ASHOK BHAN,J - (1.) THIS is plaintiff's appeal. The facts in brief are that the plaintiffs brought a suit against Kundan Lal defendant for recovery of Rs. 1,990.25) as compensation and damages for malicious prosecution by him alleging that Banarsi Dass had three sons namely Krishan Dev, Om Parkash and Mohan Lal and that the three sons of Banarsi Dass purchased a house situated in Budhlada Mandi from Chanan Ram on 13-3-1970 for Rs. 8,500/- vide sale deed dated 13-3-1970 and they obtained possession of that house. The plaintiff alleges that defendant was claiming himself to be the owner of that house. According to the plaintiff the number of house is 35/2 and later on it became unit No. 21. Plaintiff also alleged that defendant wanted to take forcible possession of the house. Since that house belongs to Chanan Ram brother of the defendant, defendant Kundan Lal asked the plaintiff not to purchase the house inspite of their necessity but since the plaintiff had purchased the house inspite of the fact that defendant did not want them to purchase the same; he i.e. defendant on account of that had a grudge against him and he filed a false criminal and civil case against them in order to harass and to cause them financial loss. A complaint was filed under Sections 448/379 of the Indian Penal Code. The defendant in this case had filed a suit for permanent injunction in the Court of Sub Judge 1st Class, Mansa and also filed an application under Order 39, Rules I and 2 of the Code of Civil Procedure, 1908 for temporary injunction restraining the plaintiffs from taking possession of the house. This suit was dismissed by the trial Court on 9-10-1974 and that judgment became final between the parties.
(2.) SO far as the criminal case was concerned a charge was framed against the plaintiff but ultimately the plaintiff-appellants were acquitted by the Magistrate on 12-8-1974 which is the basis for filing the present suit for damages for malicious prosecution in a criminal Court and for damages for filing false cases against the plaintiffs in the civil Court. The plaintiffs case is that suit and the complaint filed by the defendants were false and these were instituted simply to pressurise them so that they might give the house to the defendant. According to the plaintiffs in the prosecution of this suit for permanent injunction at Mansa they had spent Rs. 440/- and in the appeal at Bhatinda they spent Rs. 620.25. The plaintiffs further allege that in the complaint case against them they have spent Rs. 615/-. In addition to this, according to the plaintiffs their work came to standstill on account of which they suffered loss to the tune of Rs. 315/-. In all, as stated above, the plaintiffs claim Rs. 1990.25 from the plaintiff as damages. A notice was issued to the defendant under registered cover but since the defendant did not make the payment so the present suit was instituted. This suit was resisted by the defendant-respondent on the ground that the suit was not within time and was bad for misjoinder of cause of action. It was also pleaded by the defendant that the cases were not instituted by him with any malicious intention and that the defendant was within his rights to institute the said suit and the complaint and that the plaintiffs are not entitled to any compensation or damages. The trial Court partially decreed the suit i.e. for malicious prosecution the trial Court granted Rs. 950/- as damages and for consequent relief i.e. for filing suit for claim of appellant-plaintiff was dismissed. Against this order of the trial Court two appeals were filed - one by the plaintiff and the other by the defendant. In the appeal filed by Kundan Lal it was held by the appellate Court that suit for damages on account of malicious prosecution brought by the plaintiff was barred by limitation as it had been brought after the expiry of more than one year after the acquittal of the plaintiff-appellants. As stated above, the plaintiffs were acquitted by the trial Court on 12-8-1974 whereas the present prosecution was launched on 6-10-1975 i.e. after the expiry of more than one year. The case put up by the plaintiffs was that they had filed an appeal against the order dated 12-8-1974 in the High Court and his application for leave to appeal was dismissed in limine on 31-1-1974. The order of the trial Court dated 12-8-1974 merged in into the order of the High Court dated 31-10-1974 and thus the limitation would start running from 31-10-1974 and the limitation of one year thus should be counted from the order of the High Court and not from the order dated 12-8-1974 passed by the Magistrate. The appellate Court came to the conclusion that limitation is to start from 12-8-1974 i.e. the date on which the Magistrate passed the order and not from the date the High Court passed the order i.e. 31.10.1974. On merits it was held that no case for damages for malicious prosecution was made out as the defendant had not filed the complaint and the suit against the plaintiff-appellants with malicious intention. It was further held that the plaintiff-respondent failed to establish that the defendant had any malice infact in, filing the complaint or the suit against the plaintiff appellants. It was further held by the lower appellate Court that the defendant was not actuated either by spite or ill-will towards the plaintiff by any direct/indirect or improper motive. The appellate Court dismissed the appeal filed by Banarsi Dass respondent and his sons i.e. plaintiffs and accepted the one filed by Kundan Lal. In the High Court appeal has been preferred by the plaintiffs. Learned counsel appearing for the plaintiffs-appellants has again raised two points. I am leaving the question of limitation open in this case as I am satisfied that on facts the plaintiff appellant has failed to prove that the .defendant-respondent was actuated by any indirect or improper motive in filing the complaint and the suit against the plaintiffs. A, perusal of the certified copy of the judgment Ex. P. 4 of Shri Charanjit Jawa, Judicial Magistrate 1st Class, Mansa, whereby he acquitted the three plaintiffs in the complaint case under Sections 448/379 IPC indicates that the instant subject matter of the case is said to have taken place on 12.12.1971 at about 4 a.m. and the allegations were that the accused i.e. three plaintiffs had fixed a ladder on the front portion of the house and demolished the wall with a sabbal and removed the same and when Shri Hari Ram PW in the complaint case a tenant of Kundan Lal objected he was told by them that they were demolishing their own house. In fact according to his own admission Kundan Lal was not present at Bhatinda where the incident took place and the said Hari Ram got a case registered copy of FIR being Ex. P.I therein. When the police did not swing in action Kundan Lal filed a complaint under Sections 448/379 IPC on the ground that he owns a share in the house and that is why the plaintiffs are responsible for demolishing the same and hence complaint under Sections 448/379 IPC. There was a reasonable apprehension in the mind of Kundan Lal while initiating proceedings by way of complaint against the plaintiffs - appellants. It has not been shown by any evidence that Kundan Lal was actuated by malice in instituting proceedings under Sections 448/379 IPC against them. The necessary ingredients to prove the element of malice are missing in the present case. The onus of proving these requisite ingredients for malicious prosecution lies heavily on the plaintiffs who have come to the Court for claiming damages for malicious prosecution. The plaintiffs-appellants have miserably failed to establish the fact of malicious prosecution against the defendant Kundan Lal. Moreover, the pending recorded by the lower appellate Court is a pure finding of fact and I am not inclined to interfere with the same.
(3.) FOR the reasons recorded above, the appeal is dismissed with no order, as to costs. Appeal dismissed.;