Brijlal v. Premchand — 1973 DIGILAW 24 (RAJ)

MODI, J.—This is a second appeal by the plaintiffs in a suit for malicious prosecution. 2. Briefly stated, the plaintiffs case as narrated in the plaint is like this : On 26-12-56 the defendant-respondent filed a complaint under sec. 41/44 of the Delhi and Ajmer Rent Control Act, 1952, hereinafter referred to as the Act, against the plaintiffs in the Court of the City Magistrate, Ajmer, alleging therein that plaintiff No. 1 Brijlal was the landlord of the defendant, that plaintiff No. 2 Jagmohan was the rent collecting agent of plaintiff No. 1 and that on 29-11-56 the plaintiffs had cut off electric connection of the premises occupied by the defendant and were therefore liable to prosecution. The complaint was tried by the First Class Magistrate, Ajmer, who acquitted plaintiff No. 2 but convicted plaintiff No. 1 under sec. 41/44 of the Act and sentenced him to a fine of Rs. 1000/-. On appeal, the learned Additional Sessions Judge, Ajmer, acquitted plaintiff No. 1 also. The plaintiffs case further is that the complaint filed by the defendant was without reasonable and probable cause, false to his knowledge and actuated by malice. The plaintiffs further pleaded that there was never the relationship of the landlord and the tenant between plaintiff No. 1 and defendant, that the plaintiff No. 2 was not the rent collecting agent of plaintiff No. 1 and that the electric connection was never cut off by or at the instance of the plaintiffs. On the above facts, plaintiffs No. 1 and 2 claimed separate damages for malicious prosecution in the sum of Rs. 1799/14/- and Rs. 1000/2/- respectively. The defendant in his written statement admitted having filed the complaint against the plaintiffs as also the fact that the plaintiff No. 2 was acquitted by the trial court and the plaintiff No. 1 was acquitted by the appellate court. He denied the allegation that the complaint was filed with malice and without reasonable and probable cause. He also denied the allegation that the electric connection was not cut off by or at the instance of the plaintiffs. He denied the allegation that the complaint was filed with malice and without reasonable and probable cause. He also denied the allegation that the electric connection was not cut off by or at the instance of the plaintiffs. The defendant alleged that the plaintiff No. 1 was the owner of the house No. AMG/13/472 situated in Ajmer, that in January 1954 the plaintiff No. 1 kept him as a tenant in respect of a portion of the said house and that the plaintiff No. 2 who was student in those days, was in occupation of a room in the said house and he used to collect rent from him and other tenants and pay the same to the plaintiff No. 1. 3. The trial court after framing issues and recording evidence of the parties held that the complaint filed by the defendant was without reasonable and probable cause and was malicious. On the question of damages, the trial court allowed a sum of Rs. 1659,87 P. to the plaintiff No.1 and a sum of Rs. 820/- to the plaintiff No. 2 and decreed the plaintiffs suit accordingly. On appeal by the defendant, the learned District Judge, Ajmer, found the following facts proved from the evidence on record : (1) That the plaintiff No. 1 was the owner of the house AMG/13/472 which was let out to the plaintiff No. 2 by the plaintiff No. 1. (2) That the defendant was kept in portion of the house by the plaintiff No. 2 within the knowledge of the plaintiff No. 1 and therefore the defendant was a sub-tenant in the premises and he had a right to proceed against the plaintiff under sec. 41/44(4) of the Act. (3) That the defendant remained without supply of electric energy from 29-11-56 to May 1957. (4) That the plaintiff No. 1 had a hand in denying the use of the electric energy to the defendant and (5) that the supply of electric energy was disconnected with a view to compel the defendant to leave the premises. On the above facts, the learned District Judge came to the conclusion that the complaint filed by the defendant was justified and was not at all without reasonable and probable cause. He accordingly allowed the appeal filed by the defendant and dismissed the suit. Aggrieved by the appellate judgment and decree, the plaintiffs have preferred this second appeal. 4. On the above facts, the learned District Judge came to the conclusion that the complaint filed by the defendant was justified and was not at all without reasonable and probable cause. He accordingly allowed the appeal filed by the defendant and dismissed the suit. Aggrieved by the appellate judgment and decree, the plaintiffs have preferred this second appeal. 