RSA No. 4035 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No. 4035 of 2008
Decided on : 05-02-2009
Ilyas and another
....Appellants
VERSUS
Niyaz Mohd.
....Respondent
CORAM:- HON’BLE MR. JUSTICE MAHESH GROVER
Present:- Mr. Sudhir Aggarwal, Advocate for the appellants.
MAHESH GROVER, J
This appeal by the plaintiffs-appellants is directed against the
judgments of the learned Trial Court dated 16.5.2007 and the First
Appellate Court dated 23.5.2008.
The plaintiffs-appellants filed a suit for damages against the
respondent alleging that criminal prosecution had been initiated at his
behest which allegations were not proved and ultimately they were acquitted
but as a consequence thereof appellant no.1 has to undergo imprisonment
for one year and he claims damages on that count.
The respondent who contested the suit pleaded that he had not
implicated the appellants falsely. In fact the witnesses were won over and
as a result of which the appellants were acquitted.
Both the parties went to trial on the following issues:-
1. Whether the plaintiff is entitled to recovery of suit amount
from the defendant i.e. Rs.3 lacs along with costs and interest
RSA No. 4035 of 2008 2
from the date of arresting the plaintiff in criminal case, till
realisation of amount on account of grounds as stated in the
plaint? OPP.
2. Whether the suit is not maintainable in the present
form?OPD.
3. Whether the plaintiffs have no locus standi to file the
present suit? OPD.
4. Whether the plaintiffs are estopped from filing the present
suit by their own act, counsel etc? OPD.
5. Whether the suit of the plaintiff is liable to be dismissed
because of concealment of material facts from Court? OPD.
6. Whether the civil court has no jurisdiction to try the present
suit? OPD.
7. Relief.
Learned Trial Court came to the conclusion that the plaintiffs-
appellants failed to establish that criminal proceedings initiated against
them were a result of malice.
In appeal, the findings were affirmed and apart from returning
this finding, First Appellate Court also held that suit was barred by
limitation.
In Regular Second Appeal, learned counsel for the appellants
contended that no plea regarding limitation was ever raised by the
respondent and no such issue was framed and therefore, the finding of the
First Appellate Court declining the appeal on the issue of limitation is
unsustainable in the eyes of law.
After hearing learned counsel for the appellants, I am of the
RSA No. 4035 of 2008 3
considered opinion that even if the finding of the learned First Appellate
Court regarding limitation is to be ignored then also the appellants have
pleaded that they are entitled to damages on account of malicious
prosecution initiated at the behest of the respondent. However, learned
counsel for the appellants is unable to show that proceedings were result of
malice. The criminal prosecution at the behest of the respondent was
carried out on the investigation by the police and thereafter the witnesses
are said to have been won over. In this eventuality, when there is acquittal
and failure of conviction for reasons which cannot be attributed to the
respondent it cannot be said that the entire initiation of prosecution was
result of malice. Acquittal can be for the reasons like tardy investigation by
the police or turning hostile of the witnesses and many other such factors
which may not be directly linked or attributable to the complainant’s desire
to prosecute an incumbent maliciously.
In this view of the matter, when the appellants have failed to
establish the malice on the part of the respondent, I am of the considered
opinion that the findings recorded by both the Courts below do not warrant
any interference. No substantial question of law has been shown to have
arisen for the consideration of this Court and the same being devoid of any
merit is hereby dismissed.
February 5 , 2009 (Mahesh Grover) rekha Judge