Delhi District Court
Sh.Hari Shankar Srivastva vs Sh.Vinod Kumar on 21 December, 2012
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
RCA No.161/2011
Date of Institution of Appeal : 01.09.2011
Date on which Reserved for Judgment : 29.11.2012
Date of Judgment/Order : 21.12.2012
Case I.D. Number : 02402C263762011
IN THE MATTER OF:-
SH.HARI SHANKAR SRIVASTVA
SON OF SH.R.L.SRIVASTVA
RESIDENT OF A-161, SHIV MANDIR GALI
MANDAWALI FAZALPUR,
DELHI 110 092 .....APPELLANT
VERSUS
SH.VINOD KUMAR
SON OF LATE SH. J.N.SHARMA
RESIDENT OF HOUSE No.A-245, GIRI MARG
MANDAWALI FAZALPUR
DELHI 110 092 .......RESPONDENTS
JUDGMENT
1. This appeal has been filed by the appellant/defendant against the judgment and decree dated 23.7.2011 by which learned Trial Court has decreed the suit of the plaintiff/respondent for damages on account of defamation and malicious prosecution.
2. Brief facts leading to filing of the appeal are that the respondent/plaintiff instituted a suit before the Trial Court averring that he was working as a Peon in the Hon'ble Supreme Court of India for the last about 16 years having clean antecedents. It is averred that the defendant is a resident of the same locality as of the plaintiff and was on the habit of filing false and defamatory complaints before various authorities against the plaintiff. It is averred that the defendant filed RCA 161 of 2011 1/13 an application under section 437(5) Cr.PC for cancellation of the bail granted to the plaintiff in case FIR No.200/2002, PS Mandawali, in the Court of Sh.Chandra Shekhar, learned Metropolitan Magistrate, Kkd.Courts, Delhi. It is averred that in the said application, the defendant mentioned himself as a witness in the matter and falsely alleged that the plaintiff had threatened him on 5.12.2004. The defendant has also made complaint against the plaintiff to various police authorities. The defendant has also made complaint to the Hon'ble Chief Justice of India dated 12.5.2012 containing false and defamatory allegations against the plaintiff.
3. It is averred that the application of the defendant for cancellation of bail was dismissed by the Court of learned Metropolitan Magistrate, Kkd.Courts Delhi vide order dated 3.5.2005. It is averred that the defendant had intentionally moved application for cancellation of bail and caused harm and defamed the plaintiff. It is averred that the application of the defendant as well as several complaint made by the defendant had brought down reputation of the plaintiff amongst his colleagues at his work place. Career of the plaintiff has been affected and he has been caused mental harassment and claimed damages quantified at Rs.1,50,000/- on this account.
4. It is averred that the plaintiff sent legal notice dated 27.5.2005 to the defendant calling upon him to pay the said amount but the defendant instead of complying with the same, sent false and frivolous reply dated 6.6.2005 through his Advocate. The plaintiff, therefore, filed the present suit claiming a sum of Rs. 1,50,000/- on account of damages, along with interest at the rate of 24% per annum from the date of institution of the suit till the date of realization.
5. Upon summons of the suit being issued the defendant filed written statement as well as counterclaim against the plaintiff. In the written statement the defendant has raised several preliminary objections to the effect that the plaint was based on false facts; the plaint was liable to be rejected under Order VII Rule 11 CPC for want of cause of action; the plaintiff has suppressed material RCA 161 of 2011 2/13 facts of the case; the plaintiff has filed the suit on the basis of false and fabricated documents and that the plaintiff had not valued his relief appropriately and has not paid the court fee as per law. Further, the plaintiff has not filed the original documents.
6. On merits, the defendant has stated that the plaintiff has filed false case against the defendant on 3.1.2004 vide Criminal Complaint case No.17/2004 titled Vinod Kumar versus Hari Shankar Srivastava & Others with an intention to insult the defendant. It is averred that on 12.5.2004 the said complaint was dismissed by the Court of learned Metropolitan Magistrate, Kkd. Courts, Delhi. The defendant has stated that he reserves his right to file separate suit for damages and malicious prosecution against the defendant. It is averred that on 5.8.2002, plaintiff Vinod Kumar and his brother in law Lalit with some anti-social elements were raising construction on property No.A-245, Giri Marg, Mandwali, Delhi, by which right of easement of the defendant to fresh air and sunlight were curtailed. It is averred that the defendant made a complaint to the Municipal Corporation of Delhi (herein after referred to as the MCD) in this regard, The officials of the MCD came to the property but the plaintiff and his associates beat up the MCD officials in front of house of the defendant. It is averred that the officials of the MCD called the PCR and the police arrested the plaintiff and his brother in law Lalit and statement of the defendant as complainant and eye-witness was recorded by the Investigating officer of the case. It is averred that the defendant was told that he would be cited as prosecution witness and would have to appear in the court. It is averred that the police thereafter registered case FIR No.200/2012 PS Mandawali on the basis of this incident. It is averred that on 1.6.2003, the defendant was beaten up by the plaintiff and the defendant called up the PCR and thereafter case FIR No.336/2003 under sections 452/448/323/506/427/34 IPC was registered against the plaintiff at PS Mandawali. It is averred that the defendant has filed a civil suit against the plaintiff for permanent and mandatory injunction in respect of property No. A-245, Giri Marg, Mandwali, Delhi in which order of stay has been granted in favour of the defendant. It is averred that Smt.Bimla Devi mother of the plaintiff also filed suit against the defendant for RCA 161 of 2011 3/13 permanent and mandatory injunction which was dismissed by the Court of Civil Judge, Tis Hazari Courts, Delhi vide order dated 7.7.2003. It is averred that on 21.7.2003, officials of the MCD South Zone Shahdara Delhi had ordered removal of unauthorized construction from property No. A-245, Giri Marg, Mandwali, Delhi. It is averred that the officials of the MCD demolished the third floor of the said property as well. It is averred that Smt.Bimla Devi-mother of the plaintiff had filed Writ Petition(C) 1626/2004 before Hon'ble High Court of Delhi titled "Bimla Devi versus MCD" which was however dismissed. SLP 22944/2004 against the said order was also dismissed by the Hon'ble Supreme Court on 22.11.2004. It is averred that Smt.Bimla Devi had also filed appeal No.485/2004 before the Appellate Authority (MCD) which was dismissed. It is averred that due to the series of litigation referred above, the plaintiff has filed the present suit for defamation against the defendant.
7. In the counterclaim, the defendant has prayed for recovery of Rs.3,00,000/- against the plaintiff on account of harassment caused to him due to the above said litigation.
8. Upon filing of replication and written statement to the counterclaim, the learned Trial Court vide order dated 18.9.2009 framed the following issues :-
1.Whether the plaintiff is entitled to decree of Rs.1,50,000/- @ of interest 24% as prayed in the suit?OPP
2.Whether the defendant is entitled for amount of Rs.3,00,000/- as prayed in the counter claim?OPD
3.Relief
9. In order to prove his case, the plaintiff examined himself as PW-1, Sh.Ajay Kumar Jain, Court Assistant of the Supreme Court of India as PW-2 Sh.Gurmeet Singh, Assistant Ahlmad from the court of the Metropolitan Magistrate, Kkd. Courts Delhi as PW-3 and HC Amarjeet Singh as PW-4. On the other hand, the defendant examined himself as DW-1 and closed evidence. After considering the material on record, the learned Trial Court vide impugned order decreed the RCA 161 of 2011 4/13 suit of the plaintiff for Rs.50,000/- with interest at the rate of 11% per annum and dismissed the counterclaim of the defendant.
10. Before this court, learned counsel for the appellant has argued that the respondent was carrying out illegal construction in his premises and the MCD officials took action on the complaint made by the defendant. He argued that the plaintiff was prosecuted criminally by the MCD and an FIR had been registered against him on the basis of the complaint of the defendant. He argued that no case of malicious prosecution was made out by the plaintiff. He argued that no administrative action was taken against the plaintiff on the complaint made to his employer, and as such, the plaintiff did not make out any ground for award of damages.
11. I have heard the learned counsel for the parties and perused the record. My findings are as under :
ISSUES No.1 AND 212. Since the learned Trial Court has taken up both the issues together, I shall deal with them similarly. The plaintiff examined himself as PW-1 and deposed by way of affidavit Ex.PW-1/A and his deposition was on the lines of the plaint. He was cross examined by the learned counsel for the defendant. In his cross examination, he stated that he was not aware that the defendant was called by the Investigating officer of the case in respect of cancellation of bail in case FIR No.336/2003 or for recording of any statement of the defendant. He has stated that he was not aware whether the defendant was kept out of the list of witnesses in the said case. He has denied the suggestion that the defendant had filed application for cancellation of bail to defend himself.
13. PW-2 is Sh.Ajay Kumar Jain, Senior Court Assistant from Supreme Court of India. He has deposed that he had brought the summoned record i.e. the complaints made by the defendant against the plaintiff before the Supreme Court RCA 161 of 2011 5/13 of India. The complaint dated 2.6.2003 of the defendant was exhibited as Ex.PW-2/2 and the complaint dated 10.5.2005 of the defendant was exhibited as Ex.PW-2/3, complaint dated 12.5.2005 was exhibited as Ex.PW-2/4 and complaint dated 8.12.2004 was exhibited as PW-2/5. He deposed that he was not aware whether any action was taken against the plaintiff on the basis of these complaints. He sated that he was not aware whether the plaintiff was asked to give any explanation whether the plaintiff was asked to give any explanation on these complaints.
14. PW-3 is Sh.Gurmeet Singh, Assistant Ahlmad from the Court of Ms.Savitri, learned Metropolitan Magistrate,Kkd Courts, Delhi who brought the record of application for cancellation of bail in case FIR No.200/2002 which was proved as Ex.PW-3/1 (colly). PW-4 is HC Amarjeet Singh from PS Mandawali who brought the summoned record of case FIR No.336/2003 which was instituted by the defendant Hari Shankar Srivastav. He deposed that as per the record cancellation report in respect of the said case FIR was filed in the court of concerned Metropolitan Magistrate in the year 2004. During the cross examination PW-4 stated that he was not aware about the action taken by the Investigating Officer of the case.
15. Defendant examined himself as DW-1 and deposed by way of affidavit Ex.D-1. In his evidence, defendant exhibited only copy of the notice dated 14.7.2005 as Ex.DW-1/B and copy of the FIR was marked as A. During the cross examination by the learned counsel for the plaintiff, the defendant admitted that he had made complaint Ex.PW-2/2 before the Supreme Court of India against the plaintiff. He deposed that he made the said complaint against the plaintiff as the plaintiff had been complaining to the employer of the defendant. He has deposed that he had given only one complaint against the plaintiff before the Hon'ble Supreme Court of India. He admitted it as correct that he had raised unauthorized construction in his property against which demolition order was passed by the MCD and the same was demolished. He admitted that the plaintiff raised construction in his house after the construction was undertaken in the house of RCA 161 of 2011 6/13 the defendant. He admitted that he made complaint in the Court for cancellation of bail granted to the plaintiff vide Ex.PW-3/1 which was dismissed. He stated that he had not challenged the said order. He stated that he had not constructed any wall in front of the house of the plaintiff but deposed that he had raised wall in the back side of the house of the plaintiff which has been demolished by the MCD. He denied the suggestion that he made complaint against the plaintiff before the Supreme Court of India to defame him. He stated that he was not aware whether the plaintiff suffered any defamation in his office amongst his colleagues or that his reputation was diminished in front of his colleagues. He stated that he has no documentary evidence to show that the plaintiff has trespassed on the Government land. He admitted that the plaintiff has raised construction on the land purchased by him. He stated that he was not aware about the reason for institution of the FIR No.336/2003 or on whose complaint the said FIR was registered. He has admitted that the police had filed cancellation report in respect of the said case FIR and that he had not challenged the cancellation report of the police. He stated that he made complaint in the Court of learned Metropolitan Magistrate that the plaintiff had threatened to kill him if he stood as witness in the complaint of MCD. He has admitted that he was not listed as a witness by the police in FIR No.200/2002 which was registered by the MCD. He has stated that he became aware in the year 2003 that he was not listed as a witness in FIR No. 200/2002 and he did not initiate any proceedings when he came to know about the same, before the court concerned. He admitted that the demolition was carried out in his property on the direction of the court of Sh.Mukesh Kumar, learned Civil Judge, Delhi.
