Padma Khastgir, J. - (1.) This is an application taken out by the defendants No. 1, 2 and 3 for an order that the plaint in this suit be rejected and be taken off the file; in the alternative time may be extended to file the written statement on their behalf. The present suit has been filed by the plaintiff against the petitioners along with other defendants for a decree for Rs. 6 lakhs as damages for defamation. Receiver, injunction, attachment, etc. According to the petitioners the suit is not maintainable against the defendants Nos. 2 and 3 in their official capacity as they have not been sued in their personal capacities but they have been sued in the official designation which is not permissible in law. The petitioners have further prayed that the plaintiff's plaint itself should be rejected in limine first of all on the ground that the suit is not maintainable; secondly, the claim of the plaintiff in the suit is barred by the law of limitation. Mr. R. Sinha with Mr. Sen appeared for the petitioners and first of all submitted that the plaint as filed is barred by the law of limitation as according to the averment made in the plaint itself under paragraph 13 the plaintiffs have been acquitted by the Metropolitan Magistrate on 25th September, 1978 whereas the present suit has been filed by the plaintiffs on 23rd October, 1979, i.e., the period beyond the period of limitation. In that respect Mr. Sinha craved reference to a case reported in Dhiraj Bala Dasi v. Gopal Chandra Mukhopadhay, 18 CLJ 352. Mr. Sinha further drew my attention to paragraph 6 of the petition and submitted that it is the plaintiff's case that the defendant No. 6 alone lodged complaint with the local Thana alleging that the plaintiffs removed six windows and two doors from the ground floor of the requisitioned portion on a particular day. From the said averments made in the plaint it would appear that it is a bald statement and is devoid of any particular at all as is a suit for malicious prosecution the necessary averment that the complains has been falsely and maliciously lodged are missing. Hence from such averment it would not be clear that this is a suit for recovery of damages for malicious prosecution or not. In that respect Mr. Sinha craved reference to Or. 6, Rule 10 and submitted that the particulars are to be given in a plaint and such provisions are mandatory in the absence of such particulars to relief can be given on such plaint. Moreover, according to Mr. Sinha, if it is suit for damages for malicious prosecution then there is no cause of action against the defendants Nos. 5 to 11 except the defendant No. 6 who is the only complainant. The only allegation against defendants Nos. 5 to 11 except the defendant No. 6 is that they have given false evidence in a case whereby the plaintiffs were prosecuted and ultimately the plaintiffs were acquitted of the said charge accordingly the defendants Nos. 5 to 11 are guilty of committing perjury. In a case where persons are guilty of committing perjury no civil suit lies for damages of committing such perjury, but the ordinary course of prosecuting the perjurer is open before a party. But no civil suit lies for damages against a perjurer forgiving false evidence. Mr. Sinha submitted that complaint made to a police bona fide is privileged. Hence, no suit for defamation would lie on the statement contained in a complaint to the police which has been done bona fide. In that respect he craved reference to various decisions reported in Madhab Chandra Ghosh v. Nirode Chandra Ghosh, AIR 1939 Cal. 477 , M/s. Bapalal & Co. v. A.R. Krishnaswamy Lyer, AIR 1941 Mad 26 , Lachhman v. Pyarchand & ors., AIR 1950 Rajasthan 169 , Biva Gareri v. Dulhi Somaria & ors., AIR 1962 Pat. 229.
(2.) So far as the defendants Nos. 2 and 3 are concerned they have not been sued in their personal capacity but the official designations have been given in the plaint which is not permissible. In that respect reference may be made to P.B. Shah & Co. v. Chief Executive Officer, AIR 1962 Cal. 283 where it has been held that the parties must be sued in their individual name. So far as the point of limitation is concerned Mr. Sinha has also relied in a case reported in Ramani Mohan De v. Emperor, AIR 1933 Cal. 146 where it has been held that a plaint can be rejected under Or. 7 Rule 11 if it appears from the averments made in the plaint that is it clearly barred by the laws of limitation.
(3.) Mr. Prabir Kumar Majumdar appeared on behalf of the defendants Nos. 5 to 11 and he adopted the submissions made by Mr. Sinha. The learned lawyer appearing on behalf of the plaintiff submitted that this suit is not barred by the law of limitation as it is a combined suit for malicious protection as also far defamation. Hence this present suit is not barred by the law of limitation. If it is a suit for malicious prosecution then he it governed by Article 74 of the Limitation Act which provides that in case of compensation for malicious prosecution the period of limitation is one year from the date when the plaintiff is acquitted of the prosecution or otherwise terminated. In view of the averments made in the plaint that the plaintiffs were acquitted on the 25th September, 1978 and in view of the fact that 25th September, 1979 fell during the long vacation of this High Court and the suit has been filed on the reopening day, i.e., on the 23rd October, 1979, hence the suit has been filed within the period as prescribed under the Limitation Act. So it is not barred by the law of limitation.;