ARSHAD HUSSAIN KHAN, J.---The Plaintif f has filed the present suit against the Defendants for Reinstatement in ,Service and Damages to the Tune of Rs.5,000,000 with the following prayers:- a) Direct Defendant No.4 for reinstatement of Plaintif fs service as Karkun in BS-1 with effect from 09.03.1998 with all back benefits. b) Direct Defendants 1 to 3 to pay damages to the tune of Rs.5,000,000/- [Rupe es Fifty Lac Only] jointly and/or severally for unlawfully arresting the Plaintif f and damaging his honour and dignity and causing mental torture and then giving no weight to the directions passed by the trial Court regarding initiating lawful action. c) Any other(s) and further(s) relief(s), which this Honourable Court may deem fit and proper under the circumstances of the case, may also be passed.
2. Briefly stated the facts of the present case are that the Plaintif f was a permanent employee of defendant No.4
(KESC) working as Karkun in GSM Department, in BS-1 and he was inducted in the year 1988. During his service, he enjoyed a good reputation in the Department. On 09.03.1998, the plaintif f was erroneously booked and arrested in Crime No.3/98, registered under Sections 147/148/402/302, P.P.C. at Police Station Chakiwara, Karachi, by Defendant No.3 (police officer). Due to the arrest in the case the plaintif f could not attend his duties resulting which defendant No.4, initiated disciplinary proceedings against the plaintif f on the charge of unauthorized absence from service w.e.f 09.03.1998 and called explanation within seven days. It is also stated that neither the said Charge Sheet was served upon the Plaintif f nor he could manage to intimate the department about his arrest and consequently an ex-parte enquiry was held on 13.07.1998 and on the basis of enquiry report, the plaintif f was dismissed from service w.e.f 17,06.1998 vide letter No.PSD/GSM/G-515-3/35 Enq/98/3593 dated 26.09.1998. It is further stated that just after releasing on bail, he came to know about his dismissal from service, therefore, he immediately applied for re-instatement in service to defendant No.4 by narrating all the facts and circumstances of his unauthorized absence from service vide application dated 29.01.2003, which was processed by defendant No.4 for necessary action but to no avail. Whereas, on 24.10.2003, after trial, the plaintif f had been acquitted from the charge levelled against him under the crime referred to hereinabove. It is further stated that the plaintif f's absence from service was neither intentional nor wilful but due to the cruelty of defendan t No.3, therefore, the plaintif f is entitled for reinstatement in service with all back benefits. In this regard, the plain tiff also sent legal notices dated 29.04.2006 and 01.11.2006 to defendant No.4, however , neither said notices were replied nor the grievance of the plaintif f was readdressed. It has been also stated that learned Additional Sessions Judge while passing judgment in Special Case No.23/1999, whereby she acquitted the plaintif f, directed that the copy of the said judgment dated 24.10.2003, be sent to defendants Nos.1 and 2 for taking appropriate action against defendant No:3. The said judgment though sent but the defendan ts 1 and 2 failed to initiate any action against defendant No.3, who is subordinate to them. It has been stated that due to the cruelty and illegal act of defendants, the plaintif f lost his service with Defendant No.4 and remained jobless for years and become a pauper , which caused him mental torture, disrespect and financial loss, thus the Plaintif f is entitled for the damages to the tune of Rs.5,000,000/- [Rupees Fifty Lac Only] against Defendan ts 1 and 3 jointly and/or severally . The Plaintif f in support of his case has relied upon the case law reported as SBLR 2006 SC 55 and 1989 ALD 421.
3. Having served with the summons of this case, Defendants Nos.1 to 4 marked their appearance, however , despite repeated directions, none from the Defendants 1 to 3 has come forward to defend the position even the cost was imposed on 29.03.2010 for filing their written statements but they did not pay any heed, therefore, the matter was ordered to be proceeded ex-parte against the Defendants 1 to 3 on 03.05.2010.
