Allowed

Vijayendra Jain v. B. Swarnalatha Reddy

Telangana HC17 Feb 2023CRP/3520/2018

Case brief

AI extract

What is this about?

In a civil revision petition under Article 227, the High Court held that the limitation period for a suit for malicious prosecution begins from the date of acquittal, not the dismissal of an appeal. Consequently, the trial court was wrong in holding the suit within limitation, and the rejection of the plaint appeal was allowed as the suit was barred.

What did the court decide?

The impugned order dismissing the application for rejection of plaint is set aside; the application for rejection of plaint is allowed.

Vijayendra Jain Vs B. Swarnalatha Reddy — Civil Procedure and Limitation | Telangana HC (2023)

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TIIGHCOURT FOR THE^{STATE OF TELANGANA AT HYOERABAD}

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FRIDAY THE SEVENTEENTH^{DAY OF FEARUARY} TWO THOUSAND AND TVVENTY^THREE

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PRESENT

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THE HONOURABIf^{SRI Jt,STICEA.SANTHOSHREOOY}

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cwtL REVISION PETITION NO:3520OF²⁰¹⁸

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Petition under Article 227^{ot ltr- Constitutionof lndia,againstthe order in} 1.A.No.969 ot 2O17 in^{O.S.No.452of 2O16 dated 01.05.2018 on tfp file of theI} Senior Civil Judge, City Civil^{Court, Hyderabad.}

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Between:

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Viiayendra Jain, S/o. Parasmal Jain,^{Aged about 49 years, Occ.Business,} R/o. H. No. 3<-2316, Bharat Building.^{Kacfi iguda, Hyderabad.}

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...PETITIONER/ PETITIONER/DEFENOANT AND

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B. Swamalatha Reddy, Wo. B. Raghuma Reddy, ASed about4'l^years, Occ. Houserlvife, R/o. Flat No.303, Sri Suryodaya, Heavens Apaftments, SBI Colony, Moosarambagh, Malakpet, Hyderabad.

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...RESPONOENT/ RESPONDENTIPLAINTIFF

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IA l@: I 2018

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Petition under Section 151^{CPC prayingthatin} the^{cifcumStanoes} statedⁱⁿ the afiilavjt fibd in support of^{the petition, the HQh Court may be pleased to stay} of all further^proceedings in O.S.No.452^{of 2016 on the} fib^{of I SenbrCivil Judge,} City Civil Court, Hyderabad,^{pending disposalof the CRP.}

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Gounsel for the Petitione(s): SRl.^{VEDUI-A SRINIVAS}

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Counsel for the Respondents:^{M PRAVEEN KUMAR}

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TheGourt made the following:^ORDER

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THE HONOURABLE^{SRI JUSTTCEA'SANTHOSH REDDY}

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C.R.P.^{No.3520oF 20lE}

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ORDER:

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This civil^{revision petition under Article 2?7 ofthe} Constitution^{of tndiais directed against the orderdated0l'05'20[E} in t.A.No.969^{of 2017 in O'S'No'452of 2016'on the hle of the} I Senior Civil^{Judge, City Civil Court'Hyderabad' wherein the said} application^{filed by the petitioner herein (defendant) under} Onder VII^{Rule I l(d) CPC seeking rejection of plaint' was} dismissed.

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2.Heardtheleamedcounselforthepetitioner.Noneappears lor the respondent^{despite serviceof notice'Perusedthe record'}

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The revislon^{petitioner is deflendantin a suit filed by} the respondent-plaintiff^{in O'S'No'452 of 2016 for malicious} prosecution. It^{is alleged by the respondentin the suit that} the^{petitioner filed a comptaint against her under Section138 of} the Negotiable^{InstrumentsAct in C'C'No'135 of 20ll' on the} fileoftheXlXAdditionalChiefMetropolitanMagistrate, Hyderabad^{and the sarne ended in acquittalon l7 '02'2Q12'}

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)

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Thereafter, the petitioner preferred Crt.A.No.276 of 2012 before the Vll-Additional Merropolitan Sessions Judge, Nampally and the same was dismissed by judgment dated 18.09.2015 and the respondent-plainti_ff was acquitted. [t is stated in the compla.int that the respondent hails lrom a reputed family in Hyderabad. The respondent alleged that the petitioner herein filed lalse criminal cases, apart from filing civil suits for recovery oi money. The petitioner made the respondent 0o appear before the Court on several adjoummenb and she su f[ered menhl agony and incurred huge monetary loss afld as such, she claimed an Rs. l0 lakhs for damages and cotnpensation l-ronr the petitioner lrercin (br nralicious prosecution.

