' Muhammad Yasin, respondent-plaintiff was issued a notice dated 21-2-1992 (Exh.P.1) by the Municipal Corporation, Sargodha, for deposit of Rs,9,500 which amount was considered as arrears of lease-money for the year 1978-79. Upon receipt of the said notice Muhammad Yasin moved an 'application (Exh.P.2) to the Mayor, Municipal Corporation for allowing him to pay the amount through instalments. The petitioner, who happened to be Mayor at the relevant time, passed the order Exh.P.2/1 as under:-- ' It is alleged that the petitioner (the then Mayor, Municipal Corporation, Sargodha) recalled his order of instalments and in this respect a letter was written by the Chief Corporation Officer, M.C.
Sargodha dated 16-4-1992 (Exh.P.3) to the Tehsildar, Sargodha on the direction of the petitioner (the then Mayor of the Corporation) to pay the amount in lump sum. The Tehsildar visited the shop of the respondent-plaintiff and demanded Rs,7,500. The plaintiff-respondent showed the order of the petitioner regarding. Instalment but the Tehsildar, defendant No,5, did not accept the plea of the respondent. He proceeded to apprehend the respondent-plaintiff and locked him in the Tehsil Office.
2. The respondent-plaintiff filed a civil suit claiming damages against the petitioner, including the Municipal Corporation, Chief Corporation Officer, Taxation Officer and Tehsildar (Recoveries) impleading them as defendants. It was alleged by the respondent-plaintiff that by detaining the respondent he was mentally tortured and dishonoured in the eyes of his friends and relatives. He claimed the following amounts as damages:--
1. Mental and physical torture:Rs,10,000
2. Loss of reputation: Rs,10,000
3. Loss of business: Rs,3,000
4. Other expenditure: Total:Rs .2 .000 Rs,25,000
3. Initially, the suit was filed on 17-6-1992 against the Municipal Corporation through the Mayor, and others and the petitioner was not impleaded. However, amended plaint was filed on 26-3-1994, impleading the petitioner as defendant. The suit was resisted by the petitioner and other defendants by filing the written statement. It was contended that the respondent-plaintiff has no cause of action to file the suit. The suit is barred by limitation. The plaintiff has not approached the Court with clean hands and that the acts done by the petitioner being the Mayor of Municipal Corporation were protected under section 179 of the Punjab Local Government Ordinance.
4. From the divergent pleadings of the parties, learned Civil Judge, Sargodha framed the following issues:--
(1) Whether the plaintiff has got no cause of action? OPD
(2) Whether the plaintiff was a defaulter and the amount has been recovered as arrears of land revenue? OPD
(3) Whether the plaintiff has not come to the Court with clean hands? OPD
(4) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD
(5) Whether the defendants are protected under section 179, P.L.G. And the suit is not maintainable?
OPD
(6) Whether the plaintiff is entitled to the decree for recovery of Rs,25,000 as damages as has been prayed for in the plaint? OPP
(7) Whether the suit is false and frivolous ad as such the defendants are entitled to special costs under section 35-A, C.P.C.? OPD
(8) Relief.
5. Evidence was recorded. Shahid Iqbal appeared as P.W.1, whereas Zafar Iqbal, Assistant Record- Keeper of the Municipal Corporation was produced as P.W.2 who proved notice Exh.P.1., copy of application Exh.P.2 submitted by the respondent-plaintiff for payment of the amount through instalments, order of the petitioner (as Mayor) Exh.P.2/1 and letter No,7296/G Sargodha dated 16-4- 1992 (Exh.P.3) alleged to have been written by the Chief Officer of Municipal Corporation. The plaintiff himself appeared as P.W.3. On behalf of the defendants, Mumtaz Khan, Land Inspector in the Municipal Corporation, Sargodha, appeared as D.W.1.
6. The trial Court decided Issue No,1 against the defendants by holding that the respondent-plaintiff had the cause of action to file the suit. Under Issue No,2, it was observed that the plaintiff was a defaulter of the Municipal Corporation. Issues Nos.3 and 4 were decided against the defendants.
