In a suit for malicious prosecution, the plaintiff must prove that the prosecution was instituted with malicious intention, and absolute privilege and suppression of facts in the plaint are not sufficient to non-suit the plaintiff.

Alok Aradhe, J.

With the consent of parties, the matter is heard finally.

In this revision under Section 115 of the Code of Civil Procedure the applicants have assailed the validity of the order dated 16.3.2011 passed by the trial Court, by which, the application preferred by the applicants under Order 7, Rule 11 of the Code of Civil Procedure has been rejected.

2. Facts giving rise to filing of the revision, briefly stated, are that the non-applicant filed a suit seeking the relief of damages on account of malicious prosecution. It was pleaded that the non-applicant was posted as Assistant Teacher at Government Girls College. On 16.4.2005, on the basis of a complaint filed by applicants, offences under Sections 353, 448, 506-B and 294 of the Indian Penal Code were registered against the non-applicant. Thereafter, a challan was filed and charges were framed under Sections 353, 448 and 506-B of the Indian Penal Code. The trial Court vide judgment dated 05.2.2008 convicted the non-applicant under Section 353 of the Indian Penal Code and also imposed a fine of Rs. 1000/-. Against the judgment dated 05.2.2008 the appeal was preferred before the Sessions Judge, which was allowed and the non-applicant was acquitted. It was also averred that the applicant with malafide intention of defaming the non-applicant instituted malicious proceeding against her, due to which, she suffered mental pain and suffering and accordingly claimed damages to the tune of Rs. 2 lacs in the suit.

3. The applicants filed an application under Order 7, Rule 11 of the Code of Civil Procedure, inter alia, on the ground that applicants are saved by absolute privilege as the complaint made, deposition made, etc. were made under the administration of justice. It was also pleaded that in the application that non-applicant had entered into compromise with applicant No.4 on 16.6.2005 and thereupon by order dated 02.9.2005, application for recording compromise was accepted and the non-applicant was acquitted of the offence under Section 506- B of the Indian Penal Code against applicant No.4 and no offence under Section 294 of the Indian Penal Code was framed against the non-applicant. However, the aforesaid facts have been suppressed in the plaint. The trial Court, however, vide impugned order held that the averments stated in the application cannot be decided without recording the evidence. Accordingly, the trial Court rejected the application.

4. Learned counsel for the applicants while referring to "The Law of Torts" 24th Edition has submitted that no action for libel lies for any statement in the pleadings. It was further submitted that there is no difference between the evidence given in the box and evidence on affidavit and they are both mutually privileged. In support of aforesaid submissions, learned counsel has placed reliance on the decisions in the case of Sedimbi Hanumantharow and others v. Nidumolu Seetharamayya AIR 1942 Madras 343, Lachhman v. Pyarchand, 1959 Rajasthan 169, Rajindra Kishore v. Durga Sahi AIR 1967 Allahabad 476, Major Gian Singh v. S.P. Batra, AIR 1973 Punjab & Haryana 400, Wahid v. K.N. Pathak, 1999 (1) MPWN 115 and Kutubuddin v. Ishrat Begum and others, 2006 (2) Weekly Note 94.

5. On the other hand, learned counsel for the non-applicant has supported the order passed by the trial Court and has placed reliance on the decision in the case of Shiv Shankar Patel v. Smt. Phulki Bai and others, 2007 (2) CGLJ 100.

6. I have considered the rival submissions made at the Bar and have perused the record. It is well settled in law that while deciding the application under Order 7, Rule 11 of the Code of Civil Procedure only the averments made in the plaint alone are required to be seen. [See: Saleem Bhai and others v. State of Maharashtra & ors., (2003) 1 SCC 557].

7. A libel is a defamation in some permanent form, i.e. Written or printed defamation. The High Courts of Bombay, Madras, Allahabad and Patna have held that no action for libel lies for a