Thus, the aforesaid judgments of this Court have consistently 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. It is clear from the said position of law that if the contentions raised on behalf of the appellant in the present case are accepted, it would amount to reading something more in Article 74 of the Act of 1963, than what is plainly stated therein, which is not acceptable. If the contentions are accepted, it would amount to reading the words "finally terminated" or "finally acquitted" in the said provision, which is wholly impermissible.
23. If there is a challenge to an order that terminates the prosecution, it would not amount to a suspension of time of the period of limitation that starts to run on an order being passed terminating the prosecution. Even if there is interim order passed in the proceeding challenging the order terminating the prosecution, it would only amount to stay of the suit or suspension of the proceedings in the suit for malicious prosecution preferred by the plaintiff. If the appeal/revision proceedings challenging an order terminating the prosecution wherein an interim order is operating, is dismissed, the proceedings in the suit for malicious proceedings could commence again. Conversely, if the appeal/revision proceeding challenging the order terminating prosecution is allowed, the suit will not survive. But, it does not mean that merely because a proceeding has been instituted challenging an order terminating the prosecution, a suit for malicious prosecution would not be maintainable. The period of limitation would start to run from the date of the order terminating the prosecution which in the present case was the order dated 05-11-2003 passed by this Court quashing the FIR and charge sheet. Any other interpretation would do violence to Article 74 of the Act of 1963, because it would amount to reading something more into the said provision than what it provides. The aforesaid judgments of this Court are binding and therefore, the first substantial question of law pertaining to limitation on which this appeal was admitted, is answered in favour of the respondent and against the appellant herein. Consequently, it is held that the appellate Court was justified in allowing the appeal of the respondent and dismissing the suit filed by the appellant for damages for malicious prosecution.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Second Appeal No. 464 of 2016
Decided On: 03.05.2018
Nilkanth Baliram Sawarkar Vs. Vidyanand Balkrishna Ogale
Hon'ble Judges/Coram:
Manish Pitale, J.
Citation: 2019(2) MHLJ 265
1. In this case, although the appellate Court has upheld the findings rendered by the trial Court on the question of malicious prosecution and the compensation granted in favour of the appellant, the suit has been dismissed by the appellate Court as being barred by limitation. As a result, although the findings on merits are rendered in favour of the appellant, solely on the ground of limitation, the suit itself has been dismissed.
2. The respondent in the present case approached the Police Station on 05-09-2002, making allegations against the appellant herein to the effect that he had encroached on the property of the respondent. After the appellant explained the factual position by showing Sale Deed by which he had purchased the property in question, the Police was satisfied that the dispute was of civil nature and that no cognizance was taken of the complaint made by the respondent. Thereafter, the respondent approached the Sub-Registrar and claimed that there was fabrication and forgery at the behest of the appellant in the aforesaid Sale Deed, upon which the Sub-Registrar issued notice to the appellant. The Sub-Registrar forwarded a letter to the Police Station in that regard and the respondent again approached the Police Station, as also the Assistant Commissioner of Police, upon which the Police registered Crime No. 107 of 2003 against the appellant Under Sections 447, 466, 467, 468 and 471 of the Indian Penal Code, 1860. The appellant was constrained to approach the Sessions Court for grant of Anticipatory Bail, which was granted on the condition that the appellant would appear before the Police Station on alternate days.
3. In this situation, as the appellant felt that he was unnecessarily facing humiliation, he filed Criminal Writ Petition No. 248 of 2003, before this Court for quashing of First Information Report [FIR]. During the pendency of the said Writ Petition, charge-sheet was filed in the Court of Chief Judicial Magistrate, which was registered as Criminal Complaint Case No. 216 of 2003, against the appellant.
4. On 05-11-2003, the aforesaid petition filed by the appellant was allowed and the FIR as well as the charge-sheet were quashed by this Court. Thereafter, on 29-11-2003, the Court of Chief Judicial Magistrate dropped the proceedings against the appellant, in the light of the aforesaid order of this Court.
