MOLVI MUHAMMAD UMAR KHAN Vs. NAZIRUDDIN AHMAD MINAI

JUDGEMENT

(1.) This second appeal arises out of a suit for damages for malicious prosecution. The defendant-appellant is a lawyer practising in Basti. He and his two sons were entered on the electoral roll for the District Board, but when that roll was revised in the year 1931 their names were omitted. The period for making objections about entries in the rolls expired in September 1931. On 7 October the appellant made an application to the Deputy Magistrate who was acting as the returning officer or election officer and was dealing with the preparation of the roll. He complained that his name and the names of his sons had been omitted and suggested an enquiry into the reasons why this had been done. He, at the same time, said that if such an enquiry foe re made it would appear who the persons were who were concerned in the conspiracy. Then on 15 October 1931 the plaintiff-respondent, who is the editor of a paper called the "Insaf," published a notice in which he said that he had learnt with surprise that the names of the appellant who was a pillar of the Aman Sabha and the names of his sons had been omitted from the District Board electoral roll and that they had not discovered this fact till the period for making objections had expired. The appellant then made an application to the election officer in which he drew that officer's attention to the matter published in the paper and. suggested that it constituted contempt of Court. He asked that suitable action should be taken.

(2.) I may mention that the first application of 7 October 1931 was directed to the Sub-Divisional Officer, but it appears that the Sub-Divisional Officer of that time was also the election officer. His name was Mr. Ahmad Husain. The second application was directed to the election officer as such, but for some reasons it was transferred to another Magistrate of the same name (Mr. Ahmad Husain) who issued a notice to the plaintiff to show cause why he should not be reported to the High Court so that action for contempt of Court might be taken against him. The plaintiff-respondent appeared in answer to the notice and. after the parties had been heard the Magistrate decided that there was no sufficient cause for proceeding and he dismissed the application of the defendant-appellant. It is in respect of this application suggesting a prosecution for contempt of Court that the plaintiff instituted the suit which has given rise to the appeal. He obtained a decree for a sum of Rs. 475 as damages from the trial Court, but that was reduced to a sum of Rs. 150 by the learned Judge of the lower appellate Court.

(3.) It has been argued in second appeal that there was no cause of action for a suit for damages for malicious prosecution. It is said that there was no prosecution at all. It has been held in Ezid Bakhsh V/s. Harsukh Rai (1886) 9 All. 59, that an application for leave to prosecute does not give rise to a cause of action far damages, for malicious prosecution. It does not appear that this ruling has been dissented from expressly by this Court, but there have been cases in the High Court at Calcutta which suggest that an opposite view might be taken. I do not think it is necessary in the case before me to express any definite opinion Upon this point.