T. HANAMAN THE GOWDA v. EREGOWDA — 1971 DIGILAW 330 (KAR)

( 1 ) THE appellant is the defendant, respondents 1 (a), 1 (b) and 1 (c) are the legal representatives of the first plaintiff, who died during the pendency of the appeal in the lower appellate Court. Respondents 2, 3 and 4 are plaintiffs 2, 3 and 4. The suit was filed for recovery of a sum of rs. 2,000 as damages for malicious prosecution. The trial Court decreed the suit awarding Rs. 250 to each of the four of the plaintiffs. That decree has been confirmed by the lower appellate Court. Both the lower Courts have held that there was want of reasonable and probable cause for the prosecution and have inferred malice on the part of the defendant. ( 2 ) IT is contended on behalf of the appellant that the finding of the lower appellate Court that there was want of reasonable and probable cause is erroneous since the burden of proof has been thrown wrongly on the defendant; and, secondly, that there is no evidence of malice and that therefore the suit should not have been decreed. In Abrath v. N. E rly. Co. , (1883) 2 QB. 440 it has been held that the onus of proving the existence of such facts as tend to establish the want of the reasonable and probable cause on the part of the defendant, rests upon the plaintiff. In Hermman v. Smith, (1938) 1 All. E. R. 1. the definition of reasonable and probable cause as stated in Hicks v. Faulkner in the following words was cited with approval. " I should define reasonable and probable cause to be an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. "in Ram Nath v. Bashir-ud-Din, AIR. 1963 Pun. 213 the meaning of malice as stated in brown v. Howkes, (1891) 2 QB. 718 at page 722, in the following words has been referred to with approval. "in Ram Nath v. Bashir-ud-Din, AIR. 1963 Pun. 213 the meaning of malice as stated in brown v. Howkes, (1891) 2 QB. 718 at page 722, in the following words has been referred to with approval. " Malice in its widest and vaguest sense has been said to mean any wrong or indirect motive; and malice can be proved, either by showing what the motive was and that it was wrong, or by showing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor. "it is further held as follows:" The co-existence of malice and want of probable cause is an essential prerequisite to the success of an action for malicious prosecution. Malice, alone, however great, is insufficient. Want of probable cause cannot be inferred from malice, however great such malice may be but malice may be implied or inferred as a fact from want of probable cause. The question is not what the actual facts were but what the defendant had reason to believe they were. "in Nagendra Kumar v. Etwari Sahu, AIR. 1958 Pat. 329. it has been observed that malice and absence of reasonable and probable cause must unite and co-exist in order to produce liability. It is further observed as follows:" Where there is such plain lack of reasonable and probable cause that obviously the prosecutor could not have believed in the charge, this may itself provide an evidence of malice. Therefore the absence of belief in the defendant's mind as to the merit of the case may no doubt afford evidence of malice, so also lack of good faith on his part in initiating the proceeding, and, an indication of his desire to concoct evidence to procure conviction per fas et nefas through right or wrong. "as to the burden of proof, it has been, observed that it is not stationary and that as the litigation proceeds, it shifts from moment to moment and that no doubt the initial onus of proving want of reasonable or probable cause rests on the plaintiff and the amount and nature of evidence required to fulfil the initial burden depends upon the facts and circumstances of each case. It is further observed that the question of reasonable and probable cause depends in all cases not upon the actual existence, but upon the reasonable bona fide belief in the existence of such a state of things as would amount to a justification of the course pursued in making the accusation complained of no matter whether this belief arises out of the recollection and memory of the accuser or out of information furnished to him by others. It is also observed that the history of the transaction between the parties is relevant and the conduct of the defendant before and after making the charge must also be taken into consideration because the history may establish both malice and want of reasonable and probable cause. ( 3 ) IN Selvappan v. Chaluvamuthu Goundar, (1968) 1 Mys. L. J. 488. following the decision in All India Reporter 1926 PC. 46, it is held that the ingredients to be established by the plaintiff are that he was prosecuted by the defendant that the proceedings complained of terminated in favour of the plaintiff if from their nature they were canable of so terminating that the prosecution was instituted against him without anv reasonable or probable cause and that it was due to the malicious intention