Interference with findings of fact in second appeal.

Defendant in O.S.No.52 of 1978 on the file of District Munsif, Kallakurichi, is the appellant in the above appeal. The respondent, plaintiff in the said suit filed the same for recovery of Rs.2,500 being the expenses and damages by way of defamation.

.2. The case of the plaintiff as seen from the plaint is briefly narrated hereunder: The plaintiff is a pawn broker. He is carrying on his business as “Murugan Financiers” at Kallakurichi. He belongs to a respectable and noble family. The defendant has lodged a false complaint against the plaintiff before the Sub Inspector of Police, Kallakurichi, on 27. 1976 under Secs.406,420 and 120(B), I.P.C. The police have registered a criminal case against the plaintiff in Crime No.648 of 1976. On account of the complaint, the plaintiff has to obtain anticipatory bail from the Sessions Judge, Cuddalore, and the plaintiff attended the Court of Judicial Sub Divisional Magistrate at Ulundurpet for a number of hearings. Finally the complaint was referred by the Station House Officer, Kallakurichi, as mistake of fact on or about 24. 1977. The plaintiff underwent much mental agony, and he has spent more than Rs. 1,500 for his release. He values damages at Rs. 1,000 and therefore he prays for a decree as claimed.

3. The defendant filed a written statement wherein he has admitted that the suit as framed is not maintainable, it is also barred by limitation. The defendant has not lodged false complaint against the plaintiff and the plaintiff has not suffered mental agony. The defendant is not liable to pay the expenses incurred by the plaintiff in the criminal case. There is no cause of action. With these averments, he prays for dismissal of the suit.

4. Plaintiff himself was examined as P.W. 1 and he has produced and marked Exs.A-1 to A-8 in support of his case. On the other hand, the defendant has neither examined any one in support of his case nor marked any document. The learned District Munsif, after framing necessary issues and in the light of the evidence available on record, dismissed the suit. Against the dismissal of the suit, the unsuccessful plaintiff filed appeal in A.S.No.294 of 1981 before the Sub Court, Vridhachalam. The learned Subordinate Judge after re-apprising the whole evidence, disagreed with the findings of the trial court, allowed the appeal and decreed the suit as prayed for.

5. Against the decree granted by the lower appellate court, the defendant has filed the present appeal before this Court. While entertaining the second appeal, this Court has framed the following substantial question of law for consideration:

6. In the light of the substantial question of law framed, Mrs.Hema Sampath, learned counsel for the appellant, submitted that the lower appellate court committed an error in decreeing the suit when the plaintiff has not made out a case. In other words, she contended that there is no specific pleading regarding “malice”. She further contended that at any rate, the suit filed by the plaintiff is clearly barred by limitation, and prays for interference in this appeal. On the other hand, Miss. B.Sivakamasundari, learned counsel for the respondent submitted that on the basis of proper pleadings and evidence, the lower appellate court rightly granted decree as prayed for. She also submitted that in the absence of any evidence either in the form of oral or documentary, it is not open to the defendant to raise any objection with regard to the decree granted by the lower appellate court. I have carefully considered the rival submissions.

.7. Admittedly the plaintiff is pawn broker and he is carrying on his business as “Murugan Financiers” at Kallakurichi. He is an income-tax assessee. It is the case of the plaintiff that on 27. 1976 under Ex. A-2 a complaint was lodged by the defendant to the Sub Inspector of Police, Kallakurichi. Ex.A-3 is the First Information Report and Ex.A-1 is the paper pub-lication made in “Daily Thanthi” newspaper on 8. 1976. In the