Rajasthan High Court – Jaipur
Manohar Lal And Ors vs Naresh Kumar And Ors … on 27 March, 2026
[2026:RJ-JP:12907]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 424/1999
1. Manoharlal S/o Ramjilal, Dhobi Pada, Mahaveer Marg,
Alwar (Since Deceased)
2. Dwarka Prasad S/o Manoharlal, Dhobi Pada, Mahaveer
Marg, Alwar (Since Deceased)
----Appellants
Versus
1. Naresh Kumar S/o Late Shivdayal, Village Ghasoli, Teh.
Kishangarhbas, Presently Residing At Indrapuri Colony,
Delhi (Since Deceased)
------Respondent
2. Ramjilal S/o Shivdayal, Ghasoli Teh. Kishangarhbas Distt.
Alwar, Presently Residing At Indrapuri Colony, Delhi
3. Kailash Chand S/o Shivdayal, Ghasoli Teh. Kishangarhbas
Distt. Alwar, Presently Residing At Indrapuri Colony, Delhi
—-Defendant-Respondents
For Appellant(s) : Mr. R.K. Mathur, Sr. Adv. assisted by
Mr. Aayush Goyal
For Respondent(s) :
HON’BLE MR. JUSTICE SUDESH BANSAL
Judgment
27/03/2026
1. This is plaintiff’s Civil Second Appeal under Section 100 of
the Code of Civil Procedure against the judgment and decree
dated 30.05.1998 passed in civil first appeal No.27/1997 by the
learned Additional District & Sessions Judge No. 2, Alwar whereby
and where under, decree for recovery of Rs. 15,000/- along with
interest, passed in favour of the plaintiffs, has been set aside. The
decree for recovery of amount of Rs.15,000/- along with interest
was passed vide judgment dated 10.09.1993 in civil suit
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[2026:RJ-JP:12907] (2 of 10) [CSA-424/1999]No.34/219/1993, filed by the plaintiffs claiming compensation for
their malicious prosecution in a criminal case arising out of FIR
registered for offence(s) under Sections 323, 325 & 452 read with
Section 34 of the IPC, wherein the plaintiffs were acquitted vide
judgment dated 23.03.1990.
2. The brief facts of the case are that three plaintiffs jointly filed
a civil suit for claiming compensation against three defendants,
namely Rammilal, Kailash Chand and one Shivdayal, with
averments that plaintiffs faced unwarranted prosecution before
the criminal Court, initiated on behest of defendants through
lodging an FIR dated 28.06.1981. In this FIR a charge-sheet for
offence(s) under Sections 323, 325 & 452 read with Section 34
IPC was filed against them and they had to face a criminal trial
and had to attend court proceedings for as many as about 70
times, due to which they faced mental and physical harassment as
much as peculiar loss to their business. It was averred that since
plaintiffs have been acquitted vide judgment dated 23.03.1990,
hence, they prayed to award compensation of Rs.15,000/- for
malicious prosecution.
3. It is noteworthy and not in dispute that a cross FIR was also
lodged by plaintiffs against defendants, in respect of the same
incident of scuffle/quarrel ensued between the parties on
28.06.1981. It was a free fight between the parties, hence, cross
FIRs from both sides were lodged against each other.
4. It appears that in the suit, ex-parte proceedings were drawn
against defendants, and the suit was decreed in favour of the
plaintiffs vide judgement dated 10.9.1993. Then, execution
proceedings were initiated by plaintiffs and when the attachment
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warrant was served upon the defendants, one of natural son of
defendant No.3-Shivdayal, viz. Naresh Kumar, challenged the
judgment and decree dated 10.09.1993 by way of filing civil first
appeal.
5. It appears that the civil first appeal filed by Naresh Kumar,
son of defendant No.3-Shivdayal, was belated, nevertheless the
appellate court condoned the delay and found the first appeal
maintainable on behalf of son of defendant No.3, on the ground
that defendant No.3-Shivdayal had passed away during the suit in
the year 1992 and thereafter, decree was passed on 10.09.1993
against defendant No.3.
6. It may be observed herein, as is revealed from the record
and noticed by the first appellate Court that the service of
summons of suit upon any of the defendants, were not served in
person, rather summons were returned unserved with report that
defendants have shifted to Delhi and do not reside at the given
address. Yet, it appears that the summons were affixed and based
on the affixing report of process server, ex-parte proceedings were
drawn against defendants.
7. Be that as it may, the first appeal preferred by on behalf of
Naresh Kumar, son of original defendant No.3-Shivdayal, was
considered on merits and it was categorically observed by the first
appellate Court that plaintiffs miserably failed to prove that the
FIR, on behest of defendants, was lodged falsely and prosecution
of plaintiff was malicious. In addition, first appellate Court
observed that indeed a free fight ensued between the parties on
28.06.1981 and thereafter from both sides, cross FIRs were
lodged. Based on such factual matrix, the first appellate Court
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concluded that in such nature of case of free fight and registration
of cross FIRs, and inititation of criminal litigation, ordinarily the
claim of compensation for malicious prosecution does not survive,
unless and until, plaintiffs specifically establish that their
prosecution was absolutely arbitrary, malicious, revengeful and
unwarranted. The first appellate Court observed that since
plaintiffs miserably failed to prove all these pre-ingredients, trial
Court erred in passing decree for recovery of Rs. 15,000/- against
defendants for malicious prosecution of plaintiffs, hence, finally set
aside the judgment and decree dated 10.09.1993.