4. The learned counsel for the defendant-respondent raised a preliminary point that the finding of the appellate court that there was no absence of reasonable and probable cause for the institution of the complaint by the defendant is a finding of fact and it cannot be challenged in second appeal. Reliance was placed on Bhanwarsingh vs. Banji (l), B Dharamnath vs. M. Mohammad Umar Khan(2), Chellu vs. Municipal Council, Palghat(3), Kammalapati Venkatadri vs. Pinninti Chandrayya (4), Municipality of Ahmedabad vs. Panubhai Laljibhai (5), Pragji Valji vs. Venilal Maganlal(6), Sama Nathu vs. Kachara Mavji(7) and Gobindchandra Sambarsingh Mohapatra vs. Upendra Padhi(8). It was held in the aforesaid cases that the question as to absence of reasonable and probable cause and malice was one of fact which cannot be gone into second appeal. The decisions in most of these cases are based on the observations of their lordships of the Privy Council in Pestonji Muncherji Mody vs. The Queen Insurance Company (9). In that case, the plaintiff claimed Rs. 3,00,000/- as damages for malicious prosecution. The trial court as well as the High Court held that the plaintiff had failed to prove the existence of reasonable and probable cause and malice. The suit was therefore dismissed by both the courts. The case then came before the Privy Council on a certificate granted by the Bombay High Court that the appeal involves a substantial question of law. Their lordships of the Privy Council held that the certificate must have been granted under misapprehension and observed as follows : "It appears to their lordships that the only question involved is a question of fact on which there are concurrent findings. It is quite true that according to English law it is for the Judge and not for the jury to determine what is reasonable and probable cause in an action for malicious prosecution. The jury finds the facts. The judge draws the proper inference from the findings of the jury. In that sense, the question is a question of law. It is quite true that according to English law it is for the Judge and not for the jury to determine what is reasonable and probable cause in an action for malicious prosecution. The jury finds the facts. The judge draws the proper inference from the findings of the jury. In that sense, the question is a question of law. But where the case is tried without a jury there is really nothing but a question of fact and a question of fact to be determined by one and the same person. It appears to their lordships that the certificate allowing the appeal to Her Majesty must have been granted under a misapprehension." In reply, the learned counsel for the plaintiffs further argued that the finding on the question as to whether or not there was reasonable or probable cause is a question of law, or, at any rate, one of mixed question of law and fact upon which inference in second appeal is permissible. In support of his contention, he cited Narayana Mudali vs. Peria Kalathi (l0), Kanshiram Munshiram vs. Ramamal Gobindaram (11), Basantrai vs. Lala Gangaram (12), Nagendranath Ray. vs. Besantadas Bairagya (13), Mohd. Haroon vs. Asghar Husain(14), Naik Pandey vs. Bidya Pandey(15), Fatehchand vs. Kunjbeharilal (16) and Ajodhia Prasad vs. Parashram (17). The gist of all these cases is that though the basis for finding of absence of reasonable and probable cause and the presence of malice consists in matters of fact, the inference that should be drawn from the proved facts and the question whether such facts are sufficient to establish the presence of reasonable and probable cause and the presence of malice are matters of law upon which the interference in second appeal is permissible. It is noteworthy that in the first five cases the decision of the Judicial Committee in Pestonjis case (9) was not referred to at all. In the last three cases, Pestonjis case was considered but it was distinguished (or explained away. In Naik Pandeys case (15), Mullick J. observed as follows : "Although there are certain expressions used in Pestonji Muncherji Mody vs. Queen Insurance Go. In the last three cases, Pestonjis case was considered but it was distinguished (or explained away. In Naik Pandeys case (15), Mullick J. observed as follows : "Although there are certain expressions used in Pestonji Muncherji Mody vs. Queen Insurance Go. to the effect that in India in trials without a jury the question of reasonable and probable cause and malice becomes a question of fact, it is clear that those expressions were used only in reference to the propriety of a certificate for appeal to the Privy Council. The ruling in fact expressly accepts the general doctrine that the question of reasonable and probable cause and of malice is one for the Judge, a question of law". 