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On appearance, the petitioner filed an application in I.A.No.969 of 2017 under Order Vl.l Rule I I (d) CpC (br rejection of plainr filed by the respondenrplaintiff 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 rhe order of acquittal is pending and the suit for cornpensation for malicious will remain stayed till the appeal filed by her against the order ofacquittar is

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disposed of by^{the appellate Court' From the avermentsof the} plaint, the suit^{filed by the respondent-plaintiffis barred by law' as} the^{judgment of the trial court datd 17'02'2012 is on merits and} the zuit^{is filed on 26-M-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 recordedand it cannot'} therefore,^{suspendthe periodof limitation'}

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The respondent^{resistedthe petition stating that the causeof} acrion for filing^{the suit arose on 30.10.2015, the date o[dismissal} of Crl.A.No.2^{76 of 2012 by the Additional MetropolitanSessions} Judge, Hyd6rabad^{and the date whenthe respondent-plaintiffgot} issued legal^{notice dated30. 10'20t5'The limitation is calculated} from the date^{when the appeal was disposed of, but not fromthe} date of original^{judgment datedI 7'02'2012 in C'C'No'I 3 5 of 20 I I'} After calculating^{the limitation period, the suit is filed within} limitation^{as per law and it is not barredby limitationand prayed to} dismiss the^{application filed by the petitioner for rejection of the}

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ptaint.

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6- On a consideration of the material on record and by relying on the decision of this Court in Srbranunyam,s case (3 infra), the rrial Court dismissed I.A.No.96 9 of 2017 holding thar rhe period of timitation for filing the suit has to be counted from 18.09.2015 and, rherefore, rhe suit which is filed on 26.02.2016 is rvithin a period ofone year from that date, and as such it cannot be said at tlrat stage rhar the suit is barred by limitarion and thar the aspect ol limitation is a mixed question ofl facf and law rvhich has to be adjudicated,during the course ofhial.

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Mr.Vedula Srinivas, learned senior counsel for the petitioner, vehemently contended that as per Article 74 of the Limitation Act ol" 1963, Schedule I prescribes one year of Iimitation for claiming compensation for malicious persecution and the time begins to run from the date of acquittal or the prosecution is otherwise te.rminated; that the suit filed by respondent_plaintiff is barred by limitation, as the trial Court acquitted.the respondent by judgment d.ated 17.02.2012 on merits and the lirnitation would \ commence from that date and mere filing of the appeal will not

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suspend the^{period of limitation.t eamed senior counselplaoed}

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reliance on the^{followingdecisions:}

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NILKANTH^{BALIRAM SAWARKAR V.} VIDYANAND^{BALKRISHNAOGALE'}

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ll. BHASKAR^{NARHAR DESHMUKHV.} KISANLAL^{SADASUKHDASAND ANOTHER2}

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lll. SUBRAMANYAM^{V. GOVERNMENT EMPLOYEE} COOPERATIVE^{HOUSING BUILDINGSOCIETY} LTD., CHITTOR,^{REP. BY ITS SECRETARYJ}

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Thus, on hearing^{leamedcounsel for the petitioner and on} perusal of record, the^{pointsthat arise for considerationare:}

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i) what is the^{starting point for counting the} commen@ment of^limitation -^{whether it is the} date of^{judgment of the kial Court or the date of} disposal of the appeal^{or the date when the appeal} was decided?

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ii) Whether the suit filed^{by the respondent for} malicious^{prosecutionis baned by limitationand} the plaint is liabb to^{be rejec{ed under Order Vll} Rule 11(d) CPC?

