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IN THE HIGH COURT OF DELHI
C. Hari Shankar, J.
Rajvir Tyagi - Appellant
Versus
Commissioner of Police - Respondent
RFA 916 of 2019
Decided On : 25-07-2022
| Table of Content |
|---|
| 1. preliminary issue of limitation in a suit. (Para 1 , 1) |
| 2. appellant argues wrongful rejection due to limitation. (Para 2 , 3 , 4 , 5 , 6) |
| 3. court emphasizes need for fair hearing in limitation issues. (Para 7 , 8 , 9) |
| 4. court remands case for reconsideration of limitation. (Para 10 , 11 , 12 , 13) |
1. The order, dated 27th July 2019, passed by the learned Additional District Judge (hereinafter "the learned ADJ") in CS 297/2018, under challenge in this appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter "CPC"), reads thus:
"CS No. 297/2018
Rajvir Tyagi Vs. Commissioner of Police & Ors.
27.07.2019
Present: Sh. Mohd. Iqbal, Ld. Counsel for the plaintiff. Ms. Arpita, Ld. Counsel for defendant.
Inspector Vijay Kumar, ATO, Sadar Bazar ASI Bal Hussain, No.517/N, PS-Kashmiri Gate.
HC Sanjay, No.-232/Special Cell.
HC Shatrujeet, No.-886/C, PS-IP Estate.
ASI Sunil Kumar, No. 3253/D, Kalyanpuri Traffic Circle.
Replication on behalf of the plaintiff filed, same is taken on record.
At this juncture, one preliminary issue is framed as under:
"Whether the suit filed by the plaintiff is barred buy limitation?"
Arguments on preliminary issue heard.
It is submitted on behalf of the plaintiff that they have served a notice upon all the defendants prior to filing the present suit in the year 03.07.2017 and secondly on 20.11.2017. It is stated that cause of action for filing the present suit starts thereafter and the suit has been filed within a year. It is further stated that the suit is very much within the period of limitation.
Ld. Counsel for the defendant, on the other hand has stated that impugned judgment is dated 28.10.2016, vide which plaintiff, who was also one of the accused along with other accused persons have been acquitted and as per Limitation Act, suit for malicious prosecution should be filed within one year. However, the present suit has been filed on 22.01.2018.
Heard. Record perused.
As per Article 74 Part 7 of Schedule to the Limitation Act, 1963, it is mentioned that the limitation period for filing a suit for damages for malicious prosecution is one year from the date when plaintiff is acquitted or the prosecution is otherwise terminated. In the present case the plaintiff herein along with other accused persons was acquitted on 28.10.2016, this fact is not disputed.
Further, as per Section 3 of the Limitation Act, 1963 the onus to show that the suit is within the period of limitation is always upon the plaintiff. Also, Section 5 of the Limitation Act, says that in a suit delay in filing, cannot be condoned, as per law.
Apart from the above, Section 9 of the CPC further shows that once the limitation period starts running, it cannot be stopped by subsequent disability unless and until mentioned in the act itself.
Thus, on joint reading of the above facts and provisions it reflects that the limitation period in the present case has started after 28.10.2016. The limitation period for filing the suit for malicious prosecution, therefore, is that it can be filed within one year i.e. till 28.10.2017. The present suit, however, has been filed on 22.01.2018. Apparently the suit filed by the plaintiff, therefore, as per record itself is hopelessly time barred and is not maintainable. Thus, this issue stands decided in favour of the defendant and suit filed by the plaintiff is dismissed accordingly.
File be consigned to record room, after due compliance."
2. Mr. Bajaj, learned Counsel for the appellant, submits that the impugned order dated 27th July 2019 displays undue haste. He drew my attention to the fact that the defence of the respondents (as the defendants in the suit) was struck off on 11th July 2018 and that, as a matter of indulgence, the learned ADJ, on 11th April 2019, set aside the order striking out the defence of the respondents and allowed the written statement to be taken on record.
3. Mr. Bajaj submits that, surprisingly, on the next date of hearing, i.e.
Court emphasized the importance of natural justice, ruling that resolution of limitation issues must allow sufficient opportunity for parties to present submissions.
Judicial compliance requires courts to adhere to directives for reassessment of issues, particularly concerning limitation in civil suits.
The court held that the issue of limitation is a mixed question of law and fact, justifying the framing of a preliminary issue for a definitive ruling, as highlighted in Section 14 of the Limitation ....
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