5. In Fatehchands case (16), Radhakrishna J. observed: "In my opinion, the presence or absence of reasonable and probably cause is a question relating to the state of the mind of the accuser and has to be inferred from the facts of each particular case. To my mind, the question whether the inference from certain facts is correct or not is a question of law. In Pe$tonjis case, the question of malice and the absence of reasonable and probable cause had been decided against the plaintiff by courts in India, who had obtained a certificate that the appeal involved a substantial question of law. Their lordships of Privy Council held that the certificate that the appeal involved a substantial question of law must have been granted under a misapprehension." Radhakrishna J. then quoted the relevant observations of their lordships of the Privy Council and observed as follows :— "In my humble opinion their Lordships of the Privy Council in observing as above did not down that the determination of what is reasonable and probable cause in an action for malicious prosecution in a suit in India is determining a question of fact not open to consideration in second appeal. All that their lordships meant lay was that the determination of reasonable and probable cause in a given case was not a substantial question of law within the meaning of sec. 600 of the Act (14 of 1882) sec. 110 of the present Civil P.C." 6. In Ajodhiaprasads case (17), Grille, A.J. C. observed :— "It appears to me that this dictum can only have been intended to apply in respect of the propriety of granting a! 600 of the Act (14 of 1882) sec. 110 of the present Civil P.C." 6. In Ajodhiaprasads case (17), Grille, A.J. C. observed :— "It appears to me that this dictum can only have been intended to apply in respect of the propriety of granting a! certificate for leave to appeal to the Privy Council. The question as to what constitutes the existence or absence of reasonable and probable cause is a mixed question of law and fact. This doctrine their lordships accepted in stating that the jury finds the facts and the judge draws the proper inferences from those findings. Where the Judge is both judge of fact and of law I venture to think that it is impossible that their lordships intended to lay down that while the judgment of the appellate court is unappealable in respect of facts, it is unappealable in respect of the correctness of the inferences to be drawn from those facts.........." 7. With great respect to the learned Judges, the grounds on which Pestonjis case(9) was distinguished are, in my opinion, neither sound nor convincing. Their lordships of the Privy Council in Pestonjis case laid down in very clear terms that the question as to the existence of reasonable and probable cause and malice is a question of fact. In my opinion, it is immaterial whether the said dictum was laid down in connection with the propriety of the certificate or otherwise. Their lordships no doubt observed that according to the English law the inference as to reasonable and probable cause is drawn by the judge and not by the jury but they made a distinction with the trial by jury and that by a judge and held that where the case is tried without a jury, inference of reasonable and probable cause is really nothing but a question of fact. It is true that in England where a trial is by a jury the question of absence of reasonable and probable cause would be considered a question of law in a limited sense that it has to be decided by a judge but the same consideration cannot prevail in India where the trial is by a judge. 8. It is true that in England where a trial is by a jury the question of absence of reasonable and probable cause would be considered a question of law in a limited sense that it has to be decided by a judge but the same consideration cannot prevail in India where the trial is by a judge. 8. Again, their lordships of the Privy Council in C. Sabhapathi vs. G. Huntley (18) held that the finding of the learned Judges of the first instance on the question of malice is a finding of fact. The state of mans mind is as much a fact as the state of his digestion. Their lordships accordingly saw no reason for disturbing the finding of the lower court on the question of fact. 9. The main basis for holding that the question as to absence of reasonable and probable cause and malice is a question of law appears to be that the finding of reasonable and probable cause and the presence of malice are matters of inference to be deduced from basic or proved facts but that is not sufficient to make the question one of law or one of mixed question of law and fact unless there are legal principles to be applied to the basic facts before the ultimate conclusion is drawn. As no legal principles arise for application for the determination of the question of reasonoble and probable cause and the question of malice, it cannot be said that the determination of those questions on the basis of inference drawn from basic or proved facts would make them questions of law or mixed question of law and fact. In Sree Meenakshi