[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 [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 [2026:RJ-JP:12907] (3 of 10) [CSA-424/1999] 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 [2026:RJ-JP:12907] (4 of 10) [CSA-424/1999] 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?” [2026:RJ-JP:12907] (5 of 10) [CSA-424/1999] 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 [2026:RJ-JP:12907] (6 of 10) [CSA-424/1999] 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 [2026:RJ-JP:12907] (7 of 10) [CSA-424/1999] 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. [2026:RJ-JP:12907] (8 of 10) [CSA-424/1999] 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 [2026:RJ-JP:12907] (9 of 10) [CSA-424/1999] 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) [2026:RJ-JP:12907] (10 of 10) [CSA-424/1999] 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