Hari Swarup, J. - (1.) THIS is plaintiff's appeal arising out of a suit for damages for malicious prosecution. The plaintiff had impleaded six defendants. The suit was dismissed by the trial court and the appellate court affirmed the trial court's decree.
(2.) ACCORDING to the plaintiff the third respondent Assistant Registrar Co-operative had filed a complaint against the petitioner maliciously and without reasonable and probable cause. The other three defendants, namely, the Cooperative Officer, the Cooperative Inspector and the Deputy Registrar Cooperative were said to have maliciously made false reports to the State Government of which Sri Mohanlal, Gautam happened to be at the relevant time Minister concerned with the affairs of Coope rative Societies, It was alleged that the Assistant Registrar and filed the complaint on the orders of the State Government. On these allega tions the plaintiff had instituted the suit against all the six defendants. In the second appeal steps were not taken to serve notices on the Assis tant Registrar the Cooperative Inspector and the Deputy Registrar Co operative i.e. respondents nos. 3, 5, and 6, and the appeal was dismissed against them for non prosecution. The question that arises is whether the appeal can now be decided on merits against respondents nos. 1, 2, and 4, viz., the State of U. P., Sri Mohanlal Gautam the Ex-Minister and the Cooperative Officer. According to the learned counsel for the appellant the appeal can proceed because all the defendants were joint tort-feasors and the plaintiff had a right to claim damages from any of them and to omit to claim damages from the rest. In support of this contention learned counsel relied upon a decision of this court in Shiva Sagar Lal v. Mata Din A.I.R. 1949 Alld. 105, S. Chatterjee v. Dr. K. L. Bhave A.I.R. 1960 M. P. 322, and observations in Khushro v. N. A. Guzder A.I.R. 1970 S.C. 1463 None of these cases, however, have considered the question of conti nuance of the appeal after a decree had been passed dismissing the suit on merits against some of the joint tort-feasors, The law in respect of continuance of the appeal has been laid down by the Supreme Court in State of Punjab v. Nahtu Ram A.I.R. 1962 S.C. 89. The cour tlaid down the tests for deter mining when the appeal between the appellant and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court. It was stated; ".......Courts will not proceed with an appeal (a) when the success of the appeal may lead to the court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary reliefs against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, will be ineffective, that is to say, it could not be successfully executed."
(3.) LEARNED counsel has on the basis of rulings cited by him tried to take the case out of test (b). The test however which is applicable in the present case is the test (a) and it will have to be seen whether the appeal can proceed applying that test. Clerk and Lindsell on Torts, Twelfth Edition, Paragraph 1695, gives the essentials of the tort of malicious prosecution. "In an action of malicious prosecution the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour thirdly, that it was without-reasonable and probable cause, fourthly, that it was malicious." ;