JUDGMENT

Daniels and Neave, JJ. - This second appeal arises out of a suit against a Sub-Inspector of Police for damages for libel. The cause of action is thus stated in paragraph 2 of the plaint:

The defendant, taking undue advantage of his post as a thanadar, through avarice, malice and enmity without any reasonable and sufficient ground and in order to cause loss to the plaintiff, made some wrong entries on different occasions, without the knowledge and information of the plaintiff, and eventually after secretly obtaining the permission of the higher authorities, dishonestly misrepresenting facts, entered the name of the plaintiff in the register of badmashes.

2. The real name of the register thus described is a "History Sheet." These history sheets are confidential documents of the police department, of which not even the persons regarding whom they are prepared are supposed to be aware.

3. The learned Judge of the court below seems to have been in some doubt whether the suit was one for libel, or partly for libel and partly for some unnamed kind of tort, but in this Court at any rate the latter contention has not been put forward. The learned Subordinate Judge, who tried the case, came to the conclusion that the defendant was not responsible for the plaintiff's name being entered in the history sheet, that the plaintiff had, therefore, no cause of action and that, in any case, the suit was barred by limitation under Article 24 of the Limitation Act. He was also of opinion that whatever part the defendant had taken in reference to the plaintiff, had been taken in good faith. He omitted--and this is the only flaw in his otherwise excellent judgment--to consider an issue which lay at the threshold of the proceedings and which had been raised before him, namely, whether the suit must fail on the ground of want of proper notice as required by Section 80 of the Code of Civil Procedure. The case came in appeal before an Officiating District Judge, who reversed the Subordinate Judge's findings on all points. The judgment of the learned Officiating District Judge is not a satisfactory one, and if this were a first appeal, some of his findings might be difficult to accept even on the face of the judgment itself. As, however, this is a second appeal, his findings of fact must be accepted unless it can be said that there was no evidence to support them or that they are based on some error of law. His principal findings are that it was the defendant who caused the history sheet to be opened, and that in doing so the defendant acted out of malice and from improper motives. The second finding is not open to attack in second appeal. The first finding can be, and has been, attacked on the ground that it is based largely on a misreading of the pleadings. The learned Judge was under the impression that the defendant admitted in his written statement that the history sheet was opened at his instance. The defendant had in fact denied that he was in any way responsible for the entry. On the question of notice, the learned Judge held that no notice was necessary because the defendant acted from improper motives, and on the question of limitation he held that Article 120 of the Limitation Act was applicable and that, in any case so long as the history sheet was in existence, there was a continuing wrong which entitled the plaintiff to the benefit of Section 23 of that Act. The history sheet was not closed till 1919 which was within one year of the filing of the suit.

4. The first question which we have to decide is whether the defendant was entitled to notice of the suit u/s 80 of the Code of Civil Procedure. The plaintiff did in fact send a notice to the defendant, but it is admitted that he filed his suit without waiting for the expiration of the two months prescribed by the section. If, therefore, notice was necessary, the suit must fail and should have been dismissed. The contention urged on behalf of the respondent in this Court is that which was