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Madhya Pradesh High Court · body

2015 DIGILAW 1171 (MP)

Ramjilal Sharma v. Meera Shivhare

2015-11-16

ALOK ARADHE

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ORDER : Alok Aradhe, J. With the consent of parties, the matter is heard finally. In this revision under Section 115 of the Code of Civil Procedure the applicants have assailed the validity of the order dated 16.3.2011 passed by the trial Court, by which, the application preferred by the applicants under Order 7, Rule 11 of the Code of Civil Procedure has been rejected. 2. Facts giving rise to filing of the revision, briefly stated, are that the non-applicant filed a suit seeking the relief of damages on account of malicious prosecution. It was pleaded that the non-applicant was posted as Assistant Teacher at Government Girls College. On 16.4.2005, on the basis of a complaint filed by applicants, offences under Sections 353, 448, 506-B and 294 of the Indian Penal Code were registered against the non-applicant. Thereafter, a challan was filed and charges were framed under Sections 353, 448 and 506-B of the Indian Penal Code. The trial Court vide judgment dated 05.2.2008 convicted the non-applicant under Section 353 of the Indian Penal Code and also imposed a fine of Rs. 1000/-. Against the judgment dated 05.2.2008 the appeal was preferred before the Sessions Judge, which was allowed and the non-applicant was acquitted. It was also averred that the applicant with malafide intention of defaming the non-applicant instituted malicious proceeding against her, due to which, she suffered mental pain and suffering and accordingly claimed damages to the tune of Rs. 2 lacs in the suit. 3. The applicants filed an application under Order 7, Rule 11 of the Code of Civil Procedure, inter alia, on the ground that applicants are saved by absolute privilege as the complaint made, deposition made, etc. were made under the administration of justice. It was also pleaded that in the application that non-applicant had entered into compromise with applicant No.4 on 16.6.2005 and thereupon by order dated 02.9.2005, application for recording compromise was accepted and the non-applicant was acquitted of the offence under Section 506- B of the Indian Penal Code against applicant No.4 and no offence under Section 294 of the Indian Penal Code was framed against the non-applicant. However, the aforesaid facts have been suppressed in the plaint. The trial Court, however, vide impugned order held that the averments stated in the application cannot be decided without recording the evidence. Accordingly, the trial Court rejected the application. 4. However, the aforesaid facts have been suppressed in the plaint. The trial Court, however, vide impugned order held that the averments stated in the application cannot be decided without recording the evidence. Accordingly, the trial Court rejected the application. 4. Learned counsel for the applicants while referring to "The Law of Torts" 24th Edition has submitted that no action for libel lies for any statement in the pleadings. It was further submitted that there is no difference between the evidence given in the box and evidence on affidavit and they are both mutually privileged. In support of aforesaid submissions, learned counsel has placed reliance on the decisions in the case of Sedimbi Hanumantharow and others v. Nidumolu Seetharamayya AIR 1942 Madras 343, Lachhman v. Pyarchand, 1959 Rajasthan 169, Rajindra Kishore v. Durga Sahi AIR 1967 Allahabad 476, Major Gian Singh v. S.P. Batra, AIR 1973 Punjab & Haryana 400, Wahid v. K.N. Pathak, 1999 (1) MPWN 115 and Kutubuddin v. Ishrat Begum and others, 2006 (2) Weekly Note 94. 5. On the other hand, learned counsel for the non-applicant has supported the order passed by the trial Court and has placed reliance on the decision in the case of Shiv Shankar Patel v. Smt. Phulki Bai and others, 2007 (2) CGLJ 100 . 6. I have considered the rival submissions made at the Bar and have perused the record. It is well settled in law that while deciding the application under Order 7, Rule 11 of the Code of Civil Procedure only the averments made in the plaint alone are required to be seen. [See: Saleem Bhai and others v. State of Maharashtra & ors., (2003) 1 SCC 557 ]. 7. A libel is a defamation in some permanent form, i.e. Written or printed defamation. The High Courts of Bombay, Madras, Allahabad and Patna have held that no action for libel lies for any statement in the pleadings and that there is no difference between the evidence given in the box and on affidavit, in that they are both absolutely privilege. However, the instant case arises from a suit for malicious prosecution. 8. The High Courts of Bombay, Madras, Allahabad and Patna have held that no action for libel lies for any statement in the pleadings and that there is no difference between the evidence given in the box and on affidavit, in that they are both absolutely privilege. However, the instant case arises from a suit for malicious prosecution. 8. In a suit for malicious prosecution the plaintiff has to prove:- (i) That, he was prosecuted by the Defendant; (ii) That the proceedings complained of terminated in favour of the plaintiff; (iii) That, the prosecution was instituted against him without any reasonable or probable cause; (iv) That the prosecution was instituted with a malicious intention, that is, not with the mere intention of carrying the law into effect, but with a intention which was wrongful in point of fact; (v) That, he has suffered damage to his reputation or to the safety of person, or to the security of person, or to the security of his property. 9. In Balbhaddar Singh and another v. Badri Sah and another, AIR 1926 PC 46 it has been held that if a person lodges knowingly false information with the police naming the plaintiff as accused and supports the same by his false evidence before the Police as also in the Court, he will be held to be the prosecutor in suit for malicious prosecution, even though court takes cognizance of the case of police challan. 10. The Supreme Court in the case of West Bengal State Electricity Board v. Dilip Kumar Rai, (2007) 14 SCC 568 has dealt with malicious prosecution. The relevant extract of paragraph 15 of the decision reads as under:- "A prosecution instituted wilfully and purposely, to gain some advantage to the prosecutor, or through mere wantonness or carelessness, if it be at the same time wrong and unlawful within the knowledge of the actor, and without probable cause. A prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy. The term 'malicious prosecution' imports a causeless as well as an ill-intended prosecution. A prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy. The term 'malicious prosecution' imports a causeless as well as an ill-intended prosecution. Malicious Prosecution is a prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or its bound to know are wrong and against the dictates of public policy. In malicious prosecution there are two essential elements, namely, that no probable cause existed for instituting the prosecution or suit complained of, and that such prosecution or suit terminated in some way favourably to the defendant therein." 11. Thus, the plaintiff in a suit for malicious prosecution is required to prove that prosecution was instituted with malicious intention. In a suit for defamation, based on libel, the defendant may take a plea of absolute privilege, which even if available to the defendant in a suit for malicious prosecution, would not entitle him to non-suit the plaintiff, as he is required to prove, as stated supra, that suit was instituted with malicious intention. Therefore, the decision relied upon by the learned counsel for the applicants on various High Courts have no application to the facts situation of the case. Besides that, averments made in the application under Order 7, Rule 11 of the Code of Civil Procedure cannot be looked into at the stage while deciding the issue relating to rejection of plaint, as averments made in the plaint alone are required to be seek for deciding the issue of maintainability of the suit and the plaintiff is required to prove that prosecution was instituted with malicious intention, which can only be decided after recording of evidence. 12. The order passed by the trial Court does not suffer from any jurisdictional infirmity or material irregularity warranting interference of this Court in exercise of power under Section 115 of the Code of Civil Procedure. Needless to state, in case the applicants raise an objection with regard to maintainability of the proceeding in the written statement, the trial Court shall frame an issue in this regard and shall decide the same in accordance with law. 13. C.C. as per rules.