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