of the defendant, and not with a mere intention of carring the law into effect. It was further observed that, the real question is not whether it was the subject matter of the criminal prosecution, but whether the plaintiff proves that the defendant invented and instiatod the whole proceedings for prosecution. The contention of the appellant in that case that the order of acquittal in the criminal case raises a presumption that the prosecution was not instituted without anv reasonable or probable cause, was negatived and it was held that the civil court had to undertake an entirely independent enquiry and should satisfy itself that there was no reasonable or probable cause and could not take into consideration the grounds upon which that acquittal rested. ( 4 ) IN Channappa v. Sivarvdrappa, 1961 Mys. ( 4 ) IN Channappa v. Sivarvdrappa, 1961 Mys. L. J. 754 it has been held that where the trial Court not only found that the plaintiffs were innocent but also further found that the complaint was made by the defendant without reasonable or probable cause and with an improper and oblique motive without any desire for the vindication of justice, the only possible conclusion is that the prosecution was a malicious prosecution. ( 5 ) ACCORDING to the case of the plaintiffs, the defendant was a tenant and paid rents regularly till 1-11-1962 but committed default in payment of rent thereafter. Since the plaintiffs wanted the schedule premises for their personal use, the first plaintiff was contemplating legal steps to evict the defendant and the defendant foisted a false case against the plaintiffs in on account of the fact that the son-in-law of the first plaintiff, who was a muni. Councillor, brought a no-confidence motion which had been passed, and on that account also the defendant harassed the plaintiffs. The defnt. denied that he was a defaulter in payment of rents but pleaded that the plaintiffs being envious of the defendant's business, went on teasing him by demanding unreasonable rent and tried to evict him. He admitted the complaint filed by him but pleaded that he bore no grudge against the plaintiffs. The lower appellate Court held that the defendant was a defaulter in payment of rents subsequent to 1-11-1962. It also held that the contention of the plaintiffs that there was illwill between the parties due to politics in the Municipal Council was not true. In the first complaint, ext. P9, the presence of 3rd and 4th plaintiffs was not mentioned. The 2nd plaintiff was employed at Mysore, the 3rd plaintiff was the Chief time Keeper in the Sugar Company at Pandavapura. The 4th plaintiff is a young lady. The finding of the lower appellate Court was that plaintiffs 3 and 4 alone were residing in the house adjoining the defendant's shop. It also found that the plaintiffs were residing at Hiremarali village and not at Pandavapura. The allegation of the defendant that the plaintiffs made criminal trespass and house breaking is also found to be improbable. The finding of the lower appellate Court was that plaintiffs 3 and 4 alone were residing in the house adjoining the defendant's shop. It also found that the plaintiffs were residing at Hiremarali village and not at Pandavapura. The allegation of the defendant that the plaintiffs made criminal trespass and house breaking is also found to be improbable. The defendant admitted in his cross examination that there is a door between the residential portion in which plaintiffs 3 and 4 are living and the shop in his occupation and that he has not closed that door with any bolt or hasp on his side. The lower appellate Court, therefore, inferred that if at all the plaintiffs wanted to take possession of the shop they could have done it by merely opening the door leading to the shop from their house and it was highly improbable that they would have tried to break open the door of the shop. It is also admitted that there is a bus stand opposite to the shop and a police constable will always be on duty in the bus stand. There are six shops and a hotel near the shop. The alleged incident is stated to have taken place in broad day light. But no disinterested witness has been examined to speak to the incident. According to the complaint filed by the defendant, the plaintiffs broke open the door of the shop with an axe, entered the shop, damaged the wall of the shop with an iron rod. According to the defendant, one yoganatha Rao told him that all the four plaintiffs had broken open the door and the wall of the shop and he also told him that Laxmegowda and police Constable Siddish were present at the time of the said incident. But this Yoganatha Rao was not examined by the defendant. He has also not examined Police Constable Siddish but examined Lakshme gowda dw. 2. Ext. P11, the complaint, mentioned that one Venkategowda was also present at the time of the incident, but he has also not been examined. No reasonable explanation has been offered as to why these alleged eyewitnesses have