MODI, J. - (1.) THIS is a plaintiffs' second appeal in a suit for damages for malicious prosecution. The suit was decreed by the learned Civil Judge, Chittorgarh, for a sum of Rs. 1922/ -. The defendants then went in appeal and the learned District Judge, Partapgarh (Camp Chittorgarh), by his judgment dated 17-5-66 dealt with the preliminary question only whether the suit was barred by limitation and held that the suit was so barred. He accordingly dismissed the suit. Aggrieved by the judgment and decree of the learned District Judge, Partapgarh, the plaintiffs have filed this second appeal.
(2.) THE only point involved in this appeal is whether the suit filed by the plaintiffs was barred by time. In order to appreciate the point involved, it is necessary to state a few facts. On 30-5-60 the defendant-respondent Gopallal lodged a report at the Police Station, Chhotisadri that the plaintiff-appellants along with some others broke open the lock of his house, gave beating to him and committed criminal trespass. The police after investigation put up a challan against the plaintiff-appellants and others in the court of the Munsiff-Magistrate, Chhotisadri, who after trial acquitted the plaintiff-appellants on 31-10-61 and convicted the rest. The defendant Gopallal was not satisfied with the acquittal of the plaintiff-appellants and therefore he filed a revision against the acquittal order which was dismissed on 31-5-62. The present suit for damages was instituted on 31-5-61 against Gopallal and four others. The suit was resisted by the defendants and on the pleadings of the parties, certain issues on merits were struck by the trial court. No plea of limitation was raised on behalf of the defendants in their written statement and consequently no issue was framed on that point. The trial court after evidence decreed the suit as stated above, but on appeal by the defendants a new point was raised that the suit was barred by time. The learned District Judge allowed the defendants to raise the point of limitation for the first time in appeal and held that under Art. 23 of the Limitation Act, 1908, the suit ought to have been filed within one year from the date of acquittal, that is, 31-10-61, and since the suit was filed after the expiry of one year's period on 31-5-63, the suit was clearly barred by time. He placed reliance on the decisions in Madholal vs. Harishanker (l), Lal Badrisingh vs. Mahesh Prasad (2) and M. S. chettyar Firm vs. S. E. Bholat (3 ). The relevant Article of the Limitation Act, 1908 is Art. 23 which prescribes a period of one year for filing a suit for compensation for malicious prosecution and one year period of limitation begins to run "when the plaintiff is acquitted or the prosecution is otherwise terminated. " The question that falls for determination is whether this one year period should be computed from 31-10-61 when the plaintiffs were acquitted by the magistrate or whether it should run from 31-5-62 when the order of acquittal was confirmed by the dismissal of the revision petition. If the period of limitation is calculated from the order of acquittal, that is, 31-10-61, the suit filed on 31-5-63 will clearly be beyond time. But in case the period of one year is calculated from 31-5-62, the suit will be within time. The learned District Judge has taken the view that where an order of acquittal is passed, time will begin to run from the actual order of acquittal irrespective whether an appeal or revision is filed against that order. The view taken by the learned District Judge is no doubt supported by a Single Bench decision of the Allahabad High Court in Madho Lal vs. Harishanker and another (supra), but it appears that it has not been followed subsequently by a Division Bench of that very High Court in Madho Lal vs. Shyam Sunder Vaish (4 ). Broome J. while delivering the judgment in that case, observed as follows : - "our conclusion is that the phrase used in Art. 23 fixing the point of time from which the period of limitation begins to run as "when the plaintiff is acquitted or the prosecution is otherwise terminated", must be construed as equivalent to "when the prosecution of the plaintiff is terminated by acquittal or otherwise", and termination of the prosecution by acquittal should be deemed to occur only when all appeals and the revisions that may have been filed against the basic order of acquittal have been finally disposed of. This interpretation obviates the necessity for making an illogical distinction