Judgment :- 1. The defendant in O.S. No. 6509 of 1974 before the City Civil Court, Madras, is the appellant herein. 2. The respondent filed the above suit for recovery of a sum of Rs. 5,000/- with interest thereon at 6% per annum from the date of plaint till the date of realisation by way of damages, for wrongful attachment. 3. It is the case of the plaintiff that he has got a good status in life. His great grandfather had built a choultry in Palni and he is the present Trustee of the Trust created by bis grandfather. His father late Balasubramaniam Gramani was a well known figure at Mylapore, Madras, and he has got vast properties which he obtained as per partition deed dated 3-11-1963. It is his further case that the appellant instituted O.S. 3840 of 1974 for recovery of a sum of Rs. 14,141/- and obtained an order of attachment before judgment regarding one of the items which he obtained as per the above partition deed. The suit was instituted not only against the respondent but also against his two brothers, three sisters and others. 4. The suit filed by the appellant was one for realisation of the amount on the allegation that the compensation amount due to her including the excess compensation was realised by the respondents father and, there fore, all his heirs are liable for the amount. On the date when the suit was filed, an amount of Rs. 24,000/- was already in Court deposit, and without verifying the same, the appellant has instituted the suit and obtained an interim order of attachment. The same, according to the plaintiff, has affected his reputation and good status in life. The Amin implemented the order by beat of tom-tom and because of that, many people in that locality came to know about the attachment. There was no necessity for the appellant to file such a suit, and the order of attachment was obtained on false allegation. The respondent has no intention to sell the property sought to be attached, and the allegation was made recklessly without any regard to truth. It was done without ascertaining the real facts, and the same was aggravated by filing another affidavit by the appellants brother Rajaraman that the respondent is intending to sell the property. The respondent has no intention to sell the property sought to be attached, and the allegation was made recklessly without any regard to truth. It was done without ascertaining the real facts, and the same was aggravated by filing another affidavit by the appellants brother Rajaraman that the respondent is intending to sell the property. Since it has affected his reputation, the plaintiff says that he is entitled to damages to the extent of Rs. 5,000/-(Rupees Five Thousand). 5. The appellant, in her written statement, contended that she was not aware of the status of the plaintiff. According to her, she purchased more than one acre of land from the plaintiffs fathers younger brother in Survey No. 18/2 in Kalikunram Village, Saidapet Taluk, Madras. At the time when the property was purchased, the proceedings for acquisition of the land was pending, and the said fact was not made known to her. The compensation amount awarded in that case was due to her, but without her knowledge, the same was taken by the present respondents father late Balasubramaniam Gramani. Hence, she had to file a suit O.S. 716 of 1966 for recovery of the compensation amount. The plaintiffs father was impleaded in that case as a defendant, and pending suit, he died, and the plaintiff was also impleaded as one of the legal representatives of the deceased father. In that case, it was found that the plaintiffs father has unlawfully withdrawn the amount due to the appellant herein, and the suit was decreed with costs. 6. While the above suit was pending, she wanted higher compensation and she moved the Collector for referring the case to the competent Court for answering the Reference. Even before her request for a Reference, the respondents father had already applied for Reference, including the property which belonged to her, and the same was registered before the competent Court as L.A.C. No. 123 of 1963. A decree was passed by that Court directing the Government to pay an enhanced compensation of Rs. 6,280/- with usual solatium and interest. The appellant was not a party to the said proceedings. The Collector also allowed her Reference application as L.A.C. No. 524 of 1965. A decree was passed by that Court directing the Government to pay an enhanced compensation of Rs. 6,280/- with usual solatium and interest. The appellant was not a party to the said proceedings. The Collector also allowed her Reference application as L.A.C. No. 524 of 1965. On the basis of the earlier judgment passed in L.A.C. No. 123 of 1963, her case was also decided in terms of the earlier judgment, with direction that the State need not deposit the amount since it has already deposited the amount since it has already deposited the amount in L.A.C. No. 123 of 1963. Since the plaintiffs father has already withdrawn the entire amount from the Collector, she naturally thought that the enhanced compensation awarded by the Court also might have been received by him and the amount distributed among his children. It was under those circumstances, she had to file O.S. 3840 of 1974. The attachment was also effected only to protect her right and secure the amount due to her. It is not with any bad motive, nor had she any malicious intention to lower the status of the plaintiff among the public. It was all done in good faith. Subsequent to the institution of the suit, it was found out that the enhanced compensation amount was not withdrawn by the plaintiffs father, and immediately after getting knowledge of the same, she withdrew the proceedings. That shows that she did not want to continue the proceedings and that she was interested only in getting the amount due to her. According to the appellant, she has prosecuted the earlier proceedings in all good faith and with a bona fide intention to get the compensation amount. She prayed for dismissal of the suit. 7. The trial Court, after taking evidence, held that the plaintiff has not made out a case for getting damages. The trial Court also held that the reputation and status of the plaintiff as alleged by him cannot be true. It has further held that the appellant has acted bona fide and her intention was only to protect her right and to secure the amount due to her. With the result, the suit was dismissed. 8. Against that decision, the plaintiff filed A.S. No. 112 of 1981 before the City Civil Court, Madras. It has further held that the appellant has acted bona fide and her intention was only to protect her right and to secure the amount due to her. With the result, the suit was dismissed. 8. Against that decision, the plaintiff filed A.S. No. 112 of 1981 before the City Civil Court, Madras. The lower appellate court reversed the decision of the trial court and held that the appellant has instituted the earlier proceeding without reasonable and probable cause. She was reckless in not ascertaining the real facts before filing an application for attachment. The lower appellate court held that the plaintiff was liable to pay damages. It also held that the appellant is an elderly woman and that she was misguided and misled by others completely. An amount of Rs. 1,000/- was awarded as damages with proportionate costs throughout. 9. It is the said decision, that is challenged by the appellant in this Second Appeal. 10. The following is the substantial question of law that has been framed for consideration in this Second Appeal:— “Whether or not the element of malice is necessary to make a claim for compensation on the allegedly wrongful attachment?” 11. Section 95 of the Code of Civil Procedure deals with compensation on for obtaining arrest, attachment or injunction-on insufficient grounds. A reading of S. 95 C.P.C. shows that where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted on insufficient grounds, the defendant, applies to that Court which effected the attachment or arrest and that Court finds that the order was obtained on ‘insufficient grounds’, it may award a reasonable compensation to the a ffected person subject to the maximum that shall not exceed its pecuniary jurisdiction. In this case, it is admitted that the plaintiff herein did not move that Court for getting compensation, but has filed an independent suit. The proceeding initiated by the plaintiff is for getting compensation. Claim for damages for loss of reputation against the appellant comes within the Law of Tort under the Chapter for having maliciously misused the process of Civil Court for getting an Order in her favour. 12. The proceeding initiated by the plaintiff is for getting compensation. Claim for damages for loss of reputation against the appellant comes within the Law of Tort under the Chapter for having maliciously misused the process of Civil Court for getting an Order in her favour. 12. At one point of time, in England, it was thought that in a civil proceeding initiated by a person, if interim order was obtained without reasonable and probable cause, he is not liable for damages, except in certain categories of cases. The reason behind this is, that in the Civil Court, a right is asserted by a individual against an individual, and cost is also awarded in the proceedings. But in cases where there had been damage to the property by virtue of the interim order, a cause of action arises for the affected person. 13. In India, the law is settled as reported in A.I.R. 1931 P.C. 28 33 L.W. 513 = ( Ramanathan Chetty v. Mira Saibo Marikar ) wherein their Lordships had held that ‘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 be 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 be for damages occasioned by the wrongful seizure ‘without proof of malice’. 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 v oid, 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. An action for damages arising from the conduct of the defendant in securing an order which is v oid, 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. 14. On the above point, there was some difference of opinion between the various Courts in India, and that was settled by the Privy Council in its decision referred to supra (A.I.R. 1931 P.C. 28). 15. In A.I.R. 1944 Calcutta 289 (Bhupendra Nath Chatterjee and others v. Smt. Trinayani Devi ) it was held thus:— “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. No action, however, lies for instituting civil proceedings falsely and maliciously, as the ordinary presumption is that a successful defendant, who is unsuccessfully sued, is amply compensated by the order for costs in his favour Exceptions are, however, made in certain specific cases where as a consequence of the legal proceedings, some damage results, of which the law will take notice; e.g., when a mans liberty is taken away or his fair name and credit are injured: (1883) 11 Q.B.D. 674, relied on. A distinction has all along been made between malicious arrest or abuse of execution proceedings on the one hand and false imprisonment or unlawful seizure or attachment of the plaintiffs property on the other. A distinction has all along been made between malicious arrest or abuse of execution proceedings on the one hand and false imprisonment or unlawful seizure or attachment of the plaintiffs property on the other. In the first case, the defendant acts under order or authority of the Court, and the foundation of the action is the malicious procuring of the order of the Court by representation of facts which the defendant knew to be false or of which there was no reasonable and proper basis. In the other class of cases, the act is an act of the Court and even if there is an order of the Court behind it, it is void for want of jurisdiction. In such a case if there is a restraint imposed on the liberty of the plaintiff, or if there is wrongful entry upon his property, the defendant is liable on an action of trespass and neither malice nor want of reasonable and probable cause need be established. The position, therefore, is that if a litigant takes out any form of legal process which is void for want of jur isdiction and in so doing commits an act in the nature of trespass he will be liable in an action of trespass and no question of malice or want of reasonable and probable cause would arise; but if there was a valid or subsisting order of the Court at the time when the processes are taken out, the action would be one on the case and it would be necessary to prove malice before the plaintiff could recover damages: (1910) 2 K.B. 244, relied on.” 16. In A.I.R. 1951 Rajasathan 26 ( Abas and others v. Sheolal and others ), it was held thus:— “Normally in order that the plaintiff may have a cause of action in a suit for damages for abuse of legal process, it is essential that he should allege and prove that the proceedings taken by him in order to show that the process had been got issued without reasonable and probable cause had terminated in his favour. The allegation that the warrant of attachment had been got issued out of malice and without reasonable and probable cause is wide enough and would take under its cover and include the further ground that it had been got issued with a view to compel a compromise. The allegation that the warrant of attachment had been got issued out of malice and without reasonable and probable cause is wide enough and would take under its cover and include the further ground that it had been got issued with a view to compel a compromise. Accordingly, the latter cannot be held to be an additional cause of action and the suit is liable to be dismissed as not being maintainable if the proceeding relating to attachment has not terminated in the plaintiffs favour.” 17. In A.I.R. 1957 Madras 156 = 69 L.W. 101 ( Syamalambal v. Namberumal ), this Court had the occasion to decide the issue in the following way:— “In a suit for damages for wrongful attachment of immovable property, the claim can fall under one of two heads, namely, (1) trespass and (b) abuse of civil process. When the property of a person not a party to the suit is wrongly attached the action is really one founded on trespass. But there is another aspect of the matter; when the act of attachment complained of is done under judicial sanction, though at the instance of a party, the remedy is an action for abuse of civil process. There are substantial points of distinction between an action for abuse of civil process and an action for trespass to property. In the former, which reasonable an action for malicious prosecution, the plaintiff has to prove absence of reasonable and probable cause.” 18. In A.I.R. 1978 Calcutta 259 ( Ram Narayan Agarawalla v. Bholanath Das and another ), also, the same principle was enunciated following the decision of the Privy Council in A.I.R. 1931 Privy Council 28 (supra), and also an earlier decision of the same Court in Bhupendra Nath Chatterjees case. 19. In A.I.R. 1978 Calcutta 259 ( Ram Narayan Agarawalla v. Bholanath Das and another ), also, the same principle was enunciated following the decision of the Privy Council in A.I.R. 1931 Privy Council 28 (supra), and also an earlier decision of the same Court in Bhupendra Nath Chatterjees case. 19. In A.I.R. 1982 Karnataka 9 ( Basamma and others v. Peerappa ), it was held that in a suit where the action is founded on what is called as abuse of the process of the Court or malicious prosecution, the plaintiff has to allege and prove that the abuse of the process of the Court was also malicious.’ In that case, the learned Judge further held as follows:— “Section 95 of the Code provides for award of compensation to the defendant, where a plaintiff has obtained an arrest, an attachment or a temporary injuction by filing an application to the Court that has made the order. The remedy provided under S. 95 is a special remedy. The amount that can be awarded by the Court cannot exceed Rs. 1,000/- or the pecuniary jurisdiction of the Court itself, whichever is higher. In such an application, the defendant has only to establish the ingredients referred to in t hat section and no more Sub-sec. (2) of S. 95 bars a person who makes an application from instituting a suit for the same purpose. But, a person who does not make an application under S. 95(1) can also institute a suit for damages for the same purpose. In such a suit, the action is founded on what is called an abuse of the process of the Court or malicious prosecution, in which the plaintiff has to allege and prove that the abuse of the process of the Court was also malicious. But in an action for trespass, waste or damage may be under the cover of an order of temporary injunction, that is not the position. In an action for trespass, the plaintiff is neither required to allege malice nor prove the same and he had only to allege and prove that he was in possession of the immovable property and the defendant has disturbed his possession (vide Chapters 4 and 8 of Ramaswamy Iyers Law of Torts, 7th Edition). ..” 20. In an action for trespass, the plaintiff is neither required to allege malice nor prove the same and he had only to allege and prove that he was in possession of the immovable property and the defendant has disturbed his possession (vide Chapters 4 and 8 of Ramaswamy Iyers Law of Torts, 7th Edition). ..” 20. On the basis of the above settled position, it has to be held in this case that the plaintiff has to prove malice before he is entitled to get any damages against the defendant. The attachment was effected by order of Court. He has to allege and prove that the appellant has initiated proceedings in a Civil Court and has obtained interim order of attachment without reasonable and probable cause and with a malicious intention. Only if the same is alleged and proved, the question of compensation or quantum of compensation deserves to be decided. 21. What is ‘malice’ is also to be decided. Only then, this Court will be in a position to decide whether the action of the defendant in initiating the proceeding was with any malicious intention. 22. In Salmond & Heuston on the Law of Torts - Twentieth Edition (1993), the learned Authors say at page 411 thus:— “No action will be for the institution of legal proceedings, however destitute of reasonable and probable cause, unless they are instituted maliciously - that is to say, from some wrongful motive. Malice and absence of reasonable and probable cause must unite in order to produce liability. So long as legal process is honestly used for its proper purpose, mere negligence or want of sound judgment in the use of it creates no liability; and, conversely, if there are reasonable grounds for the proceedings ( for example, the probable guilt of an accused person) no impropriety of motive on the part of the person instituting these proceedings is in itself any ground of liability. Therefore it is necessary to distinguish between honesty of belief and honesty of motive; the former is relevant to the question of reasonable and probable cause, the latter to the question of malice. Malice means the presence of some improper and wrongful motive - that is to say, an intent to use the legal process in question for some other than its legally appointed and appropriate purpose. Malice means the presence of some improper and wrongful motive - that is to say, an intent to use the legal process in question for some other than its legally appointed and appropriate purpose. It 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; for example, prosecuting a person for theft in order to deter others from commit ting similar depredations, the levying of blackmail, or the correction of the accused in respect of some unconnected matter, such as the obtaining of compensation or restitution from the accused (the civil law, not the criminal, being the appropriate instrument for this purpose). Again, a prosecution is not malicious merely because inspired by anger for the injury suffered, for this is one of the motives on which the law relies to secure the prosecution of offenders against the criminal law.” 23. In Street on Torts VII Edition, at page 373, the learned Author says that ‘malice is the most controversial element in tort’. The learned Author thereafter says as follows:— “There is weighty authority for the view that, until the late nineteenth century, the plaintiff had only to prove an intention on the part of the defendant to disparage - that only (and here the analogy to defamation is close) if the defendant had set up some prima facie privilege, for example, that he was protecting his own interest in the property disparaged, did the plaintiff, in order to succeed, have to rebut thin privilege by proving malice. However, the cases decided during the last sixty years have to uniformly insisted on the need for the plaintiff to prove malice, that the former view (however desirable) is no longer tenable. Even so, it is difficult to define “malice” in this context. It has been variously defined as “improper motive”, an intention to ijnure, or want of honest belief in the truth of the statement. What is significant is that, usually, the courts have not preferred any one of these definitions to the exclusion of the others. Thus, the House of Lords in White v. Mellin held that either an intention to injure or knowledge of the falsity of the statement would be enough.” 24. What is significant is that, usually, the courts have not preferred any one of these definitions to the exclusion of the others. Thus, the House of Lords in White v. Mellin held that either an intention to injure or knowledge of the falsity of the statement would be enough.” 24. Clerk & Lindsell on Torts - 15th Edition at page 44, has made distinction between ‘intention’ and ‘malice’, and has given a vivid picture of the difference between the two. The learned Authors say that the connotation of ‘malice’ needs to be sorted out in the appropriate context. The learned Authors say as follows (at page 44 and 45):— “Intention means the state of mind of a man who foresees and desires that certain consequences shall result from his conduct — his conduct is then said to be intentional as to those consequences. As such it is colourless as to motive, that is to say, the reason he has in mind for bringing about those consequences. One meaning of malice is synonymous with intention in the above sense, namely, a desire to bring about consequences which are tortuous “malice in its legal sense means a wrongful act done intentionally without just cause or excuse”. A second meaning of malice involves not the result contemplated but the ulterior reason or purpose for which it was achieved, and this sense includes spiteful motives, e.g., as when “malice” is said to negative the defense of fair comment in defamation, or makes an action a nuisance which would not have been so otherwise. The introduction of motive creates confusion since sometimes, when malice is an essential ingredient of “liability, the word “malice” bears a third meaning and is stretched to include irrelevant or dishonest motives, which are in no sense spiteful, e.g., in malicious prosecution or malicious falsehood, as well as in negativing the defense of qualified privilege in defamation. On the other hand, when intention is an essential ingredient of liability, “intention”, too, is stretched to include improper motives, e.g., in conspiracy. So there is an ill-defined area where malice and intention overlap. Fortunately, it makes no difference in practice whether these forms of liability are to be classed as malicious or intentional torts. On the other hand, when intention is an essential ingredient of liability, “intention”, too, is stretched to include improper motives, e.g., in conspiracy. So there is an ill-defined area where malice and intention overlap. Fortunately, it makes no difference in practice whether these forms of liability are to be classed as malicious or intentional torts. In yet a fourth sense malice is confused with a voluntary act without just cause or excuse, as where the mere fact of publishing defamatory matter is technically referred to as “malicious” publication even though the defendant “may be the publisher of libel without a particle of malice or improper motive.” Each of these connotations of malice needs to be sorted out in its appropriate context. ..” The learned authors further say at page 48 that In the tort of malicious prosecution malice must be shown as an additional requirement of proof separate from absence of reasonable probable cause. The term ‘malice’ in this form of action is not to be considered in the sense of spite or hatred but actuated by improper and indirect motives. Mere anger at the plaintiff is not malice, because this is natural and proper where he was believed to have committed a crime. Much the same applies to malicious abuse of process. So, too, in the tort of malicious falsehood, which includes slander of title and slander of goods, the necessary malice to support it is some “indirect or improper motive”. The learned authors have further defined the word ‘recklessness’ at page 49 thus:— “Reckless” has both a subjective and an objective sense. In the former it connotes foresight of consequences without desire for them, but with either indifference or willingness to run the risk. In this sense it is bracketed with intention for purposes of civil liability and for most criminal purposes. In its objective sense recklessness is sometimes spoken of as gross negligence and connotes a serious failure to act reasonably. In this sense it is not bracketed with intention” The lower appellate court has held that the appellant has acted recklessly and has initiated the earlier proceedings without ascertaining the real facts. ‘Recklessness’ is a species under the law of negligence. In this sense it is not bracketed with intention” The lower appellate court has held that the appellant has acted recklessly and has initiated the earlier proceedings without ascertaining the real facts. ‘Recklessness’ is a species under the law of negligence. Malice will not come within the tort of negligence as held in Salmond on Jurisprudence - 12th Edition - 1966 - at pages 370 and 371 “ consequences which are in fact the outcome of negligence merely are sometimes in law dealt with as intentional. Thus he who intentionally does grievous bodily harm to another, though with no desire to kill him, or certain expectation of his death, is guilty of murder if death ensues. It does not seem possible to lay down any general principle as to the case in which such a constructive intention beyond the scope of his actual intention is thus imputed by law to a wrongdoer. This is a matter pertaining to the details of the legal system. It is sometimes said, indeed, “that a person is presumed in law to intend the natural or necessary results of his actions. This, however, is mush too wide a statement, for, if true, it would eliminate from the law the distinction between intentional negligent wrongdoing, merging all negligence in constructive wrongful intent. A statement much nearer the truth is the the law frequently — though by no means invariably — treats as international all consequence, that is to say, which the actor foresees as the probable results of his wrongful act.. 25. Ratanlal Dhirajlal - on Law of Torts - 22nd Edition (1992) have also made distinction between ‘intention’, ‘negligence’ and ‘recklessness’. The learned Author have stated at page 26 of the said book as follows:— “Intention is an internal fact, something which passes in the mind and direct evidence of which is not available. It is common knowledge that the thought of man shall not be tried, for the devil himself knoweth not the thought of man”. This dictum of Brain C.J. only means that no one can be sure of what was in anothers mind because what a person thinks can be inferred only form his conduct. An act is intention as to its consequence if the person concerned has the knowledge that they would result and al so the desire that they should result. This dictum of Brain C.J. only means that no one can be sure of what was in anothers mind because what a person thinks can be inferred only form his conduct. An act is intention as to its consequence if the person concerned has the knowledge that they would result and al so the desire that they should result. It is a case of negligence when the consequences are not adverted to though a reasonable person would have foreseen them. It is “recklessness” when the consequences are adverted to though not desired and there is indifference towards them or willingness to run the risk. Recklessness is sometimes called “Gross negligence” but very often and more properly it is assimilated with intention. It is sometimes said that “a party must be considered in point of law to intend that which is the necessary or the natural consequence of that which he does”. This is too wide a statement as it fails to distinguish between international and negligent wrong doing.” 26. It is on the above said principles of law, we have to decide whether the appellant had intention or motive to cause injury to the reputation of the respondent by obtaining an order of interim attachment. 27. In Law of Torts by Anand and Sastri 5th Edition (1985), at page 1059, it is stated thus:— “ the history of the transaction between the parties is relevant and the conduct of the defendant before and after making the charges must also be taken into consideration because the history may establish both malice and want of reasonable and probable cause.” 28. Let us now take the history of the litigations between the parties. 29. Survey No. 18/2, admittedly, belonged to the respondents grandfather, Venkataswami Gramani, he had three sons who are Balasubramania Gramani, Balasundara Gramani and Palani. The three brothers got partitioned under a registered partition deed dated 2-8-1926. A portion of the property in Survey No. 18 was allotted to Balasundara Gramani. It was he who sold his property to the appellant in this case, for valuable consideration on 27-4-1960. It has come out in evidence that she (appellant) was in possession of the properly as absolute owner and patta was also changed in her name. While so, proceedings were initiated by the Government to acquire the land. It was he who sold his property to the appellant in this case, for valuable consideration on 27-4-1960. It has come out in evidence that she (appellant) was in possession of the properly as absolute owner and patta was also changed in her name. While so, proceedings were initiated by the Government to acquire the land. In fact, the evidence is that at the time when the sale deed was executed, the land acquisition proceedings was already pending. The appellant was not a party to the land acquisition proceeding and she was unaware of the same, and the Award was passed by the Collector. The Plaintiffs father, late balasubramania Gramani claimed right over the acquired property, and he filed a written statement claiming the entire compensation, before the Collector. This was also without the knowledge of the appellant. An Award was passed, and admittedly, the entire compensation amount awarded by the Collector was received by Balasubramania Gramani. Only when the appellant was dispossessed from the property, she came to know about the land acquisition proceedings and then she inquired about the compensation. She immediately filed representation before the Collector for awarding the compensation amount to her and also to refer the case before the Competent Court for getting enhanced compensation. The Collector (Land Acquisition) informed the appellant that she is not a party to the proceedings, and Award has already been passed in favour of the plaintiffs father late Balasubramania Gramani, and that he had already received the entire compensation amount. It was thereafter she filed O.S. 716 of 1966 before the City Civil Court, Madras, making Balasubramania Gramani as the first defendant, her vendor as the third defendant and all the other children of the original acquirer as parties to the suit. In that case, the plaintiffs father, who was the first defendant therein, contended that he was the owner of the property and the vendor of the appellant had no right and he was under insolvent circumstances when the sale was executed. He also put forward a case that the suit was barred by limitation and adverse possession. Pending proceedings, Balasubramania Gramani died and all his children including the respondent herein were impleaded as additional defendants in that suit. He also put forward a case that the suit was barred by limitation and adverse possession. Pending proceedings, Balasubramania Gramani died and all his children including the respondent herein were impleaded as additional defendants in that suit. The respondent also accepted the contention of his father and the suit, ultimately, it was held that the appellant herein has got right over the property and the compensation amount awarded by the Collector must belong to her also. A decree was passed in favour of the appellant allowing her to recover the amount from the legal representatives of the deceased, first defendant in that case. The plaintiff herein is also made liable for the entire compensation amount due to the appellant. 30. As state earlier, the appellant herein had sought Reference to the competent Court for getting enhanced compensation, the plaintiffs father also had moved for getting enhanced compensation. The plaintiffs fathers reference case was registered as L.A.C. 123 of 1963 and decree was passed on 12-9-1969, directing the Government to deposit into Court a sum of Rs. 6,280/- being the enhanced compensation, with usual solatium and interest. The present appellant was not a party to the said proceedings. The appellants reference case was registered as L.A.C. 524 of 1965 and was decided in accordance with the earlier decision in L.A.C. 123 of 1963. There was also a direction by the competent Court that the State need not deposit the amount in L.A.C. 524 of 1965 in view of the direction already given in L.A.C. 123 of 1963. It is also in evidence that the Deputy Collector deposited the amount of Rs. 50,684/- being the total amount due to the appellant as well as deceased Balasubramania Gramani, whose other properties were also acquired. Since the appellant was not a party to that proceeding, naturally she had the apprehension that the amount of enhanced compensation might have been received by the plaintiffs father. It was but reasonable that she had such an apprehension because she was not a party to the proceedings, and it was also in evidence that the late Balasubramania Gramani had cheated her and had received the entire compensation amount awarded by the Collector. So, under the impression that the late Balasubramania Gramani had received the entire compensation amount from the Court, she filed O.S. 3840 of 1974 (Ex. So, under the impression that the late Balasubramania Gramani had received the entire compensation amount from the Court, she filed O.S. 3840 of 1974 (Ex. P-3) and sought interim attachment of the properties belonging to the plaintiff. The plaintiff, who is one of the heirs of late Balasubramania Gramani was also under the same impression that his father has received the compensation amount from the Court. The same is evident from the extract of the written statement filed by him in that case, the same can be seen from Ex. A-16, the judgment in O.S. No. 3840 of 1974. In that suit, he only put forward a contention that the suit is barred under Order 2 Rule 2 C.P.C. and that it was also barred under the law of Limitation. He did not put forward a contention that his father has not received the amount. His contention was only purely technical. On the basis of the application for attachment before judgment, his property was attached. 31. Before trial, the appellant came to know that there was some mistake on her part, and she wanted to withdraw the suit. The reason for the withdrawal of the suit was, that the enhanced compensation awarded was still in Court deposit, and the same was not withdrawn, and her claim could be satisfied from the amount in Court deposit. As per Ex. A-16 judgment, the appellant herein was allowed to withdrew the suit and both parties now agree that the appellant has received the compensation amount deposited in court. 32. The plaintiff herein, though filed an application for raising the attachment, was not successful in getting it raised till the appellant withdrew the suit, and the attachment was raised only along with Ex. A-16. 33. It is also in evidence that the appellant also moved an application for injunction against the plaintiff herein that he should not demolish the building constructed in the attached property. On the basis of an arrangement between the parties, the injunction was vacated, but, even at that time, the plaintiff herein did not make any attempt to get the attachment raised. While disposing of the suit on the basis of the withdrawal application, the Second Assistant Judge, City Civil Court, Madras, held that the plaintiff (appellant herein) being the absolute owner of the suit property, was entitled to the excess compensation amount awarded in L.A.C. No. 524 of 1965. While disposing of the suit on the basis of the withdrawal application, the Second Assistant Judge, City Civil Court, Madras, held that the plaintiff (appellant herein) being the absolute owner of the suit property, was entitled to the excess compensation amount awarded in L.A.C. No. 524 of 1965. It was further held by that Court that the said suit was filed on the assumption that the excess compensation amount was drawn by late Balasubramania Gramani, and that such an assumption was without verifying the correctness of the fact and also the relevant documents, it was further held that the moving of the injunction application was without any basis, except to harass the plaintiff herein, the said observation by the learned Assistant Judge was regarding the point as to whether the appellant should be made liable for the costs of the suit. The plaintiff herein was allowed costs on uncontested scale, and the suit was dismissed as withdrawn, it was pending that suit, the present suit was filed by the plaintiff for damages. 34. From the above facts, it is clear that immediately after knowing the mistake, the appellant filed the application for withdrawal of the suit on the ground that her rights are protected and that the amount was still in Court deposit. She did not want to prosecute the proceedings. If her motive was to harass the plaintiff, naturally, she could have continued the suit and taken the risk of getting a dismissal making her saddled with more costs. Her conduct cannot be said to be perpetuated with bad motive. Her only asset was acquired, and even in spite of the deposit of the compensation amount, she had to initiate legal proceedings and get a decree. The plaintiff herein, who was also a defendant in that suit, was contesting the case, accepting the contentions of the father as correct. His conduct shows that in spite of knowing that the compensation amount did not belong to him, he refused to part with it. He was illegally retaining the compensation amount which he and his father were not entitled to. The said conduct of the plaintiff cannot be brushed aside lightly, as acting in good faith. It was a dishonest act on the part of the plaintiffs father and the plaintiff himself. He was illegally retaining the compensation amount which he and his father were not entitled to. The said conduct of the plaintiff cannot be brushed aside lightly, as acting in good faith. It was a dishonest act on the part of the plaintiffs father and the plaintiff himself. Along with the dishonesty on the part of the plaintiffs father in the land acquisition case the appellant was not a party and the award was also only in his favour, there was also a direction by the Court that the compensation amount need not be deposited since there was already a direction for depositing the amount in the earlier case initiated at the instance of the plaintiffs father. Her bitter experience with the plaintiffs father was such that she was dragged to Court. Not only that she lost her property, but she had to fight a litigation which lasted for years. It is not an enmity between the parties that resulted in the litigation. Her withdrawal of the suit immediately after getting knowledge that the amount is in Court shows that her intention was only to get at the amount, and not to harass anyone. If with such an intention, she had filed and application for attachment before judgment, her conduct cannot be blamed as lacking in good faith or that the same was without any reasonable and probable cause. It was not actuated with any malice or bad motive. There is only one suit between the parties and that ended in her favour. According to the plaintiff, he is a man of status, and he has got assets worth lakhs, and the action of the appellant has affected him injuriously. 35. To prove that he is a man of assets, he has filed Ex. A-8, registration copy of the partition in his family, it is also clear from the very same document that he had also debts at that time, and the family was indebted to many persons, the trial Court had discussed that aspect and has held that the reputation on the basis of his assets cannot be correct. Even if the plaintiff is a man of assets, the Court cannot say that he is a man of reputation. He may have an economic status, but his dealings even after the death of his father was not that of an honest man. Even if the plaintiff is a man of assets, the Court cannot say that he is a man of reputation. He may have an economic status, but his dealings even after the death of his father was not that of an honest man. It has come out in evidence that in spite of t he-decree in O.S. No. 716 of 1966, he did not arrange to pay the amount to the appellant. Even in this suit, his claim is only that he is proportionately liable, and not for the entire amount he was made a party immediately after his fathers death and pending trial. On ascertaining the facts, he could have understood that his case is not proper, and the appellant who has purchased the property for valuable consideration, is illegally deprived of the compensation amount. He could have paid the amount if only his intention was good. His dealings with the appellant are not that of a man of reputation. According to me, the filling of this suit against the appellant is also another kind of wreaking vengeance on her, and not with any good intention. 36. One of the ingredients for getting damages is that the litigation must have also ended in plaintiffs favour. In this case, we cannot say that the litigation ended in the plaintiffs favour, because, the suit was withdrawn by the appellant, and there was no necessity for adjudication of rights. But it can be argued that the litigation has come to an end by the withdrawal of the suit and that was in the respondents favour. I am not deciding that point finally, for, according to me, the malice is not pleaded and proved. 37. It is true that the appellant could have avoided the filing of O.S. 3840 of 1974. The lower Court itself says that she (appellant) was ill-ill-advised misguided. She is an illiterate woman, and she might have initiated the earlier proceedings in a haste. She was over anxious at least to get the amount awarded by way of compensation. In that haste, she was negligent in ascertaining whether the amount, was in Court deposit, She assumed that the amount was taken by the plaintiffs father, the said assumption may not be correct. But, taking into consideration her bitter experience with the plaintiffs father, it cannot be said that the appellant acted with any malice, bad intention or bad motive. In that haste, she was negligent in ascertaining whether the amount, was in Court deposit, She assumed that the amount was taken by the plaintiffs father, the said assumption may not be correct. But, taking into consideration her bitter experience with the plaintiffs father, it cannot be said that the appellant acted with any malice, bad intention or bad motive. Even if she had acted recklessly, it amounts only to negligence or rashness, and it will not amount to malice. 38. I have already answered the substantial question of law in holding that in a case of this nature, the plaintiff has to plead and prove malice, and without doing the same, he cannot succeed. In this case, except the mere allegation in the plaint that that is no reasonable or probable cause, the plaintiff has not alleged any malice on the part of the appellant. As stated in Salmond & Heuston on the Law of Torts - 20 the Edition (1993) at pages 411 and 412, apart from reasonable and probable cause, malice will have to be proved separately. In those pages, that learned authors have stated thus:— “Malice is any motive of which the law disapproves, not any motive which is displeasing to a jury. The jury has merely to decide whether the motive exists. The Second qualification is that there must be some reasonable evidence of malice, otherwise the case will be withdrawn from the jury. Want of reasonable and probable cause is itself in certain cases sufficient evidence of malice to go to a jury. Nevertheless, a jury is not at liberty in all cases to infer malice “from want of reasonable cause. Wan t of reasonable cause is sufficient evidence of malice in those cases only in which it is sufficient evidence that there was no genuine belief in the accusation made. If it is appears that there was such a belief, the plaintiff must produce some independent evidence of malice, and cannot rely on the absence of reasonable cause. On the other hand, malice is in general never evidence of want of reasonable cause, unless the same fact supplies evidence both of malice and absence of reasonable and probable cause, as where it is established that when the defendant instituted the prosecution knew that the plaintiff was innocent. ..” 39. On the other hand, malice is in general never evidence of want of reasonable cause, unless the same fact supplies evidence both of malice and absence of reasonable and probable cause, as where it is established that when the defendant instituted the prosecution knew that the plaintiff was innocent. ..” 39. The lower appellate court has stated that the appellant has acted without any reasonable or probable cause. In the earlier part of this judgment, I have stated that the appellants conduct cannot be blamed as lacking in good faith or that the same was without any reasonable and probable cause. The lower appellate court has not entered any finding regarding malice. 40. The lower appellate court has blamed the appellant for not entering the box. Instead of the appellant, her brother was examined. According to me, no adverse inference can be drawn against the appellant since the attachment was ordered on the basis of the affidavit filed by the appellants brother. It was he who made the enquiries and filed the affidavit. He has explained the circumstances under which he filed the affidavit. According to him, whenever he wanted to visit the property, it was remaining closed. In the plaint as well as in the evidence of the respondent, he admits that the building was closed, but, according to him, that should not be a cause for filling an application for attachment before judgment. So, it is clear that there was inquiry by the appellants brother, and only basing on the same, an affidavit was filed. It must also be noted that even though the respondent wanted to get the attachment raised, he did not succeed, and the Court was prima facie satisfied with the contents of the affidavit. The attachment was raised only as a consequence of the withdrawal of the suit. In that view, the finding of the lower appellate court that an adverse inference has to be drawn against the appellant cannot be sustained. 41. For all the reason stated above, the judgment of the lower appellate court is liable to be set aside. 42. In the result, I set aside the judgment of the lower appellate court and restore that of the trial court. The second appeal is allowed with costs throughout.