K.Ahmad, J. - (1.) This appeal by the plaintiffs is directed against the judgment and decree dated the 31st March, 1952, passed by Mr. Krishna Saran Pandey, Subordinate Judge of Muzaffarpur. It raises the question as to now far the plaintiffs-appellants are entitled to damages, if any, against the sole defendant-respondent Jagarnath Prasad Kajriwal for malicious prosecution and false imprisonment as also for libellous statements alleged to have been made against them by the defendant.
(2.) It is the admitted case of the parties that these two plaintiffs-appellants are father and son, respectively, and members of a joint Mitakshara family, carrying on the business of auctioneers under the name and style of Messrs. Bhawasinka Sales Bureau in the town of Muzaffarpur. Further it is admitted that the defendant also is a businessman and he too has his business office in that very town. The present case between the parties has arisen out of an auction sale of jewelleries held at the local Town Hall in Muzaffarpur on the 1st January, 1949, between 11 a.m. to 5 p.m. The jewelleries sold in that auction were, it is admitted, brought by one Mr. K.B. Shroff of Bombay, and there was an agreement made between him and the plaintiff's that the same would be disposed of by auction sale through the plaintiffs' firm. By the terms of the agreement the plaintiffs were to get 2 per cent, commission on the gross amount of the sale and further they had to arrange for the publicity of the auction sale, the cost of which, however, was to be borne by Mr. K. B. Shroff. It is not denied that in pursuance of this contract the plaintiffs gave wide publicity of the aforesaid auction sale, and in the course of that a largo number of big printed posters, handbills and list of jewelleries, both in Hindi and English, were distributed in the town. Further, that sale was also advertised by means of loud speakers. In the advertisements so made it was specifically noted that the jewelleries belonged to Saheb johar Singh, Zamiridar of Bedana, and others and were being sold under the orders of the Presidency Magistrate, Bombay. Further, it was also stated therein that though the auction sale would be held on the 1st January, 1949 yet on a day prior to the sale, i.e., on the 31st December, 1948, the jewelleries would be allowed to be inspected by the public in that very Town Hall. Lastly, in the auction advertisement sheet, which is Exhibit 4 on the record, there was a specific mention made of certain conditions which were binding on the parties taking part in the sale. They were as follows: "Conditions of Sale. 1. Payment immediately after the sale is completed. 2. The purchaser shall pay 25 per cent, deposit on each lot at the fall of hammer as demanded by the auctioneer, failing which the lot will be again auctioned. The security deposit of 25 per cent, will be forfeited if goods not taken delivery within 24 hours. 3. Please see and examine the jewelleries on 31st December which is fixed for view. 4. The genuineness of the jewels is guaranteed by the auctioneers; any complaint regarding genuineness of the jewels will be entertained within 24 hours of the sale, after which nothing will be heard, and the auctioneers' responsibility will be (sic) cease."
(3.) According, as arranged, all the jewelleries were put to inspection by the public on the 31st December, 1948, from 11 a.m. to 5 p.m., and it is not denied that on that day a large number of persons attended it and inspected the jewelleries. Thereafter, on the day following, that is, on the 1st January, 1949, which was a Saturday, auction sale began at or near about 11 a.m. at that very place. In the course of the auction sale on that day the defendant-respondents purchased in several lots jewelleries worth Rs. 19,769/1/0 inclusive of sales tax in the name of various persons, including himself, his son and his maternal uncle; and having then and there paid the entire price in cash, he took delivery of the jewelleries as also cash memos and then went back in the evening along with them to his home. His case is that thereafter, in the morning following on the 2nd January, 1949, he got those jewelleries tested by three Sonars, Mali Ram (D. W. 3), Dwarka Sonar and Gangadhar. They, according to him, found that the metals in which the jewels were set were copper and brass and the jewels themselves contained black chita and spots, which it is said, made them unfit for use by a Hindu. Accordingly, he first came to his house and then went to the Dharamsala close by where Mr. K.B. Shroff along with his other Gujrati companions were putting up. At that time, it is said, the plaintiff No. 1 was also present there. To all of them the defendant there made request to take back the articles as the metal was brass and copper and the jewels were defective. In answer thereto', the plaintiff refused to do it. At this, it is said the defendant got the conviction that he had been cheated. Accordingly, he soon thereafter consulted M. Sharda Prasad Bhandari, a pleader of the local Court, who, as claimed by the defendant, drafted a complaint and the defendant along with that went to the police station and there handed over the same to the Police Sub-Inspector. It is Exhibit B on the record and reads as follows: "To The Officer-in-Charge, Town F. S. Muzaffarpur. Sir, I have the honour to report that on representation of Sri Bihari Lal Bhawasinka and his son Sri Madan Lall Bhawansinka Proprietors of the Bhawasinka Sales Bureau of Muzaffarpur and some Gujraties who represented that they had come with the jewelleries I purchased jewelleries set in gold as represented by them at the sale held yesterday in the town hall, worth Rs. 19769l(sic)/1/- with sales tax in my own name, and also in the name of my son Ramakant and my maternal cousin Jwaja Prasad for which Cash Memos twelve in number were granted which are being attached herewith. Both the Gujraties and the two Bhawasinkas represented that the sale was done under the orders of the Presidency Magistrate, Bombay and belonged to Bedana Zamindar Jahar Singh and others. They also represented that the jewelleries were genuine and the gold was also genuine. The ornaments purchased by me in accordance to Cash Memos attached herewith. On testing them I find that neither the jewelleries are real nor gold is real. Testing of some portion of gold by Dwarka Sonar and others has proved that the metal which has been represented to be gold is really copper as will be apparent from the portion of metal sent herewith. Thus the aforesaid persons have dishonestly induced me to deliver a sum of Rs. 19769/1/- and thus they have cheated me. I went to them this morning and complained about the cheating they have done by (sic) they refused to listen to me. The Gujraties have also refused to disclose their identity and I apprehend that they are trying to run away from this town. They are at present in the town hall, Muzaffarpur, and were staying in the Marwari Dharamshala, Muzaffar-pur. I can identify them. Hence this information for taking necessary action against them for cheating me. My witnesses are:-- 1. Sri Banwari Lal Sanganeria, 2. Bhagirath Prasad Singhania, 3. Sunder Mull Kajriwal. 4 Badri Prasad Noria, 5. Dwarifca Prasad Sonar, 6. Bisham-bhar Lall all of Saraiyagunj, Muzaffarpur, Others names will also be given at the time of investigation. Yours faithfully, Sd. Jagarnath Prasad Kejrjwal. (sic) Muzaffarpur, June 2, 1949.";