Full Text
RSA 138/2014
RAKESH KUMAR SHARMA Appellant
Through: Mr.Sanjay Sharma,Advocate.
Respondent
Through: Mr.M.L.Yadav,Advocate.
17.03.2015
ORDER
1. This is aregularsecond appeal filed by the appellant.
2. The contention of the learned counsel for the appellant is that although his suit was for malicious prosecution for the period of limitation has been prescribed under Article 74 ofthe Schedule to the Limitation Act, 1963 as three years from the date of termination of prosecution qua the party and the suit ofthe respondent/plaintiffhad terminated on 27.11.2001 and it was well within time yet the suit has been held to be barred by limitation by the trial court and therefore this constitutes a serious error in thejudgment ofthe court below.
3. It has also been contended that no finding has been returned by 2015:DHC:12026 the trial court or the first appellate court in regard to the same. Accordingly,it is urged that this constitutes a substantial question of law,which needs to be considered.
4. I have considered the submission made by the learned counsel for the appellant and 1 have also gone through the record.
5. The present appellant filed a suit against the respondent for defamation and recovery ofRs.[3] lakhs as damages. In the said suit, obliquely in para 6 a reference was made with regard to the alleged malicious prosecution by the respondent ofthe present appellant and in the reliefclause,it was prayed as under: "That the plaintiff, therefore, most respectfully prayed that the Hon'ble Court be graciously pleased to pass a decree in favour of the plaintiff and against the defendant awarding damages for malicious prosecution and defamation suffered by the plaintiff in the sum of Rs. 3 lakhs together with future interest at the rate of18% per annum from the date ofthe suit and till realization."
6. The suit was contested. The learned trial court framed the following issues.
1. Whether the suit ofthe plaintiffis without any cause ofaction? OPD.
2. Whether the plaintiff is entitled for a decree for a sum ofRs.[3] lacs as claimed? OPP.
3. Whether the plaintiff is entitled for interest, ifyes, at what rate and for which amount? OPP.
4. Relief."
7. The present appellant examined herself as PWl, Sh. Anil Kr.Sharma was examined asPW2and Sh.Ashok Kumar as PW-3.
8. The defendant examined herselfas DW-1.
9. PW-3 had proved the record of WP(Cr.) No.664/2000 titled Ved Prakash Sharma & Ors. v. State and Anr. and the judgment dated 27.11.2001 as Ex.PW 1/9,which reads as under: "We have perused para 5 ofthe reply ofrespondent No.3.Para 5 ofthe reply reads as follows: Inadvertently this is a case of mistaken identity where Rameshwar Kumar Sharma was mentioned as Rakesh Kumar Sharma. To rectify this mistake the respondent has given application in the court and to concerned police officials for the change of name. Copy of the said application reannexed herewith. It is denied that petitioner no.4 is a lawabiding citizen. r- (S In view of the averments made in para 5 of the reply, it is clear that Rakesh Kumar Sharma is not involved in the incident. This being so,no criminal proceedings can be taken against Rakesh Kumar Sharma. The writ petition is allowed to the extent indicated above. A copy ofthis order be senttothetrial court."
10. The learned trial court after analysis ofthe evidence,dismissed the suit of the appellant by observing that the suit of the appellant/plaintiff was barred by limitation. For the purpose of returning this finding,the learned trial court referred to Article 75 of the Schedule to the Limitation Act,1963 and observed that the period oflimitation prescribed for suing in order to get damages on account of libel/slender is one year and since in the instant case,the suit has been filed after expiry of one year from the date of alleged defamatory material,therefore,the suit was held to be barred by time and the samejudgment and decree was upheld by the first appellate court on being filed.
11. Still not feeling satisfied, the appellant has filed the present regular second appeal urging the points as have been reproduced above.
12. I am not in agreement with the contention of the learned counsel for the appellant that the matter involves any substantial question of law. The reasoning for this is that the suit filed by the appellant/plaintiff was a suit for defamation and recovery of Rs. 3 lakhs as damages and nowhere in the title the factum of malicious prosecution has been mentioned although in the body ofthe suit,there is an oblique reference to malicious prosecution and similar mention is found in the prayer clause also where damages have been quantified at Rs.[3] lakhs. The damages have also not been segregated for the two torts i.e. for defamation and malicious prosecution thereby leaving an impression that the damages which were sought by the appellant/plaintiff were essentially for defamation though he had a grievance that he has been maliciously prosecuted.
13. In addition to this, ifone sees para 15 ofthe suit with regard to the cause of action, the averments made by the appellant/plaintiff is that the cause of action accrued to the appellant/plaintiff when the respondent/defendant is alleged to have made false accusation against the appellantrelatingto the occurrences between and 14'*'August,
1999.
14. Section 9 of the Limitation Act, 1963 clearly lays down that once the period oflimitation starts running,then no subsequent ability or disability stops the said period oflimitation. In the cause ofaction clause the appellant has not given separate dates with regard to the accrual ofthe cause of action to him with regard to the defamation, malicious prosecution or for that matter recovery. Therefore, this seems to be an afterthought by the appellant to contend now before this courtthatthe trial court as well as the first appellate court had not adjudicated the rights ofthe appellant on the touchstone ofmalicious prosecution.
14. In any case,after having suffered an adverse concurrentfinding by the two courts below on the question of limitation, which is essentially a question offact, it, in my view, does not constitute any question oflaw much less a substantial question oflaw.
15. Accordingly, the present regular second appeal, in my considered opinion,does not raise any substantial question oflaw and the same is dismissed. V.K.SHALI,J