GRILLE ,A.J.C.J - (1.)1. The plaintiff Parashram brought a suit against the defendant Ajodhiaprasad in the Court of the Subordinate Judge, Second Class, Khurai, for the recovery of damages on account of malicious prosecution. The parties are Sonars in the town of Khurai and are divided into two parties. Parashram is the headman among the Sonars and leader of one of the parties: Ajodhiaprasad, the defendant, belongs to the opposite party. Ajodhiaprasad filed a criminal complaint against three other Sonars, Batti, Lalli and Bajji; under Sections 352, 501 and 506, I. P. C., and also against Parashram for the abetment of these offences The allegation made by Ajodhiaprasad in the criminal Court was to the effect that Batti, Lalli and Bajji came to his shop and a dispute arose concerning a settlement of the account due by Batti in the course of which Batti, Lalli and Rajji abused and assaulted him, and. Parashram, who has his shop on the opposite side of the street, encouraged these people to abuse and assault him, The Magistrate discharged all the; accused under Section 253, Criminal P. C., and the last paragraph of his order runs as follows: Whatever be the truth the complainant has failed to make out any case against the accused. It is true that abuses were exchanged but as the parties belong to the same community what occurred was I think an ordinary affair for which no action can be taken owing to there being not sufficient evidence. All the accused are therefore discharged under Section 253, Criminal P. C.
(2.)AS a result of this order of discharge Parashram brought a suit out of which this appeal arises. No action has been taken by Batti, Lalli and Bajji, who, according to the defendant Ajodhiaprasad,. committed the substantive offence, whereas Parashram is accused of abetting them only. The trial Judge found in the plaintiff's favour, but instead of the Rs. 190 which he claimed as compensation in respect of expenses and special damage he has awarded him Rs. 40 only. The defendant appealed unsuccessfully to the District Judge, Saugor, and the plaintiff was also unsuccessful in his cross-appeal for enhancement of the damages. The defendant has now preferred a second appeal and the plaintiff has taken no further action in respect of the amount awarded him. It is settled law that in a suit for malicious prosecution it is necessary for the plaintiff to establish four things: (1) that there has been a prosecution by the defendant: (2) that, the proceedings terminated in his (plaintiff's) favour; (3) that the prosecution had been instituted against him without any reasonable and probable cause: and (4) that the prosecution was due to a malicious intention on the part of the defendant and not merely with the intention of carrying the law into effect. In this case there is no doubt about the first two points, but in respect of the last two the learned Subordinate Judge appears to have considered that the absence of reasonable or probable cause and malicious intention are terms which can be interchangeably applied to the same consideration and has not framed any distinct issues on the question at all. The only issue, apart from the question of damages, runs as follows: Whether the allegations made by the defendant against the plaintiff in Criminal Case No. 93 of 1927 on the file of the Tahsildar and Magistrate, Second Class, Khurai, were false and were made out of malice as alleged by the plaintiff. Or whether the allegations in the criminal case against the plaintiff relating to the occurrence dated 8th October 1927 were true as contended by the defendant.
In para. 6 of his judgment dealing with this issue he states: On going through the whole evidence I am of opinion that the plaintiff had got no reasonable and probable cause for including the plaintiff in the accused in the criminal case; and further on: I therefore hold on this issue that the allegations made by the defendant against the plaintiff in Criminal Case No. 93 of 1927 were not true so far as the plaintiff was concerned and that the defendant included the plaintiff as the accused in the criminal case only out of malice without any reasonable and probable cause. I find this issue accordingly.

(3.)THESE sentences which contain the only references to reasonable and probable cause plainly show that the learned Subordinate Judge considered the terms interchangeable. The learned District Judge in appeal has discussed the evidence generally but without distinguishing these two essential factors although, he does properly distinguish them in his finding in para. 5 which runs: It is evident therefore that the appellant had launched Criminal Case No. 93 of 1927 without reasonable or probable cause, and had done so because of the rancour which existed between him and the respondent. His conduct was on this account malicious; and the decision of the lower Court was correct.