Modi, J. - (1.) THIS is yet another case of the type with which I have had to deal recently wherein the appeal must be allowed on the short ground that the judgment produced by the learned Judge of the first appellate court is not at all a judgment in accordance with law.
(2.) THE appeal arises out of a suit for malicious prosecution. It appears that there was some election in village Dalai, and that was the cause of bad blood between the plaintiff Dhanraj and his associates on the one hand and Hirachand defendant on the other. On the 14th June, 1956, the defendant lodged a complaint against the plaintiff and thirteen other persons in the court of the Sub-Divisional Magistrate, Jalore, for offences under sec. 452, 323 and 147 of the Indian Penal Code on the allegations that there was considerable bad blood between the parties, and that on the 12th June, 1956, at about 8 or 9 P. M. when the defendant was sleeping in his Pol, all the accused including the plaintiff came in a body and entered into the Pol, that they were all armed with lathis and were actuated by a common intention to beat him, that out of the plaintiff's party, two persons, namely, the plaintiff and one other person Bhagwana beat him with lathis as a result of which he fell down and that thereafter all the accused further beat him with slaps and kicks at which on an outcry having been raised some neighbours came on the scene and saved the defendant. THE plaintiff's case further was that after seeking several adjournments in the court of the Magistrate,the defendant made an application on the 15th April, 1957, for withdrawing the complaint. In this application it was mentioned that his witnesses had become hostile and that he had no hope of their deposing the true facts of the case, and, therefore, he was compelled to give them up and there was no other evidence, and so the complaint be dismissed and the accused discharged. THE Magistrate discharged the plaintiff and the other accused on the same date accordingly. THEreafter the plaintiff filed the present suit in court of the Munsiff Jalore on the 9th April, 1958, for damages for malicious prosecution. His case was that the defendant had filed the complaint against him falsely and maliciously and without any reasonable and probable cause, and he prayed for an award of damages amounting to Rs. 1100/- to him out of which Rs. 168/4/- were claimed as special damages and the balance of Rs. 933/12/- (the actual amount comes to Rs. 931/12/- only) as general damages. The defendant resisted the suit. He denied that the complaint filed by him against the plaintiff and his associates was either false or malicious or without any reasonable or probable cause and contended that it was true. He also pleaded that the claim for damages was extravagant. It was found by the trial court that the plaintiff had failed to establish that his prosecution by the defendant was either malicious or without any reasonable or probable cause, and in that view of the matter it dismissed the plaintiff's suit. The plaintiff then went up in appeal to the Senior Civil Judge, Jalore, who also concurred in the decision of the trial court. Aggrieved by this decision, he has now come up in second appeal to this Court. Now it seems to have been urged before the learned Judge of the first appellate court that even though the burden of establishing that the complaint lodged by the defendant against the plaintiff was lodged maliciously, and without reasonable and probable cause and knowing it to be false, was rightly placed on the plaintiff, yet that burden was sufficiently discharged by the plaintiff by filing a copy of the judgment of the criminal court by which he was discharged, as it was a case where the prosecutor must necessarily know whether his accusation against the accused was true or false, and that in this class of cases the production by the plaintiff of the judgment in the criminal case was sufficient to discharge the burden of proving want of reasonable and probable cause. Reliance was placed in support of this submission on Sitaram Vs. Dudharam (l ). The learned Judge distinguished that case from the present by holding that here the criminal court had not decided the case on the merits, and had merely discharged the accused for the reasons mentioned by the prosecutor, in the application referred to above. For the purposes of this appeal, I do not consider it necessary to express my own opinion about the view held in Sitaram Vs. Dudharam (Supra ). Then the learned Judge went on to deal with the oral evidence of the parties to decide whether the finding of the trial court on the issue relating to want of reasonable and probable cause and malice was correct. It is here that the learned Judge seems to me to have gone completely wrong in the manner in which he dealt with the case. He first took up the evidence of the plaintiff and refers to two witnesses Bhursingh and Chunnilal produced by him. Of these, this is what the learned Judge has had to say : - "the plaintiff has produced two witnesses viz. Bhur Singh and Chunilal who have made a general statement that the complaint filed by the defendant against the plaintiff was false but unless it can be shown that if the alleged attack on the defendant by the plaintiff appellant had actually taken place these witnesses were so situated that it could not have escaped their notice merely because