A.H.Khan, J. - (1.)IN a suit for malicious prosecution, the plaintiffs asked for Rs. 2000/ - as damages. Both the Courts Below dismissed the suit on the ground that the plaintiffs had failed to establish want of reasonable and probable cause. Aggrieved by this decision, the plaintiffs have filed this second appeal.
(2.)IN ground No. 1 of the memo of appeal it is said that the courts below erred in law in thinking that the burden of proof of want of reasonable and probable cause lies on the plaintiffs and in support of this, Mr. Motilal Gupta, learned counsel for the appellant relies upon, a case reported in : A.I.R 1952 Nag. 310 (Sitaram vs. Dudharam).
In a Division Bench case, Mohanlal vs. Lachhman Singh reported in : 1960 JLJ 509. I had occasion to consider the point now argued before me. I also considered the case reported in : AIR 1952 Nag. 310 (Sitaram vs. Dudharam)on which Mr.motilal Gupta relies. But I found myself unable to agree with the observations of Deo J. I am of the opinion that want of reasonable and probable cause is a necessary ingredient in an action for malicious prosecution, and, that innocence pronounced by a criminal Court does not relieve the plaintiff from the necessity, of adducing evidence of want of reasonable and probable cause.

(3.)THIS point was also later on considered by Dixit J. and Pandey J. in : 1961 JLJ 332 (Rishabhkumar vs. K.C. Sharma) in which my Lord the Chief Justice said that "the prosecution ended jn the acquittal of accused can never come into the determination of the question of reasonable and probable cause" He overruled the decision given in : AIR 1952 Nag. 310 which corresponds to, ILR 1953 Nag. 529 (Sitaram vs. Dudharam). The contention of the learned counsel that the burden of proof of want of reasonable and probable cause should lie on the defendant cannot, therefore be accepted.