4. Record transpires that though the matter was ordered to be proceeded ex-parte against Defendants 1 to 3 on 03.05.2010, however , an application bearing C.M.A. 16943/2016 was filed by the Assistant Advocate General for bringing the Written Statement on behalf of Defendant No.3, which seems to be taken on the record on 02.06.2017 upon NO OBJECTION of the learned counsel for the Plaintif f.
5. Defendant No.3, in the aforesaid written statement, taking preliminary legal objections has stated that the suit is barred by law as no valid cause of action against defendant No.3 has been shown and the suits for torts can only be filed within a period of three years, therefore the suit is also time barred. It has been stated that the remarks of the 2nd Additional Sessions Judge in Special Case No.23/99, passed as obiter dicta and hence cannot be termed as the operative part of the judgment. It has also been stated that any action if taken against the Defendant will be on the basis of law and independent evidence, which is not the case here and there was no need to take action against Defendant No.3 as cruelty of the said defendant has been denied and he was merely doing his official duty on the complaint of one Pir Muhammad who had allegedly seen the Plaintif f and his Gang committing a murder . It has been further stated that mere acquittal of the Plaintif f does not make the Defendant guilty of any offence and the Defendant No.3 is not responsible for the loss of job of the Plaintif f or his financial losses. It has been stated that allegations levelled against Defendant No.3 are false and the Plaintif f was one of the nominated accused of Crime 03/1998 under Sections 147/148/302/324, P.P.C., Police Station Chakiwara. It has been also stated that though Defendants 1 and 2 have no knowledge of the present case, at that time, but they have issued a show cause to him vide letter dated 26.10.2016. It has lastly been stated that the Judge of the Trial Court has acquitted him by giving him benefit of doubt and the case against Defendant No.3, being baseless and false may be dismissed.
6. Defendant No.4 in its Preliminary Legal Objections and/or Written Statement while raising the maintainability of the present suit denied the claim of the plaintif f. It has been stated that the Plaintif f admittedly was a Karkun , who is a workman under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. And the suit filed against Defendant No.4 is for a relief of reinstatement otherwise justiciable in the Labour Court, established under the Labour Legislation. It has been stated that the suit is not maintainable in law as the relief sought pertains to the terms and conditions of service and employment and as such it is barred under Section 21 of the Specific Relief Act, 1877 read with Section 9 of the Civil Procedure Code, 1908. It has also been stated that no reinstatement can be granted in a civil suit for Damages, the present suit on this ground alone is not maintainable. As regards his arrest in a criminal case was not affected by Respondent No.4 nor was it in the knowledge of Defendant No.4. It has been stated in the written statement that the suit has been filed by the Plaintif f with mala fide intention and in abuse of process of law. He was dismisse d from service after issuance of charge sheet and holding of the enquiry on 26.09.1998. It has been stated that the Plaintif f's plea for reinstatement after almost more than 09 years is clearly time barred and the present suit has been filed by the Plaintif f is sheer abuse of process of law, knowingly that any proceedings now initiated before the Labour Court would be time barred. It has been stated that in law no damages can be claimed by ex-workman in respect of mental shock, damage to reputation; physical and mental loss; loss of career etc., and all these pleas cannot be taken in the civil suit.
7. Before proceeding further , it would be proper to mention here. that the plaintif f during the pendency of the present suit filed application (C.M.A. No.1097 of 2010) under Order VI, Rule 17 of C.P.C. for amendment in pleading, whereas the defendant No.4 filed application (C.M.A. No. 8827 of 2009) under Order VII, Rule 11, C.P.C. for rejection of plaint. The said applications were heardon 04.11.2010 when the plaintif f did not press his application consequently , it was disposed of as not pressed. Insofar as defendant's application is concerned same was disposed of on the statement of learned plaintif f's counsel that the plaintif f does not press his claim of reinstatement into service but he does press the claim for damages against the defendants for damaging his honour . Thus, this Court with regard to the maintainability of suit and the damages framed the following issues:-- 1) Whether the suit is maintainable under the law?
