JUDGMENT : Mohapatra, J. - The Defendant being unsuccessful in both the Courts below bag brought this second appeal against the judgment and decree dated 27-2-50 of Sri B.C. Das, Additional District Judge of Ganjam, arising out of a suit for damages on malicious prosecution. The Defendant being the Karji of the village Surada submitted a report on 28-8-45 (Ext. 5 ) to the Sub-Magistrate, Sarada, through the Revenue Inspector, alleging that the Plaintiff along with 12 others were letting out filthy water from their house to the public road on 24-8-45 thereby rendering it insanitary. The Plaintiff was tried u/s 3(9) of the Madras Town Nuisance Act which was in force in the town of Surada and was acquitted in the Court of the Stationary Sub-Magistrate, Ghumsur. Eleven others against whom the report was submitted were convicted. The Plaintiff's allegation is that the prosecution was malicious and without any reasonable and probable cause. 2. The defence was that the Defendant and also the Revenue Inspector had been the letting out of the filthy water and the allegations in the report (Ext. 5) were substantially true; there was no malice. A further point also was taken that the Defendant was not the real prosecutor, and, as such, no action for damages for malicious prosecution would lie against him. 3. Mr. Misra, appearing on behalf of the Defendant Appellant, strongly urges that the suit is bound to fail on the simple ground that it has not been proved that the Defendant was the real prosecutor. Indeed the point was taken in the lower appellate Court; but the finding of the lower appellate Court on the point does not been to be binding on me inasmuch as he has not applied his mind to the legal requirements on the point. In the case of Radhu Naik v. Dhadi Sahu ILR (1952) Cutt. 633. I had he occasion of discussing the question at some length and, with great respect, followed the observations made by their Lordships of the Privy Council in the cases reported in Galla Prasad v. Bhagabat Singh ILR 30 All. 525 (P.C.) and Balabhaddar Singh v. Badri Sah 7 P.L.T. 591 (P.C.). I had also referred to a decision of the Patina High Court reported in Narain Pande and Others Vs. Gaya Rai and Others the judgment having been delivered by Fazl Ali, J. (as he then was). 525 (P.C.) and Balabhaddar Singh v. Badri Sah 7 P.L.T. 591 (P.C.). I had also referred to a decision of the Patina High Court reported in Narain Pande and Others Vs. Gaya Rai and Others the judgment having been delivered by Fazl Ali, J. (as he then was). Their Lordships of the Privy Council in the case of ILR 30 All 525 (P.C.) had observed: The question in all cases of this kind must be-Who was the prosecutor? and the answer must depend upon the whole circumstances of the case. The mere setting of the law in motion is not the criterion; the conduct of the complaint before and after making the charge must also be taken into consideration. It is the settled law that in such cases the Plaintiff has got to prove that it is the Defendant who was directly and primarily responsible for the prosecution of the Plaintiff. The above decisions make it clear also that it is to be shown that the Defendant was taking active part in the prosecution. In the Privy Council of Balabhaddar Singh v. Badri Sah 7 P.L.T. 591 (P.C.), their Lordships observed: They (the Plaintiffs) must show that Badri Sah (Defendant) invented the whole story as far as it implicated the Appellants and tutored Raghunath and Tea to say it. That is a very heavy onus of proof, and unless they sustain it, the Appellants must fail. That is to say that not only the Defendant had lodged the information but was taking active part in the prosecution itself. The learned lower appellate Court has not applied his mind to the circumstances of the case from this point of view in deciding the pertinent question as to who the prosecutor was. But as I find his findings on other points and the admitted circumstances will lead to the conclusion that the Plaintiff has not been able to prove in this case that the Defendant was the real prosecutor. 4. Let us examine the conduct of the Defendant before and after submitting this report (Ext. 5). While discussing the question of malice and ill-feeling between the parties, as set up by the Plaintiff, the learned lower appellate Court is of opinion that the parties were perfectly friendly and cordial before and after the report was filed by the Defendant. Ext. Let us examine the conduct of the Defendant before and after submitting this report (Ext. 5). While discussing the question of malice and ill-feeling between the parties, as set up by the Plaintiff, the learned lower appellate Court is of opinion that the parties were perfectly friendly and cordial before and after the report was filed by the Defendant. Ext. G is a letter dated 19-5-45 written by the Plaintiff to the Defendant (the Karji) asking him for a solvency certificate which would help the Plaintiff in getting his name registered as one of the contractors and the lower appellate Court finds that it was on the recommendation of the Karji that the Plaintiff obtained such a certificate. There is another letter between the parties dated 20-6-46 (Ext. F) wherein the Plaintiff also sought the help of the Defendant for getting concession in the matter of school fees of his child. Apart from this relationship between the parties before and after the institution of the case, the finding of the lower appellate Court that the Defendant had not taken any active part in the prosecution is much more important in the matter of the conduct of the Defendant as to the prosecution of the Plaintiff. 5. Another piece of circumstance appears to be very important in this connexion. Ext. 5 is the report submitted by the Defendant on 28-8-45 to Sub-Magistrate through the Revenue Inspector. In the report the fact of the Plaintiff having let out filthy water to the public road on 24-8-45 is stated and in the concluding portion of the report it is simply mentioned "the report is written for your information." Ext. 5(a) is the endorsement made by the Revenue Inspector stating in detail that he had seen the Plaintiff letting out filthy water to the public road. He goes on further to mention that "It is desirable that action should be taken against the persons...." The Plaintiff has not been able to place any material on the record to show whether the prosecution was initiated on the report of the Defendant (Karji) or on the endorsement made by the Revenue Inspector who, as he says, was present at the time and according to whom it is desirable that action should be taken against the persons. It is important to note that this clause that it is desirable that action should be taken against the reasons is not to be found if, the original report submitted by the Defendant. In view of these circumstances, therefore, I am definitely of the opinion that the Plaintiff has not been able to establish in this case the substantial point that the Defendant was really directly and primarily responsible for the prosecution. The suit must fail on this ground alone, and it is not necessary to consider the other questions of absence of reasonable and probable cause and malice. 6. The appeal, therefore, succeeds and the Plaintiff's suit is dismissed with costs throughout. Final Result : Dismissed