The importance of pleading and disclosing all facts in the plaint to avail the benefit of Section 12(4) of the Limitation Act.

JUDGMENT :

1. Heard Mr. D.C. Roy, learned counsel appearing for the appellant as well as Mr. P. Roy Barman, learned counsel appearing for the respondents.

2. At the time of admission, the following substantial question of law was formulated:

"Whether the interpretation of the first appellate court in para 19 of the said judgment is tenable in law inasmuch as the effect of Section 12(4) of the Limitation Act, 1963 was not at all considered?"

3. The solitary issue involved in this second appeal is that, whether the institution of the suit for malicious prosecution by the appellate court is time barred? Both the courts below held that the suit instituted by the appellant is time barred.

4. The short facts are that, the respondent no.1 has filed a criminal case against the present appellant. The prosecution was carried on and the appellant was found to be acquitted. The judgment and order of acquittal was passed on 23.04.2014. Thereafter, the appellant had instituted a suit for malicious prosecution and for damage. From the order of the trial court, it is apparent that the suit was instituted on 23.6.2015. However, the suit was proceeded to be carried on. At the time of hearing, the matter was brought to the notice of the court that it is a time barred suit since the suit for malicious prosecution and damage has to be filed within a period of one year from the date of order of acquittal in terms of Article 24 of the Limitation Act. The suit was dismissed by the trial court. The appellant, being aggrieved, have preferred an appeal before the Additional District Judge, Kamalpur, Unakoti Judicial district. The first appellate court also found that the suit was time barred and the same was dismissed as not maintainable by the judgment and decree dated 12.09.2017 in connection with Title Appeal 04 of 2016. Being dis-satisfied with the said judgment and decree dated 12.09.2017 passed in Title Appeal 04 of 2016 by the first appellate court, the appellant has preferred the present second appeal.

5. The question of limitation is a pure question of fact and law. Article 76 of the Limitation Act speaks about the period of limitation for institution of suit for compensation for malicious prosecution. The period of limitation is prescribed as one year when the plaintiff is acquitted or the prosecution is otherwise terminated.

6. It is clear in the instant case that, the order of acquittal was passed on 23.04.2014 by the court of Judicial Magistrate, 1st class, Kamalpur but, the suit for compensation was instituted on 23.06.2015. The period of limitation, being a question of fact and law, can be taken up at any stage during proceeding of the suit, in view of section 3 of the Limitation Act. Section 3 of the Limitation Act reads as follows:

"3. Bar of limitation.-

(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

(2) For the purposes of this Act-

(a) a suit is instituted-

(i) in an ordinary case, when the plaint is presented to the proper officer;

(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and

(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;

(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted-

(i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (ii) in the case of a counter claim, on the date on which the counter claim is made in court;

(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court".

7. The Additional District Judge, Kamalpur, Unakoti Judicial District at para 19 of the judgment has observed thus:

"The term 'Prosecution' is t