Advocates:
Advocate Appeared:
For the Appellant :Mr. Bhag Singh, Advocate

JUDGMENT :

Alka Sarin, J.

The present appeal has been preferred by the plaintiff-appellant against the concurrent findings returned by both the Courts. The suit of the plaintiff-appellant was dismissed by the Trial Court vide judgment and decree dated 09.01.1997 and his appeal was also dismissed by the First Appellate Court vide judgment and decree dated 13.08.1998.

2. The facts, tersely put, are that the plaintiff-appellant filed a suit for recovery of Rs.50,000/- on account of damages against the defendantrespondents averring in the plaint that he was a retired Army personnel and his marriage was solemnized with defendant-respondent No.1-Bhupinder Kaur on 11.11.1985. They had one daughter and one son out of the wedlock. It was further averred that he was serving in the Indian Army at the time of his marriage and retired on 28.02.1994. He and his wife i.e. defendantrespondent No.1 resided and cohabited together in a small room in Topkhana Bazar, Ambala Cantt. In May 1994 the plaintiff-appellant secured a job as a temporary security guard and shifted to village Nagla. It was further averred that defendant-respondent No.1 fell in bad company and started humiliating and harassing the plaintiff-appellant. She left the house of the plaintiff-appellant and went to Ambala Cantt. to stay with her parents. It was further averred that the Panchayats were also convened however in vain. In July 1994 a petition under Section 9 of the Hindu Marriage Act, 1955 was also filed for restitution of conjugal rights and defendantrespondent No.1 undertook to reside with the plaintiff-appellant only with a view to get the case dismissed. It was further averred that one Vinod was residing with the defendant-respondent No.1 and she had also developed relations with one Mewa Singh. It was further averred that there were several cases pending between the parties. It was further averred that on instigation of Vinod Kumar and Smt. Raj Kaur, defendant-respondent No.1 filed a false complaint to the Superintendent of Police raising allegations against the plaintiff-appellant and his associate. The case was found to be false after investigation. However, it was claimed that the plaintiff-appellant was a respectable citizen and a retired Army personnel who was humiliated and remained in custody of the Police for several hours which lowered his esteem and hence the suit for damages for malicious prosecution and for defamation. The suit was contested by the defendant-respondents by filing a joint written statement. It was denied that defendant-respondent No.1 ever resided at village Nagla or she had deserted the plaintiff-appellant. It was further stated that she was always ready and willing to reside with the plaintiff-appellant and her children. However, the plaintiff-appellant never agreed to keep them. It was further averred that the plaintiff-appellant was interrogated in due course of law and there was no question of any defamation or malice being involved.

3. On the basis of the pleadings of the parties, the following issues were framed :

1. Whether the plaintiff is entitled to recovery of Rs.fifty thousand from the defendant because of malicious prosecution, as damages for defaming the plaintiff ? OPP

2. Whether the suit of the plaintiff is false and frivolous, vexatious and malafide to the knowledge of the plaintiff ? OPD

3. Whether the suit of the plaintiff is maintainable in the present form ? OPP

4. Whether the requisite court fee has been affixed on the plaint ? OPD

5. Relief.

4. The Trial Court, on the basis of the evidence, held that the plaintiff-appellant had failed to prove that he was maliciously prosecuted and dismissed the suit vide judgment and decree dated 09.01.1997. Aggrieved by the same, an appeal was preferred which was also dismissed vide judgment and decree dated 13.08.1998. Hence, the present regular second appeal.

5. Learned counsel for the plaintiff-appellant would contend that the plaintiff-appellant, who was a retired Army personnel, was h