Mills Ltd. vs. Commissioner of Income-tax (19), one of the principles laid down by their lordships of the Supreme Court is that "when the finding is one of fact, the fact itself is an inference from other basic facts will not alter its character as one of fact."A finding of fact therefore does not cease to be a finding of fact merely because it is in the nature of an inference to be drawn from certain proved facts. I am therefore clearly of the view that the question as to the existence or absence of reasonable and probable cause and malice is a question of fact and cannot be gone into in second appeal unless, of course, it is shown that the fact on which the inference of existence of absence of reasonable and probable cause and malice is based are not supported by evidence or that the inference drawn is perverse. 10. On merits the learned counsel for the plaintiffs challenged the correctness of the finding as to the existence of reasonable and probable cause on the ground that the facts on the basis of which the inference of existence of reasonable and probable cause was drawn are based on no evidence. In this connection, he drew my attention to secs. 2(j), 41 and 44(4) of the Act and raised the following points : (1) That the defendant was neither a tenant nor a sub-tenant within the definition of tenant given in sec. 2(j) of the Act. (2) That the only person entitled to file a complaint under sec. 44(4) of the Act is the tenant and since the defendant was not the tenant, he had no right to file the complaint against the plaintiffs. (3) That the defendant in his complaint falsely mentioned that he was a tenant of the premises knowing fully well that he was not so. (4) That the complaint under sec. 44(4) of the Act could not be filed without taking proceedings under sec. 41 of the Act. 11. Before dealing with these points, it will be proper to note what is meant by the expression reasonable and probable cause. This expression was defined by Hawkins J. in Hicks vs. Faulkner(20) as meaning "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" The above definition was approved by the House of Lords in Horniman vs. Smith (21). In the present case in the light of the above, it has to be seen whether the defendant was justified in filing the complaint against the plaintiffs. In the present case in the light of the above, it has to be seen whether the defendant was justified in filing the complaint against the plaintiffs. The defendant was in occupation of a portion of the house belonging to plaintiff No. 1. He was allowed to occupy the same in January 1954 by plaintiff No. 2 who was the tenant of the house. It is further not in dispute that the defendant was enjoying the facility of electricity before it was disconnected on 20-11-56. The disconnection of the electricity enjoyed by the defendant was in consequence of the letter Ex. 12 which the plaintiff No. 1 filed before the authorities of the electrical company with the prayer that the mater installed in the premises occupied by the defendant be shifted. Before filing the complaint, the defendant gave notice Ex. 28 to both the plaintiffs on 8-12-66 wherein it was specifically mentioned that the plaintiffs had cut off electric connection without any reason and rhyme. The reply of the plaintiff No. 1 to this notice is Ex. 30 dated 18-12-56, and that of plaintiff No. 2 is Ex. 26 dated 23-12-56. It is significant to note that the plaintiffs in their replies to the notice did not deny the fact that they had disconnected the electric connection of the defendants premises. If they had no hand in the disconnection of the electricity, they would have stated that they had nothing to do with the disconnection of the electricity. Then, again the entry Ex. 51 dated 8-12-56 in the register of the electrical company shows that the disconnection was at the request of the consumer, namely, plaintiff No. 1. All these facts reasonably lead to the conclusion that the defendant was deprived of the use of the amenity of the electricity by the connivance of both the plaintiffs. It was only after the replies of the plaintiffs were received that the defendant filed the complaint on 26-12-56. In these circumstances, it cannot be said that the defendant had no honest belief in the guilt of the plaintiffs or that the complaint filed by him was not founded on reasonable grounds. The contention on behalf of the plaintiffs is that the defendant had no locus standi to file a complaint under sec. 44(4) of the Act as he was neither a tenant nor a sub-tenant of the premises occupied by him. The contention on behalf of the plaintiffs is that the defendant had no locus standi to file a complaint under sec. 44(4) of the Act as he was neither a tenant nor a sub-tenant of the premises occupied by him. The learned counsel in this connection referred to the definition of the word