Manohar Lal And Ors vs Naresh Kumar And Ors … on 27 March, 2026

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    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

    SPONSORED

    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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    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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