from which the time begins to run, the terminal point being the acquittal. Now, an acquittal is an acquittal, whether or not the complainant files a revision application against the order of acquittal or an appeal or the State files an appeal. The position is not altered by the addition of Section 417(3) in the Code of Criminal Procedure which permits the complainant, in the case of a private complaint, to file an appeal to the High Court against an order of acquittal with its permission of leave. The original acquittal is still operative, and on the language of the provision, it is the date of acquittal from which time begins to run. The other alternative is that "the prosecution is otherwise terminated". Now, whenever a prosecution is otherwise terminated". Now, whenever a prosecution is started, it may not necessarily end in an acquittal. A prosecution may end, either in acquittal or conviction. If it is the first, then it is governed by the first part of this provision, and if it is the second, there can be no case for a suit. It may also result in an order of discharge, or in a dismissal of the complaint if the complainant is absent on the date fixed for the hearing of the complaint. The latter part of the provision "the prosecution is otherwise terminated" is intended to meet such cases, and here again, it is the end of that proceeding which is operative for all intents and purposes and governs the point of time when the period begins to run”. 13. The latter part of the provision "the prosecution is otherwise terminated" is intended to meet such cases, and here again, it is the end of that proceeding which is operative for all intents and purposes and governs the point of time when the period begins to run”. 13. The relevant Article for considering the question of limitation in the present case is Article 74 of the Limitation Act of 1963 which is pari materia with Article 23 of the earlier Limitation Act. The provisions of Article 74 of the Limitation Act, 1963 stipulates that the period of limitation is one year and the time period of one year begins to run when the plaintiff is acquitted or the prosecution is otherwise terminated. Thus, considering the aforesaid judgment and the provisions of the Limitation Act, it is held that once the plaintiff is acquitted or the prosecution is otherwise terminated, the period of limitation is triggered and that when time begins to run, it cannot be held in abeyance or suspended, only because an order of acquittal or otherwise terminating the prosecution has been made subject matter of challenge before the Higher Court. The appeal or revision does not operate in stopping or suspending the process of running of limitation. 14. In the case on hand, the trial Court by relying on the decision of this Court in Subramanyam’s case (supra) has wrongly come to conclusion that the period of one year has to be calculated from the date of disposal of the appeal and not from the date of acquittal of the case before the trial Court. The trial Court has wrongly read into the said decision which, in fact, was considered in respect of a civil suit while deciding the scope of Section 15 of the Limitation Act which is wholly irrelevant for just decision of this case. 15. In the instant case, the respondent-plaintiff was acquitted by judgment dated 17.02.2012 in a private complaint filed by the revision petitioner under Section 138 of the Negotiable Instruments Act in C.C.No.135 of 2011. Later, an appeal was preferred before the VII Additional Metropolitan Sessions Judge, Hyderabad in Crl.A.No.276 of 2012 and the same was dismissed on 18.09.2015 acquitting the respondent-plaintiff. Admittedly, the present suit is filed subsequent to dismissal of the criminal appeal, whereas the respondent-plaintiff was acquitted in C.C.No135 of 2011 on 17.02.2012. Later, an appeal was preferred before the VII Additional Metropolitan Sessions Judge, Hyderabad in Crl.A.No.276 of 2012 and the same was dismissed on 18.09.2015 acquitting the respondent-plaintiff. Admittedly, the present suit is filed subsequent to dismissal of the criminal appeal, whereas the respondent-plaintiff was acquitted in C.C.No135 of 2011 on 17.02.2012. The period of limitation is one year for filing the present suit for malicious prosecution and the said time period of one year began to run on 17.02.2012 when the respondent-plaintiff was acquitted by the trial Court. Admittedly, the present suit is filed on 26.02.2016 i.e., after the prescribed period of limitation as per Article 74 of the Limitation Act and as such, the suit is clearly barred by limitation. Therefore, the plaint in O.S.No.452 of 2016 is liable to be rejected under Order VII Rule 11(d) CPC, as barred by limitation. 16. In view of the above, point No.1 is answered, holding that the starting point for counting the commencement of limitation is the date of judgment of the trial Court and not the date of disposal of the appeal. Insofar as point No.2, applying the said principles to the facts and circumstances of the present case, the prosecution launched by way of suit in O.S.No.452 of 2016 is barred by limitation and liable to be rejected. 17. For the foregoing reasons, I am of the view that the impugned order suffers from infirmity and illegality and the trial Court committed jurisdictional error warranting interference by this Court in exercise of jurisdiction under Article 227 of the Constitution of India. 18. In the result, civil revision petition is allowed. The order dated 01.05.2018 in I.A.No.969 of 2017 in O.S.No.452 of 2016, on the file of the I Senior Civil Judge, City Civil Court, Hyderabad, is hereby set aside. Consequently, I.A.No.969 of 2017 stands allowed. There shall be no order as to costs. 19. Miscellaneous petitions, if any pending, stand closed.