7.1. That apart, it is also noteworthy here that plaintiffs
miserably failed to establish the actual loss, allegedly suffered by
them from business due to attending the court proceedings,
hence, the figure of Rs.15,000/- compensation, awarded by the
trial Court in favour of the plaintiffs, is without any basis and has
been granted by the trial Court without application of mind merely
on the ground that plaintiffs prayed for this figure of
compensation.
8. The instant second appeal, vide order dated 23.02.2007 was
admitted for hearing to consider the following two substantial
questions of law:-
“1. Whether in the facts and circumstances of
the case, the judgment and Decree passed by
the appellate court is vitiated on the ground that
in the suit for malicious prosecution the maxim,
“Actio Personalis moritur cum persona” does
apply?
2. Whether in the facts and circumstances of the
present case, where the respondent is neither
the party before the trial court nor before the
executing court and the respondent has no locus
standi hence the appeal filed by the respondent
is not tenable?”
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9. At the outset, it is noteworthy that the plaintiffs have
nowhere established that their prosecution at behest of
defendants was malicious. Learned trial Court, in the judgment
and decree dated 10.09.1993, passed ex-parte, has not whispered
a word nor has given any finding that the prosecution of plaintiffs,
at behest of defendant was malicious, unwarranted or revengeful.
A bare perusal of the judgment dated 10.09.1993, makes it
explicitly clear that the trial Court decreed the suit in one line,
merely on the ground that defendants have not turned up to
controvert the plaintiffs suit. Even if that was so, it was incumbent
for the trial Court to record a finding of satisfaction that the
prosecution of plaintiffs by defendants was malicious and
revengeful as much as unwarranted. In absence of reaching to
such a conclusion, awarding a decree for compensation of
malicious prosecution, merely based on the judgment of acquittal
may not be countenanced and has rightly been set aside by the
first appellate Court.
10. Coming to substantial question of law No.1 and applicability
of the maxim “Actio Personalis moritur cum persona”, it is true
that such maxim applies on the civil suit claiming compensation
for malicious prosecution. The meaning of this maxim is “a
personal right of action dies with the person”, indeed the claim of
compensation of malicious prosecution is a personal legal claims
for facing a personal injury. If plaintiff dies, the claim of
compensation does not survive upon this legal
representative/natural heirs. Similar is the position in respect of
defendant. Present suit was filed jointly by three plaintiffs. It was
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incumbent for each plaintiff to prove his personal injury, due to his
prosecution in the criminal case by defendants. Each plaintiff has
not been able to prove his personal injury for claim of
compensation. Secondly, defendant No.3-Shivdayal had passed
away in the year 1992, it means during course of suit and before
same was decreed vide judgment dated 10.09.1993. Learned trial
Court has not pondered over the applicability of such maxim and
decreed the suit in favour of plaintiffs arbitrarily for the
compensation as was claimed by them. More so, suit claiming
compensation for malicious prosecution was decreed against
defendant No.3-Shivdayal as well, who had passed away. Hence,
the decree qua deceased-defendant No.3-Shivdayal is not
sustainable in the eyes of law and is nullity. Indisputably, decree
passed by trial Court dated 10.09.1993 against three defendants
jointly is inseparable. Hence, a decree which is nullity against one
defendant is nullity against all. Thus, can be observed that the
judgment and decree dated 10.09.1993 passed by trial Court was
illegal and unsustainable in the eyes of law, hence the first
appellate Court has not erred in quashing and setting aside the
judgment and decree dated 10.09.1993, which itself is a nullity.
For the above reasons, substantial question of law No.1 is decided
against appellants and the impugned judgment dated 30.05.1998
passed by the first appellate Court, does not warrant any
interference.
11. Coming to the another substantial question of law, which
pertains to locus standi from respondent No.1 Naresh Kumar, who
preferred first appeal. Admittedly he happens to be natural son of
defendant No.3, namely Shivdayal who had passed away during
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course of the trial. The objection of appellant is that he had no
locus standi to prefer the first appeal. The issue of locus standi of
Naresh Kumar, natural son of defendant No.3-Shivdayal, has been
dealt with and considered by the first appellate Court in the
judgment dated 30.05.1998, before considering the first appeal on
merits. In the backdrop of factual matrix that Shivdayal happens
to be natural father of Naresh Kumar and the Shivdayal had
passed away in the year 1992, yet a decree for recovery of money
against him was passed in the year 1993 and the decree was
sought to be executed against the properties left by deceased-
Shivdayal, it cannot be held that respondent No.1, natural son of
deceased-defendant No.3 was not affixed by the decree because
he was party in the suit or execution proceedings. Indeed,
attachment warrant/recovery warrant were served upon him,
hence, on receipt of attachment warrant, natural son Naresh
Kumar preferred the first appeal. Certainly, he being natural son
and aggrieved had locus standi to challenge the decree of
compensation for malicious prosecution passed ex-parte against
his father. This court finds that first appellate Court has not erred
in maintaining the first appeal and deciding the same on merits. In
the light of factual matrix of present appeal as obtaining herein, it
cannot be held that the Naresh Kumar (respondent No.1 herein)
had no locus standi to prefer the first appeal against the judgment
and decree dated 10.09.1993. Hence, this substantial question of
law is decided negative and against the appellant.
