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Report No. 89

37.11. Article.-Controversy as to starting point of limitation.- A controversy still exists in regard to the starting point of limitation period in the third column. There are two starting points given in the third column. They a.-(1) when the plaintiff is acquitted, or (2) when the prosecution is "otherwise terminate.-a test added1 in 1877. According to the Bombay High Court2, these two different points are applicable to two dissimilar circumstances.

The order of acquittal or of discharge passed by the trial court remains (according to this view) operative for the purposes of limitation and the filing of an appeal or revision in superior courts does not stay its operation so far as limitation is concerned. In one of its more recent cases on the subject, that High Court observed3 as under:

"The original acquittal is still operative and on the language of the provision, it is the date of acquittal from which time begins to run. The other alternative is that 'the prosecution is otherwise terminated'. Now, whenever a prosecution is started, it may not necessarily end in an acquittal. A prosecution may end, either in acquittal or conviction. If it is the first, then, it is governed by the first part of this provision, and if it is the second, there can be no case for a suit.

It may also result in an order of discharge, or in a dismissal of the complaint if the complainant is absent on the date fixed for the hearing of the complaint. The latter part of the provision the prosecution is otherwise terminated is intended to meet such cases, and here again, it is the end of that proceeding which is operative for all intents and purposes and governs the point of time when the period begins to run."

The High Court further pointed out that whenever the Legislature intended that the time should commence to run from the final order, it had expressly said so. The following observations of the Allahabad High Court in its earlier case4 on the subject reflect the same approac.-

"A perusal of Article 23 of the Limitation Act (of 1908) goes to show, that that article deals with two alternative cases: one envisages acquittal and the other termination of the prosecution. So far as the second alternative or the expression 'termination of the prosecution' goes, that is not applicable to the present case.

That governs such cases as those of discharge. It is the first alternative which will govern the case of acquittal; and 'acquittal' would mean acquittal from the trial court or if there is conviction from a trial court, then the order of acquittal was passed in appeal or revision. In a case where acquittal has been ordered by the trial court and the complainant has filed revision, the filing of revision cannot affect the order of acquittal already passed.

It will remain an order of acquittal till the acquittal is converted into an order of sentence. It would thus appear that under Article 23 of the Limitation Act, the limitation would run from the date when the plaintiffs were acquitted by the trial court or in appeal if there was conviction from the trial court. Filing of a revision against an order of acquittal cannot suspend the period of limitation, which started running from the date of the order of acquittal."

On this view, the filing of a revision against acquittal does not suspend the running of limitation which has once started.

1. Para. 37.9 supra.

2. (a) Bhaskar v. Kishanlal, AIR 1968 Born 21;

(b) Purshottam Vithaldas v. Ravji Hari, AIR 1922 Born 209.

3. Bhaskar v. Kisanlal, AIR 1968 Born 21 (22), para. 3.

4. Madho lid v. Hari Shankar, AIR 1963 All 547 (548), para. 5 (M. Lal, J.).

37.12.Opposite school of thought.- The opposite view has, however, been taken in a later decision of the Allahabad High Court.1 A full Bench of the Madras High Court took this view quite a long time back.2 A Same view has been taken in comparatively more recent judgments of the Mysore3 and Rajasthan4 High Courts.

The pivotal objection of the Bombay High Court to the acceptance of the Madras view5 is contained in these observations in one of its judgments:6

"In our view, therefore, there can be no justification to add the word 'final' before the word 'acquittal' according to the Madras High Court, and the word 'finally' before the words 'otherwise terminated'."

This objection has been met by the Mysore High Court, which has observed:7

"The criticism, therefore, that the Madras view illogically imports the idea of finality or actually adds the word 'finally' or 'final' to the language of the third column is, with respect, not justified. Finality is actually inherent in the choice of the word 'termination'.

Taking, therefore, the two things together, viz., that one of the essential elements in the cause of action for malicious prosecution is termination of proceedings in favour of the plaintiff and that there can be no termination if proceedings are continued until one reaches the stage where further continuance is not possible, then it follows that if the acquittal entered by the trial court is taken up on appeal, the plaintiff is not in a position to say that the proceedings have terminated in his favour, and that, therefore, the cause of action itself is not complete so as to start the running of time in favour of the defendant."

1. Madho Lal v. Shyam Sundar Vaish, 1969 All LJ 587 (589) (see para. 37.13, infra).

2. Kulasekara Chetty v. Tholasingam Chetty, AIR 1938 Mad 349 (FB).

3. Basappa Sangappa v. Narayanappa Kriyappa, ILR 1973 Mys 201 (206), see infra.

4. Ramvilas v. Gopal Lal, 1973 Raj LW 92 (see para. 37.14, infra).

5. Kulasekara Chetty v. Tholasingam Chetty, AIR 1938 Mad 349.

6. Bhaskar v. Kisanlal, AIR 1968 Bom 21 (24).

7. Basappa Sangappa v. Narayanappa Kariyappa, ILR 1973 Mys 201 (206) (emphasis added).

37.13.Allahabad judgment.- The Allahabad High Court has also, in a later case held1 as unde.-

"The phrase used in Article 23 of the Limitation Act 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 determination of the prosecution by acquittal should be deemed to occur only when all appeals and 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." 1. Madho Lal v. Shyam Sunder Vaish, 1969 All LJ 587 (DB) (The earlier case of 1963 does not appear to have been cited).

