MUSHTOORAPPA AND ANR. Vs. HANUMANTHAPPA AND ANR.

JUDGEMENT

(1.) IN suits brought for damages for malicious prosecution of the plaintiffs on a charge of dacoity, both the lower Courts have found that the prosecution was actuated by malice and was without reasonable and probable cause. They have gone further and held that the appellants falsely implicated the plaintiffs because they happened to belong to the opposite faction, and without any basis whatever for thinking that they were really guilty of the offence of dacoity with which they were charged.

(2.) I should have thought that the appellants were concluded by these concurrent findings, inasmuch as they are findings of fact. But Mr. Ch. Raghava Rao was able to cite the decision of Wadsworth, J., in Narayana Mudali v. : AIR1939Mad783 as authority for the position that the question whether there was malice or absence of reasonable and probable cause on facts found by the lower Courts is a question of law that can be gone into in second appeal. This decision is however contrary to the views taken by two Benches of this Court in Vydinadier v. Krishnaswami Iyer, (1911) 24 M.L.J. 515 :, I.L.R. 36 Mad. 375 and Chenna Reddi v. Venkataswami, (1919) 10 L.W. 314. In the latter case attention is drawn and reliance is placed upon the observations of the Privy Council in Pestonji M. Moody v. The Queen Insurance Company, (1900) 10 M.L.J. 300 :, I.L.R. 25 Bom. 332 (P.C.) and dissent is expressed from the view taken by Mookerjee, J., in Shama Bibee v. Chairman of Baranagore Municipality, (1910) 12 C.L.J. 410 which is the same as the view taken by Wadsworth, J. The Bench rulings arc binding upon me, especially as they are supported by the pronouncement of the Privy Council.

(3.) IT is true that the plaintiffs were committed to the sessions on the charge of dacoity and that in the Sessions Court two of the jurors took the view that they were guilty, but these facts cannot serve to neutralize the findings reached by the lower Courts. They are circumstances to be borne in mind in scanning the evidence in the suits for damages for malicious prosecution; and both the lower Courts have had them in mind.