2) Whether the Plaintif f is entitled for the damages against the Defendants ? If yes, to what extent ?
3) What should the decree be ?
Thereafter , vide order dated 02.06.2017, by consent of the parties, commission er for recording evidence was appointed in the matter , and in compliance of the Court order , learned commissioner completed his commission, vide his report dated 08.05.2019, available on the record.
8. From the record, it also appears that despite statement of the learned counsel for the Plaintif f, recorded in the Order Sheet dated 04.11.2010, regarding non pressing of the prayer of reinstatement, the Plaintif f again filed application [C.M.A. 4264], which has been disposed of as "not pressed" upon the statement of another learned counsel appearing for the Plaintif f.
9. Record reveals that the Plaintif f filed his Affidavit-in-evidence presented in Court on 22.01.2013, which has been discarded by learned commissioner appointed for recording evidence, however , his Examination-in--chief was recorded by the Commissioner on 21.07.2018 as Exh-5, and during the examin ation the plaintif f produced the following documents:-- 1 Service Confrmation letter dated 02.08.1988Exh. 5/1 2 Charge Sheet dated 30.03.1998 issued in respect of service enquiry .Exh.5/2 3 Letter of Dismissal from service dated 26.09.1998Exh. 5/3 4 Copy of Application to Deputy Chief Engineer.Exh.5/4 5 Certified copy of judgment dated 24.10.2003Exh.5/5 6 Photocopy of Legal Notice dated 29.04.2006X-5/1 7 Certified copy of remand report dated 10.04.1999, 16.4.1999 and 21.04.1999Exh.5/6 8 Certified true copy of FIR 3/98 Exh.5/7 9 Certified copy of Challan dated 11.8.1999 Exh.5/8 10Certified copy of Challan dated 23.04.1999 Exh.5/9
10. The Plaintif f was subsequently cross-examined by advocate for Defendant No.4 as well as by the Additional Advocate General Sindh and after concluding plaintif fs cross-examination, Qamar Zaman, Defendant No.3' s- examination-in-Chief was recorded by the Commissioner as DW-1, who produced his Affidavit in evidence as Exh.6/1 and he was also cross-examined by learned counsel for the Plaintif f and Defendant No.4. Thereafter , learned commissioner recorded Examin ation-in-chief of Syed Shakeel Ahmed DW-2. Who was also cross- examined by learned counsel for the Plaintif f.
11. In this case, initially the Plaintif f Noor Ali was represented by Mr. Yunus Inayet and Mr. Muhammad Arif Shaikh Advocates and then by Mr. Khalid Nawaz Advocate on pro bono basis and later by Choudhry Abdul Sattar Advocate. Though, the Plaintif f had been attending this case, in person, however , lastly he has made a categorical statement before this Court on 21.10.2019 that due to his weak financial position, he himself will plead his case and also filed his arguments under the caption of " Guzarishat " in Urdu language], which are available on the record.
12. In the said written arguments [Guzarishat ], it has been stated that he worked in the KESC as Karkun and on 09.03.1995, he had been arrested by the Police of Police Station Chakiwara in Crime No.03/1998 illegally , and after a long time, he had been acquitted from the charge of the aforesaid crime but his service was terminated and he remained jobless. The Court had acquitted him and ordered the Inspector General of Police and the Home Department for taking an appropriate legal action against the then Investigating Officer [defendant No.3] in the case, and copy of the judgment dated 24.10.2003 in the aforesaid Special Case No.23/99, which has been exhibited in his evidence as Exh:5/5 was directed to be sent to defendants 1 and 2. It has been stated in the said statement that neither the K-Electric (the then KESC) had reinstated him nor defendants 1 and 2 had taken any action against defendant No.3 the then Investigation Officer of the criminal case) and whereas being jobless, this suit had been filed as pauper suit in which it has been prayed that the KESC and the Investigation Officer of the case may be directed to pay him Rupees One Crore [whereas in his prayer clause he has claimed Rs.5,000,000/-] as damages to his dignity . It has also been stated in the written arguments that the Plaintif f's settled life and education of his children have been disturbed, damaged and ruined due to illegal act of Defendant No.3 as he had registered a false case against the plaintif f which resulted in his dismissal from the service by KESC, therefore, he may be granted the damages as claimed by him.