these two witnesses state that the complaint is false carries no weight whatsoever. " With all respect to the learned Judge, I have not been able to understand what precisely he means by these observations. Perhaps what the learned Judge intended to say was that Bhur Singh and Chunilal were in no position to see the alleged happenings themselves. But if that was so this fact must have been clearly brought out in the discussion of the evidence relating to these witnesses which has unfortunately not been done. | Be that as it may, the learned Judge then proceeds to deal with the evidence of the defendant. And what he has said about these requires reproduction; - "as against this, the defendant has produced a number of witnessed who have deposed that the plaintiff and 13 of his associates entered the house of the defendant and made a concerted attack. " There is no other reference to, much less analysis of, the actual evidence given by the defendant's witnesses, and then the learned Judge proceeds to deal with certain criticisms levelled against this evidence by the plaintiff. This is what the learned Judge says on this aspect of the case : - "the learned counsel for the appellant submits that the testimony of these witnesses cannot be relied upon because the defendant had himself made an application in the criminal court that these witnesses had been won over by the accused an were therefore not prepared to testify in his favour. May it as be, about a year has since passed and the defendant might have won over them back to his side, The learned counsel for the appellant further points out that these witnesses state that they were never won over by the accused and they were prepared to support the defendant, but it is natural that no witness will admit that he was won over by the other party at one time and, therefore, he was not prepared to depose the truth. The learned counsel for the appellant has taken me through the evidence and argues that there are material discrepancies in the statements of the defendant's witnesses, but I find that there are not many discrepancies and the few that there are, are not material. " Before I make my comments on the manner adopted by the learned Judge in dealing with the evidence particularly on the side of the defendant, I may quote a couple of sentences more from his judgment bearing on this aspect of the case and these are: - "moreover, it has to be kept in view that the burden lay heavily on the plaintiff to establish that the case was false and was made without reasonable and probable cause. He has not led any evidence whatsoever and on the other hand the defendant has led sufficient evidence to establish that the complaint was true. Therefore, I agree with the finding of the learned Munsiff that the plaintiff has failed to establish that the case was without reasonable any probable cause and that it was made out of malice. " Now I feel bound to point out that the learned Judge's discussion of the evidence in the present case is not at all satisfactory and, if I may say so, a good deal vague, general and perfunctory. The learned Judge has summed up the positive evidence produced by the defendant by merely saying that "the defendant has produced a number of witnesses who have deposed that the plaintiff and 13 of his associates entered the house of the defendant and made a concerted attack. " If that be a correct rendering of the evidence of the witnesses in question, that obviously raises certain important questions as to what was the number and nature of the injuries caused by the plaintiff and his associates to the defendant. But as to that the judgment under appeal is completely silent. Learned counsel for the defendant tells me that the actual assailants out of the party of the plaintiff on the relevant night were only two namely the plaintiff and one other companion of his. If that is so, the summing up of the evidence by the learned Judge is extremely wide of the mark. Be all this as it may, I have no hesitation in saying that, as a court of first appeal, the findings of fact whereof are binding on this Court, it was the duty of the court below to have come to grips with the evidence led at the trial by the parties with the requisite care and attention and to have properly analysed this evidence and then weighed it so that this Court may stand assured that the finding of fact has been arrived at in a proper and judicial manner. A vague reference to the evidence produced by the parties that it is worthy of credence or otherwise renders no assistance whatsoever to this Court sitting in second appeal. And it may be permissible to point out that it is because of judgments of this type that a good deal of burden is thrown on this Court in second appeal which is entirely unnecessary and perfectly avoidable, if only our learned Judges in the first appellate courts perform their duties in an objective and careful manner in accordance with law. I may in this connection invite attention to the provision of O. 41, r. 31 C. P. C. which lays down the requirements of the judgment of an appellate court like this. The judgment shall state (1) the points for determination, (b) the decision thereon, (c) the reasons for the decision and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. It clearly follows from this that a proper judgment should not only set out the points for determination