MODI, J. - (1.) THIS is a second appeal by the plaintiffs in a suit for malicious prosecution.
(2.) BRIEFLY stated, the plaintiffs' case as narrated in the plaint is like this : On 26-12-56 the defendant-respondent filed a complaint under sec. 41/44 of the Delhi and Ajmer Rent Control Act, 1952, hereinafter referred to as the Act, against the plaintiffs in the Court of the City Magistrate, Ajmer, alleging therein that plaintiff No. 1 Brijlal was the landlord of the defendant, that plaintiff No. 2 Jagmohan was the rent collecting agent of plaintiff No. 1 and that on 29-11-56 the plaintiffs had cut off electric connection of the premises occupied by the defendant and were therefore liable to prosecution. The complaint was tried by the First Class Magistrate, Ajmer, who acquitted plaintiff No. 2 but convicted plaintiff No. 1 under sec. 41/44 of the Act and sentenced him to a fine of Rs. 1000/ -. On appeal, the learned Additional Sessions Judge, Ajmer, acquitted plaintiff No. 1 also. The plaintiffs' case further is that the complaint filed by the defendant was without reasonable and probable cause, false to his knowledge and actuated by malice. The plaintiffs further pleaded that there was never the relationship of the landlord and the tenant between plaintiff No. 1 and defendant, that the plaintiff No. 2 was not the rent collecting agent of plaintiff No. 1 and that the electric connection was never cut off by or at the instance of the plaintiffs. On the above facts, plaintiffs No. 1 and 2 claimed separate damages for malicious prosecution in the sum of Rs. 1799/14/- and Rs. 1000/2/- respectively. The defendant in his written statement admitted having filed the complaint against the plaintiffs as also the fact that the plaintiff No. 2 was acquitted by the trial court and the plaintiff No. 1 was acquitted by the appellate court. He denied the allegation that the complaint was filed with malice and without reasonable and probable cause. He also denied the allegation that the electric connection was not cut off by or at the instance of the plaintiffs. The defendant alleged that the plaintiff No. 1 was the owner of the house No. AMG/13/472 situated in Ajmer, that in January 1954 the plaintiff No. 1 kept him as a tenant in respect of a portion of the said house and that the plaintiff No. 2 who was student in those days, was in occupation of a room in the said house and he used to collect rent from him and other tenants and pay the same to the plaintiff No. 1. The trial court after framing issues and recording evidence of the parties held that the complaint filed by the defendant was without reasonable and probable cause and was malicious. On the question of damages, the trial court allowed a sum of Rs. 1659,87 P. to the plaintiff No. 1 and a sum of Rs. 820/- to the plaintiff No. 2 and decreed the plaintiffs' suit accordingly. On appeal by the defendant, the learned District Judge, Ajmer, found the following facts proved from the evidence on record : (1) That the plaintiff No. 1 was the owner of the house AMG/13/472 which was let out to the plaintiff No. 2 by the plaintiff No. 1. (2) That the defendant was kept in portion of the house by the plaintiff No. 2 within the knowledge of the plaintiff No. 1 and therefore the defendant was a sub-tenant in the premises and he had a right to proceed against the plaintiff under sec. 41/44 (4) of the Act. (3) That the defendant remained without supply of electric energy from 29-11-56 to May 1957. (4) That the plaintiff No. 1 had a hand in denying the use of the electric energy to the defendant and (5) that the supply of electric energy was disconnected with a view to compel the defendant to leave the premises. On the above facts, the learned District Judge came to the conclusion that the complaint filed by the defendant was justified and was not at all without reasonable and probable cause. He accordingly allowed the appeal filed by the defendant and dismissed the suit. Aggrieved by the appellate judgment and decree, the plaintiffs have preferred this second appeal. The learned counsel for the defendant-respondent raised a preliminary point that the finding of the appellate court that there was no absence of reasonable and probable cause for the institution of the complaint by the defendant is a finding of fact and it cannot be challenged in second appeal. Reliance was placed on Bhanwarsingh vs. Banji (l), B Dharamnath vs. M. Mohammad Umar Khan (2), Chellu vs. Municipal Council, Palghat (3), Kammalapati Venkatadri vs. Pinninti Chandrayya (4), Municipality of Ahmedabad vs. Panubhai Laljibhai (5), Pragji Valji vs. Venilal Maganlal (6), Sama Nathu vs. Kachara Mavji (7) and Gobindchandra Sambarsingh Mohapatra vs. Upendra Padhi (8 ). It was held in the aforesaid cases that the question as to absence of reasonable and probable cause and malice was one of fact which cannot be gone into second appeal. The decisions in most of these cases are based on the observations of their lordships of the Privy Council in Pestonji Muncherji Mody vs. The Queen Insurance Company (9 ). In that case, the plaintiff claimed Rs. 3,00,000/- as damages for malicious prosecution. The trial court as well as the High Court held that the plaintiff had failed to prove the existence of reasonable and probable cause and malice. The suit was therefore dismissed by both the courts. The case then came before the Privy Council on a certificate granted by the Bombay High Court that the appeal involves a substantial question of law. Their lordships of the Privy Council held that the certificate must have been granted under misapprehension and observed as follows : "it appears to their lordships that the only question involved is a question of fact on which there are concurrent findings. It is quite true that according to English law it is for the Judge and not for the jury to determine what is reasonable and probable cause in an action for malicious prosecution. The jury finds the facts. The judge draws the proper inference from the findings of the jury. In that sense, the question is a question of law. But where the case is tried without a jury there is really nothing but a question of fact and a question of fact to be determined by one and the same person. It appears to their lordships that the certificate allowing the appeal to Her Majesty must have been granted under a misapprehension. " In reply, the learned counsel for the plaintiffs further argued that the finding on the question as to whether or not there was reasonable or probable cause is a question of law, or, at any rate, one of mixed question of law and fact upon which inference in second appeal is permissible. In support of his contention, he cited Narayana Mudali vs. Peria Kalathi (l0), Kanshiram Munshiram vs. Ramamal Gobindaram (11), Basantrai vs. Lala Gangaram (12), Nagendranath Ray. vs. Besantadas