Sheo Singh v. Ranjit Singh — 1982 DIGILAW 509 (ALL)

JUDGMENT:- This is a defendants Second Appeal from the appellate decree of the court of the Additional District Judge decreeing a suit for damages for malicious prosecution in the sum of Rupees 1.369 in favour of the plaintiff-respondents Nos. 2 to 5 who were plaintiffs Nos. 1 to 4 and in the sum of Rupees 369/- in favour of the respondent No. 1 who was plaintiff No. 5 in the suit. The trial court had decreed the suit for recovery of Rs. 630/- in favour of the fifth plaintiff alone and had dismissed the claim of the plaintiffs Nos. 1 to 4. Thus, the lower appellate court reduced the amount of the decree in favour of the fifth plaintiff from Rs. 630/- to Rs. 365/-but gave the plaintiffs Nos. 1 to 4 a decree for Rs. 1,369/- in place of the dismissal of their claim by the trial court. 2. According to the plaintiffs case, the first four plaintiffs are agriculturists, while the fifth plaintiff is a Government servant and all of them are respectable citizens and own property. On 13th April, 1960, the defendant lodged a false report against the plaintiffs and then filed a criminal complaint against them under S.323/147/149/447 I.P.C. The complaint was false and malicious and without any reasonable or probable cause. The plaintiffs were committed to sessions for trial under S.147/323/149, I.P.C. but were acquitted, they had to spend a large sum of money on their defence and also suffered in mind, body and reputation. The total amount of damages claimed was Rs. 4,000/-. 3. The defendants admitted having lodged the first information report and having filed the criminal complaint, and that the plaintiffs were acquitted by the sessions court of the charges against them. According to the defendant, four plots of land Nos. 604, 708, 761 and 877 in the village belonged to Smt. Charto who had mortgaged them with possession with his father Kadam Singh in the year 1944. Kadam Singhs name was recorded in the revenue records and he continued in possession of the said plots and on the abolition of the zamindari he became a sirdar of the land. Smt. Charto received compensation for the land. In consolidation proceedings too, the possession of Kadam Singh was upheld and of the four plots, three (Nos. Kadam Singhs name was recorded in the revenue records and he continued in possession of the said plots and on the abolition of the zamindari he became a sirdar of the land. Smt. Charto received compensation for the land. In consolidation proceedings too, the possession of Kadam Singh was upheld and of the four plots, three (Nos. 308, 761 and 877) were allotted in the Chak of Kadam Singh who entered into possession of the same on 10th March, 1958 in consolidation proceedings, plot No. 760 belonging to Daryao was adjacent to Kadam Singhs plot No. 761 and that too was allotted to Kadam Singh and he entered into possession thereof also simultaneously on 10th March, 1958. The new plot number allotted to the combined plots Nos. 760 and 761 was 666. Smt. Charto filed an objection after the stage of Form No. 24 in consolidation proceedings, against the defendant and his father Kadam Singh. On the 10th Jan., 1961, Smt. Charto was given possession on another plot of the same valuation. but there was no proceedings regarding possession of plot No. 761. On the 23rd April, 1960, when the defendant was getting the land of plots Nos. 760 and 761 ploughed by his servants Yad Ram and Teja, the plaintiffs came armed with lathis and injured the defendant, whereupon the first information report was lodged. The defendant was medically examined, and on his complaint, the plaintiffs were committed to sessions on a prima facie case being established against them. It was denied that the report or the complaint were false. He filed the complaint because he had received injuries. He denied that the complaint was filed on account of malice or without any reasonable or probable cause. It was added that the plaintiffs Nos. 1 to 4 had filed a suit for damages in respect of the same incident, for injuries caused to them, which was decreed by the trial court; but in appeal by the defendant, the amount of damages awarded to the plaintiffs was reduced on which he had filed a Second Appeal in the High Court which was pending at that time. The defendant pleaded that the trial of the suit was liable to be stayed under S.10 of the Civil P.C. as the same issues were involved. The defendant pleaded that the trial of the suit was liable to be stayed under S.10 of the Civil P.C. as the same issues were involved. Lastly, the defendant pleaded that the plaintiffs had suffered no loss of reputation nor had they spent all that money on defence, and that they were not entitled to the damages claimed. Limitation was also set up as a bar to the suit. 4. The following were the issues on which the parties went to trial. "1. Whether the plaintiffs were prosecuted maliciously and without any reasonable and probable cause?" 