37.14. Rajasthan view.- In the Rajasthan judgment,1 the following passage represents a similar vie.-

"The phrase used in Article 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 Article 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 sub-judice under appeal or revision filed by the complainant or the State."

1. Ram Vilas v. Gopal IA 1973 Raj LW 92 (94) (Modi, J.).

37.15.American Restatement.- In this conte.-though this is a matter of substantive l.-it may be worth mentioning that the Restatement of the Law (Second) on Torts1 has this to say regarding the termination of proceedings for the purpose of the tort of malicious prosecutio.-

"658. General Rule: To subject a person to liability for malicious prosecution, the criminal proceedings must have terminated in favour of the accused.

659. Manner of Termination: Criminal proceedings are terminated in favour of the accused by

(a) a discharge by a magistrate at a preliminary hearing, or

(b) the refusal of a grand jury to indict, or

(c) the formal abandonment of the proceedings by the public prosecutor, or

(d) the quashing of an indictment or information, or

(e) an acquittal, or

(f) a final order in favour of the accused by a trial or appellate court."

1. American Law Institute Restatement (Second) on Torts (1977), Vol. 3, Articles 658-659.

37.16.English view as to the aspect of termination of proceedings.- Street has dealt1 with this ingredient of malicious prosecution thus:

"The proceedings must have terminated in favour of the plaintiff.2 Even though the plaintiff has been convicted of a lesser offence3, or has had his conviction quashed on appeal, or has been acquitted on a technicality, e.g. a defect in the indictment, this requirement is satisfied. If the conviction of the plaintiff stands, then even though there is no right of appeal from it and although he can satisfy the court in the instant proceedings that the conviction was grossly unjust, there is no cause of action in this tort. The plaintiff seems to satisfy the present requirement if he proves that the defendant has discontinued the proceedings; the plaintiff cannot sue, it seems, while the proceedings are still pending."

1. Harry Street Law of Torts, (1976), p. 397.

2. This requirement is not imposed where, for example, an arrest or search warrant is procured.

3. Cases cited in support of the discussion have been omitted.

37.16A. It may also be added that Charles D. Field hit the nail on the head in 1877 when he asked the question: "when can a prosecution be said to have terminated"? Even now, the difference of opinion continues. A review of the state of the law made above shows that the majority of the courts would be reluctant to entertain an action for damages for malicious prosecution unless they are satisfied that the judgment may not be rendered infructuous by a subsequent decision in the criminal proceedings.

37.17.Recommendation.- The net result of the above discussion is that there is an obvious conflict of views between the Bombay High Court on the one hand and the other High Courts on the other hand. There seems to be a need for clarifying the position. In conformity with the majority view (that is to say, the later ruling of the Allahabad High Court and the rulings of the High Courts of Madras, Mysore and Rajasthan), we recommend that in Article 74, before the word "terminated", the word "finally" should be added.

Apart from the fact that such an amendment would be in harmony with the majority view, it will be of considerable practical utility and avoid the difficulty that might be caused if limitation is to start running even where the proceedings constituting the cause of action have every possibility of being re-opened in a higher court.

37.18.Articles 75-76.- The next two articles are concerned with defamation, and may now be taken up.

(a) Article 75 reads as under:-

"75. For compensation for libel.

One year.

When the libel is published."

It is identical with Article 24 of the Acts of 1908 and 1877.

Article 24 of the Act of 1871 read as unde.-

"24. For libel.

One year.

When the libel is published."

(b) Article 76 read as under:-

For compensation for slander.

One year.

When the words are spoken, or, if the words are not actionable in themselves, when the special damage complained of results."

It is identical with Article 25 of the Act of 1908.

In the Act of 1877, Article 25 was as follows:-

For compensation for slander.

One year.

When the words are spoken, or, if the words are not actionable in themselves, when the special damage complained of results."

Article 25 of the Act of 1871 was as under:-

"For compensation for slander.

One year.

When the words are spoken."

Though libel and slander fall under the general heading of the tort of defamation, the Limitation Acts, right from 1871, have been treating the causes of action for these two types of torts as distin.-though the period of limitation is one year in both the cases.

37.19.English law.- Halsbury states the position in England thus1:

"In an action of libel time runs from the publication, but where, for example, a blook or newspaper is published and offered for sale, a fresh cause of action arises on each sale, notwithstanding that more than six years have elapsed since the first publication. In an action for slander where the words are actionable without proof of special damage, time runs from the offering of the slander. Where the words are not actionable without special damage, time does not run until the damage occurs."

1. Halsbury's, 4th Edn., Vol. 28, para. 689.



The Limitation Act, 1963 Back




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