FEROZ-UD-DIN Vs. MOHD LONE

JUDGEMENT

(1.) THIS civil second appeal has arisen out of the following facts : The appellant lodged a complaint under sections 392, 323 and 506 -B R. P. C in the court of a Magistrate in District Barmulla against the respondent. The complaint was, however, dismissed in default of the prosecution. The respondent thereafter lodged a civil suit for damages against the appellant alleging malicious prosecution. After framing the issues, recording the evidence and hearing the parties, the learned Munsiff Bandipore dismissed the suit on the grounds that the plaintiff -respondent had failed to establish malice and also had failed to establish the quantum of the loss he suffered by the prosecution. On first appeal having been preferred before the District Judge, Baramulla, the order of the trial court was reversed and a decree for Rs 300/ - as damages was passed in favour of the respondent. Against this second appeal has been preferred

(2.) THE learned Munsiff Bandipore on the basis of evidence recorded by him was of the view that the respondent has not been able to establish that he was prosecuted without any reasonable or probable cause and that he also failed to prove that the prosecution against him was malicious. The learned Munsiff also held that the respondent failed even in establishing the quantum of damages he suffered because of the prosecution. The learned Munsiff was of the view that in a suit for damages of this nature it was not enough for the respondent or his witness to say that the prosecution was fraudulent and baseless. The respondent and his witnesses should have categorically stated that the allegations levelled against the respondent were baselesst and frivolous giving the details of the allegations levelled against the respondent in the earlier complaint. On the basis of evidence the trial court came to the conclusion that not only that most of the witnesses of the respondent did not categorically support the respondent but also that some of his witnesses were not even aware of the nature of the allegations levelled against the respondent in the criminal complaint. He, therefore, was of the view that the respondent has failed to establish his case for damages, as there was no evidence of Malicious prosecution. The issues raised in the suit are as follows : 1) Whether the defendant had instituted a baseless and frivolous complaint against plaintiff before the A D M Sopore which was later on dismissed. And in which plaintiff spent as much and suffered the loss in business as much as the suit money? O PP. 2) If issue No. 1 is proved whether the plaintiff is entitled to the suit money? O. P.P.

(3.) ) To what relief plaintiff is entitled to ? O.P.P. 3 It was obvious that the onus to prove all the three issues was put on the plaintiff and rightly so, because in a suit for torts for malicious prosecution, it is the plaintiff who is to establish that the prosecution was frivolous and baseless and that because of that prosecution the plaintiff had to suffer and undergo a loss. A perusal of the statements of the -witnesses for the respondent would show that the conclusion arrived at by the learned trial court was neither perverse nor foolish. An appreciation of the evidence recorded in the trial court would lead any reasonable person to the same conclusion to which the learned Munsiff has arrived at. The onus to prove the issues having been once rightly placed on the plaintiff -respondent was never objected to by him. It was, however, unfortunate that the learned District Judge while disposing of the first appeal has held that the onus to prove the basedlessned and friviolity of complaint did not lay on the respondent but according to him it was the duty of the plaintiff in the civil suit for damages to show that his complaint was neither frivolous nor baseless. The basis of the order of the learned District judge Baramulla was thus not in accordance with the norms of the legal Jurisprudence. The so -called reasoning which he has given in his Judgment in support of his views was malicious and perverse "It is a well settled principle of law that whosever alleges a certain thing has happened has to establish that thing has happened. If the plaintiff in a suit for torts alleges that the complaint against him was lodged on account of malice, he has to establish it because the complaint having been dismissed either in default or on merits would not by itself give rise to an inference that the complaint was based on baseless and frivolous material and was lodged on account of malice" The civil Court would not be bound by the order of the criminal Court as far as the malice and baselessness of the facts alleged in the complaint go. A civil court would come to its own conclusion on the basis of the evidence recorded by it in a suit for damages. The learned apply District Judge has failed to apply his mind to the facts of the case and the law applicable thereto and has invented a new basis which was against the very foundations of legal jurisprudence. A large number of case law can be found in support of the view held by the learned Munsiff Bandipore that it was the plaintiff who had to establish that the prosecution was malicious In A. I. R. 1970 Kerala, 229 it has been held that: " It is now well established that the plaintiff in such a suit can succeed only on proof of the following points: i) that he was prosecuted by the defendant : ii) that the prosecution ended in the plaintiffs favour : iii) that the defendant acted without reasonable and probable cause: and, iv) that the defendant[was actuated by malice.