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Arnold White, C J -
(1.) In this case I think the decree of the Subordinate Judge ought to be set aside and that of the District Munsif restored.
(2.) The issue in the case was correctly framed, but the Subordinate Judge does not seem to have appreciated the actual points which ha had to consider. In his judgment he reviews the facts and states (paragraph 11)--"In the state of things the complaint and prosecution by defendant must be presumed to have been made maliciously," and he goes on in paragraph 12--"I accordingly find the issue for the appellants." If he had simply found the issue for the plaintiff, his finding would have been one of fact and could not have been questioned on second appeal. See the judgment of the Privy Council, dated July 21st, 1900, in the case of Mody V/s. Queen Insurance Co. I.L.R. 25 Bom. 332 where it is pointed out that the question of reasonable and probable cause, when the case is tried without a jury, is a question of fact to be determined by one and the same person. But reading paragraphs 11 and 12 of the judgment together, it seems to me that the Subordinate Judge presumed malice from the fact that the conviction of the accused was ultimately quashed by this Court. Having presumed malice, the learned Judge "accordingly" finds the issue for the plaintiff, Now, the absence of probable cause does not imply malice in law. See Mitchell V/s. Jenkins 5 B. & Ad. 588 and the judgment of this Court (which is based on Lord Bowen's judgment in Abrath V/s. North-Eastern Railway Co. L.R. 11 Q.B.D. 440, in the case of Hall V/s. Venkatakrishna I.L.R. 13 Mad. 394, In my judgment the learned Judge erred in law in dealing with the question of the want of reasonable and probable causa.
(3.) In order to succeed the plaintiff must show affirmatively that the defendant acted without reasonable and probable cause. The District Munsif found that the defendant had sufficient and reasonable cause to prefer the complaint. It was not necessary for him to find this, but of course it involves the finding that the plaintiff had Dot shown that the defendant had not reasonable and probable cause. On the evidence it seems to me that the plaintiff failed to show affirmatively an absence of reasonable and probable cause on the part of the defendant, and I think his suit was rightly dismissed.;
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