5. The respondent filed a Special Leave Petition before the Hon'ble Supreme Court against the order passed by this Court for quashing of FIR and charge-sheet. On 06-02-2004, notices were issued in the aforesaid Special Leave Petition. Thereafter, on 03-09-2004, the Hon'ble Supreme Court dismissed the Special Leave Petition. On 24-11-2004, the appellant filed Special Civil Suit No. 818 of 2004, before the Court of Joint Civil Judge Senior Division, Nagpur (trial Court) for damages for malicious prosecution and defamation against the respondent. In this suit, along with his written statement, the respondent filed a counter claim praying for a direction to the appellant to handover the possession of encroached area of land after due enquiry and for a separate enquiry into mesne profit. The trial Court considered the suit and the counterclaim and by its judgment and order dated 27-08-2010, the trial Court partly decreed the suit and dismissed the counter claim filed by the respondent. The trial Court gave findings in favour of the appellant in respect of the damages for malicious prosecution and that there was no encroachment made by him as alleged by the respondent. On this basis, the trial Court directed the respondent to pay an amount of Rs. 4,40,000/- along with interest at the rate of 12% per annum to the appellant from the date of suit till its actual payment.
6. Aggrieved by the same, the respondent filed two appeals one against the dismissal of his counter claim and the other against the suit of the appellant being partly decreed. Due to valuation, the appeal against dismissal of the counter claim was filed in this court as First Appeal No. 357 of 2011 and the appeal against the aforesaid decree was filed as Regular Civil Appeal No. 424 of 2012 before the Court of District Judge, Nagpur (appellate Court).
7. On 21-07-2011, this Court heard and dismissed the aforesaid First Appeal No. 357 of 2011, pertaining to the counter claim filed by the respondent. A specific question/point for determination was framed by this Court while dismissing the appeal concerning as to whether the respondent had been able to prove his counter claim for removal of alleged encroachment made by the appellant. This Court found that there was no merit in the said appeal and dismissed the same, thereby confirming the dismissal of counter claim of the respondent.
8. By the impugned judgment and order dated 27-06-2016, the appellate Court has allowed the appeal of the respondent solely on the ground of limitation, although holding in favour of the appellant on other points, including the quantum of damages determined by the trial Court. The appellate Court has referred to the dismissal of the aforesaid First Appeal by this Court pertaining to the question of counter claim of the respondent. On the question of entitlement for damages towards malicious prosecution and the quantum of such damages, the appellate Court has found in favour of the appellant herein but, on the question of limitation, by applying Article 74 of the Limitation Act, 1963, [for short, Act of 1963'], the appellate Court has found that the suit for malicious prosecution filed by the appellant was beyond the period of limitation of one year and that on this sole ground the suit itself deserved to be dismissed.
9. Aggrieved by the impugned judgment and order of the appellate Court, the present appeal has been filed. On 26-07-2017, this Court admitted the present appeal on the following substantial questions of law :-
"1] Whether adjudication by the first appellate Court on the question of limitation is in accordance with law?
2] In the light of adjudication of First Appeal No. 357 of 2011, whether the first appellate Court could have set aside the decree of the trial Court in its entirety?"
10. Shri Kothari, learned Counsel appearing on behalf of the appellant, has submitted that the appellate Court has erred in holding that the suit filed by the appellant was barred by limitation. He submitted that although the order quashing the FIR and charge-sheet against the appellant was passed on 05-11-2003, the period of limitation could not be said to have been triggered on the said date because a Special Leave Petition was filed by the respondent before the Hon'ble Supreme Court, which remained pending and it was ultimately dismissed on 03-09-2004. According to him, since Article 74 of the Act of 1963 provides for period of one year limitation when the prosecution is otherwise terminated, during pendency of the Special Leave petition before the Hon'ble Supreme Court, it could not be said that the prosecution stood terminated and therefore, the period of limitation of one year was not triggered under the aforesaid Article on 05-11-2003, when this Court passed the order quashing the FIR and Charge-sheet. It was alternatively submitted that the Court of Chief Judicial Magistrate passed an order on 29-11-2003, dropping the proceedings against the appellants and that if the said date of 29-11-2003 was taken into consideration, the suit in the present case filed by the appellant on 24-11-2004, was clearly within the period of limitation of one year under Article 74 of the Act of 1963. It was contended that the appellate Court failed to take into consideration these aspects while allowing the appeal and dismissing the suit of the appellant, solely on the ground of limitation.
