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2003 DIGILAW 66 (KER)

Philip v. Hindu Matha Dharma Paripalana Sabha

2003-01-28

A.LEKSHMIKUTTY

body2003
Judgment :- 1. These appeals are filed by the respective appellants against the judgment and decree in O.S. No. 313/1987 on the file of the Sub Court, Paravur. A.S. No. 215/1990 is preferred by the defendants in the suit and the other appeal is filed by the plaintiff therein. The plaintiff filed the suit for damages for malicious prosecution. The case of the plaintiff is that on 14.10.1982 the first defendant Sabha filed a false criminal complaint against the plaintiff before the Vadakkekara Police Station. On the basis of the complaint a false criminal case C.C. No. 553/1982 of Parur Judicial First Class Magistrate Court was charged against the plaintiff. The said false complaint was filed by the then Secretary of the Sabha one Narayanan in order to defame and cause injury to the plaintiff. The plaintiff is the owner in possession of the property in Survey No. 105/9 of Kunjithaikara and the western side of that property belongs to the first defendant Sabha. On the western portion of the plaintiff's property near the boundary there is an old anjili tree belonging to the plaintiff. First defendant Sabha raised claim over that anjili tree. The plaintiff did not approve the claim of first defendant Sabha. So a false complaint was filed by the first defendant alleging that the plaintiff trespassed into the property of Sabha and stolen away the arecanut saplings in the property of the first defendant. After trial the plaintiff was acquitted on 30.9.1986. The first defendant Sabha and the then Secretary of the first defendant late Narayanan and defendants 6 to 9 were the office bearers of the Sabha at the relevant time. There was no justification or good faith in filing such a false complaint against the plaintiff. The plaintiff was having good reputation among the people of the locality. Due to criminal case, the plaintiff had to suffer a lot of mental agony and his good name was deteriorated. Defendants 2 to 5 are the present office bearers of the first defendant. No personal claim against defendants 2 to 5. Defendants 6 to 9 are personally liable for the relief claimed in the plaint. Narayanan, the Secretary of the Sabha expired before the filing of the suit. Plaintiff claims Rs. 5,000/- for defending the criminal case and Rs. 50,000/- as damages for loss of reputation and mental agony due to the malicious prosecution. Defendants 6 to 9 are personally liable for the relief claimed in the plaint. Narayanan, the Secretary of the Sabha expired before the filing of the suit. Plaintiff claims Rs. 5,000/- for defending the criminal case and Rs. 50,000/- as damages for loss of reputation and mental agony due to the malicious prosecution. But the claim is limited as Rs. 50,000/-. 2. Defendants 1 and 10 to 13 filed a joint written statement. It is admitted that the first defendant Sabha had filed a criminal complaint before the police. After the investigation charge was laid by the police and C.C. No. 553/1982 is registered against the plaintiff on the complaint filed by the first defendant. The complaint was filed on the bonafide belief that the plaintiff had committed the offence against the right of the -first defendant Sabha. The first defendant Sabha and his Managing Committee had no intention to injure the plaintiff. It is admitted that the property of the plaintiff is lying on the east of the first defendant's property. Anjili tree is standing in the property of Sabha and the plaintiff has no right over it. During the pendency of the criminal case, the plaintiff had filed O.S. No. 404/1982 claiming right over the anjili tree. In the said suit it was found that the plaintiff and the first defendant Sabha have equal right over the anjili tree and other trees standing in the boundary. 3. Against the judgment and decree, the first defendant Sabha and the plaintiff filed appeals and both the appeals were ended in dismissal. The criminal case was filed on reasonable grounds. Due to the filing of the criminal case, the reputation of the plaintiff was not lost. Defendants 6 to 9 are unnecessary parties to the suit. The plaintiff is not entitled to get any relief. The suit is liable to be dismissed. 