Bairagya (13), Mohd. Haroon vs. Asghar Husain (14), Naik Pandey vs. Bidya Pandey (15), Fatehchand vs. Kunjbeharilal (16) and Ajodhia Prasad vs. Parashram (17 ). The gist of all these cases is that though the basis for finding of absence of reasonable and probable cause and the presence of malice consists in matters of fact, the inference that should be drawn from the proved facts and the question whether such facts are sufficient to establish the presence of reasonable and probable cause and the presence of malice are matters of law upon which the interference in second appeal is permissible. It is noteworthy that in the first five cases the decision of the Judicial Committee in Pestonji's case (9) was not referred to at all. In the last three cases, Pestonji's case was considered but it was distinguished (or explained away. In Naik Pandey's case (15), Mullick J. observed as follows : "although there are certain expressions used in Pestonji Muncherji Mody vs. Queen Insurance Go. to the effect that in India in trials without a jury the question of reasonable and probable cause and malice becomes a question of fact, it is clear that those expressions were used only in reference to the propriety of a certificate for appeal to the Privy Council. The ruling in fact expressly accepts the general doctrine that the question of reasonable and probable cause and of malice is one for the Judge, a question of law". In Fatehchand's case (16), Radhakrishna J. observed: "in my opinion, the presence or absence of reasonable and probably cause is a question relating to the state of the mind of the accuser and has to be inferred from the facts of each particular case. To my mind, the question whether the inference from certain facts is correct or not is a question of law. In Pe$tonji's case, the question of malice and the absence of reasonable and probable cause had been decided against the plaintiff by courts in India, who had obtained a certificate that the appeal involved a substantial question of law. Their lordships of Privy Council held that the certificate that the appeal involved a substantial question of law must have been granted under a misapprehension. " Radhakrishna J. then quoted the relevant observations of their lordships of the Privy Council and observed as follows : - "in my humble opinion their Lordships of the Privy Council in observing as above did not down that the determination of what is reasonable and probable cause in an action for malicious prosecution in a suit in India is determining a question of fact not open to consideration in second appeal. All that their lordships meant lay was that the determination of reasonable and probable cause in a given case was not a substantial question of law within the meaning of sec. 600 of the Act (14 of 1882) sec. 110 of the present Civil P. C. " In Ajodhiaprasad's case (17), Grille, A. J. C. observed : - "it appears to me that this dictum can only have been intended to apply in respect of the propriety of granting a! certificate for leave to appeal to the Privy Council. The question as to what constitutes the existence or absence of reasonable and probable cause is a mixed question of law and fact. This doctrine their lordships accepted in stating that the jury finds the facts and the judge draws the proper inferences from those findings. Where the Judge is both judge of fact and of law I venture to think that it is impossible that their lordships intended to lay down that while the judgment of the appellate court is unappealable in respect of facts, it is unappealable in respect of the correctness of the inferences to be drawn from those facts. . . . . . . . . . "
(3.) WITH great respect to the learned Judges, the grounds on which Pestonji's case (9) was distinguished are, in my opinion, neither sound nor convincing. Their lordships of the Privy Council in Pestonji's case laid down in very clear terms that the question as to the existence of reasonable and probable cause and malice is a question of fact. In my opinion, it is immaterial whether the said dictum was laid down in connection with the propriety of the certificate or otherwise. Their lordships no doubt observed that according to the English law the inference as to reasonable and probable cause is drawn by the judge and not by the jury but they made a distinction with the trial by jury and that by a judge and held that where the case is tried without a jury, inference of reasonable and probable cause is really nothing but a question of fact. It is true that in England where a trial is by a jury the question of absence of reasonable and probable cause would be considered a question of law in a limited sense that it has to be decided by a judge but the same consideration cannot prevail in India where the trial is by a judge. Again, their lordships of the Privy Council in C. Sabhapathi vs. G. Huntley (18) held that the finding of the learned Judges of the first instance on the question of malice is a finding of fact. The state of man's mind is as much a fact as the state of his digestion. Their lordships accordingly saw no reason for disturbing the finding of the lower court on the question of fact. The main basis for holding that the question as to absence of reasonable and probable cause and malice is a question of law appears to be that the finding of reasonable and probable cause and the presence of malice are matters of inference to be deduced from basic or proved facts but that is not sufficient to make the question one of law or one of mixed question of law and fact unless there are legal principles to be applied to the basic facts before the ultimate conclusion is drawn. As no legal principles arise for application for the determination of the question of reasonoble and probable cause and the question of malice, it cannot be said that the determination of those questions on the basis of inference drawn from basic or proved facts would make them questions of law or mixed question of law and fact. In Sree Meenakshi Mills Ltd. vs. Commissioner of Income-tax (19), one of the principles laid down by their lordships of the Supreme Court is that "when the finding is one of fact, the fact itself is an inference from other basic facts will not alter its character as one of fact. "a finding of fact therefore does not cease to be a finding of fact merely because it is in the nature of an inference to be drawn from certain proved facts. I am therefore clearly of the view that the question as to the existence or absence of reasonable and probable cause and malice is a question of fact and cannot be gone into in second appeal unless, of course, it is shown that the fact on which the inference of existence of absence of reasonable and probable cause and malice is based are not supported by evidence or that the inference drawn is perverse. ;