2. Whether plaintiffs are entitled to get Rs. 4000/- as damages. 3. Whether suit is liable to be stayed as alleged in paras 22 and 23 of the written statement?" 4. Whether the suit is barred by limitation?" 5. To what relief, if any, are the plaintiffs entitled?" 5. In the course of its discussion on the first issue, the trial court found that the final judgment in the earlier suit, which was filed by the plaintiffs against the defendant for damages for assault and battery, operated as res judicata and it must, therefore, be held that the land in dispute was in possession of the first plaintiff whom Smt. Charto had married after the death of her previous husband, and that the defendant was the aggressor in the marpit. The trial court then proceeded to inquire and find, on the basis that the land was in the actual physical possession of the plaintiffs and the defendant was the aggressor, whether the prosecution of the plaintiffs by the defendant was malicious and without any reasonable or probable cause. The basic facts found by the trial court were that, on the date of the incident, the defendant had entered upon the land and started ploughing it, whereupon the plaintiffs questioned his right to do so and there was a marpit. According to the trial court, the plaintiffs being in possession, they had the right to use reasonable force to throw out the defendant from the land. But that was not enough to make the defendant liable in damages for malicious prosecution. The evidence produced by the defendant showed that he had also received injuries. According to the trial court, the plaintiffs being in possession, they had the right to use reasonable force to throw out the defendant from the land. But that was not enough to make the defendant liable in damages for malicious prosecution. The evidence produced by the defendant showed that he had also received injuries. According to the trial court, it was a case of mutual assault in which it could not be said as to who gave the first blow, and that was the finding recorded by the High Court also on the defendants appeal against his conviction. I may here add that the defendant was also prosecuted in respect of the same incident, and while the plaintiffs were acquitted, the defendant was convicted. According to the trial court, the defendant could have reasonable thought, when he entered upon the land, that the plaintiffs Nos. 1 to 4 had no right to turn him out by force or even if they did so they certainly had no right to cause him injuries and the defendant could have reasonably and probably thought that the force used by the plaintiffs Nos. 1 to 4 to throw him out was excessive, or more than what was actually necessary. According to the trial court, it could not, therefore, be said that the defendant had no reasonable or probable cause for prosecuting the plaintiffs Nos. 1 to 4, and it could also not be said that the defendant was actuated by malice in so far as the plaintiffs Nos. 1 to 4 were concerned. But the trial court also found that the plaintiff No. 5 was not present at the incident and did not participate in the marpit and that his prosecution was actuated by malice and was without reasonable and probable cause, as the defendant knew that the plaintiff No. 5 had not taken part in the marpit. On issue No. 2, the trial court found that the plaintiff No. 5 alone was entitled to recover damages and assessed the same at Rs. 630/-. The finding on issue No. 3 shows that the trial of the suit was stayed pending final decision of the earlier suit for damages for assault and battery. On issue No. 2, the trial court found that the plaintiff No. 5 alone was entitled to recover damages and assessed the same at Rs. 630/-. The finding on issue No. 3 shows that the trial of the suit was stayed pending final decision of the earlier suit for damages for assault and battery. Issue No. 4 was not pressed before the trial court, and finding on issue No. 5 that the plaintiff No. 5 alone was entitled to recover Rupees 630/- as damages against the defendant, it decreed the suit accordingly with proportionate costs. 6. Two appeals were filed from the said decree, the first by the plaintiffs and the second by the defendant. The lower appellate court allowed both the appeals in part, by decreeing the suit of the plaintiffs Nos. 1 to 4 also for Rs. 1,369/- and by reducing the amount decreed in favour of plaintiff No. 5 from Rs. 630/- to Rs. 365/-. In its judgment, the lower appellate court also proceeded on the basis that the plaintiffs were in actual physical possession of the land, and that the defendant was the aggressor. According to the lower appellate court, the plaintiffs were "entitled to oust the aggression committed" by the defendant over the land and the statement of Girwar, plaintiff No. 2, that the criminal case started against the plaintiff by the defendant, "was false and it was started without any reasonable and probable cause" was quite