4. On the basis of the pleadings, the court below raised nine issues. The evidence in the case consists of oral testimony of pws.1 to 10, Dws.1 and 2 and Exts. Al to A3 and Exts. BI to B6 and Ext. XL The court below after appreciation of the evidence passed a decree allowing the plaintiff to recover a sum of Rs. The evidence in the case consists of oral testimony of pws.1 to 10, Dws.1 and 2 and Exts. Al to A3 and Exts. BI to B6 and Ext. XL The court below after appreciation of the evidence passed a decree allowing the plaintiff to recover a sum of Rs. 25,0007- together with interest at the rate of 6% per annum from the date of suit till date of realisation and proportionate costs from defendants 1, 6, 8 and 9 and their assets. Against the said judgment, these appeals were filed by the respective appellants. 5. The question to be considered is whether the plaintiff is entitled to get a decree as prayed for in the plaint. There is no dispute with regard to the fact that the first defendant Sabha had filed a criminal complaint against the plaintiff for offences punishable under S.379 and 447 of the Indian Penal Code. It is also not disputed that the criminal case ended in acquittal. The case of the plaintiff is that a false complaint has been filed by the then Secretary of the first defendant Sabha in order to defame him and harass him. The plaintiff had sustained mental agony and his reputation has been deteriorated. So the crucial question is whether the criminal complaint has been filed by the first defendant with malafide intention. From the pleadings, it can be gathered that there is boundary dispute between the plaintiff and the defendants. With regard to an anjili tree which was standing on the boundary of the plaintiff and the first defendant, there was dispute between them. Admittedly the property of the plaintiff lies on the eastern side of the defendants' property. Criminal complaint was filed alleging that the plaintiff had criminally trespassed into the property of the defendants and committed theft of arecanut saplings which were planted in the property of the defendants. It has come out in evidence that during the pendency of criminal complaint, the plaintiff had filed O.S. No. 404/1982 against the defendants for a declaration and consequential injunction. Ext. Al is the copy of the plaint. Ext. A2 is the written statement and Ext. A3 is the copy of the judgment passed in O.S. No. 404/1982. It has come out in evidence that during the pendency of criminal complaint, the plaintiff had filed O.S. No. 404/1982 against the defendants for a declaration and consequential injunction. Ext. Al is the copy of the plaint. Ext. A2 is the written statement and Ext. A3 is the copy of the judgment passed in O.S. No. 404/1982. From the judgment it is clear that the disputed anjili tree is not in the exclusive possession of the plaintiff and no declaration was allowed in respect of the same and the court declared that the plaintiff and defendants have equal right over the same. Ext. A5 is the judgment passed in C.C.No.115/85 of the Judicial Magistrate of First Class, Cochin. While the criminal case was pending, the plaintiff filed O.S. No. 404/1982. The criminal case has been acquitted on the ground that there is dispute between the parties and unless the Sabha establishes that the place from where the arecanut saplings are alleged to have been taken away by the accused, no evidence of criminal trespass can be found against the plaintiff. In the civil suit, a Commissioner was deputed and he has fixed the boundary of the property of the plaintiff and the defendants and found that the arecanut saplings were standing on the eastern side of the anjili tree and Karingotta tree and therefore, the criminal case was acquitted. 6. In order to initiate an action against malicious prosecution, the plaintiff must prove that the proceedings must have been instituted or continued by the defendants, that he must have acquitted in the absence of reasonable and probable cause, that he must have acted maliciously and that the proceedings must have terminated in favour of the plaintiff. No action lies for the institution of legal proceedings, however malicious, unless they have been instituted without reasonable and probable cause. The burden of proving absence of reasonable and probable cause is on the plaintiff. Reasonable and probable cause means a genuine belief based on reasonable grounds that the proceedings are justified. So the judgment of the criminal court acquitting the plaintiff will not be sufficient to discharge the burden of proving that there is no reasonable and probable cause for instituting a criminal complaint even if the criminal complaint has been filed on the personal knowledge of the complainant. 7. So the judgment of the criminal court acquitting the plaintiff will not be sufficient to discharge the burden of proving that there is no reasonable and probable cause for instituting a criminal complaint even if the criminal complaint has been filed on the personal knowledge of the complainant. 