13. Learned counsel for Defendant No.4, while reiterating the contents of written statement has argued that the suit is barred under Section 21 of the Specific Relief Act, 1877. Learned counsel submits that the Plaintif f has himself claimed that he was a "Karkun" and being a workman he should have invoked the jurisdiction of the Labour Court and/or Federal Services Tribunal and not the High Court. He submits that in absence of Statutory Rules, Regulations and Law in respect of employees of the KESC (K-Electric), the common law of Master and Servant governed under the law of contract is applicable and under the said law no declaratory relief can be allowed and the suit itself is not maintainable in law and liable to be dismissed on this ground alone. Learned counsel while referring the prayer clauses, also argued that in the instant case the claim of the plaintif f against defendant No.4 was only to the extent of his re-instatement which he has given up, vide order dated 04.11.2010. He has also argued that as far as the issue of damages is concerned, firstly the plaintif f did not seek any damages against defendant No.4 and secondly , in law, no damage can be claimed by ex-employee in respect of damage of reputation and/or physical or mental loss. He also submits that even otherwise, it is an admitted position that defendant No.4 had no role of what so ever nature either for lodging FIR against the plaintif f and/or his arrest in the said crime. Moreover , the defendant was not even informed about the arrest of the plaintif f resulting which defendant No.4, after adopting all legal and requisite formalities, dismissed the plaintif f on account of his unauthorized and uninformed absence from the service. Learned counsel also argued that, in the circumstances, no relief in respect of damages can be directed against defendant No.4. He further argued that the present suit filed by the Plaintif f with mala fide intentions and in abuse of process of law. Furthermore, filing of the present case in this Court is clearly a misconception and as such the same is liable to be dism issed. In support of his stance, learned counsel also relied upon the cases of Managing Director Sui Southern Gas Ltd. v. Ghulam Abbas and others PLD 2003 SC 724 = 2003 PLC (C.S.) 796 and Pakistan International Airlines Corporation and 5 others v. Muhammad Izharul Ahsan Qureshi [PLD 197 Karachi 640].
14. Learned Additional Advocate General [Addl. A.G.]. appearing on behalf of defendants Nos. 1 to 3, while adopting the arguments of learned counsel for defendant No.4 on the legal plane has contended that the suit is barred by law as no valid cause of action against Defendant No.3 has been shown and further the suit is also time barred as the time provided for initiation of a Suit for malicious prosecution is one year from the date of termination of prosecution and the initiation of Suits for torts, the period is provided for 03 years, whereas the present suit was filed after a lapse of approximately 6 years. He has argued that as far as defendant No.3 is concerned, he being a police officer acted in accordance with law and lodged report on the complaint of a complainant in respect of murder in the locality . He also argued that defendant No.3 has no personal grudge and/or enmity with the Plaintif f and further defendant No.3 has veheme ntly denied the allegations levelled again st him by the Plaintif f. Learned Addl. A.G. has further argued that the remarks of the learned Additional Sessions Judge in Special Case No.23/99, passed in obiter dicta and hence cannot be the operative part of the judgment. He has argued that mere acquittal that too on the benefit of doubt the Plaintif f does not make defendant No.3 guilty of any offence and defendant No.3 is not responsible for dismissal of the Plaintif f and other financial losses as claimed by him. Learned Addl. A.G. further argued that neither the plaintif f in his examination-in-chief and/or the cross-examination had stated anything else against defendant No.3, nor brought any evidence against defendant No.3, in support of his claim regarding financial losses or damages. While he has admitted in his cross-examination that he had not given any detail of fake cases lodged by the Police. However , voluntarily he has stated that he has sustained losses due to the act of police. Learned Addl. A.G. argued that the trial court has acquitted the Plaintif f by giving him benefit of doubt, therefore, the case against Defendant No.3, being baseless and false, may also be dismissed. Learned Addl. A.G in support of his stance also relied upon the case of Alam Din v. Muhammad Hussain and 2 others [PLD 2012 Lahore 279 ].
