Whether limitation for filing suit for damages for malicious prosecution will be suspended if order of termination of proceeding is challenged before higher court?

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. {Para 22}

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:  MANU/MH/0857/2018,2019 MHLJ(2) 265.

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Whether plaintiff is entitled to get interest on decretal amount in suit for malicious prosecution?

 Under Section 34 of the Code the Court has a discretion to order interest when "a decree is for the payment of money". The learned Counsel for the plaintiff relied upon the judgment of the Division Bench of the Madras High Court in Ramalingam Chettiyar (supra) to urge that the expression "money" should not be understood in a limited sense of an unascertained sum. It was held by the Division Bench in that case that a decree for payment of damages was also a decree "for the payment of money" as contemplated by Section 34 of the Code. This judgment has been subsequently followed by the Division Bench of the Kerala High Court in K.S.E. Board (supra). Following the view as taken by the Division Bench of the Madras High Court, it is held that a decree for payment of money would also include a decree for grant of damages. On that count the plaintiff is entitled to claim interest on the said decree from the date of filing of the suit. It is by now well settled that the grant of interest pendente lite is a matter within discretion of the Court and its grant is not limited only to commercial transactions. Reference in that regard can be made to the decision in Vikram Somaji Dhabale (supra). There has to be a justifiable reason therefore to deny a successful plaintiff the grant of pendente lite interest. In the facts of the present case, there does not appear to be any reason whatsoever to deny the plaintiff that relief. Though it was urged on behalf of the defendant Nos. 1 and 2 that they could not be blamed for the delay in deciding the proceedings, the same cannot be a reason to deprive the successful plaintiff the fruits of interest pendente lite. The appellate Court without assigning any reason did not grant interest pendente lite. Substantial question of law No. 3 is answered by holding that the plaintiff is entitled to interest on the decreetal amount from the date of filing of the suit.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 63 of 2018 and Cross Objection/Appeal No. 22 of 2018 in Second Appeal No. 63 of 2018

Decided On: 29.06.2018

 Rajendra  Vs. Ashish and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2019(4) MHLJ 451

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How to ascertain limitation for suit for malicious prosecution?

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

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