- (1.) THIS is a defendant's Second Appeal from the appellate decree of the court of the Additional District Judge decreeing a suit for damages for malicious prosecution in the sum of Rupees 1. 369 in favour of the plaintiff-respondents Nos. 2 to 5 who were plaintiffs Nos. 1 to 4 and in the sum of Rupees 369/- in favour of the respondent No. 1 who was plaintiff No. 5 in the suit. The trial court had decreed the suit for recovery of Rs. 630/- in favour of the fifth plaintiff alone and had dismissed the claim of the plaintiffs Nos. 1 to 4. Thus, the lower appellate court reduced the amount of the decree in favour of the fifth plaintiff from Rs. 630/- to Rs. 365/- but gave the plaintiffs Nos. 1 to 4 a decree for Rs. 1,369/- in place of the dismissal of their claim by the trial court.
(2.) ACCORDING to the plaintiff's case, the first four plaintiffs are agriculturists, while the fifth plaintiff is a Government servant and all of them are respectable citizens and own property. On 13th April, 1960, the defendant lodged a false report against the plaintiffs and then filed a criminal complaint against them under S. 323/147/149/447 I. P. C. The complaint was false and malicious and without any reasonable or probable cause. The plaintiffs were committed to sessions for trial under S. 147/323/149, I. P. C. but were acquitted, they had to spend a large sum of money on their defence and also suffered in mind, body and reputation. The total amount of damages claimed was Rs. 4,000/ -. The defendants admitted having lodged the first information report and having filed the criminal complaint, and that the plaintiffs were acquitted by the sessions court of the charges against them. According to the defendant, four plots of land Nos. 604, 708, 761 and 877 in the village belonged to Smt. Charto who had mortgaged them with possession with his father Kadam Singh in the year 1944. Kadam Singh's name was recorded in the revenue records and he continued in possession of the said plots and on the abolition of the zamindari he became a sirdar of the land. Smt. Charto received compensation for the land. In consolidation proceedings too, the possession of Kadam Singh was upheld and of the four plots, three (Nos. 308, 761 and 877) were allotted in the Chak of Kadam Singh who entered into possession of the same on 10th March, 1958 in consolidation proceedings, plot No. 760 belonging to Daryao was adjacent to Kadam Singh's plot No. 761 and that too was allotted to Kadam Singh and he entered into possession thereof also simultaneously on 10th March, 1958. The new plot number allotted to the combined plots Nos. 760 and 761 was 666. Smt. Charto filed an objection after the stage of Form No. 24 in consolidation proceedings, against the defendant and his father Kadam Singh. On the 10th Jan. , 1961, Smt. Charto was given possession on another plot of the same valuation. but there was no proceedings regarding possession of plot No. 761. On the 23rd April, 1960, when the defendant was getting the land of plots Nos. 760 and 761 ploughed by his servants Yad Ram and Teja, the plaintiffs came armed with lathis and injured the defendant, whereupon the first information report was lodged. The defendant was medically examined, and on his complaint, the plaintiffs were committed to sessions on a prima facie case being established against them. It was denied that the report or the complaint were false. He filed the complaint because he had received injuries. He denied that the complaint was filed on account of malice or without any reasonable or probable cause. It was added that the plaintiffs Nos. 1 to 4 had filed a suit for damages in respect of the same incident, for injuries caused to them, which was decreed by the trial court; but in appeal by the defendant, the amount of damages awarded to the plaintiffs was reduced on which he had filed a Second Appeal in the High Court which was pending at that time. The defendant pleaded that the trial of the suit was liable to be stayed under S. 10 of the Civil P. C. as the same issues were involved. Lastly, the defendant pleaded that the plaintiffs had suffered no loss of reputation nor had they spent all that money on defence, and that they were not entitled to the damages claimed. Limitation was also set up as a bar to the suit. The following were the issues on which the parties went to trial. "1. Whether the plaintiffs were prosecuted maliciously and without any reasonable and probable cause?" 2. Whether plaintiffs are entitled to get Rs. 4000/- as damages. 3. Whether suit is liable to be stayed as alleged in paras 22 and 23 of the written statement?" 4. Whether the suit is barred by limitation?"