sufficient to discharge the initial burden which lay on the plaintiffs specially when this statement finds support from the documentary evidence on the record that the criminal proceedings terminated in favour of the plaintiffs and the defendant was convicted and sentenced for causing injuries on the person of the plaintiff." According to the lower appellate court, in view of the finding that the appellant was not in possession over the plot, it must be held that he knew that he had committed aggression by ploughing the field of the plaintiffs, and he did not vacate the aggression, even when asked to do so, instead he indulged in causing injuries to the person of the plaintiff. The lower appellate court held that it must be taken that it was in the defendants personal knowledge that he was the aggressor and the plaintiffs were in law justified in causing injuries to his person in order to throw him out of the land or in the course of compelling him to vacate the aggression. It further held that it was within the defendants knowledge that the plaintiffs committed no offence by causing injuries to his person and if the defendant filed a complaint even after such knowledge he could not be said to have honestly believed that the plaintiffs committed any offence. In the result, the lower appellate court found that the defendant had prosecuted the plaintiffs without any reasonable and probable cause and that "when this was within his personal knowledge it must be taken that in starting the original proceedings he was actuated with malice and by no other consideration. Having found that way, the lower appellate court proceeded to notice certain cases. The first case noticed was that of Satdeo Prasad v. Ram Narayan, AIR 1969 Pat 102 and it buttressed its finding by observing that it had found that the case put forward by the defendant against the plaintiffs was false, and false to his knowledge, and he must have known that the plaintiffs were in possession and were entitled to resist aggression and, in doing so, to cause injuries to his person, and that the causing of injuries did not amount to any offence. According to the lower appellate court in view of the fact that the defendant "manufactured a false story that the plaintiffs were the aggressors and he was "in possession", it must be held that the prosecution was without any reasonable and probable cause." The lower appellate court then looked at the meaning of malice. It again buttressed its finding by saying that "the prosecution was not started by the defendant with an intention to vindicate the law but for some other reason." The appellate court did not however, specify what the other on reason was but did state that the relations between the parties were strained from before. 7. It again buttressed its finding by saying that "the prosecution was not started by the defendant with an intention to vindicate the law but for some other reason." The appellate court did not however, specify what the other on reason was but did state that the relations between the parties were strained from before. 7. The lower appellate court then noticed the case of Kedar Nath v. Brahma Nand, AIR 1959 Raj 37 , and again buttressed its findings by saying that the story which the defendant had put forth was false to his personal knowledge and, therefore, it must be held that there was no reasonable or probable cause for the prosecution and that the defendant was actuated by malice. 8. In the context of the reliance placed by the trial court on the observations of the High Court in the criminal case, the lower appellate court remarked that the trial court overlooked the finding of the High Court to the effect that the appellant was the aggressor and the plaintiffs were justified in ousting him and that the principle relied upon by the Munsif does not apply to the facts of the present case and the mere fact that the defendant received injuries on his person "was not reasonable and probable cause for starting prosecution against the plaintiffs specially when he knew that his injuries were caused when he was committing the aggression on the field of the plaintiffs." 9. The next case referred to by the lower appellate court is that of Bahadur Singh v. Badri Pershad, 1936 PC 46;*and observing that the main question to be determined was whether the plaintiffs had proved that the defendant had invented the whole story and instigated the Prosecution, it found that the defendant had invented a false story for Prosecuting the plaintiffs that he was in possession and that the plaintiffs had committed aggression, and held that the defendant was actuated by malice. * The correct citation seems to be Balbhaddar Singh v. Badri Sah, AIR 1926 PC 46 - Ed. 10. Confirming the finding of the trial court that the Prosecution of the fifth plaintiff was without reasonable and probable cause and was actuated by malice, the lower appellate court proceeded to examine the quantum of damages claimed, and arrived at the finding that the plaintiffs Nos.1 to 4 were entitled to recover Rs. 10. Confirming the finding of the trial court that the Prosecution of the fifth plaintiff was without reasonable and probable cause and was actuated by malice, the lower appellate court proceeded to examine the quantum of damages claimed, and arrived at the finding that the plaintiffs Nos.1 to 4 were entitled to recover Rs. 1,369/- and the plaintiff No.5 was entitled to recover Rs.365/- and decreed the suit accordingly. I need not go into the details of the finding on the amount of damages as the same was not canvassed before me. 11. Learned counsel for the defendant-appellant urged that the question was not whether the defendant had committed aggression or that the plaintiffs could, in exercise of their right of private defence of their person and property, throw the defendant out from the land by force, and if in the process of doing so the defendant sustained some injuries, he could have no cause of complaint about the same. The Plaintiffs have already obtained a decree for damages against the defendant and have also succeeded in having him convicted and punished for the wrongful criminal acts committed by him in the Process of trying to forcibly dispossess them of their land. It is undisputed that the defendant did receive injuries in the marpit. That the plaintiffs did not commit any offence by causing those injuries to the defendant is also no longer open to question in view of their acquittal in the complaint flied by the defendant. The question is, granting all this. can it be said, on the evidence led in the present case whether the defendant was actuated by malice when he lodged his complaint against the plaintiffs and whether he had any reasonable or probable cause for lodging that complaint against the plaintiffs. 12. Now, it is well settled that malice is not an equivalent of enmity. It means the presence of some improper and wrongful motive that is to say some motive other than a desire to bring to justice a person whom the prosecutor believes to be guilty. According to the Privy Council in Braja Sunder Deb v. Bamdeb Das, AIR 1944 PC 1 at P.4: "In order to succeed in an action for malicious prosecution the Plaintiff must in the first instance prove two things (i) that defendant was malicious and (ii) that he acted without reasonable and probable cause. According to the Privy Council in Braja Sunder Deb v. Bamdeb Das, AIR 1944 PC 1 at P.4: "In order to succeed in an action for malicious prosecution the Plaintiff must in the first instance prove two things (i) that defendant was malicious and (ii) that he acted without reasonable and probable cause. Malice has been said to mean any wrong or indirect motive but a prosecution is not malicious merely because it is inspired by anger. However wrongheaded a Prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be the initiator of malicious prosecution. But malice alone is not enough; there must also be shown to be absence of reasonable and probable cause. If in the present case, the respondents honestly believed a criminal offence to have been committed and had reasonable cause for so doing, they are not liable in this action, and even though they were malicious they still would not be liable if they had reasonable and probable cause for believing in the appellants guilt." Existence of malice and absence of reasonable and probable cause have to be established as separate facts. It cannot be inferred from the mere absence of reasonable and probable cause for a prosecution that it is malicious. Similarly, from the mere fact that a prosecution is actuated by malice, it cannot be inferred that there was no reasonable and probable cause, although the two, do dovetail into each other. In Sumat Prasad v. Ram Sarup, AIR 1946 All 204 a Division Bench of this Court observed at P.209 column 1: "The ingredients of the tort of malicious prosecution are very well known and have been set out on many occasions. There has to be, in the first Place, a prosecution. In the second place, there must be an unsuccessful prosecution. Thirdly, there must be an absence of "reasonable and probable cause" for the prosecution. And, fourthly, there must, in addition to the absence of reasonable and probable cause, be malice as well." 13. I have quoted the findings recorded by the lower appellate court in some detail in the earlier parts of this judgment. Thirdly, there must be an absence of "reasonable and probable cause" for the prosecution. And, fourthly, there must, in addition to the absence of reasonable and probable cause, be malice as well." 13. I have quoted the findings recorded by the lower appellate court in some detail in the earlier parts of this judgment. According to the lower appellate court, the statement of Girwar plaintiff No. 2, that the criminal case started against the plaintiff by the defendant, "was false and it was started without any reasonable and probable cause", was quite sufficient to discharge the initial burden which lay on the plaintiffs............specially when this statement finds support from the documentary evidence on the record that the criminal proceedings terminated in favour of the plaintiffs and the defendant was convicted and sentenced for causing injuries on the person of the Plaintiff. To this the lower appellate court added that in view of the finding that the appellant was not in possession of the plot, it must be held that he knew that he was the aggressor and the plaintiffs were in law justified in causing injuries to his person and that, therefore, he had no reasonable and probable cause for the complaint which he filed against the plaintiffs. 14. So far as the Prosecution of the Plaintiffs by the defendant for the injuries caused to him was concerned, the burden lay on him entirely to prove the plaintiffs guilt to the hilt. The benefit of doubt, if any, was given to the accused. on the other hand, in the suit for damages giving rise to this second Appeal the primary burden of proving that the defendant had no reasonable or Probable cause for initiating the prosecution. and that the defendant was actuated by malice in doing so, lay on the Plaintiffs. The benefit of doubt, if any, was given to the accused. on the other hand, in the suit for damages giving rise to this second Appeal the primary burden of proving that the defendant had no reasonable or Probable cause for initiating the prosecution. and that the defendant was actuated by malice in doing so, lay on the Plaintiffs. So far as the Plaintiff No.5 was concerned, he discharged the burden by proving that he was not present when the incident of marpit took place and accordingly, it was clear that he could not have caused any hurt or injury to the defendant in the course of the marpit and his prosecution was obviously without any reasonable or probable cause for the defendant could not have believed when the fifth plaintiff was not even present during the course of marpit at the place of the occurrence or that he could have had no reasonable or Probable cause for believing that the fifth plaintiff had caused him hurt and injury. The case of the other plaintiff, that is plaintiffs Nos. 1 to 4 is not so clear, inasmuch as they were present during the course of the marpit at the Place of the occurrence and the defendant was hurt. He may not be quite sure as to who caused him hurt and might have reasonably believed that all the four of them were responsible for having caused him hurt. But, according to the lower Appellate Court, the mere fact that Girwar, plaintiff No. 1 stated on oath that the criminal case started against him was false and without any reasonable or probable cause was quite sufficient to discharge the burden, which lay initially on the plaintiffs, of proving that the defendant had no reasonable and probable cause for initiating the prosecution. That is, in my view, not a correct view of the law. The fact that bodily hurt was caused to the defendant could have given him a reasonable and probable cause for initiating a prosecution for causing hurt. That is, in my view, not a correct view of the law. The fact that bodily hurt was caused to the defendant could have given him a reasonable and probable cause for initiating a prosecution for causing hurt. But the facts of the case show that the criminal complaint lodged by the defendant was not only for the offence of causing simple hurt punishable under S.323, I.P.C. but also for the offences of rioting punishable under S.147, I.P.C. of being a member of unlawful assembly punishable under S.149, I.P.C. and of criminal trespass punishable under S.447, I.P.C. So far as the offences of rioting and being a member of unlawful assembly are concerned, they could not be committed unless five or more persons were assembled for the purpose. It has been seen above that the plaintiff No. 5 was not present at all. It follows that the defendant could have had no reasonable or probable cause for prosecuting any of the plaintiffs for the offences punishable under Ss.147 and 149, I.P.C. So far as the offence of committing criminal trespass is concerned, the finding recorded is that the defendant had lost his case from all the courts and possession over the land had been delivered to the plaintiffs, who were in possession, and the defendant must be deemed to have been an aggressor. In view of the past history of the litigation between the parties, it is not easily possible to say that the defendant was not aware of the fact of the proceedings and did not know that he had lost the land and possession thereon; and the fact that he was trying to plough the land, when the marpit occurred on the date of the occurrence, shows that he was trying to assert or regain possession over the land although he had been ousted therefrom. Since that act of the defendant was wrongful, it was he who could be said to be guilty of criminal trespass, rather than the plaintiffs. Since that act of the defendant was wrongful, it was he who could be said to be guilty of criminal trespass, rather than the plaintiffs. It cannot, therefore, be said that the defendant had any reasonable or probable cause for initiating a prosecution against the plaintiffs for the offence under S.447, I.P.C. The fact that the defendant had falsely added the fifth plaintiff in order to make the offence more serious, by adding the offences of rioting and unlawful assembly, showed that the defendant was not acting honestly and his motive was not to have the plaintiffs punished for the offence of causing hurt to him under S.323, I.P.C. but to have them falsely prosecuted for other offences which the defendant knew or must have known were not committed by them. As for the trial by the Court of Session and not by the court of a Magistrate, it appears that although all the offences under Ss.323, 147, 149 and 447, I.P.C. that were complained of were triable by a Magistrate, the case was committed to Sessions, probably because of the cross case launched by the plaintiffs against the defendant. The fact remains that the Magistrate did on the defendants complaint, commit the plaintiffs to the Sessions for trial under Sections147/323/ 149, I.P.C. 15. This analysis of the facts of the case shows that the defendant could not be said to have been acting honestly when he launched the prosecution against the plaintiffs by filing the complaint which he did in the criminal court. The fact of his having filed the first information report is not relevant for the purposes of the present case because the police did not initiate any prosecution. The prosecution was initiated on the complaint of the defendant. 16. Malice and absence of reasonable and probable cause are not such objective facts as could be proved by a plaintiff by direct evidence. They are partly subjective and relate to the state of the defendants mind. Nevertheless, as discussed above, the initial burden is on the plaintiffs to establish these facts by adducing evidence of facts from which the necessary inference about the state of the defendants mind could be drawn. The findings arrived at by the criminal court on the basis of the evidence led before it are not admissible, except for the facts that the plaintiffs were charged with the specified offences and acquitted. The findings arrived at by the criminal court on the basis of the evidence led before it are not admissible, except for the facts that the plaintiffs were charged with the specified offences and acquitted. It is in this context of things that it became necessary for me to analyse the facts in order to find out whether there was an absence of reasonable and probable cause for each of the several counts on which the plaintiffs were charged and tried, on the defendants complaint. As found above, except for the offence of causing hurt punishable under S.323, I.P.C. the defendant could not be said to have had any reasonable or probable cause for any of the other offences with which he charged the plaintiffs. So far as the offence under S.323, I.P.C. is concerned, the fact remains that the defendant was hurt; but in view of the surrounding circumstances and in view of the inference arrived at above that he was not acting honestly when he prosecuted the plaintiffs for offences under Ss.147/149/447, I.P.C. as he knew or must have known that the plaintiffs could not be said to have committed either of those offences, the inference is irresistible that the defendant could not have reasonably believed that he had sufficient or probable cause for prosecuting the plaintiffs, even for the offence under S.323, I.P.C. The facts that the plaintiffs had prosecuted the defendant, and successfully, in respect of the very same incident of marpit also leads me to think that the prosecution launched by the defendant was more by way of a vendetta to secure his own acquittal by launching a cross-case, rather than to have the plaintiffs punished for any offence or offences, which he might have reasonably believed had been committed, by them. Thus, it also appears that the object of the defendant in prosecuting the plaintiffs was not to bring the plaintiffs to book for having them punished for any offence committed by them, but was malicious in the sense of being for oblique motive of securing his own acquittal by launching a cross-case, falsely. 17. I, therefore, find it difficult to differ from the result arrived at by the lower Appellate Court although my reasons are not the same as those given in its judgment under appeal. 18. 17. I, therefore, find it difficult to differ from the result arrived at by the lower Appellate Court although my reasons are not the same as those given in its judgment under appeal. 18. In the result, the appeal fails and is dismissed but, in the circumstances, I leave the parties to bear their own costs. Appeal dismissed.