15. I have heard the Plaintif f, now appearing in person and the Learned Addl. Advocate General Sindh for Defendants 1 to 3 as well as learned counsel for Defendant No.4 [K-Electric then KESC]. Minutely perused the material/evidence available on the record, the applicable laws; and my findings on the above issues are as follows:-
16. Issue No.1, relates to the maintainability of the present suit. however , since the same is on the ground of limitation, which is a mixed question of facts and law, therefore, I will take up this issue later after discussing merit of the case on Issue No.2. Thus, my findings on Issue No.2 are as under:-
17. From the perusal of the plaint, it appears that the claim of the plaintif f is of two-fold; (i) reinstatement of his service in defendant [K-Electric] and (ii) recovery of damages sustained on account of malicious prosecution.
18. It transpires that defendant No.4 in the present proceedings had filed an application (C.M.A. No.8827 of 2009) seeking rejection of plaint inter alia on the ground of maintainability of the present suit being barred by section 21 of Specific Relief Act, 1877 as well as this court has no jurisdiction to entertain the present case as the plaintif f, admittedly being a workman, for his reinstatement had to approach the Labour Court as the remedy of a worker against his wrongful dismissal lies under Industrial Relations Ordinance, 1969 and civil court could not adjudicate on such matter . On 04.11.2010 during the course of hearing of said application (C.M.A. No.8827 of 2009), the counsel for the plaintif f had given up the claim of the plaintif f for his reinstatement in service but pressed claim of damages.
19. The case of the plaintif f is that he had been illegally booked by Police of Chakiwara Police Station in Crime No.03/1998, and after a long time, he had been acquitted from the charge of the aforesaid crime. According to the plaintif f due to the cruelty and illegal act of defendant No.3 (investigating officer of the crime) who by using his official power/authority arrested him in the above crime, which resulted not only in his dismissal from the service of defendant No.4 but he also remained jobless for years and become pauper , which caused him mental torture, disrespect and financial losses. It is also the claim of the Plaintif f that the high-ups of defendant No.3, despite directions of the court, have also failed to take any action against him, thus plaintif f is entitled for damages to the tune of Rs.5,000,000/-(Rupees fifty Lac only) against Defendants 1 to 3 jointly and severally .
20. From the record, it appears that the whole claim of the plaintif f is based on the decision [Exh. 5/5] made in the Spl. Case No.23 of 199 culminated from FIR No. 3/1998. registered under section 147/148/324/ 402/302, P.P.C. with Police Station Chakiwara , on 24.10.2003 whereby the plaintif f was acquitted from the charge. The plea of the plaintif f in the present case is that on account of the above false case he suffered losses and as such he claimed damages on account of malicious prosecution.
21. Before going into any further discussion, it would be imperative to reproduce the relevant portion of the above referred judgment [Exh.5/5] as under: "I have minutely considered the evidence of all the prosecution witness which did not inspire confidence of the court and they cannot be presumed as truthful witness about complicity of offence and on these evidence prosecution miserably failed to prove the guilt against the accused persons. PW-5 who is a senior Police officer has not made investigation properly with responsibility and according to law which amount to misconduct of profession.