and the decision thereon but it must give adequate reasons for the decision come to. And in this connection I have no hesitation in pointing out that in the vast majority of the cases that come before our courts, it is impossible to arrive at proper decisions and to give adequate reasons for the same unless all the important evidence led by the parties is carefully marshalled, weighed and then adjudged. I am far from suggesting that it is necessary to reproduce the evidence of each of the witnesses in the judgment. But what is necessary is that the evidence must be carefully analysed with reference to the salient points arising in the case and then weighed in an intelligent and intelligible manner; and that the entire material evidence has been so grasped and weighed must appear from the judgment itself. In other words, the judgment of the court of first appeal must be a self-contained one. This, in my opinion, is imperative because in our system of law, as embodied in sec. 100 and 101 of the Code of Civil Procedure, the findings on matters of fact of the first appellate court are final and binding on this Court and cannot be allowed to be reopened in second appeal. Judged by this test, I have regretfully come to the conclusion that the judgment of the learned Judge below leaves a lot to be desired. His analysis and appraisal of the evidence are not of the requisite quality, and do not carry that assurance to this Court, which they should, that the evidence has been properly read and weighed. Again, it was not, in my opinion, sufficient roundly to say, as the learned Judge has done, that the appellant had taken him through the evidence and argued that there were material discrepancies in the statements of the defendant's witnesses but that there were not many discrepancies and the few that there were, were not material. Some of the alleged material discrepancies which were placed before the learned Judge might with propriety have been referred to and discussed and then shown to be groundless. The judgment of the learned Judge seems to me to be affected by one further error, and that is that according to him a 'heavy' burden lay on the plaintiff to establish that his prosecution was false and that it was made without any reasonable and probable cause. It is true that the initial burden did and would lie in a case for damages for malicious prosecution on the plaintiff; but for that reason I am not prepared to accept, nor has any authority been -cited before me to induce me to hold, that this burden is "particularly" heavy on him. In fact it has been laid down by a learned single Judge of this court is Kedarnath Vs. Brahmanand (2) that there are many cases where the plaintiff's case is negative, and then very slight evidence on the part of the plaintiff may be sufficient to shift the onus on to the defendant, and that in such a case after the plaintiff has denied on oath his participation in a particular crime, it is for the defendant to prove by positive evidence that the plaintiff had committed the act complained of. It seems to me that this would be so where the prosecution was based on facts which must have been within the knowledge of the prosecutor. If the learned Judge's appreciation of the entire evidence in this case was coloured by the statement or rather mis-statement of law contained in his judgment, to which I have referred above, then I must point out that this was a wrong approach to the whole case and that cannot be sustained as correct. Before concluding, I should like to make it clear that I am fully conscious that the judgment of the learned Judge was one of affirmance. But all the same it was the duty of the learned Judge to have substantially complied with the requirements of O. 41, r. 31 which he has not. Therefore where an appellate court confirms the decision of the trial court, a general expression of concurrence with the decision of the trial court is not enough, and even in such cases the proper course for the court of first appeal is to independently weigh the evidence of the parties so that it may appear from the judgment that the court was properly conscious of the relevant points arising in the case and the bearing of the evidence led by either party on those points. I am prepared to concede that a judgment of affirmance may not give the reasons with that elaborate detail which a judgment of reversal may, generally speaking, require. But that I do wish to impress upon the courts below is that their judgment should be self-contained, and, as I have pointed out above, substantially comply with the requirements of O. 41, r. 31 C. P. C. From what I have mentioned above, it should be clear enough that the judgment produced by the learned Judge in the present case is not a judgment in accordance with the provisions of O. 41 r. 31 C. P. C. and, therefore, not a judgment in accordance with law, and this appeal must succeed on this ground alone without my going into the merits of the case.
(3.) FOR the reasons mentioned above, I accept this appeal, set aside the judgment and decree of the learned Senior Civil Judge, Jalore, and send the case back to him with a direction that, after allowing the parties a fresh opportunity to address arguments in the case, he will decide the case afresh by producing a proper judgment in accordance with law. Under the circumstances, I would make no order as to costs. .;