tenant given in sec.2(j) and also to sec. 41 and 44 of the Act. The definition of tenant given in sec 2(j) runs as under. Sec. 2 Definitions—In this Act, unless the context otherwise requires— (a) (h) x x x x x x (j) tenant means any person by whom or on whose account rent is payable for any premises and includes such sub-tenants and other persons as have derived title under a tenant under the provisions of any law before the commencement of this Act." The Act came into force on 9-6-52 vide notification No. S. R. O./10/6 dated 3-6-52 published in the Gazette of India dated 7-6-52 Part II, sec. 3. The defendant came into possession of the premises with the permission of plaintiff No. 2 on 1-1-54. Strictly speaking therefore the defendant was neither a tenant nor a sub-tenant within the definition of sec. 2 (j) of the Act. 12. Secs. 41 and 44(4) of the Act run as under : "Sec. 41 Cutting offer withholding essential supply or service—(1) No landlord either himself or through any person purporting to act on his behalf shall without just or sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him. (2) If a landlord contravenes the provisions of sub sec. (1), the tenant may make an application to the court complaining of such contravention. (3) If the court is satisfied that the essential supply or service was cut off or withheld by the landlord with a view to compel the tenant to vacate the premises or to pay an enhanced rent, the court may pass an order directing the landlord to restore the amenities immediately pending the inquiry referred to in sub-sec. (4). Explanation—An interim order may be passed under this sub-section without giving notice to the landlord. (4). Explanation—An interim order may be passed under this sub-section without giving notice to the landlord. (4) If the court on inquiry finds that the essential supply or service enjoyed by the tenant in respect of the premises was cut off or withheld without just or sufficient cause, he shall make an order directing the landlord to restore such supply or service. (5) The court may in its discretion direct that compensation not exceeding fifty rupees— (a) be paid to the landlord by the tenant, if the application under sub-sec. (2) was made frivolously or vexatiously; (b) be paid to the tenant by the landlord if the landlord had cut off or withheld the supply or service without just or sufficient cause. Explanation—In this section, "essential supply or service" includes supply of water, electricity, lights in passages and on stair cases, conservancy and sanitary services." "Sec. 44 Penalties—(1 to 3) x x x x x x (4) If any landlord contravenes the provisions of sec. 41, he shall be punishable with fine which may extend to one hundred rupees." A plain reading of secs. 41 and 44(4) of the Act would reveals that there is nothing to suggest that the complaint under sec. 44(4) of the Act lay only after taking steps in the civil court under sec. 41 of the Act. Under sec. 44(4) a landlord is liable to be prosecuted if he has withheld the supply of electricity enjoyed by the tenant without just or sufficient cause and thereby contravened the provisions of sub-sec. (1) of sec. 41 of the Act. The contention of the learned counsel for the plaintiffs is that because the defendant was not the tenant, it cannot be said that the landlord withheld the supply of electricity enjoyed by the tenant and thereby he contravened the provisions of sec.41 of the Act. The question that arises is what is meant by the word tenant used in sec. 41 of the Act and whether it has the same meaning as defined in sec. 2(j) of the Act? Sec. 2 begins by enacting "In this Act unless otherwise the context requires" and therefore is cannot be said that the word tenant must be given the same meaning as defined in sec. 2(j) of the Act throughout the Act. 41 of the Act and whether it has the same meaning as defined in sec. 2(j) of the Act? Sec. 2 begins by enacting "In this Act unless otherwise the context requires" and therefore is cannot be said that the word tenant must be given the same meaning as defined in sec. 2(j) of the Act throughout the Act. Thus, if there is any repugnance in the meaning of the word tenant as defined in the interpretation section with the subject or context in sec. 41, the court will have to modify the meaning accordingly having regard to the scope and object of the section and the evil the law intended to prevent. It may be that the word tenant used in sec. 41, has been used by the legislature not in the restricted sense of word as defined in sec. 2(j) of the Act but in a wider sense meaning an occupant holding under in accordance with its ordinary dictionary meaning. I need not go into the question what meaning should be given to the word tenant in sec. 41 of the Act. The question before me is can it be justifiably held that the complaint was