not been examined. DW. 2 was convicted for having assaulted a school servant. He had also filed a complaint for misappropriation against the son-in-law of the first plaintiff. Hence, his evidence was rejected by the lower appellate Court as being interested. No reasonable explanation has been offered as to why these alleged eyewitnesses have not been examined. DW. 2 was convicted for having assaulted a school servant. He had also filed a complaint for misappropriation against the son-in-law of the first plaintiff. Hence, his evidence was rejected by the lower appellate Court as being interested. According to the prosecution case in the criminal court, the crow-bar with which the wall of the defendant's shop had been damaged had been left at the spot its if and the same was attached by the police. The charge-sheet was placed on 17-8-63 but the crow-bar was produced into Court only on 9-11-1964. It is also unlikely that the crow-bar if it had been used for causing an aperture in the wall would have been left behind and not taken back to the house of the plaintiff which was just behind and adjacent to the shop. It is also in evidence that none of the articles kept in the shop were missing. From these circumstances the lower appellate Court agreed with the finding of the trial Court that the defendant had given a false complaint against the plaintiffs with a view to humiliate them in the estimation of the public, and also to compel the plaintffs to continue the lease in his favour and that the complaint was false to his knowledge. Under the circumstances established in the case, it cannot be said that the lower appellate Court was in error in coming to the conclusion that the complaint had been filed by the defendant without any reasonable cause. According to the defendant, he learnt of the offence committed by the plaintiffs from yoganatha Rao. The failure of the defendant to examine the said informant and the other persons who, according to him, were also eye-witnesses to the incident shows that the version of the defendant that he was informed of the alleged incident by the said Yoganatha Rao cannot be true. The only inference therefore that could be drawn is that the defendant was motivated by malice when he filed the complaint which led to the prosecution of the plaintiffs and the lower appellate Court was justified in doing so. ( 6 ) THE first plaintiff died during the pendency of the appeal in the lower appellate Court. The only inference therefore that could be drawn is that the defendant was motivated by malice when he filed the complaint which led to the prosecution of the plaintiffs and the lower appellate Court was justified in doing so. ( 6 ) THE first plaintiff died during the pendency of the appeal in the lower appellate Court. On the application of the defendant, the legal epresentatives of the deceased first plaintiff were brought on record. Tt is contended on behalf of the appellant that the right to recover damages for malicious prosecution being a personal right and since the first plaintiff died subsequent to the passing of the decree by the trial Court, the appellate Court was in error in confirming the decree in favour of the legal representatives of the first plaintiff as well, and that since the right to sue does not survive to the legal representatives of the deceased first plaintiff, the decree in favour of the first plaintiff is not sustainable and should be set aside. In Muhammad Husain v. Khemshalo, ILR. 9 All. 131 a Full Bench of the Allahabad High Court dealt with a similar question. The plaintiff had obtained a decree in the lower appellate court from which the defendant appealed to the High Court. While the appeal was pending, the plaintiff died and his widow was impleaded as respondent in his place. It was held that in those cases in which an action would abate upon the death of the plaintiff before judgment, the action would not abate if final judgment had been obtained before the death of the plaintiff, in which case, the benefit of the judgment would go to his legal repesentative. In Gulabarao v. Deorao, AIR. 1934 Nag 119 the plaintiff obtained a decree for damages for malicious prosecution. The defendant appealed. During the course of the pendency of the appeal, the plaintiff died. It was held that the plaintiff's right, which is a mere right to sue for a personal injury, changes its character once it is merged in a decree and was converted into a right of higher nature. The defendant appealed. During the course of the pendency of the appeal, the plaintiff died. It was held that the plaintiff's right, which is a mere right to sue for a personal injury, changes its character once it is merged in a decree and was converted into a right of higher nature. It was contended on behalf of the defendant that once an appeal is preferred the whole case is reopened and the rights of the parties are governed by the original cause of action and that since the plaintiff's legal representatives have