2009 PLP 1624 (YLR)

Learned counsel submits that the appellant feels aggrieved by the order dated 16-2-2007 passed in Suit No. Nil of 2006 as the point of Limitation has not properly been considered. He submits that the issue arising out of the suit is based on alleged malicious prosecution as the plaintiff in the ., suit has stated that F.I.R. was lodged on 14-9-1998 and after trial he was acquitted on 21-10-2001 while an appeal was filed against the acquittal order and same was also dismissed on 10-9-2004. Learned counsel submits that for the purpose of limitation, the time is to be counted from the date of acquittal i.e. 21-10-2001, while the suit has been filed on 27-10-2004. He submits that there were two claims, one for malicious prosecution and second is damages and that the office at the initial stage raised objection in respect to the maintainability of suit as according to the office it was time barred and thereafter the matter was placed in the Court and following order was passed on 4-9-2009:-- "Mr. Shaukat H. Durani, learned counsel for the plaintiff states that the suit has been filed with prayers pertaining to recovery of an amount as well as for damages for malicious prosecution. While considering for the suit being time barred with respect of recovery of an amount he states that the suit for damages on account of malicious prosecution is not time-barred and as such maintainable." He submits that by that order the plaintiff gave up claim in respect to the recovery of money but he continued the case for malicious prosecution with the hope time is to be considered from the date of dismissal of the appeal which was 10-9-2004. Learned counsel further submits that during the course of argument, he relied upon PLD 2000 Karachi 214 (Messrs Marine Management Company v. Government of Pakistan) and argued that time for malicious prosecution is to be counted from the date of acquittal and not from the date of appeal or revision but that contention was turned down and although learned Single Judge relied upon the said authority but in different way which is not the gist of that decided case. After perusal of the same we are of the opinion that para. 14 of that judgment of PLD 2000 Kar.214 is relevant which is reproduced as under:-- "A perusal of Article 23 of the Limitation Act shows that it deals with two alternative cases, one envisages acquittal and other termination of the prosecution. So far as first alternative or expression acquittal that is not applicable to the present case. It is second alternative that governs such cases, as those of discharge. In the present case, the plaintiff was not put to trial nor acquittal was recorded in his favour. The proceedings were quashed as such for all purpose it will be a case of discharge. It is the first alternative which will govern the cause of acquittal. Acquittal means acquittal from trial court or if there is a conviction from the trial Court, then order of the acquittal passed in appeal or revision. In a case where acquittal has been ordered by the trial court and the complainant has filed revision, filing of revision cannot affect acquittal already passed; it will remain an order of acquittal till acquittal is converted into 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. Riling of revision against the order of acquittal cannot suspend the period of limitation, which starts running from the date of order of acquittal. (1) Shankar Parshad v. Sheo Narian AIR 1935 Oudh 392 (2) Mando Lal v. Hari Shankar AIR 1963 Allahabad 547." According to that judgment, the time is to be counted from the date of acquittal and not from the date of appeal. Anyhow, if the person is convicted by the trial Court then the time in appeal can also be considered, herein this case, the plaintiff was acquitted and the cause of action, if any, accrued to him on 21-10-2001, therefore, time is to be counted from that date. In the above said authority reliance has also been placed upon the cases of Shankar Parshad v. Sheo Narian AIR 1935 Oudh 392, (2) Mando Lal v. Hari Shankar AIR 1963 Allahabad

547. Keeping in view the factual position coming out from the record and contention of learned counsel for the appellant and authority submitted by him, we have no doubt in mind that learned Single Judge has mis-interpreted the finding in PLD 2000 Karachi

214. In the instant case, the plaintiff had already given up his claim of recovery of amount while the amount of damages is found time-barred in the above circumstances, hence plaint would have been rejected. In, the circumstances, we allow this appeal as well as application U/O VII, Rule 11, C.P.C. and reject the plaint. This appeal is disposed of. H.B.T./I-13/K Appeal allowed.