Jasleen Kaur v. Sarvjeet Singh

1. The present Petition has been filed on behalf of the Petitioner under Section 115 of the Code of Civil Procedure, 1908 [hereinafter referred to as “CPC”] against the order dated 24.08.2023 passed by learned ADJ-02, West Delhi District, Tis Hazari Courts, Delhi [hereinafter referred to as “Impugned Order”]. By the Impugned Order, the Application under Order VII Rule 11 of the CPC filed by the Petitioner (Respondent before the learned Trial Court) has been dismissed by the learned Trial Court.

2. A Coordinate Bench of this Court had by an order dated 15.05.2024 directed that the proceedings before the learned Trial Court be kept in abeyance.

3. Briefly, the facts are that a Suit for recovery of damages in the sum of Rs.10 lacs on account of malicious prosecution was filed by the Respondent/Plaintiff against the Petitioner/Defendant. It was stated therein that on 23.08.2015, the Respondent/Plaintiff filed a complaint alleging that the Respondent/Plaintiff had made sexually suggestive and lewd statements, which made her feel uncomfortable and threatened. 3.[1] Pursuant to the complaint, the proceedings were initiated and the Respondent/Plaintiff faced a trial for offences punishable under Section 354A/506/509 of the Indian Penal Code, 1860. The Respondent/Plaintiff was acquitted by the Court of learned MM, Mahila Courts, Tis Hazari, Delhi by judgment dated 28.09.2019.

4. After being acquitted, the Respondent/Plaintiff filed a Civil Suit seeking damages for malicious prosecution stating that the prosecution initiated by the Petitioner/Defendant was intended with malice and without any reasonable and probable cause. It was stated in the Plaint that on account of the suffering and agony caused to the Respondent/Plaintiff as well as loss of goodwill, the Respondent/Plaintiff sought damages in the sum of Rs.10 lacs due to mental harassment and loss of reputation caused by the acts of the Petitioner/Defendant. 4.[1] The Written Statement was filed by the Petitioner/Defendant. Along with the Written Statement, an Application under Order VII Rule 11 of the CPC was filed seeking rejection of the Plaint. The said Application was dismissed by the Impugned Order dated 24.08.2023, which is the subject matter of challenge in the present Petition.

5. Learned Counsel for the Petitioner/Defendant has contended that the Suit as filed by the Respondent/Plaintiff is without any merit and is to be dismissed since it does not disclose any cause of action. In addition, it is submitted that the Plaint is barred by limitation. It is stated that the cause of action to file the Suit arose in the year 2015 and the Suit was filed on 25.09.2020. It is contended that as per the Limitation Act, 1963 [hereinafter referred to as the “Limitation Act”], the limitation period for such a Suit is one year and thus the Suit filed on 25.09.2020 is barred by limitation. 5.[1] It is further contented by the learned Counsel for the Petitioner/Defendant that although the Suit sets out that the Suit is for malicious prosecution, the Plaint does not reflect that it arises as a result of malicious prosecution, since the prayers in the Plaint are prayers for a decree of damages in the sum of Rs.10 lacs along with interest at the rate of 12% per annum. 5.[2] Although other objections were taken under the Application under Order VII Rule 11 of the CPC, the Petitioner/Defendant has confined his arguments to two pleas, firstly that there is no cause of action to file the Suit and secondly, that the Suit as filed is barred by limitation.

6. Learned Counsel for the Respondent/Plaintiff on the other hand has contended that so far as concerns the contention of the Petitioner/Defendant that the Suit has no cause of action and has only been filed for recovery of damages, the same is not borne out from the Plaint. Learned Counsel seeks to rely upon several prayers of the Plaint including the title of the Plaint to submit that the Suit has in fact been filed for malicious prosecution. 6.[1] It is further contended by the learned Counsel for the Respondent/Plaintiff that the limitation as is set out in Article 74 of the Schedule to the Limitation Act provides that a suit seeking damages for malicious prosecution can be filed within one year from when the plaintiff is acquitted or the prosecution is otherwise terminated. Given that the Petitioner/Defendant was acquitted on 28.09.2019, the Suit filed on 03.10.2020 was within the prescribed time in view of the judgment of the Supreme Court in In Re Cognizance for Extension of Limitation[1]. 6.[2] Thus, it is contended that the Application filed by the Petitioner/Defendant was rightly dismissed by the learned Trial Court.

