HABIBUR RAZZAQ Vs. RAM SARUP

JUDGEMENT

(1.) This appeal has arisen from a suit brought by the plaintiff-appellant for damages for malicious prosecution. The suit was dismissed by both the Courts below.

(2.) The plaintiff-appellant was the head, clerk of the Municipal Board, Tilhar, District Shahjahanpur, from 1924 to 1929. Defendant 2 was the chairman of the Board up to 7 February 1927, when he was succeeded by defendant 1 who held that office, till 1931, and perhaps subsequently. The appellant was in charge of the stationery and a report was made by some official to defendant 2 during his tenure of office that the appellant had embezzled a certain sum of money which his account showed had been spent in the purchase of stationery. The suspicion was apparently based on the absence of receipt from the seller of the stationery in question. Defendant 2 started a departmental, enquiry which was not completed when he relinquished office. That enquiry was continued after defendant 1 assumed charge. According to the findings arrived at by the lower appellate Court, defendant 1 was reluctant to prosecute the appellant. The District Magistrate however pressed upon him the desirability of launching a prosecution. Accordingly, defendant 1 acting as the chairman of the Municipal Board made a report to the Police and the appellant was prosecuted after a preliminary investigation. He was convicted by the Sessions Judge but was acquitted, on appeal to this Court on 15 May 1930. The suit which has given rise to this appeal was instituted on 13th May 1931, on the allegation that there was enmity between the plaintiff and the two defendants, and that actuated by malicious motives they conspired to launch the prosecution which ended in the appellant's favour. It appears that the appellant gave a notice purporting to be one under Section 326, Municipalities Act; but the suit was not instituted till after the expiry of six months from the date of the order of this Court acquitting the appellant. One of the questions which arose out of the pleas taken in defence was whether the suit was barred by Section 326 (3), Municipalities Act, which provides that: No action such as is described in Sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the cause of action.

(3.) The lower Courts held that the suit was barred by the aforesaid rule of law. They also found that defendant 2 was in no way responsible for the prosecution of the plaintiff. As regards defendant 1, it was found that he prosecuted the plaintiff reluctantly and without malice and that there was a reasonable and probable cause for the plaintiff being prosecuted. The lower appellate Court has discussed all the circumstances of the case in a lengthy judgment; but it is difficult to discover whether according to that Court the circumstances existing on the date on which defendant 1 made a report to the police were such as to justify the assumption that the plaintiff was in all probability guilty of the offence for which he was prosecuted. It is not necessary for us to enter into a discussion of that aspect of the case in view of the fact that the suit appears to us to be barred by Section 326(3), Municipalities Act, as held by the lower Courts. Section 326(1), is in terms similar to those of Section 80, Civil P.C., and provides that: No suit shall be instituted against a Board, or against a member, officer or servant of a Board in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice in writing has been, in the case of a Board, loft at its office, and, in the case of a member, officer or servant, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left.