no right to continue that, the lower Court's decree must be set aside. This contention was negatived and it was observed as follows:" The rights and liabilities of the parties are thereafter founded on the decree, and all questions in appeal relate to its correctness of otherwise. It is true that this may depend in a measure on the original cause of action but that is only one of the factors relevant for consideration. It is the decree which has to be affirmed or modified or set aside, and even though it later merges in the appellate decree, it is the decree which merges, and not the original cause of action that has already gone. "in GIP. Rly. v. Ram Adhin, AIR. 1927 All. 762, a decree had been passed in favour of the plaintiff under the Fatal Accidents Act, and he died after the second appeal had been filed against the decree. It was held that the benefit of the decree should go to the legal representatives of the deceased plaintiff. In Salig Ram v. Charan Dass, AIR. 1939 Lah. 492 a decree had been passed in favour of the plaintiff towards compensation for malicious prosecution. The decreeholder took out execution, while the application was pending, he died and his sons were brought on record as legal representatives. The judgmentdebtor raised the objection that the said legal representatives had no right to continue the execution proceedings contending that the right to claim compensation or malicious prosecution was personal to the deceased decree-holder and that on his death it did not survive to his heirs. The judgmentdebtor raised the objection that the said legal representatives had no right to continue the execution proceedings contending that the right to claim compensation or malicious prosecution was personal to the deceased decree-holder and that on his death it did not survive to his heirs. It was held that if the deceased had died before the suit had been brought or before the decree had been passed in his favour, his legal representatives could not pursue the remedy since the right to sue in such a case being personal to the deceased did not survive; but that position is different when the suit had been decided in the plaintiff's life time and a decree passed in his favour granting him compensation. It was further observed as follows :" On the passing of the decree, there is no longer an octio personalis in existence; it has passed into a "judgment and become a matter of record (transit in rem judicatum ). The original personal claim has merged in the decree of the Court and as such its character has entirely changed. The quondam plaintiff, as the decree holder, has acquired the right to realise the amount decreed from the judgmentdebtor, and this is a right of an entirely different character. He may enforce it himself by process of law, or (unlike the original claim) he may assign it to a third party, who can execute the decree. Further the decree itself (also unlike the original claim) is liable to attachment by a creditor of the decree-holder. It has to all intents and purposes, become a part of the 'property' of the decree-holder and, on his death, it devolves, as a part of his estate, on his heirs executors or administrators, and they can execute it in the same manner as he would have done, if alive. " ( 7 ) IN that case the decision of the Full Bench in Muhammad Hosain v. Khaushalo was followed. The appellant relied on the decision in irulappa v. Madhava, AIR. 1991 Mad. 738. . That was a suit for damages for malicious prosecution which had been decreed by the trial Court. On appeal, the decree of the trial Court was reversed and the suit was dismissed with costs. Thereafter, the plaintiff died and his legal representatives preferred a second appeal. 1991 Mad. 738. . That was a suit for damages for malicious prosecution which had been decreed by the trial Court. On appeal, the decree of the trial Court was reversed and the suit was dismissed with costs. Thereafter, the plaintiff died and his legal representatives preferred a second appeal. It was held that on the reversal of the decree of the trial Court by the lower appellate Court, the plaintiff lost in appeal what he had gained in the trial Court and that "thereafter he had to agitate the matter with a clean slate if he should file a second appeal and if before he could file it he died his legal representatives could not file it after his death since with his death, the cause of action personal to him also ceased to exist. Since at the time of the death of the plaintiff there was no decision in his favour in that case, that decision does not apply to the facts of this case. Hence it must be held that the legal representatives of the deceased first plaintiff were entitled to contest the appeal in the lower appellate Court as well as in this Court and that the lower appellate Court was justified in confirming the decree of the trial Court in favour of the first plaintiff as well. This second appeal is therefore dismissed with costs. --- *** --- .