HAJI NASIRUDDIN KARIM MAHOMED Vs. PATEL HAJI UMERJI ADAM AND CO

JUDGEMENT

(1.) THE plaintiffs carry on business as milk merchants in the firm name and style of Haji Nasiruddin Karim Mahomed & Co. at Jogeshwari outside the Fort of Bombay, and own a large number of buffaloes which were housed in the stables belonging to Sir Mahomed Yusuf, situate at Lamington Road. THE defendants are the rent fanning contractors of the stables, and the plaintiffs had attorned tenants to them as from December 1, 1938. THEre were really five different tenancies taken in the names of the five plaintiffs separately. This suit is to recover a sum of Rs. 30,000 as damages from the defendants for having executed certain distress warrants obtained from the Small Cause Court, Bombay, on an application made on behalf of the defendants on February 15, 1939, for the rent due to them from the plaintiffs for the month of January, 1939. THE distress warrants were executed on February 16 and the buffaloes were attached, but the plaintiffs paid the amount of the rent due to the defendants on February 18, and the distraint was removed and the attachment raised. Plaintiffs say that the distress warrants were obtained falsely and maliciously and without any reasonable and probable cause and that in executing the same the defendants were guilty of the abuse of the process of the Court. THE defendants contend that the plaint does not disclose any cause of action. THEy deny that they acted maliciously and without reasonable and probable cause and also deny all liability for damages.

(2.) SEVERAL issues were raised in the suit on behalf of the defendants. The first issue is whether the plaint discloses any cause of action, and that issue has been taken up first before proceeding with the others. The onus is on the defendants to show that the plaint discloses no cause of action. Their contention is two-fold, viz., (1) assuming that the facts in the plaint are true for the sake of argument, the distress levied by the defendants was neither illeg;al nor wrong and therefore the plaintiffs have no cause of action; (2) even assuming for the sake of argument that the distress was illegal and wrongful, the distress proceedings not having terminated in the plaintiffs' favour, the plaintiffs have no cause of action. I will take these two separately.

(3.) IT is provided by Section 60 of the Presidency Small Cause Courts Act of 1882 that the debtor or any other person alleging himself to be the owner of any property seized under this chapter, i.e. Chapter VIII, or the duly constituted attorney of such debtor or other person, may, at any time within five days from such seizure, apply to any Judge of the said Court to discharge or suspend the warrant, or to release a distrained article, and such Judge may discharge or suspend such warrant or release such article accordingly, upon such terms as he thinks just. IT is not in dispute that no such application was made by the plaintiffs to the Small Cause Court Judge. There is also no averment in the plaint that the proceedings had terminated in the plaintiffs' favour. Plaintiffs' counsel argued that their cause of action was for damages on the ground that the distress warrants were obtained and executed maliciously and without reasonable and probable cause, that the plaintiffs could not have applied under Section 60 to set aside the distress warrants on those grounds, and that therefore any proceedings which could have or might have been taken by the plaintiffs were incapable of terminating in their favour. Applications under Section 60 are generally made: on the ground that the debtor is not justly indebted for the rent claimed from him, or that the rent claimed is excessive, or that it has not become due and payable, or that it was not payable for the period for which it was claimed. Under Section 62 it is provided inter alia that in any case under Section 60 the Judge may award such compensation by way of damages to the applicant as the Judge thinks fit, and the Judge must for that purpose make any enquiry that he thinks necessary; if the Judge awards or refuses such compensation, his order shall bar any suit for the recovery or compensation or damages caused by the distress. The plaintiffs, however, cannot be heard to say that in respect of the execution of a distress warrant under an order of the Court, which is binding until it is set aside, they have a cause of action for damages on the ground that the defendants acted maliciously and without reasonable and probable cause as alleged. Any exercise of malice or improper motive not in itself illegal will not convert a legal act done with such motive into a civil wrong for which reparation is due: see Allen v. Flood. [1898] A.C. 1. In England no jury is at liberty to find a verdict for a plaintiff because the defendant in doing; an otherwise lawful act was inspired by an improper motive. If a person has done what he was justified in doing according to the law, the law will not permit an enquiry into his motive. No action can therefore lie if an execution creditor acting under an order of the Court or a creditor executing a distress warrant under an order of the Court acts with malice or improper motive, unless the order of the Court is first vacated. There is no cause of action in respect of the doing of a legal act, even if it is done with malice and without reasonable and probable cause.