16. Before proceeding to analyse the evidence on record, it will be expedient to consider the circumstances in which kind, a person would be entitled to compensation in a case of malicious prosecution. In the case of "Ram Singh Batra Vs. Sharan Premi" reported in 133 (2006) DLT 126, the Hon'ble High Court has held as under :
"14. Law is clear, Malicious prosecution is actionable as a tort. But, ingredients to be proved by the plaintiff in an action for malicious RCA 161 of 2011 7/13 prosecution are:
(i) that plaintiff was prosecuted at the instance of the defendant;
(ii) that the prosecution terminated in favour of the plaintiff;
(iii) that the prosecution was malicious; and
(iv) that it was without reasonable and probable cause;
Further, In the report published as AIR 1947 PC 108, Mohamed Amin v. Jogendra Kumar Bannerjee, in para 7 it was observed as under:
"17. From this consideration of the nature of an action for damages for malicious prosecution emerges the answer to the problem before the Board. To found an action for damages for malicious prosecution based upon criminal proceedings the test is not whether the criminal proceedings may be correctly described as a prosecution;
the test is whether such proceedings have reached a stage at which damage to the plaintiff results. Their Lordships are not prepared to go as far as some of the Courts in India in saying that the mere presentation of a false complaint which first seeks to set the criminal law in motion will per se found an action for damages for malicious prosecution."
And, in the report published as AIR 1978 Kerala 111, T. Subramanya Bhatta v. A. Krishna Bhatta, it was held that ingredients which must exist to maintain an action for malicious prosecution are 4, the ones noted in para 14 above."
17. In the case of "West Bengal State Electricity Board VS Dilip Kumar Ray"
reported in 2007 (14) SCC 568, the Hon'ble Supreme Court has been pleased to consider the meaning of malicious prosecution. The Hon'ble Supreme Court was pleased to hold that a judicial proceeding instituted by one person against the another for wrongful or improper motive and without proper cause to sustain it would constitute malicious prosecution. It was held that a prosecution which begins in malice without proper cause or belief that it can succeed and which RCA 161 of 2011 8/13 finally ends in failure is considered to be malicious prosecution. The Hon'ble Supreme Court has held that institution of criminal or civil proceedings with improper purpose or without probable cause would be considered as malicious prosecution and that once a wrongful prosecution has ended in favour of the defendant, he or she would be entitled to sue for tort damages.
18. Keeping in view the ratio laid down in the aforesaid judgments, one has to see whether the plaintiff has made out a case for grant of damages on account of malicious prosecution by the defendant. Ex.PW-2/2 is the complaint dated 2.6.2003 addressed by the defendant to Hon'ble Chief Justice of India against the plaintiff. In the complaint, it is alleged by the defendant that the plaintiff has been threatening innocent people on account of the fact that he was working in the office of Registrar, Supreme Court of India. It is also alleged that the plaintiff was doing additional business of Kiryana/parchoon in the house No.A-245, Giri Marg, Mandawali Fazalpur, Delhi, without giving any information about the same and has violated the rules and regulations of Civil Service Rules. It is alleged that the plaintiff does not perform his duty as peon and is not gong to office in time on account of his side business. It is alleged that the plaintiff on 1.6.2003 committed trespass in the house of the defendant and threatened to kill him. It is alleged that the plaintiff has beaten up the defendant and broke the windshield of his Maruti Van and wall of his house. It is alleged that the plaintiff has tried to grab possession of land of the defendant. The defendant has prayed in the complaint that departmental action be taken against the plaintiff on this count.