In view of the foregoing reasons benefit of doubt goes in favour of accused. I am of the considered view that prosecution miserably failed to prove the charge against the accused persons therefore, I extended the benefit of doubt to the accused persons and acqu itted the accused namely 1. Noor Muhammad son of Ali Muhamma d, 2.
Fida Hussain son of Lal Muhammad
3. Muhammad Saleem son of Deen Muhammad,
4. Nadeem son of Adam Rehmat,
5. Taimoor Mengal son of Ayaz Mengal and Sultan Ahmed son of Ali Muhammad from the alleged charge under section 265-H, Cr.P.C. Accused Fida Hussain alias Jogi and Sultan Ahmed produced in jail custody , they are rema nded to jail with the direction to Jail Superintendent to release them forthwith if they are not required in any other case. The other accused persons are on bail, their bail bonds and sureties stand cancelled.
Copy of this judgment be sent to the inspector General of police and Home Depa rtment for taking an appropriate legal action against the Investigating of ficer in this case."
[Emphasis supplied]
22. The question of malicious prosecution was attended by their Lordships in a case of Naber Shaha v.
Shamsuddin and others [PLD 1964 Dacca 1 111 wherein the following observations have been made:-- "In a suit for malicious prosecution, rather to sustain an action for malicious prosecution, the following essentials must co-exist:-
(1) A prosecution of the plaintif f by the defendant.
(2) There must be a want of reasonable and probable cause for that prosecution.
(3) The defendant must have acted maliciously (i.e.. with an improper motive and not to further the ends of justice.)
(4) The prosecution must have ended in favour of the person proceeded against.
(5) It must have caused damage to the party proceeded against".
The above views have been reiterated by the Honourable Supreme Court in a case of Muhammad Akram v. Mst.
Farman Bi [PLD 1990 Supreme Court 281.
23. An action for malicious prosecution is distinct from an action for false arrest or false imprisonment. If a person is arrested by a police officer who lacks legal authority for the arrest, the proper remedy is an action for false imprisonment. An action for malicious prosecution is appropriate only when the judicial system has been misused.
In order to claim damages for malicious prosecution it is well settled exposition of law that the plaintif f has to prove
(i) that he was prosecuted by the defendant (ii) that the prosecution ended in the plaintif fs favour (iii) that the defendant acted without reasonable and probable cause and (iv) that the defendant was actuated by malice. All these elementary set of circumstances have to accumulate and if any of them is found lacking, the suit must be failed.
24.In view of the above if one goes to the record of the present case, he could reach to an irresistible conclusion that the FIR was lodged on the complain t of one Pir Muhammad in respect of an incident of firing and murder , for which the plaintif f was charged along with others. After registration of the case, investigation was conducted by the local police and on completion of the same, challan was submitted to the court of competent jurisdiction. There is nothing available on the record which could show that there was any personal enmity and/or grudge between the plaintif f and defendant No.3 which resulted in the indictment of the plaintif f in the case and as such the element of malice appears to be missing complete ly. No doubt, the plaintif f has been acquitted by a court of competent jurisdiction from the charge of murder , but mere his acquittal would not confer any right on him to sue defendants 1 to 3 for damages on the basis of malicious prosecution, because in the case in hand, as stated earlier , the element of malice on the part of the defendants is missing completely . From the perusal of the decision [Exh.5/5] of the trial court, it appears that the charge against the plaintif f was not dismissed because the same was proved to be wrong but for the reason that the prosecution had failed to bring home the guilt of the accused. When a criminal Court acquits an accused, it passes an order by arriving at a definite conclusion that the criminal prosecution is falsely lodged and the accused is falsely implicated or it may, by extending benefit of doubt, acquit an accused. In the latter case, the charge could not be cons idered as mala fide but fails due to some defective investigation by the police or for any other reason connected therewith. In the present case from the perusal of judgment of the trial court, it is manifestly clear that the plaintif f and other co-accused were acquitted by extending the benefit of doubt that too on account of defective investigations for which the judgment was directed to be referred to IGP and Home Department for taking an appropriate legal action against the I.O. and not because of false implication of the plaintif f as alleged.
