K.L. Roy, J. - (1.) This is an action for malicious prosecution. The Plaintiff is one Probhat Kumar Sett who is a graduate of both the Calcutta and the Oxford Universities, a Barrister -at -Law and until 1957 a Senior Professor of English at Ramakrishna Mission College. The Defendants are (i) Corporation of Calcutta, (ii) B.K. Sen, who was at the relevant time the Commissioner of the said Corporation and (iii) Priya Guha, who was at the relevant time its City Architect and is the present Commissioner of the Corporation. The facts alleged, which are more or less admitted, are as follows: Some time in 1943, on a partition between his co -sharers, the Plaintiff was allotted, inter alia, the eastern portion of the premises No. 3 Jagamohan Mallick Lane in the town of Calcutta. On August 21, 1950, the Plaintiff's lawyer addressed a letter to the City Architect informing him that a portion of the property had collapsed in the previous year and had been repaired. The Plaintiff had been advised to demolish the building immediately as the building was in a very dangerous condition. By the said letter the Plaintiff purported to bring to the notice of the City Architect the dangerous condition of the building and requested him to arrange for an immediate survey or inspection of the same and if he was satisfied that the building was in a very dangerous condition, to take immediate steps for having the building vacated by the occupiers. A notice dated October 3, 1950, under Rule 4(1) of Schedule XVIII of the Calcutta Municipal Act, 1923, was served on the Plaintiff requiring him to demolish the small room in the third storey on the south of the stair -case and to secure the rest of the building by cutting down the trees and by adequately repairing all the cracks in the walls, the worn out brickworks in the walls and pillars and by changing the worn out and defective wooden beams, bargas and architraves with new ones. The Plaintiff and the occupiers of the said premises were heard on their objections against the notice under Rule 4(1) and by his order dated November 18, 1950, the then Administrative Officer of the Corporation recorded that he had inspected the building, that the whole of the main structure was worn out and would still be dangerous if repaired. The Plaintiff was allowed three weeks to submit plans for reconstruction. Accordingly, the Plaintiff submitted a plan for construction of a three -storeyed new building which was sanctioned and the Plaintiff was allowed six months time to reconstruct the building in accordance with the sanctioned plan failing which the case was to go to the Municipal Magistrate for enforcement of the demolition order. On March 19, 1951, the Plaintiff through his lawyer informed the Chief Executive Officer of the Corporation that he was unable to comply with the directions contained in the aforesaid order of the Administrative Officer until and unless he could get vacant possession, of the building which had to be demolished. In spite of his efforts the occupiers had refused to vacate the same. The Plaintiff, accordingly, requested the Corporation to take proper action so that the dangerous building could be demolished and a new building erected at the site according, to the sanctioned plan. On October 22, 1951, a complaint was filed against the Plaintiff and certain occupiers of the said premises before the Municipal Magistrate for failing to comply with the aforesaid notice and the order of the Administrative Officer to reconstruct the building in accordance with the sanctioned plan within six months. On the complaint, summons were issued by the Municipal Magistrate and after several adjournments, by his order dated April 28, 1954, the Magistrate found the accused not guilty and acquitted them as no evidence was adduced on behalf of the Corporation in spite of numerous opportunities being given to it and as nobody was present on behalf of the Corporation before the Magistrate on that date. In the meantime, on May 8, 1953, a statement from the Chief Architect of the Corporation was published in the Press wherein it was pointed out that in cases of insecure buildings, if the demolition order served on the owners were not complied with, the Corporation would usually refer such cases to the Municipal Magistrate, but in an urgent case where a portion of the building had collapsed, the Corporation could demolish the rest of it without waiting for the order of the Municipal Magistrate. The Plaintiff through his lawyer wrote a letter to the City Architect on the same day, namely, May 8, 1953, drawing his attention to the fact that in spite of his best efforts he could not get vacant possession in order to demolish the insecure building and comply with the notice served on him under Rule 4(1), Municipal Act, 1923. He drew the attention of the City Architect to the publication in the Press and requested him to attend to the Plaintiff's case without delay in the interest of public safety. A similar letter, written by the Plaintiff, stating the facts and urging the Corporation to' take immediate steps to demolish the rest of the building without waiting for the order of the Municipal Magistrate, was addressed to the City Architect on May 12, 1953, a copy of which was also forwarded to the Commissioner of the Corporation. These letters were replied to by the City Architect on May 25, 1953, who pointed out that, as the above case was pending before the Municipal Magistrate for non -compliance of the notice under Rule 4(1), the Plaintiff would be well advised to comply with the aforesaid notice at an early date. The next letter from the Plaintiff to the Commissioner of the Corporation is dated