11. On the second question of law framed by this Court, the learned Counsel submitted that the appellate Court could not have set aside the decree of the trial Court in its entirety in the present case, because this Court while dismissing First Appeal No. 357 of 2011, by an order dated 21-06-2011, had already confirmed the dismissal of the counterclaim and by setting aside the decree of the trial Court in the impugned judgment and order, a situation has arisen where the claim of the respondent as regards his counterclaim would stand revived. It was submitted that the impugned judgment and order of the appellate Court was clearly in conflict with the aforesaid order dated 21-07-2011 passed by this Court in First Appeal No. 317 of 2011. On this basis, it was contended that the respondent could not have filed two separate appeals to challenge the judgment and decree of the trial Court and that only one single appeal ought to have been filed. It was contended that therefore, the appeal filed by the respondent before the appellate Court ought to have been dismissed. Reliance was placed on the judgments in the case of B. Madan Mohan Singh v. B. Ram Sundar Singh, reported at MANU/UP/0004/1930 : AIR 1930 Allahabad 326, (Order dated 13-12-1937 by Full Bench of Madras High Court in Second Appeal No. 776 of 1933 (Soora Kulsekara Chetty and another v. Tholasingam Chetty), Sk. Mehtab s/oi Sk. Farid v. Balaji S/o. Krishnarao and another, reported at MANU/NA/0150/1945 : A.I.R. (33) 1946 Nagpur 46 and Shankar Masu Dokare v. Shobha Subhash Dokare and another, reported at MANU/MH/2257/2014 : 2015(2) Mh. L.J. 263.
12. Per contra, Shri Khare, learned Counsel appearing for the respondent, has submitted that the appellate Court was justified in allowing the appeal and holding that the suit filed by the appellant was barred by limitation under Article 74 of the Act of 1963. It was contended that the words "the prosecution is otherwise terminated" used in the aforesaid Article show that the period of limitation was triggered in the present case on 05-11-2003, when this Court quashed the FIR and charge sheet. It was contended that filing of Special Leave Petition, the pendency thereof and its dismissal by the Hon'ble Supreme Court on 03-09-2004, were factors that were not relevant for determining the period of limitation in the present case. It was submitted that if the contention raised on behalf of the appellant was accepted it would mean that the period of limitation would be triggered only after the appeal or other modes for challenging the order terminating a prosecution, were exhausted. This would be reading something in the said Article which did not exist. It was contended that there were judgments of this Court covering the issue in favour of the respondent and that no error was committed in the impugned judgment and order.
13. As regards the second question of law pertaining to the impugned judgment and order, setting aside the decree of the trial Court in its entirety, it was submitted that a perusal of the two separate appeals filed by the respondent and the prayers made therein, would make it amply clear that the appeal in which the impugned judgment and order was passed by the appellate Court concerned only the question of decree passed in the suit for damages for malicious prosecution instituted by the appellant and that it had nothing to do with the counter claim raised by the respondent. It was submitted that the issue of counter claim had already attained finality by dismissal of First Appeal No. 357 of 2011 by an order dated 21-07-2011 passed by this Court. It was contended that filing of two separate appeals, one in respect of the decree granted in favour of the appellant and the other concerning dismissal of counter claim, was permissible and that it could not be said that it was fatal to the cause of the respondent. Reliance was placed on the judgments of this Court in the case of Bhaskar Narhar Deshmukh v. Kisanlal Sadasukhdas and another, reported at MANU/MH/0146/1968 : AIR 1968 Bombay 21, Vasantrao Bapurao Ghiddarwar v. Raghunathrao Anantrao Deshmukh and another, reported at MANU/MH/0585/1989 : 1990(1) Mh.L.J. 491, Malabai S/o. Pralhad Bhoyar v. Sumanbai w/o Narayanrao Dubey, reported at 2007(1) All MR 102 and the judgment of Kerala High Court dated 28-01-2015 in R.S.A. No. 14 of 2015 (Girija and others v. Rajan and another).
14. The relevant Article for considering the question of limitation in the present case is Article 74 of the Act of 1963, which reads as follows :-
15. It 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. In the present case, 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.