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,20t8 (5) BCR 146 2AIR I968 BOMBAY 2I s20l 7 (6) AI-T 283 (SB)

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A perusal of the record would disclose that the respondent_ plaintiff filed by the suit for nralicious prosecurion alleging that the petitioner herein filed a complaint against her for the offence undei Section I38 of the Negotiable Insrruments Act vide C.C.No. 135 of 20ll before rhe XIX Additional Chief lv{etropolitan Magistrate, Hyderabad and the same errded in acquittal on 17.02.2012. Subsequently, the petitioner preferred Crl.A.No.276 of 2012 before the Vfi_Additional Metropolitan Sessions Judge, Nampally and the same waS dismissed by judgment dated 18.09.20 l5 on nrcrirs. Subsequently, rh e presenr suit is filed by the respondenr-plainti ff on 26.02.20 I 6.

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t0. ln the decision in NILAKANTH (l 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 I5 that Article 74 of the Limitation Act is pari materia

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with Article 23 of the earlier Limitation Act. The period of limitation is one year and the tirnc period ofone year begins to run whAn rhc plainrifl- is acquirred or rhe Prosecution is otherwise

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terminated. [t^{was further hetd in that case that since there was no} order of acquittal,^{the second part applies,which states that the} periodbeginstorunwhentheprosecutionisotherwiseterminat€d.

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I l. The Limitation^{Act prescribes one year's period of limitation} l-or cornpensation^{for a malicious prosecution under Article74 and} the time begins to run^{when the plaintiff is acquittedor the} prosecution is otherwise^terminated.

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t2. ln BHASKAR NARHAR^{DESHMUKH (2 supra),a}

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Division Bench of the Bombay^{High Court held thus:}

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"Article 23 of the Limitation Act, Schedule^I, prescribes one^yeads period of^{limitation for} compensation for a^{malicious prosecutionand the time} begins to run^{'Vdrcn the plaintiff is acquitted, or the} prosecution is otherwise terminated".^A{artfrom authority, the language^{of lhis provisionwould seemto} be plain. ln the case of^{an acquittal, it providesa} terminal^point from^{whichthe tinre begins to run' ttle} teflninal^point beirE the^{acquittal. Now, an acquittal is an} acquittal, wtEther or^{not the complainant files a revision} application against^{the orderof acquittalor an appeal or} (he State files an appeal. The position is not altered by the addition of^{Section417(3) in the Code of Criminal} Procedure which^{permitsthe complainant,in the case of} a private oomplaint,^{to file an appeal to the High Court} against an order^{of aoquittalwith its permission of leave.} The original acquittal^{is still operative. and on the}

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Ianguage of (he provision. it is the date of acquiftal from which time begins to run. other alternative is thst "the prosecution is o, terminatedl'' Now' whenever a prosecution o t** " o **t"" terminated"' Now, whenever a prosecution ," , end in an acqu.rar ^^{r.'J::fJt:1:ff;::,:;} acquittal or convictron lf it ir by rhe firsr part of this ,."r"lll i:: and T:: if it is 'is the second'soverned there can be no case ,or,'t'on' lt may also resulr in an order of disctrarge, o, ,n , ,t'" Jismissal of the complaint if the comprainant rs absent on t^u date fixed for the hearing of the compraint ,n, latter part of the provrsion ,,the prosecution i. otnenisee ttt''n"td" is intended ro meet such cases, and nur"' proceedins wtrich is ".fl:';: :ffiL:t::l lu.a" and governs the poir of time wten the period begins to run".

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The rclevanr Article lbr considering tfie question ol. lirnitation in the present case is Articre 74 0f thelimitation Act of 1963 which is pari materia wirh Articre 23 0f the earrier Limitation Act. The provisions o[ 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 rvhen the plaintiff is acquitted or the prosecution is other wrse terminated. Thus, comidering the a foresaid judgmenr and th c provisions ol the Limitarion Act, it is held that once the plaintill is acqurtted or the prosecution is

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otherwise terminated,^{the period of limitationis triggeredand} that when time^{begins to run' it cannot be held in abeyanceor} suspended, only^{becausean 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 suspendingthe process of running o[} limitation.

