PROBHAT KUMAR SETT Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) This is an action for malicious prosecution. The Plaintiff is one Probhat Kumar Sett who is a graduate of both the Calcutta and the Oxford Universities, a Barrister -at -Law and until 1957 a Senior Professor of English at Ramakrishna Mission College. The Defendants are (i) Corporation of Calcutta, (ii) B.K. Sen, who was at the relevant time the Commissioner of the said Corporation and (iii) Priya Guha, who was at the relevant time its City Architect and is the present Commissioner of the Corporation. The facts alleged, which are more or less admitted, are as follows:

(2.) This suit was filed by the Plaintiff on June 4, 1958, claiming Rs. 25,000 as general damages, Rs. 1,538 -50 as special damages and costs against the Defendants for maliciously and without reasonable and probable cause and/or illegally and/or in bad faith and/or without due care and attention prosecuting and/or securing or sanctioning or ratifing the prosecution of the Plaintiff before the Court of the Second Municipal Magistrate for failure to comply with the terms of a notice under Rule 5(1) of Schedule XVII of the Calcutta Municipal Act served on the Plaintiff on or about August 3, 1955. By his judgment and order dated January 18, 1958, the said Municipal Magistrate had acquitted the Plaintiff. In the plaint, the history of the facts leading to the prosecution has been set but including the fact that an earlier prosecution in the Court of the Municipal Magistrate for failure to comply with a notice under Rule 4(1) of Schedule XVIII of the Municipal Act, 1923, had also resulted in an order of acquittal on or about April 28, 1954. The particulars given in the plaint for special damages include fees paid to the lawyers and Advocates in connection with the proceeding before the Municipal Magistrate, fees paid to the Plaintiff's engineer for attending the Magistrate's Court for giving evidence and for attending at the time of :the local inspection by the Magistrate and cost of stamps for obtaining certified copies of the Court proceedings. It is further pleaded in the plaint that due notice in writing in terms of Sec. 586 of the Calcutta Municipal Act, 1951, was served on the Defendants on or about March 31, 1958 and the present suit had been instituted after the expiry of one month from the delivery of the said notice.

(3.) A single written statement has been filed on behalf of the three Defendants. The earlier correspondence and the proceedings between the Plaintiff and the Corporation, as alleged, are not denied in the written statement. The Defendants admit that on August 3, 1955, a notice under Rule 5(1) of Schedule XVII of the Calcutta Municipal Act, 1951, requiring the Plaintiff to take down certain portions of the premises and to secure the rest of the building adequately was served on the Plaintiff as alleged. On the failure of the Plaintiff to comply with the aforesaid notice the Corporation applied for summons under Sec. 577 Rule 5(1) of the Act on or about November 7, 1955 and thereafter, the Plaintiff was tried in the Court of the Second Municipal Magistrate. It is pleaded that the Defendant Corporation made the said application for summons bona fide and in pursuance and performance of its obligations under the said Act and Rules or Bye -laws made thereunder. The Defendants deny that the Defendants or any of them acted maliciously or without reasonable or probable cause or illegally or in bad faith or without due care and attention. It is further admitted that on January 18, 1955, the Plaintiff was acquitted by the Municipal Magistrate who had inspected the said premises in the course of the trial and had recorded in his order that the said building was in a dangerous condition and that the Corporation might take necessary steps for the demolition of the same at the cost of the Plaintiff. It is pointed out that the notice under Rule 4(1) of Schedule XVIII of the Municipal Act, 1923, dated October 6, 1950, was substantially different from the notice of August 3, 1955, as the Plaintiff was required to demolish a different part of the said building. While admitting that the prosecution of the Plaintiff for non -compliance of the notice under Rule 4(1) of the 1923 Act ultimately ended in his acquittal on April 28, 1954, the Defendants pleaded that the said prosecution was started bona fide in performance of the Corporation's obligations under the said Act and the Rules and Bye -laws made thereunder and for reasonable and probable cause and that the Corporation acted without malice. The Defendants deny that any damage has been caused or that the Plaintiff suffered any injury to his reputation or has suffered pain of body or of mind or that such damages could amount to the sum of Rs. 25,000 or any other sum or any sum at all. The particulars of the special damages given in the plaint are not admitted. The validity and/or sufficiency of the alleged notice under Sec. 586 of the Calcutta Municipal Act, 1951, is challenged. It is further pleaded that the Plaintiff's claim is barred by limitation and/or that the Plaintiff has no Cause of action against the Defendants or any of them and that the suit should be dismissed with costs. On these pleadings the following issues were raised and settled: