Murugan @ Muniappa Pillai v. B. Pichaikannu — 1998 DIGILAW 289 (MAD)

Judgment :- 1. The plaintiff is the appellant. He filed suit O.S. No. 16/73 before the Subordinate Judges Court Nagercoil, against the respondent herein for recovery of Rs. 9430/- as damages with future interest at the rate of 12% per annum and for costs averring as follows: The suit properties of an extent of 4.37 acres belonged to Thiruvaduthurai Adheenam and they were leased to the appellant on 13-03-1963. The appellant was in possession and enjoyment as lessee. The respondent filed a suit O.S. No. 219/71 before the District Munsif s Court, Nagercoil, on 15-03-1971 against the appellant and obtained an order of injunction restraining the appellant from disturbing this possession till the disposal of the suit. Taking advantage of the order of injunction, he harvested the crops raised by the appellant on 31-1-1972 and caused a loss to an extent of Rs. 4400/-. The suit was dismissed on 29-02-1972. Thereafter, the appellant raised kanni crop in the lands in 1148 M.E. on 23-04-1972. The respondent filed an appeal in A.S. No. 80/72 against the decision in O.S. No. 219/71. He also filed an application in I.A. No. 108/72 for injunction to restrain the appellant and the injunction application was dismissed. The respondent took up the matter to the High Court in C.M.A. No. 237/72 and got an order of injunction restraining the appellant from interfering with his possession and harvested the crops on 23-08 1972 causing loss to the appellant to the extent of Rs. 5030/-. The suit had therefore been filed for recovery of Rs. 9430/-. 2. The respondent resisted the suit contending that the appellants father-in-law one Bhoothalingam got lease of the suit property in the name of the appellant. The appellant sub-leased the properties to the respondent from 1964 after receiving a premium of Rs. 500/-. The respondent had been cultivating the land as lessee of the appellant. His name was also recorded in the tenancy record as a tenant. After the death of Bhoothalingam, the appellant attempted to take forcible possession of the properties from the respondent. The respondent had therefore to file suit O.S. No. 219/71, got an order of injunction and the injunction order has also been made absolute ultimately. The order of injunction was confirmed by the Appellate Court. He raised paddy and harvested the same and deposited the value of the pattom in court. The respondent had therefore to file suit O.S. No. 219/71, got an order of injunction and the injunction order has also been made absolute ultimately. The order of injunction was confirmed by the Appellate Court. He raised paddy and harvested the same and deposited the value of the pattom in court. The order of injunction had been obtained on genuine grounds and the suit as framed was not maintainable and the amount claimed was excessive. 3. The trial court, on consideration of the oral and documentary evidence, held that the respondent raised both the kumbhom crops and kanni crops in the land, that he was in possession of the suit properties and that he harvested both the crops and therefore he was liable to pay a sum of Rs. 4700/- by, way of compensation of the appellant. 4. The respondent filed appeal A.S. No. 36/81 before the District Judges Court, Kanniyakumari at Nagercoil. The learned District Judge modified the decree of the trial court and instead of a decree for Rs. 4700/- granted a decree for Rs. 750/- as nominal compensation in equity. The appeal was allowed in part. Aggrieved the present Second Appeal has been filed. 5. At the time of admission the following substantial question of law was raised for decision in the Second Appeal: “Whether the lower appellate Court is right in reducing the compensation holding that it is sufficient to direct the defendant to pay a nominal compensation alone. The lower appellate court having found that the defendant alone raised the crops, is not the plaintiff entitled for a decree of the value of the yield and not a nominal compensation?” 6. The learned Counsel for the appellant Mr. Ratnam Sivakumar for Mr. P. Ranganathan, submitted that in as much as the respondent lost in the suit filed by him and consequently his possession must have been deemed to be unlawful, the appellant who entitled to be paid the value of the yield as compensation. According to the learned Counsel, the respondent had obtained the injunction order on false grounds and the appellant was therefore entitled to recover the entire value of the crops. 7. Per contra, Mr. P. Ananthakrishnan Nair, learned Counsel for the respondent, contended that the respondent ought not to have been penalised for the act of court. According to the learned Counsel, the respondent had obtained the injunction order on false grounds and the appellant was therefore entitled to recover the entire value of the crops. 7. Per contra, Mr. P. Ananthakrishnan Nair, learned Counsel for the respondent, contended that the respondent ought not to have been penalised for the act of court. The court alone granted injunction order and the respondent could not be attributed with any malice and unless malice was established, there was no question of any relief being granted to the appellant. Even the decree for Rs. 750/-granted by the lower Appellate Court was clearly wrong. 8. The decree passed by the lower Appellate Court has not been questioned. So far as damages claimed by the appellant are concerned, the appellant could have had recourse to Section 95 of the Code of Civil Procedure. However, there was no bar for filing an independent suit. In the matter of award of damages in cases where wrongful injunction had been obtained by parties, the courts in India do not hold a uniform view. The Calcutta High Court for some time held the view that the obtaining of an improper injunction was in the nature of trespass by the mover on the rights of the party restrained. It was an unlawful interference with the exercise of the property right of another and therefore action for trespass lay without proof of malice or want of reasonable and probable cause. The Lahore High Court had also adopted the same view. Though this view was emphasized in Bhupendra Nath Chatterjee and others v. Trinayani Devi (AIR 1944 Calcutta 289 = 48 Calcutta Weekly Notes 348), in a recent Bench decision in Bank of India etc. v. Sital Chandra Das and others (AIR 1986 Calcutta 313) a Division Bench of the Calcutta High Court has gone back to the original view. The Bench of the Calcutta High Court held that the aggrieved party was not bound to bring an action only under the provisions of Section 95 (1) of the C.P.C. for damages, but he might institute independent suit for damages for unlawful use and occupation of immovable property if he could establish such unlawful action of another resulting in loss and damages. The scope and ambit of such suit for damages are necessarily wider than the limited scope envisaged by Section 95(1) of the C.P.C. 9. The scope and ambit of such suit for damages are necessarily wider than the limited scope envisaged by Section 95(1) of the C.P.C. 9. The Madras view is that in the suit by the aggrieved party he cannot succeed unless he has alleged and proved that the defendant had acted with malice as well as without reasonable and probable cause. (1) Rama Row v. Somasundaram (AIR 1928 Madras 679= 27 L.W. 457 = I.L.R. 51 Madras 642 = 54 MLJ 647) and (2) Nanjappa Chettiar v. Ganapathi Goundan (12 1.C. 507). 10. In Rama Iyer v. Bhagavathi Subramani Iyer ( AIR 1956 TC. 222 = 1956 KLT 783 ) an attempt was made to circumvent this by framing his suit by the plaintiff as one for loss of profit. The Bench of the Kerala High Court held that, the true principle is that where the interference with the plaintiffs possession is by way of valid or regular order of Court, the only action which lies is one of trespass and not trespass simpliciter, and it is necessary to prove malice before the plaintiff can recover damages. By merely avoiding the word ‘damages’ and using the words ‘loss of profits’ the plaintiff cannot make his position any better. Where the essence of the action is the malicious abuse of the process of court, it cannot be ignored by merely framing the suit as one for loss of profits on ground of trespass alone.” In that case, the suit was thrown out as not maintainable in the absence of proof of malice and want of reasonable and probable cause in obtainine the order of injunction.. No doubt, in V. Srinivasaraghavan v. V. Sundarajan (AIR 1955 Madras 552) Ramaswami, J. has held that, “malice even can be properly inferred on proof that there were no sufficient grounds for an application for temporary injunction and it can be held that the plaintiff has sustained substantial injury. The only requirement is that these must be the proximate result of the order of temporary injunction.” 11. In Salmonds Law of Tort (18th Edn.) at page 394 it is stated as follows: “Malice and essence of reasonable and probable cause must unite in order to produce inability. The only requirement is that these must be the proximate result of the order of temporary injunction.” 11. In Salmonds Law of Tort (18th Edn.) at page 394 it is stated as follows: “Malice and essence of reasonable and probable cause must unite in order to produce inability. 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, 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.” 