Under Issue No,6 it was found that no notice was issued to the respondent-plaintiff by the Mayor, Municipal Corporation regarding cancellation of the order for payment of the amount through instalments and that Tehsildar (Recovery), defendant No,5 illegally arrested the plaintiff, and hence the trial Court found that defendants Nos.2 and 5 were responsible for illegal arrest of the plaintiff- respondent due to which he received mental shock, physical pain and false imprisonment, therefore, the suit of the respondent-plaintiff was decreed vide judgment and decree dated 18-10- 1994 to the extent of Rs,10,000 as damages against defendant No,2/petitioner herein, while defendant No,5 was ordered to pay Rs,15,000. Against the said judgment and decree of the learned trial Court, the petitioner filed an appeal which was dismissed by the learned Additional District Judge, Sargodha vide his judgment and decree dated 29-5-1996. It was found that action of the petitioner is not protected under section 179 of the Punjab Local Government Ordinance because he should have appeared in person to give evidence in support of said contention. On the objection that the suit of the respondent-plaintiff was barred under section 22 of the Limitation Act read with Order 1, rule 10(5), C.P.C. The Court recorded a finding that:-- "It was necessary for the appellant that he should have filed written statement after filing of the amended plaint and there he should have taken such objection. The present appellant as well as the other defendants got recorded their statement whereby they relied upon their previous written statement and no such objection has been taken in their written statement. Therefore, this objection cannot be taken at the time of appeal."
' It was further held that the Mayer/petitioner should have informed the respondent-plaintiff about the cancellation of his order regarding payment of the outstanding recovery through instalments which has not been done in this case, therefore, he was liable to pay Rs,10, 000 as damages.
7. The learned counsel for the petitioner contends that the trial Court as well as the First Appellate Court has failed to examine that to what extent Mayor/petitioner was responsible for the act of the Municipal Corporation and that the parameters of malicious prosecution have not been considered by the two Courts below. He further states that the suit of the respondent-plaintiff by impleading the petitioner by filing the amended plaint on 26-3-1994 was barred by section 22 of the Limitation Act read with Order 1, rule 10(5), C.P.C. He states that the suit could have been brought against the petitioner within one year of the cause of action accrued to the respondent- plaintiff under Article 19 of the Limitation Act. He contends that under section 179 of the Punjab Local Government Ordinance protection of action taken in good faith was available to the petitioner. He says that all the ingredients for malicious prosecution have not been established in this case. He strongly contends that the element of malice on the part of the petitioner, which was the duty of the respondent-plaintiff to prove, has not been established in this case against the petitioner.
Reliance has been placed on the case reported as Shakil Ahmad v. Ashfaq Ahmad (1993 CLC 1669), Haji Salman Ali & Co. v. Province of Balochistan through Secretary, Irrigation and Power Department (PLD 1994 Quetta 13) and Government of Pakistan' v. Sardar Muhammad Ali (PLD 1965 (W.P.) Karachi 1). Finally, he argues that the plaintiff-respondent has not proved that the letter dated 16-4-1992 written by the Chief Corporation Officer to the Tehsildar was on the order of the petitioner.
8. Conversely, the learned counsel for the respondent contends that the order allowing the recovery in instalments was calculated by the petitioner on 16-4-1992 and it was written so by the Chief Corporation Officer to the Tehsildar, which is Exh.P.3 on the file, therefore, the petitioner being Mayor was also liable for the act of the Tehsildar who arrested the respondent-plaintiff.
9. There is no dispute about the fact that the demand for payment of Rs,9,500 (Exh.P.1) was issued by the Municipal Corporation to the respondent-plaintiff through Taxation Officer of the. Municipal Corporation, Sargodha, and on the application of the respondent-plaintiff an order Exh.P.2/1 to pay the amount through instalments was made by the petitioner as Mayor of the Corporation, who was competent to do so. However, the respondent has not proved that the letter Exh.P.3 written by the Chief Municipal Corporation Officer to the Tehsildar, defendant No,5 stating that the order passed by the Mayor allowing the recovery in installments may be considered as void, was passed by the petitioner as Mayor of Municipal Corporation and he had any element of malice. Confronted with this situation, the learned counsel for the respondent states that there is no evidence on the record to this effect and that the respondent-plaintiff should have placed on record the orders of the Mayor/petitioner to this effect or minutes showing that the order was in fact passed by the petitioner. It is admitted fact on the record that the petitioner neither visited the shop of the respondent-plaintiff to demand the balance amount of Rs,7,500 outstanding against him nor he had issued any instructions to arrest the respondent-plaintiff. Onus was on the plaintiff to prove that the proceedings against him were malicious and without any probable or reasonable cause.
