To succeed in a suit for malicious prosecution, the plaintiff must prove absence of probable cause, malice, and termination of proceedings in their favor.

Heard Mr. B. Majumder, learned counsel appearing for the appellant as well as Mr. S.M. Chakraborty, learned senior counsel assisted by Mr. S. Bhattacharji, learned counsel appearing for the respondents.

2. This is an appeal under Section 100 of the CPC against the concurrent finding with a little variation without touching the substantive finding, returned by the judgment dated 25.03.2013 delivered in Title Appeal No.15 of 2011 by the District Judge, South Tripura, Udaipur, as he then was. The following substantial question of law was formulated by this court by the order dated 25.09.2013 for hearing the appeal:

“Whether the finding of the first appellate Court that there was no probable and reasonable cause is based on evidence or whether the first appellate Court was within the ambit of Order XLI, Rule 33 of the CPC while returning the said finding?”

At the outset the error occurred in the substantial question of law is required to be corrected. The substantial question of law should read as follows:

“Whether the finding of the first appellate Court that the plaintiff failed to prove absence of probable cause is based on evidence or whether the first appellate court was within the ambit of Order XLI, Rule 33 of the CPC while reversing the finding of the trial court in this regard?”

3. The fact that is essential for appreciation of the substantial question of law is that the appellant instituted the suit for damages for the malicious prosecution by which he was persecuted. In the said suit being Title Suit 14 of 2010, the appellant prayed for a sum of Rs.1,05,000/- as damage as according to the appellant. There was no probable and reasonable cause to lodge the ejahar by the defendant No.1. On 15.09.2006, levelling the allegation against the plaintiff that he had stolen some wooden files from the premises of the defendant No.1 the said ejahar was filed. It has been admitted by the plaintiff that based on the said ejahar, the police investigated the case and they filed the charge-sheet. The trial commenced against the appellant vide GR case No. 439 of 2006. Finally by the judgment and order dated 31.08.2009, the appellant was acquitted from the charge of theft. In the plaint, the appellant has stated that though the alleged occurrence of theft had taken place on 15.09.2005, but the ejahar was lodged on 18.09.2006 without any explanation. It is the plaintiff's case that after filing the charge-sheet, the Chief Judicial Magistrate, South Tripura, Udaipur on taking cognizance framed the charge against him for committing criminal house trespass and theft punishable under Sections 457/380 of the IPC on 24.09.2007 and finally by the said judgment dated 31.08.2009 on culmination of the trial he was acquitted from the charge. Within the prescribed period of time, the suit for damages of malicious prosecution was instituted.

4. The defendants contested the suit by filing a written statement and they averred that the ejahar was lodged as the defendant No.1 was seen to have stolen the wooden files from the house premises of the defendant No.1 and thereafter on such allegation the police investigated the case and on finding prima facie case they filed the charge-sheet. The Chief Judicial Magistrate, South Tripura, Udaipur took cognizance on due consideration and framed the charge for trial on finding materials to proceed with the trial. The trial court i.e. the Civil Judge, Senior Division, Udaipur dismissed the suit. But Mr. Majumder, learned counsel appearing for the appellant has brought to the notice of this court the finding of the trial court where it has been observed that:

“Hence from the above discussions made I am of the opinion that the plaintiff side has failed to prove malice against the plaintiff of this case without any reasonable and probable cause.”

5. Mr. Majumder, learned counsel appearing for the appellant has contended that if the trial court returned the said finding how the suit could be dismissed. The said