7. In a civil suit for malicious prosecution, the civil court has to consider independently and come to a conclusion from the evidence before it that all the necessary ingredients including want of reasonable and probable cause for establishing a claim for malicious prosecution is present. In the instant case from the documents produced by the parties, it can be seen that there was actually a boundary dispute between the plaintiff and the defendants with regard to some trees standing on the boundary. Exts. Al to A3 would clearly show that there was actually a boundary dispute between them. With regard to some of the trees which were standing on the boundary, no exclusive right has been given to the plaintiff. On the other hand the court has declared that the plaintiff and the defendants have equal right over the disputed anjili tree and Karingotta trees mentioned in the decree. So it cannot be found that there is no reasonable or probable cause for launching criminal prosecution against the plaintiff. Anything which is an improper or an oblique motive for launching prosecution is treated as malicious. Here it cannot be found that the respondents have any improper or an oblique motive for launching the criminal complaint. Malicious has been kept separate from lack of reasonable and probable cause however spiteful an accusation may be, the personal feelings of the accuser are really irrelevant to its probable truth and malicious motives may co-exist with a genuine belief in the guilt of the accused. A person actuated by malice may nevertheless have a justifiable cause for launching the prosecution. Want of reasonable and probable cause is an item to be taken into account in considering malice but from the presence of malice want of reasonable and probable cause cannot be inferred. Here in the instant case the plaintiff has not proved that the criminal complaint has been, filed maliciously. It. is true that the. then Secretary of the first defendant Sabha has launched a complaint against the plaintiff. Here in the instant case the plaintiff has not proved that the criminal complaint has been, filed maliciously. It. is true that the. then Secretary of the first defendant Sabha has launched a complaint against the plaintiff. From the circumstances it cannot be found that the first respondent intentionally filed a false complaint against the plaintiff without any reasonable and probable cause. 8. Malice means an intent to use legal process for an ulterior purpose. As stated earlier from the circumstances it cannot be inferred that the criminal complaint has been filed with an intention to use legal process for an ulterior motive. On the other hand it can be seen that there was boundary dispute between the plaintiff and the defendants and it has been concluded by the judgment and decree passed in O.S. No. 404/1982.. It is to be noted that the plaint reliefs were not granted by the civil court as such in O.S. No. 404/1982. So it is to be found that there was boundary dispute between the plaintiff and the defendants which was concluded by the decree passed in the said suit. So it cannot be stated that the criminal complaint was filed with malice. As the criminal complaint ended in acquittal is not a ground to infer malice especially in the light of Exts. Al and A3. The civil court entered into a finding that the first defendant has got equal right along with the plaintiff in respect of an anjili tree and Karingotta tree standing on the boundary. But the lower court without properly appreciating the evidence found that the criminal complaint is filed by the first defendant maliciously and decreed the suit in part for recovery of Rs. 25,000/-. 9. For the reasons stated above, I find that the plaintiff has failed to prove that the criminal complaint has been launched without any probable and reasonable cause, on the other had it was filed with bonafide belief that arecanut saplings were standing in the first defendant's property. So the plaintiff is not entitled to get a decree as prayed for. In the light of the above findings, the appeal filed by the plaintiff does not arise for consideration. In the result the decree and judgment passed by the court below are set aside. A.S. No. 215/90 is allowed and A.S. No. 176/1991 is dismissed. So the plaintiff is not entitled to get a decree as prayed for. In the light of the above findings, the appeal filed by the plaintiff does not arise for consideration. In the result the decree and judgment passed by the court below are set aside. A.S. No. 215/90 is allowed and A.S. No. 176/1991 is dismissed. The parties are directed to bear their respective costs.