(3.) TO what relief, if any, are the plaintiffs entitled?" 5. In the course of its discussion on the first issue, the trial court found that the final judgment in the earlier suit, which was filed by the plaintiffs against the defendant for damages for assault and battery, operated as res judicata and it must, therefore, be held that the land in dispute was in possession of the first plaintiff whom Smt. Charto had married after the death of her previous husband, and that the defendant was the aggressor in the marpit. The trial court then proceeded to inquire and find, on the basis that the land was in the actual physical possession of the plaintiffs and the defendant was the aggressor, whether the prosecution of the plaintiffs by the defendant was malicious and without any reasonable or probable cause. The basic facts found by the trial court were that, on the date of the incident, the defendant had entered upon the land and started ploughing it, whereupon the plaintiffs questioned his right to do so and there was a marpit. According to the trial court, the plaintiff's being in possession, they had the right to use reasonable force to throw out the defendant from the land. But that was not enough to make the defendant liable in damages for malicious prosecution. The evidence produced by the defendant showed that he had also received injuries. According to the trial court, it was a case of mutual assault in which it could not be said as to who gave the first blow, and that was the finding recorded by the High Court also on the defendants appeal against his conviction. I may here add that the defendant was also prosecuted in respect of the same incident, and while the plaintiffs were acquitted, the defendant was convicted. According to the trial court, the defendant could have reasonable thought, when he entered upon the land, that the plaintiffs Nos. 1 to 4 had no right to turn him out by force or even if they did so they certainly had no right to cause him injuries and the defendant could have reasonably and probably thought that the force used by the plaintiffs Nos. 1 to 4 to throw him out was excessive, or more than what was actually necessary. According to the trial court, it could not, therefore, be said that the defendant had no reasonable or probable cause for prosecuting the plaintiffs Nos. 1 to 4, and it could also not be said that the defendant was actuated by malice in so far as the plaintiffs Nos. 1 to 4 were concerned. But the trial court also found that the plaintiff No. 5 was not present at the incident and did not participate in the marpit and that his prosecution was actuated by malice and was without reasonable and probable cause, as the defendant knew that the plaintiff No. 5 had not taken part in the marpit. On issue No. 2, the trial court found that the plaintiff No. 5 alone was entitled to recover damages and assessed the same at Rs. 630/ -. The finding on issue No. 3 shows that the trial of the suit was stayed pending final decision of the earlier suit for damages for assault and battery. Issue No. 4 was not pressed before the trial court, and finding on issue No. 5 that the plaintiff No. 5 alone was entitled to recover Rupees 630/- as damages against the defendant, it decreed the suit accordingly with proportionate costs. Two appeals were filed from the said decree, the first by the plaintiffs and the second by the defendant. The lower appellate court allowed both the appeals in part, by decreeing the suit of the plaintiffs Nos. 1 to 4 also for Rs. 1,369/- and by reducing the amount decreed in favour of plaintiff No. 5 from Rs. 630/- to Rs. 365/ -. In its judgment, the lower appellate court also proceeded on the basis that the plaintiffs were in actual physical possession of the land, and that the defendant was the aggressor. According to the lower appellate court, the plaintiffs were "entitled to oust the aggression committed" by the defendant over the land and the statement of Girwar, plaintiff No. 2, that the criminal case started against the plaintiff by the defendant, "was false and it was started without any reasonable and probable cause" was quite sufficient to discharge the initial burden which lay on the plaintiffs specially when this statement finds support from the documentary evidence on the record that the criminal proceedings terminated in favour of the plaintiffs and the defendant was convicted and sentenced for causing injuries on the person of the plaintiff. " According to the lower appellate court, in view of the finding that the appellant was not in possession over the plot, it must be held that he knew that he had committed aggression by ploughing the field of the plaintiffs, and he did not vacate the aggression, even when asked to do so, instead he indulged in causing injuries to the person of the plaintiff. The lower appellate court held that it must be taken that it was in the defendant's personal knowledge that he was the aggressor and the plaintiffs were in law justified in causing injuries to his person in order to throw him out of the land or in the course of compelling him to vacate the aggression. It further held that it was within the defendant's knowledge that the plaintiffs committed no offence by causing injuries to his person and if the defendant filed a complaint even after such knowledge he could not be said to have honestly believed that the plaintiffs committed any offence. In the result, the lower appellate court found that the defendant had prosecuted the plaintiffs without any reasonable and probable cause and that "when this was within his personal knowledge it must be taken that in starting the original proceedings he was actuated with malice and by no other consideration. Having found that way, the lower appellate court proceeded to notice certain cases. The first case noticed was that of Satdeo Prasad v. Ram Narayan, AIR 1969 Pat 102 and it buttressed its finding by observing that it had found that the case put forward by the defendant against the plaintiffs was false, and false to his knowledge, and he must have known that the plaintiffs were in possession and were entitled to resist aggression and, in doing so, to cause injuries to his person, and that the causing of injuries did not amount to any offence. According to the lower appellate court in view of the fact that the defendant "manufactured a false story that the plaintiffs were the aggressors and he was "in possession", it must be held that the prosecution was without any reasonable and probable cause. " The lower appellate court then looked at the meaning of malice. It again buttressed its finding by saying that "the prosecution was not started by the defendant with an intention to vindicate the law but for some other reason. " The appellate court did not however, specify what the other on reason was but did state that the relations between the parties were strained from before.;