Man Mohan Singh Gujral, J. - (1.) PARKASH Chand Seth Appellant filed an application against Sant Singh under Section 13 of the, East Punjab Rent Restriction Act claiming eviction of the Respondent from the house which the Respondent had taken on rent from one Nihal Chand as Parkash Chand Seth had subsequently purchased this house from Nihal Chand. The eviction was claimed on the ground that the Respondent had failed to pay the rent and had also caused damage to the property. During the hearing of the application it was agreed that the case be decided on a special oath being taken by the Respondent and as the Respondent took the oath the application for eviction was dismissed. Respondent Sant Singh then filed a suit against Parkash Chand Seth for a declaration that the property in dispute was owned by him and that he was not the tenant of Parkash Chand Seth. It was further alleged in the suit that Parkash Chand Seth was only a benamidar and was not the owner of the property. Sant Singh did not appear on the date when the evidence was to be recorded with the result that his suit was dismissed for default with costs. Parkash Chand Seth then brought the present suit for the recovery of Rs. 500. as damages for malicious civil prosecution and damage to the property. The suit was contested by Respondent Sant Singh and on the pleadings of the parties the following issues were framed: (1) Has this Court no jurisdiction to try the present suit? (2) Is the suit for compensation on account of allegations in para 12 of the plaint competent? (3) Is the suit barred as res judicata ? (4) Was a civil suit filed by the Defendant against the Plaintiff false, frivolous and vexatious to the knowledge of the Defendant and was it filed maliciously? (5) If so, can the Plaintiff claim any damages for the same? If so, how much? (6) Has the Defendant caused any damage to the property of the Plaintiff? (7) If so, to what compensation is the Plaintiff entitled for the damage caused? (8) Which of the parties is entitled to compensatory costs under Section 35 -A C.P.C.? The learned trial Court decided issues Nos. 1 and 3 against the Defendant and issue No. 2 against the Plaintiff. No decision was given on issues Nos. 4 and 5 while issues Nos. 6 and 7 were decided in favour of the Plaintiff and issue No. 8 was decided against both the parties. In view of these findings, the Plaintiff was granted a decree for Rs. 100 for damage which had been caused to the building of the Plaintiff but no compensation was allowed for prosecution on the basis that no damages could be awarded for civil malicious prosecution. Both the parties being dissatisfied with this judgment filed two separate appeals before the Senior Subordinate Judge. These appeals were disposed of by order dated 13th March 1961. The learned Senior Subordinate Judge dismissed the Plaintiff's appeal but accepted the appeal filed by the Defendant, with the result that the suit of the Plaintiff was dismissed in to. Being aggrieved the Plaintiff has come up in second appeal to this Court.
(2.) IN appeal before me the decision on issues Nos. 2, 6 and 8 has been challenged. The first appellate Court had found that the earlier suit filed by the Defendant was malicious. This finding was based on the consideration that in the earlier eviction proceedings before the Rent Controller the Defendant had not taken the plea that the Plaintiff was not the owner of the property in dispute or that he was benamidar for him. It was further found that the suit filed by the Defendant claiming the Plaintiff to be benamidar was filed merely to harass the Plaintiff. In spite of these findings, it was held that it was not actionable wrong to institute civil proceedings without reasonable and probable cause even if malice was proved. Support for this view was sought from the decision of Punjab Court in Abdul Samad Khan v. Rahmatullah Khan, 1889 P.R. 568, etc., wherein it was held that a suit for damages arising out of a civil action, brought maliciously and without reasonable or probable cause does not lie. The argument on behalf of the Appellant before the first appellate Court and again before me is that the rule laid down in the above case was no longer good law because of the introduction of Section 35 -A in the Code of Civil Procedure after the above judgment. By referring to Sub -section (4) of Section 35 -A it was contended that suit for damages in case of civil malicious prosecution was envisaged in this provision.