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[n the case on^{hand, the trial Courtby relyingon the decision} of this Court in Subramanyams^{case (3 supra) has wrongly come} to conclusion that the^{periodofone year has to be calculated from} the date oIdisposal ofthe^{appeal and not fromthe date ofacquittal} 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 declding^{the scope of Section15 of the Limitation} Act which is wholly irrelevant^{for just decisionof this case.}

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In the instant case,^{the respondent-plaintiffwasacquitted by} judgment dated 17.02.2012 in a private complaint filed by^the revision petitioner under^{Section138 of the Negotiable Instruments} Act in C.C.No. 135 ofl20 ll.^{Later,an appeal was preferred belore}

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the VII .{dditional Metropolitan Sessions Judge, Hyderabad lt1 Crl;A.No.276 of 2012 and the san:re was disrnissed on 1g.09.2015 acquitting the respondent_plaintiff Adminedly, rhe presenr suit is Iilcd subsequcnt [o disrnissal of the crirnirral appeal, whereas thc respondcnt_plaintiff was acqu itted IN C.C.Not35 of 20ll on 17.02.20t2 The period ol Iimitation is one year for filing the present su it lor rnalicious prosecutio n and the said tirne period of one year began to run on t7.02.2012 rvhen the respondentplaintiff was acquitted by the trial Court. Admittedly, the present suit is filed orr 2d.02.20 l6 i.c.. aftcr the pr.escr.ibed period ol. limitation as per Articlc 74 ol thc I_irn.iration Act and as such, the suit is elearly barred by limitation. Therefore. the plaint IN O.S.No.452 ot20l6 is liablc to be r.c.jccted under Order Vll Ruie I l(d) Crc, as barred by limitation

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t6. Ih view of the above. point No. I is answered, holding that the starti ng point lbr counting thc c()nl nlcncctnenI ol Iirnitation is the date ofjudgmcnt of the trial Cour.l. and nol lhe date oldisposal of the appeal. Insofar as poinr No.2, applying the said principles to the facts and circumsEnccs o I. thc present case, the prosecution 1 \

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launclred b_r, u,a_y ol' suit in O.S.No.452 of 2016 is barred by linrirarion and liablc lo bc rc.icrctcd.

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Ior rhc lbrcgoing re4sons, I am of the view that the inrpugned order sufl'crs lrom infirmity and illegality and the trial Coun contnrirrcd juris<iictional en.or warranting intcrf.crencc by this Court in excrcise of- jurisdiction undcr Article 22L of the Constiturion ol India.

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I8 ln rhc rcsulr, civil rcvision pctition is allowcd. .l.he ordcr datcd 0 t.05.20 tg in 1.A.No.969 of 201 7 in O.S.No .452 of 20t6, on thc Illc ot- Lhc I Scnior Civil Judge, City Civil Court, l_lyderabad, is hclcby' scr asidc. Corrsequcnlly. I.n.No.9 69 ol 2017 stands allowcd.^'l'herc shall be no order as to costs.

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t9 Miscclianeous pcritions. il.any pending, stand closed

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assrsrafrd/n[bfJl{l*, ./

IfiRUECOPYII

To,

SECTION OFFICER

3T [ill""?I#t:T, HE:h:1i J usrice A. sa n tos h Redd y

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[t^LR Copies 2.

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id !:trJfB:'fiiary Union or rndia Ministry or Law, rusrice and company ii;ffi""odvocates^Association CrG) Library, Higrh courr Buitdings

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The I Senior Civit Judge, Ciry Civil Court, Hyderabad. 5. One CC to SRt. VEDULA SF 6. one cc to sRr. M o^oraa*'"''os Advocate [opUCl 7. KUMAR Advocate [oPUC] Two cD cooies

HIGH COURT

ASRJ

DATED: 1710212023

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ORDER

CRP.No.3520 of 2018