May 10, 1954, wherein after reiterating that the premises had been inspected and reported upon by the Special Officer and that the reason for the non -compliance of the Plaintiff with the notice under Rule 4(1) was his inability to vacate the occupants and that the complaint before the Magistrate against the Plaintiff had already, been dismissed, the Commissioner was asked to satisfy himself by an examination of the building and to take such steps as he thought fit in the interest of public safety. On November 19, 1954, a notice under Rule 5(1) of Schedule XVII to the Calcutta Municipal Act, 1951, was served on the Plaintiff, as the owner of premises No. 3 Jagamohan Mallick Lane, requiring him within a fortnight from the service of the notice to demolish the room in the second storey on the extreme south and a portion of the verandah at the first floor in front of it and the room on the third storey on the north -east corner on the road side and to secure the rest of the building adequately by replacing the worn -out and defective wooden beams and bargas and wooden architraves with new ones and by repairing the cracks and the worn -out brick -works in the walls as the same were lying in a dangerous condition. That failing compliance with the aforesaid requisition steps would be taken by the Commissioner under Sec. 560 to execute the work required subject to the provisions of Rule 6 of Schedule XVII of the Act without prejudice to the right of the Corporation to take proceedings under Sec. 537 read with Rule 5(1) of Schedule XVII. The Plaintiff was further required to prefer any objection that he might have to the notice in writing within three days from the service thereof. On November 28, 1954, the lawyer for the Plaintiff replied to the aforesaid notice and raised the following objections : (i) that a similar notice was served on October 6, 1950 and in terms of that notice the Plaintiff had obtained sanction for a new building after demolishing the existing building but was unable to comply as he could not get the occupiers to vacate, (ii) that since 1949 he had been trying to get the occupiers to vacate the premises for their own safety but had failed in his attempts; (iii) that these facts had been repeatedly brought to the notice of the Corporation authorities requiring them to take steps for evicting the occupiers in the interest of public safety; (iv) that a prosecution was launched by the Corporation in 1952 for non -compliance of the aforesaid notice, hut the same was dismissed and the Plaintiff was acquitted on April 20, 1954; (v) that the building in question was past the stage of repairs as another portion of the building had already collapsed and that, in the circumstances, it was not possible for the Plaintiff to comply with the requisition to secure and repair the building. The only alternative was to demolish the existing structure after eviction of the occupiers. The letter concludes by asking for a hearing of his objections. Apparently no action was taken on this notice. Therefore, an exactly similar notice under Rule 5(1) of Schedule XVII of the Calcutta Municipal Act, 1951, dated July 27, 1955, was served on the Plaintiff on August 3, 1955. A notice under Rule 5(2) was also served on the occupiers to vacate the insecure portion of the building. The Plaintiff's objections in writing to the aforesaid notice dated August 4, 1955, as also those of the occupiers of the premises were heard by the Standing Building Committee on September 8, 1955 and were disallowed. The disallowance of his objections by the Standing Building Committee was communicated to the Plaintiff on October 7, 1955 and he was required to comply with the requisition contained in the notice without delay. An application for a summon under Sec. 537 Rule 5(1) of Schedule XVII of the Act in which Sri B. Bose, the acting Chief Building Surveyor, was described as the complainant, was filed on November 7, 1955, before the Municipal Magistrate. The -said application was signed by the said B. Bose and S.P. Laha, the Building Inspector. It was also approved by the Commissioner B.K. Sen who put his signature as a token of such approval. On this application a summon was issued by the Municipal Magistrate on January 11, 1956. The Plaintiff appeared through his lawyer in the proceedings before the Municipal Magistrate which was adjourned from time to time at the request of either the lawyer for the Corporation or that of the Plaintiff and on January 29, 1957, after considering the report of the Insecure Building Surveyor and on hearing the Advocates of the parties, the Magistrate adjourned the hearing to March 27, 1957. Thereafter, no steps were taken by the Corporation. The Magistrate himself inspected the premises and recorded in his judgment dated January 18, 1958, that he had inspected the premises, that the accused had demolished 1/3rd of the house being the southern portion thereof, that the entire building was really in a very dangerous condition and should be demolished and that in the circumstances the accused should not be held guilty. He also directed that the Calcutta Corporation might take necessary steps for the demolition of the house at the cost of the accused if so desired. The Magistrate further recorded that the accused tried to remove the tenants occupying the house in order to demolish it and after a long time got decrees for ejectment, but the occupiers -tenants had been preventing him by resorting to various proceedings in Court and as such, the accused could not demolish the house though he was agreeable to secure and repair the same. Finally, he held the accused's conduct to be bona fide and acquitted him.
