P L D 2008 Karachi 25 (PLP)

NADEEM AZHAR SIDDIQI, J.

The plaintiff "has filed this suit for recovery of damages amounting to Rs.50 million against the defendants on account of his malicious prosecution. The facts necessary for disposal of the case are that Defendant No.2 lodged F.I.R. No.342 of 1998 with P.S. TPX Karachi on 17-12-1998, which was disposed of in "C" Class and vide order dated 11-9-1999 the plaintiff was discharge. The plaintiff filed Suit No.363 of 2000 for recovery of salary benefits as well as recovery of damages amounting to Rs.20 million. Another F.I.R. No.8 of 1999 was lodged against the plaintiff at P.S. South Cantt. Lahore on 6-1-1999. The plaintiff got protective bail and appeared before the Court at Lahore on a number of occasions. Finally, the plaintiff was acquitted vide order dated 15-2-2000 and got the copy, of same on 4-5-2000 through application No.1411 dated 9-3-2000. The plaintiff served legal notice dated 7-3-2000 upon the defendants which was, replied on 15-3-2000. The cause of action as pleaded by the plaintiff in para 16 of the plaint is registration of F.I.R. No.8 of 1999 dated 6-1-1999 and his acquittal against which no appeal has been filed. The defendant No.1 filed written-statement on 1-6-2001. The suit against defendant No.2 was dismissed on 30-5-2005 for non-compliance. In the written-statement the defendant No.1 challenges the maintainability of the suit and submits that no malicious prosecution has been filed against the plaintiff. The following issues were framed from the pleadings of the parties:-- (1) Whether the plaintiff is involved in F.I.R. 8/99 by the defendant maliciously? (2) Whether the plaintiff is entitled to damages? If so, what amount? (3) Whether the plaintiff is entitled to any relief? (4) What should the decree be? The plaintiff examined one witness and closed his side. The defendant No.1 in spite of repeated chances failed to examine any witness and the side was stand closed vide order dated 26-3-2007. The case was fixed for arguments on 23-8-2007 when a question was raised by the Court with regard to limitation of filing of the suit in terms of Article 23 of the First Schedule of the Limitation Act. The learned counsel for the plaintiff submits that the time consumed for obtaining certified copy of the order is to be excluded and request for some time to produce case law and the case was adjourned to 31-8-2007. The learned counsel for the plaintiff has filed written synopsis and has submitted that the F.I.R. was lodged on 6-1-1999 and the plaintiff was acquitted vide order dated 15-2-2000 and the copy of the order was supplied to him on 4-5-2000 through Application No.1411 dated 9-3-2000 and the time for filing of the suit started running from 4-5-2000 and the suit was filed within time. In his written synopsis the learned counsel for the plaintiff submits that Article 120 of the Limitation Act will be applicable which provides a period of six years from the date of accrual of cause of action and relied upon the case of Muhammad Yousuf v. Syed Ghayyur Hussain Shah and others (1993 SCMR 1185). The learned counsel further submits that the limitation prescribed under Article 23 of the Limitation Act starts running from the date of order of acquittal, or date of discharge or from the date of final order passed by superior Courts. In this case the F.I.R. was lodged on 6-1-1999 and the plaintiff was acquitted vide order dated 15-2-2000. It is admitted in para 16 of the plaint that no appeal has been preferred against the acquittal order which attained finality. Article 23 of the First Schedule of Limitation Act provides a period of one year for filing suit for compensation for malicious prosecution. The said Article reads as under:-- Description of suit Period of limitation Time from which period begin to run

23. For compensation for a malicious prosecution. [One Year] When the plaintiff is acquitted, or the prosecution is otherwise terminated. In this case admittedly the plaintiff was acquitted on 15-2-2000 and no appeal against the acquittal order was passed and the order of acquittal attained finality. The period of one year starts from 15-2-2000. The suit was filed on 17-2-2000 after two days of the period prescribed in the above Article. The contention of the learned counsel is that if the time consumed in obtaining certified copy is excluded the suit is within, time. His other contention is that in terms of order of Honourable Supreme Court in the reported case of M. Yousuf v. Ghyyur Hussain Shah Article 120 of the Limitation Act is applicable and the limitation will be six years. Part III of the Limitation Act, deals with computation of period of limitation and section 12 of the Limitation Act deals with the exclusion of time in legal proceedings. Subsection (1) of section 12 of the Limitation Act provides that in computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned should be excluded. The section does not provide for exclusion of time consumed in obtaining certified copy of orders for the purpose of filing of a suit. The other subsections of section 12 of the Limitation Act deals with computation of period of limitation prescribed for an appeal, application for leave to defend and application for a review of judgment, and application to set aside an award. The benefit of section 12 is not available to the plaintiff for the purpose of filing the suit. Regarding the contention of the learned counsel for the plaintiff that Article 120 of the Limitation Act will apply, it is suffice to say that from bare reading of Article 120 it is clear that the Article will be applicable to the cases/suits which do not fall under any specific category and where another specific Article applies this Article will not apply. As far as the order of Honourable Supreme Court in the case of Muhammad Yousuf v. Syed Ghayyur Hussain Shah is concerned, with due respect to the Hon'ble Court, it is observed that from the order it is clear that Article 23 which is a specific Article dealing with the suits for compensation of malicious prosecution was not brought to the notice of the Hon'ble Supreme Court. Except the above explanation which is not tenable under law the learned counsel for the petitioner has failed to explain the delay. In view of the above discussion it is held that the suit is barred by Article 23 of the First Schedule of the Limitation Act, 1908, and the suit is liable to be dismissed on this count alone. Since the suit is time barred the discussion on the other issues are not necessary and will be a futile exercise. The suit is, therefore, dismissed with no order as to costs. Before parting with this judgment I deem necessary to deprecate the conduct of the officials of the Defendant No.1 who failed to protect the interest of it and allowed the case to go in default. I, therefore, direct the Managing Director of Defendant No.1 to hold proper enquiry to ascertain who were the persons/officers responsible in not properly handling with this case and after fixing the responsibility appropriate, disciplinary action may be initiated against the delinquent officers. The Managing Director will submit his report for the perusal of the Court within one month from the date of receipt of this judgment. The case may be fixed in the month of December 2007 for perusal of report. Office is directed to sent a copy of this judgment to the Managing Director of Defendant No.1 for compliance and report. M.H./A-110/K Suit dismissed.