16. In the present case, the dates are not in dispute. On 05-11-2003, this Court passed the order quashing the FIR and Charge-sheet that was filed against the appellant. The prosecution, therefore, stood terminated on the said date. The suit for damages for malicious prosecution was admittedly filed on 24-11-2004. If the aforesaid date of 05-11-2003 is taken as the starting point when the said period of one year started to run under Article 74 of the Act of 1963, the suit filed on 24-11-2004, was clearly barred by limitation. But, the appellant contends that the prosecution in the present case could not be said to have been terminated by an order of this Court dated 05-11-2003, because the respondent had filed a Special Leave Petition before the Hon'ble Supreme Court challenging the said order, wherein notices were issued on 06-02-2004. It was only on 03-09-2004, after hearing the parties and upon perusal of the charge sheet that the Hon'ble Supreme Court dismissed the Special Leave Petition filed by the respondent. According to the appellant herein, the period during which the Special Leave Petition was pending before the Hon'ble Supreme Court, it could not be said that the prosecution against the appellant stood terminated and that therefore, the period of limitation started from 03-09-2004, when the Special Leave Petition was dismissed by the Hon'ble Supreme Court. In this regard, reliance was placed on judgments of the Allahabad High Court in the case of B. Madan Mohan Singh (supra), Full Bench judgment of the Hon'ble Madras High Court in the case of Soora Kulasekara Chetty and another (supra) and the judgment of the Nagpur High Court in the case of Sk. Mehtab (supra).
17. In the said judgments, it has been held that when an order of discharge of the accused is challenged by way of revision or otherwise before the higher Court, it cannot be held that the prosecution had otherwise terminated, because during the pendency of such proceedings challenging the order of discharge, no action for malicious prosecution could be said to have been maintainable as the proceedings were yet to be finally terminated.
18. On the other hand, in the judgments of this Court relied upon by the respondent in the case of Bhaskar (supra), Vasantrao (supra) and Malabai (supra), it has been held that once an order of acquittal or discharge is passed by the Court, it amounts to termination of the prosecution as the period of limitation under Section 74 of the Act of 1963 is triggered from the date of such an order. Once the period of limitation starts to run from the date of such order, it cannot be suspended or halted only because such an order has been made subject matter of challenge before a higher Court by the aggrieved party. The relevant portion of the judgment of Division Bench of this Court in the case of Bhaskar (supra) reads as follows :-
"3. 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". Apart 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 or 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 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 later 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.
4. In our view the first part of this provision is indicative of the meaning to be attached to the latter part, and it could only mean the first terminal point when the prosecution ends in the first Court, for the reason that the effect of such an ending is the same as in the case of an acquittal. This is the view expressed in (MANU/MH/0123/1909 : ILB 47 Bom 28 : AIR 1922 Bom 209). In this case, the plaintiff was discharged on November 28, 1918. The defendant made an application in revision against the order of discharge but the application was rejected in March, 1919. The plaintiff raised the suit on March 10, 1920 to recover damages from the defendant for malicious prosecution. The Court held that the cause of action arose on the order of discharge being passed in plaintiff's favour and once the period began to run, it would not be suspended because further proceeding might be taken either by Government or by the complainant in order to get the order of discharge set aside. The Court followed the decision in Venu v. Coorya Narayan, (1881) ILR 6 Bom 376, where similarly the Court held that the prosecution terminated on the order of discharge being made in favour of an accused person. Similar view was taken in Narayya v Seshayya (1900) ILR 23 Mad 24."
19. Thereafter, the Division Bench of this Court in the aforesaid judgment has distinguished the judgments of the Allahabad High Court, Madras High Court and Nagpur High Court relied upon in the present case on behalf of the appellant. It has been further held by the Division Bench of this Court in the aforesaid case as follows :-
"10. No doubt, it is true that the words in the first part "when the plaintiffs acquitted" cannot be divorced from the words "or the prosecution is otherwise terminated". If the word "finally" cannot be added to these words, then it must be apparent that the word "acquitted must give colour to the words "otherwise terminated and if time begins to run from the date of acquittal, by the trial Court, then equally where the prosecution ends otherwise, time must begin to run. This has been held by the decision in MANU/MH/0123/1909: ILR 47 Bom 28 : (AIR 1922 Bom 209) which followed an earlier decision of this Court in (1881) ILR 6 Bom 376."
20. The said judgment of the Division Bench of this Court has been followed in the case of Vasantrao (supra) by this Court, wherein it has been held as follows :
"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 MANU/MH/0123/1909 : AIR 1922 Bombay 209 (Purushottam Vishaldas Bhat v. Rooji Hari Athavle) and MANU/MH/0146/1968 : 1967 Mah.L.J. 1971 (Bhaskar Narhar Deshmukh v. Kisanlal 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."