(3.) SECTION 35 -A relates to the award of compensatory Costs in respect of false and vexatious claim or defence. Sub -section (4) provides as under: (4) The amount of any compensation awarded under this. section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim on defence. No doubt, according to, the above provision, the amount of compensation awarded under this Sub -section will be taken into account in a subsequent suit for damage or compensation in respect of such claim or defence, but from this it does not necessarily follow that in every case where false or vexatious claim has been made or defence taken a suit for malicious prosecution would lie. A more reasonable construction of this provision would be that in those cases where damages can be awarded for malicious civil prosecution the amount awarded under Section 35 -A will have to be taken into account. Section 35 -A is a provision only for the grant of compensatory costs in respect of false or vexatious claims or defences and is not substantive provision creating any right in a party to claim damages for malicious civil prosecution In order to adequately compensate the Defendant in a case of Civil proceedings the legislature enacted Section 35 -A of the Code of Civil Procedure providing for compensatory costs in respect of false or vexatious claims. Section 95 of the Code also provides a Speedy remedy for claiming compensation in respect of obtaining arrest, attachment or injunction on insumcient grounds An order obtained under this section, however, is a bar to any suit for compensation in respect of such arrest attachment or injunction . It is a tort maliciously, and without reasonably and probable cause to initiate against another judicial proceedings which terminate in favour of that other and which result in damage to his reputation, person, freedom or property. It was pointed out by in his book "Winfield on Tort (Seventh Edition)" that historically there was no reason why the old action upon the case for conspiracy should not be extended to malicious civil proceeding as well as to malicious criminal proceedings but it was stated that in modern times it has been laid down that is available whenever the civil proceedings attack a man's credit in scandalous, fashion for example, malicious bankruptcy proceedings against him, or malicious winding -up proceedings against a company. While further considering whether the law makes the malicious institution of any civil proceedings actionable, Winfield pointed out that there was no historical reason why it should not, because it seemed curious that a man could have an action for taking malicious bankruptcy proceedings against him but not for maliciously suing him for some scandalous tort like seduction or deceit. Two main reasons have generally been advanced against the general proposition that malicious institution of civil proceedings is not actionable but both these reasons have not been accepted by Winfleld in his book mentioned above who at page 716 stated as under: Apart from this case, it has been urged against the general proposition, first, that the person maliciously sued is adequately compensated by successfully defending the action which is patently false and, secondly, that litigation must end somewhere - - which is true as a fact but unconvincing as an argument, for litigation should end only where common justice has been done or at least attempted. No reported decision, however, in favour of the view taken by Winfield could be found. Harry Street in his book 'Law of Torts' (Third Edition at page 402) accepted the situation and pointed out 'It might have been expected that the "damage" requirement of this tort would be satisfied whenever the Plaintiff proved that he suffered harm to his person or his reputation or suffered pecuniary loss as a non -remote consequence of the wrong", but found that that was not so. In Savile v. Roberts, (1898) 1 L.d. Raym. 374, Holt, CJ., in 1698 enumerated the kinds of damages the existence of any one of which was essential before an action for civil malicious prosecution could be supported. The doctrine laid down by Holt, C.J., was considered and approved in The Quartz Hill Consolidation Gold Mining Company v. Eyer, 11 Q.B.D. 674 and it was observed as follows: The reason why, to mind, the bringing of an action under our present rules of procedure and under our present law, even if it is brought without reasonable or probable cause and with malice, gives rise to no ground of complaint, appears to me easily to be seen upon referring to the doctrine laid down by Holt, C.J., in Savlle v. Roberts. He there said that there were three torts of damages, any one of which would be sufficient to support an action for malicious prosecution. "(1) The damage to a man's from, as if the matter whereof he is accused be acandalous. And this was the ground of the case between Sir Andrew Henley and Dr. Burstall: Raym. 180 (I) The second sort of damages, which would support such an action, are such as are done to the person; as where a man it put in danger to lose his life, or limb, or liability, which has been always allowed a good foundation of such an action (3). The third sort of damages, which will support such an action, is damage to a man's property, as where he is forced to expend his money in (sic)ry charges, to acquit himself of the crime of which he is accused, which is the present charge. That a (sic) in such case is put to expenses, is without doubt, which is an in -Jury to his property, and if that injury is done to him maliciously, it is reasonable that ha shall have an action to repair himself." It is clear that Holt, C.J., considered one of those three heads of damage necessary to support an action for malicious prosecution. To apply this test to any action that can be conceived under our present mode of procedure and under our present law, it seems to me that no mere bringing of an action, although it is brought maliciously and without reasonable or probable cause, will give rise to an action for malicious prosecution. In no action, at all events in none of the ordinary (sic), not even in those based upon fraud where there are scandalous allegations in the pleadings, is damage to a man's fair fame the necessary and natural consequence of bringing the action. Considering this aspect from various angles it was then observed in the above case as follows: "Therefore the broad canon is true that in the present day, and according to our present law, the bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution," (6) With regard to the coats incurred by, the party who has unnecessarily been dragged into the Court, it is pointed out that if the Judge refuses to give him costs, it is because he he does, not deserve them that if he deserves them he will get them in the original action and if he does not deserve them he ought not to get them in a subsequent action. ;