12. In Rama Row and another v. Somasundaram Asary and others (1928 Madras 679=27 L.W. 457) the defendants instituted a suit against the plaintiffs for a declaration of a title to a strip of ground and for an injunction restraining the plaintiffs from erecting any construction thereon. In the suit, the defendants obtained an ad interim injunction. Eventually the title was found in favour of the plaintiffs and the defendants suit was dismissed. The plaintiffs instituted the suit for damages for maliciously procuring the ad interim injunction. It was held by the Bench that, the plaintiffs were not entitled to succeed unless they prove want of reasonable and probable cause and malice on the part of the defendants and that they had no separate cause of action in the nature of a trespass on the ground of the defendants interference with their lawful rights to build on their own property. It is not right to hold that every interference by a Court with the person or property of a party at the instance of another is prima facie a trespass by that other, unless that other succeeds in proving that he had justification in law. The principle is that where the interference is by virtue of a valid or regular order of the Court; the only action which will lie is one ‘on the case’, but when it is by means of a void order the proper action is one of trespass.” 13. The principle is that where the interference is by virtue of a valid or regular order of the Court; the only action which will lie is one ‘on the case’, but when it is by means of a void order the proper action is one of trespass.” 13. In a case identical to the case on hand in Inassu v. Velu ( 1970 KLT 472 ) the Kerala High Court held that in a suit for compensation for wrongful injunction obtained by the defendant against the plaintiff, the latter had a duty to show not only that the injunction order was later vacated or the suit was dismissed, but that the order was sought for maliciously and without reasonable or probable cause. 14. The last of the case was relied on by the lower Appellate Court. The lower Appellate Court found that there was little doubt that the appellant had not proved that the order of injunction was sought by the defendant maliciously and without reasonable or probable cause and that the compensation claimed on the basis that the appellant raised the crops and the defendant harvested the same, was not sustainable. However, the lower Appellate Court awarded a nominal compensation in a sum of Rs. 750/- No doubt, having regard to the established legal position and the factual finding of the lower Appellate Court that the appellant had not proved malice, it has to be held that the appellant is not entitled to the relief prayed for by him in entirety in the suit. One thing that troubles me is the fact that the respondent was not entitled to have possession of the property. However, by virtue of the injunction order granted by the courts he maintained his possession and raised crops and benefited from that. Only me appellant had a right to have possession. The extent of the lands is 4.37 acres. The income from the lands during the period the appellant was deprived of possession by the orders of court would have been in the region of Rs. 4000 to 5000/-. It appears to me to be very unjust to deny the appellant of his probable income from the property had he been in possession of the property during the relevant period. The proper principle to be applied is that the person so affected should be indemnified for the loss of his land. 4000 to 5000/-. It appears to me to be very unjust to deny the appellant of his probable income from the property had he been in possession of the property during the relevant period. The proper principle to be applied is that the person so affected should be indemnified for the loss of his land. It is axiomatic that a plaintiff is entitled to recover the loss sust ained by him through the wrongful act of the defendant, and the damages sustained in the case of dispossession of land or other immovable property is the amount of profits which the plaintiff would have naturally got if it had not been wrongfully retained by the defendant. It goes without saying that such profits are called mesne-profits. “Mesne profits is defined in Section 2(12) of the Code of Civil Procedure as those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession. 15. My hands are tied by the established legal position in the instant case and I am unable to depart from the ratio of the decisions of this Court and of the Kerala High Court. 16. The substantial question of law is answered against the appellant and the Second Appeal will stand dismissed. However, there will be no order as to costs.