The limitation for a suit for malicious prosecution begins to run from the dismissal of the revision petition and not from the discharge or acquittal. The presence or absence of reasonable and probable cause should be carefully considered without restricting the rights of either party.

T.C. Raghavan, J.

1. Plaintiffs 1 and 2 in O.S. No. 145 of 1125 M.E. on the file of the court of the District Munsiff of Trivandrum are the appellants in the second appeal. They, along with the 3rd plaintiff, who is now dead, filed the suit against the respondent defendant for damages for malicious prosecution. The 1st plaintiff is the son of the 2nd plaintiff, the 3rd plaintiff being the brother of the latter and the defendant being another brother. The plaintiffs were accused persons 6, 5 and 7 respectively in C.C. No. 321 of 1121, wherein the defendant was the complainant. The plaintiffs along with four others were prosecuted for offences under S.379, 427 and 104 of the Travancore Penal Code. The learned Magistrate discharged the accused persons; but the complainant filed a revision against that order in the High Court of Travancore. The High Court confirmed the order of discharge regarding the plaintiffs; but sent back the case for fresh disposal regarding the other accused persons. The suit, which has given rise to the second appeal, was filed, as indicated already, by accused persons 6, 5 and 7 as plaintiffs for damages for malicious prosecution against the complainant. The Trial Court held in favour of the plaintiffs and granted a decree for Rs. 180/-. On appeal by the defendant the lower appellate court reversed the decision of the Trial Court and dismissed the suit. The lower appellate court held that the suit was barred by limitation and it also held on the merits that there were no grounds for granting a decree for malicious prosecution. In second appeal this decision of the lower appellate court is being challenged.

2. At the outset I would observe that the conclusion of the lower appellate court that the suit was barred by limitation is not sustainable. The decision relied on by the learned District Judge, namely Doddeta Subbayaa v. Muthalu Kesavulu (AIR 1945 Mad. 288), does not apply to this case. The facts of that case were that the 2nd accused was discharged under S.253(1) of the Code of Criminal Procedure and a charge under S.379 of the Penal Code was framed against the 1st accused on 30th October 1941 and thereafter, on 24th January 1942 the 1st accused was committed to the Sessions Court. The 2nd accused having filed a suit for malicious prosecution against the complainant on 25th January 1943, it was held that the 2nd accused was discharged on 30th October 1941 and not on 24th January 1942 and therefore the suit was barred by limitation.

3. The learned advocate of the appellants invites my attention to a Full Bench decision of the Madras High Court in Soora Kulasekara Chetty v. Tholasingam Chetty (AIR 1938 Mad. 349), which is a decision in point. In that case Leach C. J. who spoke for the Court, observed that where a person who was prosecuted was either discharged or acquitted and the revision petition filed by the complainant against the discharge or acquittal was dismissed, the prosecution proceeding terminated only when the revision petition was dismissed and not on the discharge or acquittal and therefore the limitation for a suit for malicious prosecution began to run only from the dismissal of the revision petition and not from the discharge or acquittal. The wording of Art.23 of the Limitation Act is "when the plaintiff is acquitted or the prosecution is otherwise terminated", so that limitation starts to run from the termination of the prosecution. The acquittal or discharge of the plaintiff is a termination of the prosecution, if there is no appeal or revision against such acquittal or discharge; but if there is an appeal or revision, the prosecution terminates only with the disposal of such appeal or revision.

4. In the case before me the order of the learned Magistrate discharging the accused persons was passed on 10th Thulam 1123 and the revision petition before the High Court was disposed of on 4th Kanni 1124. The suit, out of which the second appeal has arisen, was filed on 3rd Kanni 1125,