(2.) This suit was filed by the Plaintiff on June 4, 1958, claiming Rs. 25,000 as general damages, Rs. 1,538 -50 as special damages and costs against the Defendants for maliciously and without reasonable and probable cause and/or illegally and/or in bad faith and/or without due care and attention prosecuting and/or securing or sanctioning or ratifing the prosecution of the Plaintiff before the Court of the Second Municipal Magistrate for failure to comply with the terms of a notice under Rule 5(1) of Schedule XVII of the Calcutta Municipal Act served on the Plaintiff on or about August 3, 1955. By his judgment and order dated January 18, 1958, the said Municipal Magistrate had acquitted the Plaintiff. In the plaint, the history of the facts leading to the prosecution has been set but including the fact that an earlier prosecution in the Court of the Municipal Magistrate for failure to comply with a notice under Rule 4(1) of Schedule XVIII of the Municipal Act, 1923, had also resulted in an order of acquittal on or about April 28, 1954. The particulars given in the plaint for special damages include fees paid to the lawyers and Advocates in connection with the proceeding before the Municipal Magistrate, fees paid to the Plaintiff's engineer for attending the Magistrate's Court for giving evidence and for attending at the time of :the local inspection by the Magistrate and cost of stamps for obtaining certified copies of the Court proceedings. It is further pleaded in the plaint that due notice in writing in terms of Sec. 586 of the Calcutta Municipal Act, 1951, was served on the Defendants on or about March 31, 1958 and the present suit had been instituted after the expiry of one month from the delivery of the said notice.
(3.) A single written statement has been filed on behalf of the three Defendants. The earlier correspondence and the proceedings between the Plaintiff and the Corporation, as alleged, are not denied in the written statement. The Defendants admit that on August 3, 1955, a notice under Rule 5(1) of Schedule XVII of the Calcutta Municipal Act, 1951, requiring the Plaintiff to take down certain portions of the premises and to secure the rest of the building adequately was served on the Plaintiff as alleged. On the failure of the Plaintiff to comply with the aforesaid notice the Corporation applied for summons under Sec. 577 Rule 5(1) of the Act on or about November 7, 1955 and thereafter, the Plaintiff was tried in the Court of the Second Municipal Magistrate. It is pleaded that the Defendant Corporation made the said application for summons bona fide and in pursuance and performance of its obligations under the said Act and Rules or Bye -laws made thereunder. The Defendants deny that the Defendants or any of them acted maliciously or without reasonable or probable cause or illegally or in bad faith or without due care and attention. It is further admitted that on January 18, 1955, the Plaintiff was acquitted by the Municipal Magistrate who had inspected the said premises in the course of the trial and had recorded in his order that the said building was in a dangerous condition and that the Corporation might take necessary steps for the demolition of the same at the cost of the Plaintiff. It is pointed out that the notice under Rule 4(1) of Schedule XVIII of the Municipal Act, 1923, dated October 6, 1950, was substantially different from the notice of August 3, 1955, as the Plaintiff was required to demolish a different part of the said building. While admitting that the prosecution of the Plaintiff for non -compliance of the notice under Rule 4(1) of the 1923 Act ultimately ended in his acquittal on April 28, 1954, the Defendants pleaded that the said prosecution was started bona fide in performance of the Corporation's obligations under the said Act and the Rules and Bye -laws made thereunder and for reasonable and probable cause and that the Corporation acted without malice. The Defendants deny that any damage has been caused or that the Plaintiff suffered any injury to his reputation or has suffered pain of body or of mind or that such damages could amount to the sum of Rs. 25,000 or any other sum or any sum at all. The particulars of the special damages given in the plaint are not admitted. The validity and/or sufficiency of the alleged notice under Sec. 586 of the Calcutta Municipal Act, 1951, is challenged. It is further pleaded that the Plaintiff's claim is barred by limitation and/or that the Plaintiff has no Cause of action against the Defendants or any of them and that the suit should be dismissed with costs. On these pleadings the following issues were raised and settled: Issues (1) Did the Defendants or any of them prosecute the Plaintiff as alleged in para. 4 of the plaint? (2) If so, was the said prosecution instituted maliciously? (3) If so, was the said prosecution motivated without any reasonable and probable cause? (4) Did the said prosecution terminate in favour of the Plaintiff? (5) Did the Plaintiff suffer any damages due to the said prosecution? (6) Was the alleged notice under Sec. 586, Calcutta Municipal Act, valid and sufficient in law and was served in time? (7) What relief, if any, is the Plaintiff entitled to?;