21. The said judgment of Vasantrao (supra) has been followed by this Court in the case of Malabai (supra), wherein it has been held as follows :-
"11. This Court, therefore considers it appropriate to respectfully agree with the view taken by this Court in aforesaid case of Vasantrao Chiddarwar as incorporated in Para 10, to the effect that once the starting point of limitation for the accused for a civil action to claim compensation for malicious prosecution begins, it does not thereafter stop. The appeal or Revision does not operate in stopping the clock of limitation or suspending the process of running of limitation. Time once begin to run, save and except provided for by law, the running of limitation cannot be deferred, or kept in abeyance. This Court is, therefore, unable to agree with the submissions that there is a contradictory view of different Benches of this Court."
22. Thus, the aforesaid judgments of this Court have consistently 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. It is clear from the said position of law that if the contentions raised on behalf of the appellant in the present case are accepted, it would amount to reading something more in Article 74 of the Act of 1963, than what is plainly stated therein, which is not acceptable. If the contentions are accepted, it would amount to reading the words "finally terminated" or "finally acquitted" in the said provision, which is wholly impermissible.
23. If there is a challenge to an order that terminates the prosecution, it would not amount to a suspension of time of the period of limitation that starts to run on an order being passed terminating the prosecution. Even if there is interim order passed in the proceeding challenging the order terminating the prosecution, it would only amount to stay of the suit or suspension of the proceedings in the suit for malicious prosecution preferred by the plaintiff. If the appeal/revision proceedings challenging an order terminating the prosecution wherein an interim order is operating, is dismissed, the proceedings in the suit for malicious proceedings could commence again. Conversely, if the appeal/revision proceeding challenging the order terminating prosecution is allowed, the suit will not survive. But, it does not mean that merely because a proceeding has been instituted challenging an order terminating the prosecution, a suit for malicious prosecution would not be maintainable. The period of limitation would start to run from the date of the order terminating the prosecution which in the present case was the order dated 05-11-2003 passed by this Court quashing the FIR and charge sheet. Any other interpretation would do violence to Article 74 of the Act of 1963, because it would amount to reading something more into the said provision than what it provides. The aforesaid judgments of this Court are binding and therefore, the first substantial question of law pertaining to limitation on which this appeal was admitted, is answered in favour of the respondent and against the appellant herein. Consequently, it is held that the appellate Court was justified in allowing the appeal of the respondent and dismissing the suit filed by the appellant for damages for malicious prosecution.
24. The contention raised on behalf of the appellant that period of limitation commenced when the Chief Judicial Magistrate passed order dated 29-11-2003 dropping the proceedings, is also not sustainable. This is because the prosecution stood terminated when order dated 05-11-2003 was passed by this Court quashing the FIR and chargesheet. The order of the Chief Judicial Magistrate did not terminate the prosecution. Therefore, there is no substance in the said contention and it is rejected.
25. As regards the question, as to whether the appellate Court by the impugned judgment and order could have set aside the decree of the trial Court in its entirety, in the light of adjudication of First Appeal No. 357 of 2011, it will have to be appreciated as to what were the grievances raised by the respondent in the two appeals filed by him. First Appeal No. 357 of 2011, which was dismissed by this Court by an order dated 21-07-2011, pertained to the question of dismissal of his counter claim. The appeal in which the impugned judgment and order has been passed by the appellate Court concerned the grievance regarding decree passed by the trial Court in favour of the appellant in the suit for malicious prosecution. A perusal of order dated 21-07-2011, passed by this Court in First Appeal No. 357 of 2011 shows that in the opening paragraphs itself, this Court has recorded that the said appeal was filed by the respondent against the dismissal of counter claim by the trial Court. The point for determination framed by this Court specifically concerns only the question of counter claim raised by the respondent. The entire discussion in the said order dated 21-07-2011 passed by this Court concerns the question of counter claim and the issue of encroachment raised by the respondent and ultimately the appeal has been dismissed by this Court.
