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2014 DIGILAW 980 (GAU)

PRABHAT CH. MALAKAR v. HAFIDA BEGUM

2014-11-12

N.CHAUDHURY

body2014
ORDER(ORAL) Heard Mr. Sheeladitya, learned counsel for the appellant. 2. This second appeal is directed against the concurrent findings of the learned courts below arising out of Money Suit No. 228/2007. 3. Plaintiff Prabhat Chandra Malakar instituted Money Suit No. 228/2007 stating that defendant No. 1 Musstt. Hafida Begum is a next door neighbour. She filed a complaint before Legal Services Authority alleging that plaintiff made illegal construction resulting in prejudice to her. The Legal Services Authority issued notice to the plaintiff and the Proforma Defendant along with an order dated 26.11.2005 in the case. Plaintiff challenged the proceeding before the High Court by invoking writ jurisdiction in WP(C) No. 4121/2005 and this Court by order dated 27.03.2006 allowed the writ petition quashing the proceeding. The plaintiff therefore claimed a decree of Rs. 1 lakh against the defendant No. 1 as damage and compensation. The defendant no. 1 submitted written statement denying the case of the plaintiff and pleaded that plaintiff constructed RCC building without keeping sufficient space in between the house of the defendant and the said RCC building, as a result of which rain water used to fall in the premises of the defendant causing water stagnation and thus defendant was seriously inconvenienced. To resolve the matter amicably, the defendant appeared before the authority under the Legal Services Authority Act, 1987 (as amended) and prayed for appropriate order. In paragraph 11 of the written statement the defendant specifically claimed that a total of 122 similar cases pending before the authority under the Legal Services Authority Act were transferred to Permanent Lok Adalat which included the complaint filed by the defendant. The defendant therefore prayed that the suit be dismissed with cost. 4. The learned trial Court framed two issues as follows: 1. Whether the suit is maintainable in law? 2. Whether the plaintiff is entitled to get the decree as prayed for? 5. Plaintiff adduced evidence of two witnesses and proved documents. The defendant examined herself only as DW1. The learned trial Court after considering the materials on record held that the suit was not maintainable and so dismissed the same by judgment and decree dated 19.02.2012. Aggrieved appellant approached learned Civil Judge No. 2, Kamrup at Guwahati vide Money Appeal No. 3/2012. Plaintiff adduced evidence of two witnesses and proved documents. The defendant examined herself only as DW1. The learned trial Court after considering the materials on record held that the suit was not maintainable and so dismissed the same by judgment and decree dated 19.02.2012. Aggrieved appellant approached learned Civil Judge No. 2, Kamrup at Guwahati vide Money Appeal No. 3/2012. The learned first appellate Court after hearing both sides passed the impugned judgment on 23.12.2013 dismissing the appeal holding that no case for malicious prosecution was made out by the plaintiff. These judgments and decrees passed by the learned courts below have been challenged under Section 100 of the Code of Civil Procedure in the present second appeal. 6. The learned first appellate Court while deciding the appeal has considered the relevant law holding the field. The judgment of the Privy Council in the case of Md. Amin v. Jogendra Kumar, AIR 1947 PC 108 has been considered which contains the essential ingredients in deciding a case for damage and compensation caused for malicious prosecution. The learned Court has also considered the relevant treatise on the Law of Tort both in English law as well as in law prevailing in India and has arrived at a finding that mere filing of a complaint before Legal Services Authority and subsequent transfer of the same to a permanent Lok Adalat by order of the High Court cannot amount to malicious prosecution. The learned first appellate Court has also held out that plaintiff cannot claim special damage because pendency of complaint before the Legal Services Authority and that considering the facts and circumstances of the case in the light of the law holding the field, the learned first appellate Court did not find any merit in the appeal and consequently first appeal was dismissed upholding the findings of the learned trial Court. 7. Mr. Sheeladitya, learned counsel for the appellant submits that the findings of the learned trial Court that original proceeding has been transmuted to permanent Lok Adalat by an order passed by this Court in WP(C) No. 4121/2005 is a perverse finding. According to him the proceeding has been quashed and nothing has been left for being transferred to a permanent Lok Adalat. 8. According to him the proceeding has been quashed and nothing has been left for being transferred to a permanent Lok Adalat. 8. The findings of the learned first appellate Court as to pendency of the case before permanent Lok Adalat is in conformity of the pleading of the defendant in paragraph 11 of her written statement. The learned counsel for the appellant could not produce any document to the Court on being asked to show as to whether permanent Lok Adalat is in seisin with the matter. Be that as it may, even if the proceeding before the permanent Lok Adalat has been quashed by High Court in that event also it cannot be construed to be a decision in favour of the plaintiff on merit. The basic purpose which led the defendant No. 1 to approach the door of Legal Services Authority is alleged illegal construction made by plaintiff on its own land without leaving required set back to the prejudice of defendant No. 1. The legality or correctness of the said being allowed by the plaintiff in making construction in question has not been gone into by High Court. High Court has merely considered the propriety of the proceeding before the Legal Service Authority. It is also the pleading of the defendant that the basic purpose for her going to Legal Service Authority was to get an amicable settlement of the dispute with next door neighbour. Findings of the two courts below do not reveal that plaintiff could lead any evidence to the contrary to attribute any malice on such complaint by the defendant No. 1. Defendant No. 1 did not go to a criminal Court and any other authority either under Guwahati Municipal Corporation, Guwahati Metropolitan Development Authority or any other authority under Assam Town and Country Planning Act, 1959. Choosing a forum like authority under Legal Services Authority Act, 1987 is indicative of the intention of the defendant. Any authority under the Legal Services Authority Act, 1987 is supposed to facilitate resolution of dispute by amicable means. Had the defendant any intention of prosecuting the plaintiff for harassment or otherwise, she would have chosen any other forum other than the one under the Legal Services Authority Act, 1987 (as amended). By amendment effect in the Legal Services Authority Act in the year 2002 the concept of permanent Lok Adalat has been brought. Had the defendant any intention of prosecuting the plaintiff for harassment or otherwise, she would have chosen any other forum other than the one under the Legal Services Authority Act, 1987 (as amended). By amendment effect in the Legal Services Authority Act in the year 2002 the concept of permanent Lok Adalat has been brought. A permanent Lok Adalat has jurisdiction to enter into any matter even before a dispute has really taken place. The Act however provides that the permanent Lok Adalat shall endeavour to get the settlement resolved between the parties 9. It is accordingly dismissed. 10. No order as to costs.