12. Before parting with, it may be noted that out of three
plaintiffs, two plaintiffs, plaintiff Nos.1 and 2 namely Manoharlal &
Smt. Rampyari, have also passed away. Respondent No.1-Mr.
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Naresh Kumar, who preferred the first appeal, has also passed
away.
13. Learned senior counsel appearing on behalf of the plaintiff-
appellant No.3 Dwarkaprasad has not pointed out the involvement
of any additional substantial questions of law except already
framed and adjudicated herein above.
14. In the considered opinion of this Court, the impugned
judgment dated 30.05.1998 passed by the first appellate Court is
well reasoned and speaking more so same falls well within
jurisdiction and parameters of law, hence, do not give rise to any
substantial question of law. First appellate Court has assigned
reasons to reverse and set-aside the decree of trial Court. In case
of Santosh Hazari Vs. Purushottam Tiwari [(2001) 3 SCC
179] the Supreme Court in respect of exercising jurisdiction by
first appellate Court, held in Para No. 15, as under:-
“15. A perusal of the judgment of the trial Court
shows that it has extensively dealt with the oral and
documentary evidence adduced by the parties for
deciding the issues on which the parties went to trial.
It also found that in support of his plea of adverse
possession on the disputed land, the defendant did not
produce any documentary evidence while the oral
evidence adduced by the defendant was conflicting in
nature and hence unworthy of reliance. The first
appellate Court has, in a very cryptic manner, reversed
the finding on question of possession and
dispossession as alleged by the plaintiff as also on the
question of adverse possession as pleaded by the
defendant. The appellate Court has jurisdiction to
reverse or affirm the findings of the trial Court. First
appeal is a valuable right of the parties and unless
restricted by law, the whole case is therein open for
rehearing both on questions of fact and law. The
judgment of the appellate Court must, therefore,
reflect its conscious application of mind, and record
findings supported by reasons, on all the issues arising
along with the contentions put forth, and pressed by
the parties for decision of the appellate Court. The task
of an appellate Court affirming the findings of the trial
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Court is an easier one. The appellate Court agreeing
with the view of the trial Court need not restate the
effect of the evidence or reiterate the reasons given by
the trial Court; expression of general agreement with
reasons given by the Court, decision of which is under
appeal, would ordinarily suffice (See Girijanandini
Devi & Ors. Vs. Bijendra Narain Choudhary, AIR
1967 SC 1124). We would, however, like to sound a
note of caution. Expression of general agreement with
the findings recorded in the judgment under appeal
should not be a device or camouflage adopted by the
appellate Court for shirking the duty cast on it. While
writing a judgment of reversal the appellate Court
must remain conscious of two principles. Firstly, the
findings of fact based on conflicting evidence arrived at
by the trial Court must weigh with the appellate Court,
more so when the findings are based on oral evidence
recorded by the same presiding Judge who authors the
judgment. This certainly does not mean that when an
appeal lies on facts, the appellate Court is not
competent to reverse a finding of fact arrived at by the
trial Judge. As a matter of law if the appraisal of the
evidence by the trial Court suffers from a material
irregularity or is based on inadmissible evidence or on
conjectures and surmises, the appellate Court is
entitled to interfere with the finding of fact (See
Madhusudan Das Vs. Smt. Narayani Bai & Ors.,
AIR 1983 SC 114). The rule is — and it is nothing
more than a rule of practice – that when there is
conflict of oral evidence of the parties on any matter in
issue and the decision hinges upon the credibility of
witnesses, then unless there is some special feature
about the evidence of a particular witness which has
escaped the trial Judges notice or there is a sufficient
balance of improbability to displace his opinion as to
where the credibility lies, the appellate Court should
not interfere with the finding of the trial Judge on a
question of fact. (See Sarju Pershad Ramdeo Sahu
Vs. Jwaleshwari Pratap Narain Singh & Ors., AIR
1951 SC 120). Secondly, while reversing a finding of
fact the appellate Court must come into close quarters
with the reasoning assigned by the trial Court and then
assign its own reasons for arriving at a different
finding. This would satisfy the Court hearing a further
appeal that the first appellate Court had discharged
the duty expected of it. We need only remind the first
appellate Courts of the additional obligation cast on
them by the scheme of the present Section 100
substituted in the Code.”
(underline supplied)
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15. It is well settled that the substantial question of law is sine
qua non to grant indulgence in the impugned judgment by High
Court in exercise of its jurisdiction under Section 100 of CPC.
16. As a final result, the instant appeal stands dismissed. No
cost.
17. Record be sent back.
18. Pending application(s), if any, also stands dismissed.
(SUDESH BANSAL),J
GAURAV SHARMA /10
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