The period of two months under Section 80 of the Code of Civil Procedure is mandatory and must be interpreted literally, excluding the day on which the notice is served or delivered.

Mehar Singh, J.

1. This judgment will dispose of two First Appeals Nos. 165 and 166 of 1954 from two decrees, dated June 29, 1954, of the Subordinate Judge of Karnal, in two suits by two different plaintiffs, namely, B.L. Chopra and S.P. Jaiswal. The suits arose out of the same facts and, during their trial, on May 11, 1954, they were consolidated and tried together. The learned trial Judge disposed of both the suits by one judgment.

2. The plaintiffs brought the suits for damages for malicious prosecution. The defendants to the two suits are the State of Punjab, Shri R.I.N. Ahuja, Secretary to the Punjab Government, and Malik Arjan Das, Sub-Inspector, Police, respectively, Nos. 1 to 3, The plaintiffs case has been that defendant No. 2 was the Deputy Commissioner of Karnal District on material dates. Of the plaintiffs S.P. Jaiswal and defendant No. 2 had some differences in connection with the Karnal Club, of which both were members. It is said that defendant No. 2 thus on account of illwill and malice had the plaintiffs prosecuted in a criminal case and defendant No. 3 helped him in that.

In the plaint by S.P. Jaiswal plaintiff the nature of the offence is not stated but in the plaint by B.L. Chopra plaintiff it is stated that the prosecution was under Section 452 of the Penal Code. The last named plaintiff was actually arrested in the case and later allowed bail. The other plaintiff was away from Karnal and warrant of arrest was issued against him. He approached the High Court under Section 561-A of the Code of Criminal Procedure and a learned Single Judge of this Court quashed the proceedings against him as also against the other accused persons including B.L. Chopra plaintiff.

3. There is Karnal Distillery Company, Limited, at Karnal and S.P. Jaiswal plaintiff is its Director and B.L. Chopra plaintiff was his Personal Assistant. The plaintiffs have claimed that they are men of status and position and defendants Nos. 2 and 3 have without sufficient cause involved them in a criminal case merely because of the ill-will and malice of defendant No. 2 thus causing loss to them. Defendant No. 1 has been made a party to the suits because the other two defendants acted in the discharge of their official duties while trying to bring about prosecution of the two plaintiffs on a criminal charge.

4. A number of defences have been taken by the defendants but the one defence that is material, and on the basis of which the suits of the plaintiffs have been dismissed by the learned trial Judge, is that the suits are premature having been instituted a day before the expiry of the period of notice of two months as referred to in Section 80 of the Code of Civil Procedure. That is the only matter that arises for consideration in both the appeals.

5. The prosecution of the plaintiffs began on September 18, 1952. The notices under Section 80 of the Code of Civil Procedure were served on the defendants on September 18, 1953. The suits were instituted on November 18, 1953. The last day of limitation for the institution of the suits was September 18, 1953, and allowing a period of two months under Section 80 of the Code of Civil Procedure November 18, 1953, but excluding the day on which the notices were served on the defendants a period of clear two months to the defendants could only be available if the suits were instituted on November 19, 1953. The suits were thus within time under the law of Limitation but a day premature according to the period made available to the defendants under Section 80 of the Code of Civil Procedure. The learned trial Judge has dismissed both the suits as premature under the last mentioned provision.

6. It is no longer a matter of argument that the provisions of Section 80 of the Code of Civil procedure are mandatory. It provides that "No suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until