between cases of acquittal and cases where the prosecution is terminated by discharge; and it has the further merit of avoiding the possibility of hardship for the plaintiff by permitting him to wait until his acquittal has been placed beyond doubt before he files his suit for compensation for malicious prosecution. " The same view has been taken by a Full Bench of the Madras High Court in Soora Kulasekara Chetty vs. Tholasingam Ghetty (5 ). In that case, while referring to Art. 23 of the Limitation Act, it was observed as follows : - "the wording 'when the plaintiff is acquitted' cannot be divorced from the words 'or the prosecution is otherwise teminated. ' In our opinion the Article provides that time shall run when the plaintiff is acquitted or when the prosecution comes to an end in some other manner. If the acquittal is followed by other proceedings the prosecution is terminated not by the acquittal but by the order passed in the subsequent proceedings" This view, it may be noted, was followed by the Oudh Chief Court in Bhikamsingh vs. Darshan Singh (6 ). The Bombay High Court in Bhaskar Narhar Deshmukh vs. Kisanlal Sadasukhdas (7) following its earlier decisions in Venu vs. Coorya Narayan (8) and Purshottam Vithaldas vs. Ravji Hari (9) took the view that in a case of acquittal the terminal point from which the time begins to run under Art. 23 of the Limitation Act is the date of order of acquittal and in such a case the position is not altered even if the complainant files a revision application against the order of acquittal or the State files an appeal against the order of acquittal. The learned Judges of the Bombay High Court further held that the latter part of the provision "the prosecution is otherwise terminated" is intended to meet cases such as where the criminal proceedings are terminated by an order of discharge or by dismissal of the complaint and not where an order of acquittal has been passed. The learned Judges also did not place reliance on the Full Bench decision of the Madras High Court in Soora Kulasekara Chetty vs. Tholasingam Chetty (supra) on the ground that once the period begins to run there could be nothing to Suspend the running of time. The view taken by the learned single Judge of the Allahabad High Court in Madholal vs. Harishanker (l) supra is similar to that taken by the Bombay High Court in Bhaskar Narhar Deshmukh vs. Kishanlal Sadasukhdas (7) supra. The other two decisions relied upon by the learned District Judge, namely, Lal Badrisingh vs. Mahesh Prasad (2) and M. S. Chettyar Firm vs. S. E. Bholat (3) supra do not deal with Art. 23 of the Limitation Act. They are therefore distinguishable and have no relevancy in the present case. With great respect, I prefer to follow the decisions in Madholal vs. Shyam-sunder Vaish (4) and Soora Kulasekara Chetty vs. Tholasingam Chetty (5) supra to those in Bhaskar Narhar Deshmukh vs. Kisanlal Sadasukhdas (7) and Madholal vs. Harishanker (l) supra. The phrase used in Art. 23 fixing the time from which the period of limitation begins to run as "when the plaintiff is acquitted or the prosecution is otherwise terminated", must be interpreted as meaning "when the prosecution of the plaintiff is terminated by acquittal or otherwise" and the termination of the prosecution by acquittal should be deemed to occur only when the appeals and revisions that may have been filed against the order of acquittal have been finally disposed of. I am further of the opinion that the words used in Art. 23 of the Limitation Act "when the plaintiff is acquitted" must not be read independently of the words "or the prosecution is otherwise terminated. " The illogical distinction pointed out by the Bombay High Court between the cases of acquittal and those where the prosecution is terminated by discharge would only lead to hardship and one will have to incur expenditure of filing the suit even before the order of acquittal passed in his favour is still subjudice under appeal or revision filed by the complainant or the State. Judging from this point of view, the period of one year in the present case ought to be counted from the date when the revision was dismissed, that is, 31-5-62, and the suit is within time.
(3.) I accordingly allow the appeal, set aside the judgment and decree of the learned District Judge, Partapgarh, and remand the case to him for decision of the case on merits. Since the respondent has not opposed this appeal, I leave the parties to bear their own costs in this Court. .;