26. Similarly, perusal of impugned judgment and order shows that the appellate Court has discussed and concerned itself with only the issue of decree passed in favour of the appellant in respect of the claim of damages for malicious prosecution. In the impugned judgment and order, the appellate Court has made a reference in paragraph 10 and it has been held therein that in First appeal No. 357 of 2011, this Court only dealt with the issue of counter claim and nothing in regard to decree of damages for malicious prosecution was taken up for consideration by this Court while dismissing First Appeal No. 357 of 2011. Thereafter, the appellate Court has proceeded to consider the points pertaining to the merits of the decree for damages for malicious prosecution passed in favour of the appellant. Having held in favour of the appellant on merits, the appellate Court has found that on the question of limitation, it was evident that the suit itself was barred by limitation under Article 74 of the Act of 1963, and on that basis the appeal of the respondent was allowed and the suit was dismissed. While passing the impugned order, in the operative portion, the appellate Court has indeed said that the impugned judgment and decree is set aside. But, the entire consideration of the grievance of the respondent in the impugned judgment and order of appellate Court shows that only the point of validity of decree for damages for malicious prosecution was under consideration in the impugned judgment and order and that therefore, the operative part concerned only that aspect of the impugned judgment and decree. Even otherwise when the judgment and decree of the trial Court pertaining to the dismissal of counter claim had been already considered by this Court in First Appeal No. 357 of 2011, wherein by an order dated 21-07-2011, the decree of dismissal of counter claim had been confirmed, only the part of the decree of the trial Court pertaining to grant of damages for malicious prosecution in favour of the appellant survived, which in turn stood set aside by the impugned judgment and order, by dismissal of the suit on the ground of limitation.
27. On the question of whether the respondent could not have at all filed two separate appeals to challenge the judgment and decree of the trial Court whereby the suit was partly allowed and counter claim was dismissed, reliance has been placed on behalf of the appellant on the judgment of this Court in the case of Shankar Dokare (supra). A perusal of the aforesaid judgment shows that it has been passed on the facts and circumstances involved in that case. This Court was considering the case in the context of amendment application moved for incorporating a prayer in the context of dismissal of counter claim, in an appeal that had been already filed against judgment and decree of the trial Court decreeing the suit and dismissing the counter claim. It was found by this Court in the aforesaid case that the controversy revolved around the suit property and the reliefs claimed by the plaintiff in the same and the relief claimed by the defendants could not be said to be different. It was held that in the facts of that case, filing of one appeal where there was one trial and one finding could not be said to be in contravention of any provisions of the Code of Civil Procedure, 1908. In that context, it does not appear that the ratio of the aforesaid judgment is that in every case where there is a decree passed by a trial Court decreeing the suit and dismissing the counter claim, only one appeal can be filed or that filing of two appeals would be contrary to law.
28. In the present case, the trial Court partly decreed the suit for damages for malicious prosecution in favour of the appellant, while dismissing the counter claim of the respondent on the question of alleged encroachment of the property. A perusal of the prayer clause of Regular Civil Appeal No. 424 of 2012, wherein the impugned judgment and order has been passed by the trial Court shows that the respondent specifically prayed for setting aside of the impugned judgment and decree of the trial Court and for dismissal of the suit for damages for malicious prosecution filed by the appellant. Although the grounds raised in the appeal pertained to both decretal of suit for damages for malicious prosecution instituted by the appellant and regarding the dismissal of the counter claim, the prayer made was specific and the appellate Court in the impugned judgment and order considered only the aspect of the suit of the appellant being partly decreed. In the facts of the present case, it becomes evident that the appeal being First Appeal No. 357 of 2011 filed by the respondent pertained only to the question of dismissal of counter claim and that Regular Civil Appeal No. 424 of 2012, wherein the appellate Court passed the impugned judgment and order, concerned only the question of decree passed in the suit for damages for malicious prosecution in favour of the appellant. Therefore, the operative portion of the order in the impugned judgment and order setting aside the decree passed by the trial Court has to be read in the context of the grievance raised in Regular Civil Appeal No. 424 of 2012 and the consideration of the same in the impugned judgment and order. On being so read, it becomes clear that by the impugned judgment and order only the decree passed by the trial Court partly decreeing suit for damages for malicious prosecution has been set aside. The decree of the trial Court pertaining to dismissal of counter claim has not been touched, as it already stood confirmed by dismissal of First Appeal No. 357 of 2011 by this Court.
29. In this backdrop, second question of law framed by this Court while hearing the appeal is also answered in favour of the respondent and against the appellant.
30. Hence, no fault can be found with the finding rendered by the appellate Court in the impugned judgment and order that the suit filed by the appellant was barred by limitation under Article 74 of the Act of 1963, and that it deserved to be dismissed. Accordingly, this appeal is dismissed and the judgment and order passed by the appellate Court is confirmed. There shall be no order as to costs.
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