25. On perusal of the evidence, available on the record. It appears that the plaintiff's evidence is based on his statement alone and he has not produced any evidence which could substantiate his stance of malicious prosecution and further that defendants acted without any reasonable or probable cause. Even otherwise, the plaintif f was acquitted on the basis of benefit of doubt and not on the ground that the plaintif f proved his innocence before the trial Court. The suit for damages can only be decreed when all the ingredients as mentioned hereinabove successfully established, which is lacking in the instant case. Mere acquittal of the plaintif f in the aforesaid criminal case, by extending him benefit of doubt, is not sufficient by itself to establish a case for malicious prosecution against defendants 1 to 3. Hence, the plaintif f has failed to establish his case of malicious prosecution and as such the claim of damages, for which even otherwise no evidence has been produced, sustained by the plaintif f on account of malicious prosecuti on cannot be considered. The case law relied upon by the plaintif f in the memo of the plaint are also distinguishable from the facts of the present case and as such the same are not applicable to the present case. Accordingly , this issue is answered in negative.
26. Now, I take up Issue No.1. and before dealing with this issue, it would be appropriate to reproduce para No. 16 of the plaint relating to the cause of action.
"16. That the cause of action firstly arose on 09.3.1998 when the plaintif f was unlaw fully booked in criminal case by defendant No.3, then on 26.09.1998 when defendant No.4 dismissed the Plaintif f from service on the allegation of unauthorized absence, then on 29.01.2003 when the plaintif f just after releasing on bail applied for reinstatement in service but not considered by defendant No.4, then on 24.10.2003 when the plaintif f' was acquitted from the aforesaid case crime, and thereafter on each and every day applied to defendant No.4 for reinstatement in service and specially on 29.05.2006 and 1.11.200 6 by serving legal notice but to no avail which is still continue day to day, hence this ,suit."
Record transpires that the plaintif f has claimed compensation on account of malicious prosecution, false imprisonment, mental torture, disrespect and financial loss. For all the above acts the imitation period prescribed for filing the suit is one year from the date of acquittal or the prosecution is otherwise terminated. In the present case, admittedly , the prosecution case was terminated vide judgment dated 24.10.2003 passed by 2nd Additional Sessions Judge, Karachi [South] in Spl. Case No. 23 of 1999 under FIR No.3/98 and whereas the present proceeding was initiated by the plaintif f on 28.05.2007 after a delay of about 4 years. There is nothing available on the record, which could show that the plaintif f after termination of prosecution, that is, on 24.10.2003, had taken any step whereby limitation period could be survived, except sending legal notice dated 29.04.2006 [X-51] that too to defendant No.4 in respect of his reinstatement only. From perusal of the para, relating to cause of action, reproduced hereinabove, it clearly reflects that the plaintif f in order to extend cause of action and bring this case within the period of limitation sent legal notice to defendant No.4. In my opinion, the said legal notice is not liable to be considered on two counts; firstly , defendant No.4 has vehemently denied that it has ever received the said notice and upon such denial, the plaintif f neither produced any office copy of the notice nor produced any document, which could show that the said legal notice was actually sent and received by defendant No.4.
Secondly , the factum of issuance of such notice even if accepted for the sake of argument, the same appears to have been sent after the extinction of cause of action and as such merely issuance of the legal notice would not ipso facto extend the cause of action for filing the present case. In the circumstances, from the statement of the plaintif f in the aforesaid para-16 of the plaint, it is apparent that the suit is prima facie barred by limitation under Articles 19 and 23 of the First Schedule of the Limitation Act. Accordingly , this issue is also answered in negative.
27. Issue No.3 In the circumstances, and in view of the above findings, the suit of the plaintif fs is dismissed with no order as to cost.