The plaintiff-respondent was bound to prove that he was prosecuted by the petitioner/defendant, A proceedings against him terminated in his favor, prosecution was instituted against him without any reasonable or probable cause and foundation of action taken against him by the Recovery Officer was at the instance of the petitioner and was motivated with malice as observed by the Privy Council in case of Balbhaddar Singh and another v. Badri Shah and another (AIR 1926 PC 46).
In the case reported as Gaya Parasad v. Bhagat Singh (ILR 130 All. 525) it was held that foundation of the action for malicious prosecution is malice, which may be shown at any time in the Court of inquiry. In case of Shakil Ahmad v. Ashfaq Ahmad (1993 CLC 1669) while interpreting the provisions of Article 118 of the Qanun-e-Shahadat Order, 1984 it was ruled:-- "Onus was 'on plaintiff to prove that proceedings against him were malicious and without any probable reasonable cause."
10. On the touchstone, of the above-stated case-law, I have examined the claim of the respondent-plaintiff for recovery of damages on account of mental and physical torture, loss of reputation, loss of business and other expenditure claimed by him. To my mind, the respondent- plaintiff has failed to prove that the letter Exh.P.3 dated 16-4-1992 issued by the Chief Corporation Officer, Municipal Corporation, Sargodha, to the Tehsildar (Recovery) was at the instance of the petitioner (the then Mayor of the Corporation) and he had acted with malice to cause harm to the respondent-plaintiff. Had there been any intention in the mind of the petitioner to cause damage to the respondent-plaintiff, he would have not passed an order for payment of the outstanding amount in instalments. It is disputed by the respondent-plaintiff that notice is issued by the Taxation Officer and the petitioner had nothing to do with it.
11. Whether the petitioner being the Mayor was protected or not under section 179 of the Punjab Local Government Ordinance for his actions taken in good faith. Section 179 reads as under:-- "179. Protection of action taken in good faith.---No suit, prosecution or other legal proceedings shall lie against Government. The Election Authority, the Tribunal or any Local Council or against any person authorised by any of them for anything done or intended to be done in good faith, under the Ordinance or for any damage caused or likely to be caused by any such thing."
12. The learned First Appellate Court has turned down the objection of the petitioner on the ground that he did not appear in Court to prove the bona fide of his action. As already observed, the onus of proving the element of malice was on the respondent-plaintiff. Since the plaintiff-respondent was not able to discharge the basic onus, therefore, both the Courts below were wrong in observing that protection of action taken in good faith was not available to the Mayor, the petitioner.
13. The respondent was arrested by the Tehsildar on 27-4-1992. The suit was admittedly filed on 18- 6-1992. The petitioner was impleaded as defendant by filing the amended plaint on 26-3-1994.
Under Article 19 of the Limitation Act, the period of one year was available to the respondent- plaintiff to sue the petitioner. In this view of the matter, there is force in the contention of the learned counsel for the respondent that the suit should be considered to have been instituted on the day when the amended plaint was filed as when a person is added as party on an application made for the purpose the addition may be deemed to take effect from the date of presentation of the application. Present suit became badly time-barred under section 22 of the Limitation Act. See case reported as Hayat and others v.- Amir (PLD 1982 SC 167).
14. The Civil Judge as well as the Court of appeal has illegally rejected the objection of the petitioner that the suit was barred by limitation on the ground that the same was not taken in the written statement. It was the duty of Courts to determine the issue of limitation, because the question of limitation is always a mixed question of law and fact. It has been ruled in the case reported as Haji Muhammad Shah v. Sher Khan and ()then (PLD 1994 SC 294):-- "Question of limitation being a mixed question of fact and law, even if plea of limitation was not pleaded, Court would determine such issue."
' For what has been discussed above, I am constrained to hold that the respondent-plaintiff has not been able to prove malice against the petitioner and that the arrest of the respondent-plaintiff was at the instance of the petitioner without any probable cause. The suit of the respondent- plaintiff was also barred by time. Resultantly, this revision petition is allowed, the judgment and decree of the learned Civil Judge dated 18-10-1994 and of the learned Additional District Judge, dated 29-5-1996 are set aside. The suit for recovery of damages on account of malicious prosecution, filed by the respondent, stands dismissed to the extent of petitioner only. However, the parties shall bear their own costs.