Judgment :- 1. An interesting question is raised in this Second Appeal and that is whether a person who obtains an order of injunction under 0.39 R.1 of the Civil Procedure Code from a court restraining the defendant from entering upon the suit property would be liable in damages to the person against whom the order of injunction is obtained when it is shown either that the order of injunction h vacated later, or the suit itself is dismissed without proof of anything more. The courts below have found that the plaintiff under such circumstance is entitled to claim damages and have awarded a decree against the defendant. The first defendant, claiming to be a lessee of the property, filed a suit O.S. 172 of 1961 against the plaintiffs in this suit and others and on 21-2-1961 an order of injunction was passed in the suit on his request. That order was to restrain the defendants in that suit from entering on the property. That was in force until, by orders of court, the right to take the usufructs from the property was put up for auction and the possession of the property was taken by the purchaser in such auction. The first defendant himself successfully bid in the auction on 6-4-1961. Ultimately the suit was dismissed holding that the plaintiff therein was not a lessee. Damages claimed in the suit was the loss caused to the plaintiff here by reason of the order of injunction in force during the period from 21-2-1961 to 6-4-1961. The question is whether the plaintiff is entitled to a decree merely by showing that the injunction was obtained on insufficient grounds or that the application for injunction was unsustainable on the merits as there were no sufficient grounds to sustain the prayer for injunction. 2. S.95 of the Civil Procedure Code provides a remedy to a person against whom an order of temporary injunction has been obtained or who is arrested before judgment or whose property is attached before judgment. For the purpose of applying that section it is sufficient that the party who is aggrieved by the order of injunction shows that the order of injunction was obtained on insufficient grounds or where the suit fails, there was no reasonable or probable cause for the institution of the suit. For the purpose of applying that section it is sufficient that the party who is aggrieved by the order of injunction shows that the order of injunction was obtained on insufficient grounds or where the suit fails, there was no reasonable or probable cause for the institution of the suit. The court which passed the order of injunction or arrest may itself adjudicate the question and award compensation not exceeding Rs. 1000/-. 3. For obtaining an order under S.95 of the Civil Procedure Code it is not necessary that the party who claims compensation should show that the conduct of the plaintiff was in any manner malicious. Can a suit for damages be maintained on the same grounds is the question which calls for an answer in this case. 4. Any person who sets in motion the Criminal law against another commits an actionable wrong if such law has been set in motion maliciously and without reasonable and probable cause and if it is shown that the proceedings have ended in favour of the person against whom such law was set in motion. Setting in motion the Civil Process against a person under similar circumstances would also be an actionable wrong. It would amount to abuse of the Civil Process to institute any action against another maliciously and without reasonable and probable cause. 5. According to the law of England, it is an actionable wrong to set in motion the machinery of a criminal court against a person maliciously and without reasonable and probable cause. But similar action does not lie in all cases if civil proceedings are so initiated by a person. There are certain exceptions to the rule; as an instance the decision of the Queen's Bench reported in Gold Mining Company v. Eyre (1883 II Q.B. 674) may be cited. The ordinary rule that costs would compensate the party who has incurred the loss by reason of the litigation was held subject to the exception that there may be cases where, as a consequence of legal proceedings, some damage results, of which law will take notice. The case before the Bench in the above decision was one where action was instituted for falsely and maliciously and without reasonable or probable cause presenting a petition to wind up a trading company. The case before the Bench in the above decision was one where action was instituted for falsely and maliciously and without reasonable or probable cause presenting a petition to wind up a trading company. The very motion for winding up such a company was calculated to injure the credit of the company and in such a case even if there was no pecuniary loss a suit was found to lie and damages was awarded. On the question whether action would lie in England in all cases of malicious abuse of civil process, the following passage from Winfield on Tort may be referred to with advantage. "But does the law go still farther and make the malicious institution of any civil proceeding actionable? There is no historical reason why it should not. and it would seem curious to say that a man shall have an action for maliciously taking bankruptcy proceedings against him, but not for maliciously suing him for some scandalous tort like seduction or deceit. However, there is no reported decision in favour of any such general proposition. In Corbett v. Surge a debtor who had been sued for a debt which he had already paid was unsuccessful in an action against the creditor for maliciously causing judgment to be entered against him, because be could not prove any malice on the part of the creditor; but it is impossible to make out from the report of the case whether he would have been successful if he bad proved malice. Apart from this case, it has been urged against the general proposition, first, that the person maliciously sued is adequately compensated by successfully defending the action which is patently false and, secondly, that litigation must end somewhere which is true as a fact but unconvincing as an argument, for litigation should end only where common justice has been done or at least attempted. However, the legislature has interfered in outrageous cases of this court, for litigious monomaniacs can be muzzled under the Supreme Court of Judicature (Consolidation) Act 1925." (Page 584 eighth edition). 6. A distinction has necessarily to be drawn between cases where orders of injunction or arrest are obtained maliciously and cases where there is unlawful seizure or attachment of property by the party who is sought to be made liable for the damages. 6. A distinction has necessarily to be drawn between cases where orders of injunction or arrest are obtained maliciously and cases where there is unlawful seizure or attachment of property by the party who is sought to be made liable for the damages. In the first category of cases the defendant is acting under the authority of Court while in the other there is no sanction of the authority of court as the act would be void for want of jurisdiction. In the latter case it would, in effect, be an act of the defendant himself for which the defendant would be answerable. An action for damages arising from the conduct of the defendant in securing an order which is void, as being in excess of authority and which is allowed to operate prejudicially is maintainable even without proof of malice, as it is in effect an action in trespass. But if the defendant has procured an order of court even on insufficient grounds he is not answerable for damages merely by reason of the fact that he obtained such order from the court without sufficient grounds or even falsely. It is because, damage is caused not by his own act but by an act of the court and unless it is shown that the court was caused to act in that manner by reason of the malicious conduct of the defendant and there was no reasonable or probable cause for setting in motion the machinery of the civil court, he would not be liable as on an actionable wrong. That there was some controversy in India as to this question is noticed in the decision of the Privy Council reported in Albert Bonnan v. Imperial Tobacco Co. (AIR. 1929 P.C. 222). Subsequently this question again came up before the Privy Council and the question was considered by the Board. I am referring to the decision reported in Ramanathan v. Mira Saibo (AIR. 1931 P.C.28). Speaking for the Board Lord Russel of Killowen said: "A distinction must be drawn between acts done without judicial sanction and acts done under judicial sanction improperly obtained. If goods are seized under a writ or warrant which authorised the seizure, the seizure is lawful, and no action will lie in respect of the seizure unless the person complaining can establish a remedy by some such action as for malicious prosecution. If goods are seized under a writ or warrant which authorised the seizure, the seizure is lawful, and no action will lie in respect of the seizure unless the person complaining can establish a remedy by some such action as for malicious prosecution. If however, the writ or warrant did not authorise the seizure of the goods seized, an action would lie for damages occasioned by the wrongful seizure without proof of malice." 7. Earlier this question had come up for consideration in the High Court of Calcutta in a series of decisions. In the decision reported in Bhut Nath v. Choudhury (16 Cal. L. J. 34) Sir Asutosh Mookerjee took the view that if an order has been obtained from the court on insufficient grounds that would amount to trespass and that would be sufficient in law to enable a plaintiff to seek recovery of damages. He was of the view that there was no necessity for proof either of malice or want of reasonable or probable cause as in the case of recovery of damages for malicious prosecution. The matter was referred to the Full Bench of the Calcutta High Court and the Full Bench after stating the law directed the disposal of the case by a Division Bench of the Calcutta High Court and the decision of the Division Bench was delivered by Sir Asutosh Mookerjee who stuck to the earlier view taken by him and held that a suit for recovery of damages arising by reason of an order obtained from the civil court would lie without proof of malice or reasonable or probable cause. This is in Chandra Pal v. Nath Koor (32 C. L. J. 236=60 I. C. 280). However the view taken by Sir Asutosh does not seem to be justified as is apparent from the later pronouncement of the Privy Council reported in Ramanathan v. Mira Saibo (AIR. 1931 P. C. 28). The Calcutta High Court itself did not approve the view taken by Sir Asutosh Mookerjee. In the later decision reported in Bhupendra Nath v. Trinayani Devi (AIR. 1944 Cal. 289) the earlier decisions of that court and the decision of the Privy Council were considered and the court held that: "In our opinion, the contention of Mr. The Calcutta High Court itself did not approve the view taken by Sir Asutosh Mookerjee. In the later decision reported in Bhupendra Nath v. Trinayani Devi (AIR. 1944 Cal. 289) the earlier decisions of that court and the decision of the Privy Council were considered and the court held that: "In our opinion, the contention of Mr. Ghose is correct and as the essence of such action is the malicious abuse of the processes of the Court it is not sufficient to show that the injunction was obtained on insufficient grounds; it must be proved also that the defendant knew them to be insufficient and acted from an improper motive. The position would be different indeed if the order of the Court was void for want of jurisdiction or the act could be regarded as the act of the defendant himself or of a ministerial officer of the court. In such circumstances if there was actual interference with the property of the plaintiff an action of trespass would undoubtedly lie. But as none of the circumstances mentioned above exists in the present case it was incumbent, in our opinion, upon the plaintiff to prove malice and want of reasonable or probable cause before she could be given damages against the defend ants. This view which is based upon the principles of English law referred to above is fully borne out by a large number of decisions of this as well as of other High Courts in India." I need not refer to the subsequent decisions of the other High Courts in this case, as the correctness of the view of the Privy Council does not appear to have been doubted. 8. In view of the authorities to which I have made reference, I would consider that the position" is now well settled that it would be a tort for any person to put the civil law into motion for the purpose of abusing its process. Such abuse would be assumed when the law has been set in motion maliciously and without reasonable or probable cause. Such abuse would be assumed when the law has been set in motion maliciously and without reasonable or probable cause. Just as in a suit for damages for malicious prosecution the plaintiff should show not only that the prosecution ended in his favour but that the prosecution was malicious and was without reasonable or probable cause, in a suit for compensation for wrongful injunction obtained by the defendant against the plaintiff, the latter has a duty to show not only that the injunction order was later vacated or the suit was dismissed, but that the order was sought for maliciously and without reasonable or probable cause. 9. If this be the position, it is not disputed that in the present case the plaintiff will not be entitled to a decree. It is not shown that the injunction petition was moved maliciously or that there was no reasonable or probable cause for filing such injunction petition. As a matter of fact, the injunction petition was not fully heard and disposed of. During the operation of the order of injunction the right to take the income of the property was auctioned and the first defendant himself bid in auction and remained in possession. No doubt the suit was ultimately dismissed. That by itself is not sufficient to sustain an action for damages. In the absence of proof of other elements necessary to sustain a suit of this nature, I must hold that the plaintiff in this suit is not entitled to claim recovery of damages towards the loss of profits incurred by him for the period when the temporary order of injunction was in force. Therefore the Second Appeal has to be allowed and the suit has to be dismissed. I direct both parties to suffer costs throughout in the circumstances of the case. Though there was a prayer urged before me at the hearing that the plaintiff may be permitted to convert the suit into an application under S.95 of the Code of Civil Procedure, I am not inclined to allow this as I do not think that circumstance warrant the grant of this prayer of the plaintiff.