lodged without any just and probable cause simply because the defendant could not examine the nice and difficult question of law like an astute lawyer. The learned counsel for the plaintiffs may be right in his contention that the defendant had no locus standi to file the complaint u/s. 44(4) of the Act, but, in my opinion, this was a matter for consideration of the criminal court. In these civil proceedings for the recovery of the damages the function of the court is to see whether the prosecution was lodged without any reasonable cause. The prosecutor need not be convinced as to the guilt or maintainability of the criminal proceeding before he files the complaint. He may only be satisfied that there is a proper case to approach the court. 13. In Badriprasad vs. Jagannath (22), Bhargava J. observed that the correct rule in such cases is that where difficult, doubtful and nice questions of law are involved and the prosecutor cannot be expected to form correct opinion of them, he cannot be made liable in an action for damages for malicious prosecution simply because his view of law was wrong. In Badriprasad vs. Jagannath (22), Bhargava J. observed that the correct rule in such cases is that where difficult, doubtful and nice questions of law are involved and the prosecutor cannot be expected to form correct opinion of them, he cannot be made liable in an action for damages for malicious prosecution simply because his view of law was wrong. In the present case, there was good ground for the defendant to prosecute the plaintiffs as he had been deprived of the electric energy by the plaintiffs with a view to force him to vacate the premises. Again, the criminal court not only entertained the complaint but also found plaintiff No. 1 guilty of the charge under sec. 44(4) of the Act. It is also noteworthy that the High Court, too, while setting aside the interim order passed by the criminal court directing the plaintiff No. 1 to restore the amenity of the electricity to the defendant, specifically ordered that the defendant may, however, continue the proceedings regarding commission of the offence under sec. 44 of the Act. It is a different matter that the appellate court acquitted the plaintiff No. 1 as, in its opinion, the defendant was not entitled to initiate criminal proceedings but that does not mean that there was want of reasonable cause for the defendant to lodge the complaint. 14. The learned counsel for the plaintiffs laid great stress on the fact that in the complaint the defendant knowingly made a false averment that he was the tenant of the premises and that the premises were let out to him by the plaintiff No. 1. Assuming that to be correct, that was not the only allegation on which the complaint was based. There were other allegations which were found to be true. As a matter of fact, the allegation about the defendant being a tenant was not of much consequence as he was certainly occupying the premises with the permission of the plaintiff No. 2 and this fact was within the knowledge of the plain tiff No. 1. At any rate, the defendant was certainly an aggrieved person as he was deprived of the use of electricity and in the circumstances if he field the complaint, it cannot be said that there was want of reasonable and probable cause. 15. At any rate, the defendant was certainly an aggrieved person as he was deprived of the use of electricity and in the circumstances if he field the complaint, it cannot be said that there was want of reasonable and probable cause. 15. Lastly, it was argued on behalf of the plaintiffs that so far as the plaintiff No. 2 was concerned, there was certainly want of reasonable and probable cause for filing the complaint against him as the defendant failed to prove that he was a collecting agent on behalf of the plaintiff No. 1. I find no substance in the above contention. The plaintiff No. 2 permitted the plaintiff No. 1 to shift the meter installed in the premises occupied by the defendant without consulting the defendant. The meter which was to be shifted was installed in the room occupied by the defendant and the plaintiff No. 2 before permitting the plaintiff No. 1 to shift the meter should have consulted the defendant and obtained his consent. But that was not done. Again, the plaintiff No. 2 as already stated above, did not say in his reply to the notice sent by the defendant that he had no hand in the disconnection of the electricity. These facts clearly suggest that the plaintiff No. 2 was hand-in-glove with the plaintiff No. 1 in depriving the defendant from the use of electricity with a view to compel him to vacate the premises. Having regard to the circumstances of the case, the plaintiffs have failed to prove that they were prosecuted without reasonable and probable cause. 16. The appeal therefore fails and it is hereby dismissed with costs.