7. The contentions raised by the Petitioner/Defendant before this Court were also raised by the Petitioner/Defendant before the learned Trial Court. The learned Trial Court examined the Plaint and found that the averments that criminal prosecution was lodged without reasonable cause form part of the Plaint. It was further held that the Plaint when read as a whole raises a definitive cause of action to institute the present Suit. 7.[1] The learned Trial Court also gave a finding that the prescribed time period to be calculated for filing such Suit, would be calculated from the date of the acquittal, which is 28.09.2019 and that the present Suit which is filed on 03.10.2020 would be covered by the extension of limitation as provided In Re Extension of Limitation case. It is apposite to extract paragraph 5 of the Impugned Order below:

Whether or not the plaintiff will be able to lead evidence to prove his assertion will be a matter of trial. The plaint when read as a whole raises a definite cause of action to institute the present suit. As far as the issue of limitation is concerned, the plaintiff was acquitted on 28.09.2019 and present suit has been filed on 03.10.2020. As per Article 74 of The Schedule of the Limitation Act 1963, a suit for seeking compensation for malicious prosecution must be filed within one year from when the plaintiff is acquitted or the prosecution is otherwise terminated. No doubt, the suit has been filed after one year from date of acquittal of the plaintiff but the limitation to institute the present suit expired during the height of pandemic. Hon’ble Apex Court in Suo Motu [sic: moto] Writ Petition (C) No.3 of 2020 vide order dated 10.01.2022 had extended the period of limitation for all proceedings w.e.f. 15.03.2020 till 28.02.2022. Present suit is thus covered by the order of Hon'ble Apex Court referred to above since the plaint was instituted on 3.10.2020 whereas the limitation expired on 27.09.2020. The present suit would thus be treated as having been filed within the period of limitation.” [Emphasis Supplied]

8. The Supreme Court in the case of Shakti Bhog Food Industries Ltd. v. Central Bank of India[2], while relying on the judgment of the Supreme Court in Saleem Bhai v. State of Maharashtra[3], has held that the cause of action for filing a suit would consist of a bundle of facts and the factum of the suit being barred by limitation, ordinarily, would be a mixed question of fact and law for which invoking the provisions of Order 7 Rule 11 CPC is ruled out. It has further been held that whether the plea taken by the plaintiff is genuine or legitimate would be a mixed question of fact and law and which would require a response of the defendant. The averments of the written statement in that behalf in an application under Order VII Rule 11 of CPC are wholly irrelevant for the prayers of rejection of the plaint. The relevant extract of the Shakti Bhog Food Industries case is reproduced below: “8…

11. This position was explained by this Court in Saleem Bhai v. State of Maharashtra [Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557], in which, while considering Order 7 Rule 11 of the Code, it was held as under: (SCC p. 560, para 9) ‘9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit — before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.’ It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property [Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100]… xxx xxx xxx xxx

22. It is well-established position that the cause of action for filing a suit would consist of bundle of facts. Further, the factum of the suit being barred by limitation, ordinarily, would be a mixed question of fact and law. Even for that reason, invoking Order 7 Rule 11 CPC is ruled out. In the present case, the assertion in the plaint is that the appellant verily believed that its claim was being processed by the regional office and the regional office would be taking appropriate decision at the earliest. That belief was shaken after receipt of letter from the Senior Manager of the Bank, dated 8-5-2002 followed by another letter dated 19-9-2002 to the effect that the action taken by the Bank was in accordance with the rules and the appellant need not correspond with the Bank in that regard any further. This firm response from the respondent Bank could trigger the right of the appellant to sue the respondent Bank. Moreover, the fact that the appellant had eventually sent a legal notice on 28-11-2003 and again on 7-1-2005 and then filed the suit on 23-2-2005, is also invoked as giving rise to cause of action. Whether this plea taken by the appellant is genuine and legitimate, would be a mixed question of fact and law, depending on the response of the respondents.”

9. A perusal of the Plaint shows that the title of the Suit is a Suit for recovery of damages on account of malicious prosecution. A plain reading of the Plaint shows a definitive cause of action. Paragraph 5 and the paragraphs from paragraph 7 onwards in the Plaint set out the narration of the incidents that happened which led to the Plaint being filed against the Petitioner/Defendant. It further states in paragraph 20 therein that before the Respondent/Plaintiff could lead his defence evidence, he was acquitted by the learned Magistrate giving the reason that no case is made out. Paragraph 23 of the Plaint sets out that the Respondent/Plaintiff has sought damages for the mental suffering and the agony caused to him and for the loss of goodwill. It is apposite to set out the cause title of the Plaint and other paragraphs of the Plaint, below in this behalf: “SUIT FOR RECOVERY OF DAMAGES ON ACCOUNT OF MALICIOUS PROSECUTION” xxx xxx xxx “2. That succinctly stated on 23.8.2015, the above mentioned Defendant lodged an FIR u/s 354A/506/509 IPC against the Plaintiff alleging that the Plaintiff made sexually suggestive and lewd statements to her which made her feel uncomfortable and threatened.” “5. The present Civil Suit against the Defendant seeks damages for malicious prosecution as the prosecution initiated by the Defendant was intended with malice without any reasonable and probable cause and it eventually led to the termination of the prosecution in the Plaintiff's favour.”

The facebook post of the Defendant is annexed herewith and marked as Annexure P-2.”