19. Ex.PW-2/3 is the complaint dated 10.5.2005 made by the defendant against the plaintiff before the Hon'ble Chief Justice, Supreme Court of India. In this complaint, the defendant has alleged that the property No.A-245, Giri Marg, Mandawali Fazalpur, Delhi was booked by the MCD officials for encroachment on Government land. He has alleged that the plaintiff has committed criminal trespass on the Government land and has raise unauthorized constructed thereon. He has alleged that the Writ petition filed by Smt.Bimla Devi mother of the plaintiff was dismissed by the High Court of Delhi and that the appeal filed RCA 161 of 2011 9/13 before the Appellate Tribunal of MCD had also been dismissed. He has alleged that the plaintiff has encroached upon Government land 125 sqyds although they have title to 100 sqyds. He has alleged that the MCD has not taken any action against the plaintiff as the plaintiff paid bribe of Rs.1,00,000/-.
20. Ex.PW-2/4 is the complaint dated 12.5.2005 made by the defendant against the plaintiff to the Hon'ble Chief Justice, Supreme Court of India stating that the plaintiff was accused in FIR 200/2002 but the plaintiff has not informed the Supreme Court of India about his bing accused in the case FIR and has tried to conceal the same to avoid departmental action. He has alleged that Vinod Kumar has obtained employment in the Supreme Court of India on the basis of false and fabricated documents and has concealed that many criminal cases were pending against him in Police Stations - Trilokpuri, Kalyanpuri and Mandawali. He has alleged that Vinod Kumar plaintiff was illegally earning money by committing offences by getting and taking confidential documents in the case files and supplying the same to other parties. He has averred that Vinod Kumar is carrying on side business. The defendant has prayed for departmental action against the plaintiff. PW-2/5 is another complaint dated 8.12.2004 made by the defendant against the plaintiff before Mr.A.I.Cheema (Admn), Supreme Court of India. In this complaint the defendant has alleged that the plaintiff has not informed the Supreme Court of India about his having been made accused in FIR No.200/2002 and FIR No.336/2003 which were instituted against him. He has alleged that Vinod Kumar had obtained employment on the basis of false and frivolous documents and that he was earning money by taking out confidential documents from the case files and supplying the same to the opposite party and requested for taking appropriate action was made.
21. The tone and tenor of the contents of the complaints made by the defendant against the plaintiff before the Supreme Court of India reveals a persistent and hostile intention on the part of the defendant to ensure that the plaintiff is embroiled in the some sort of administrative/disciplinary proceedings on the basis of the allegations made. During his cross examination, the defendant RCA 161 of 2011 10/13 has stated that he had no evidence to show that the plaintiff had ever trespassed on the Government land. Rather he had admitted that the plaintiff had raised construction on his own land. It is apparent that the allegations made by the defendant in the complaint made to the Hon'ble Supreme Court of India regarding encroachment and trespass on the Government land by the plaintiff was false even to his own knowledge. Although the defendant has made complaint against the plaintiff that he had obtained employment on the basis of false and fabricated documents or that he was taking out confidential documents from the case files for supplying the same to the other parties, the same are absolutely vague and without any material particulars. During his cross examination, the defendant had stated that he had made complaints against the plaintiff since the plaintiff had made complaints to the employer of the defendant. This only goes to show that the complaints filed by the defendant were without any sufficient cause and with the knowledge that the same would end in failure.
22. The defendant had filed application under section 437(5) Cr.PC in the court of Sh.Chandra Shekhar, learned Metropolitan Magistrate, Kkd.Courts, Delhi praying for cancellation of bail granted to the plaintiff in case FIR 200/2002. The said application which is Ex.PW-2/1 is on record. In the application, the defendant has alleged that the plaintiff was terrorizing him since being released on bail. He has alleged that the plaintiff has beaten up the defendant on the basis of which FIR 336/2003 was registered against the plaintiff. He has alleged that his life was under threat and that on 5.12.2004 and 8.12.2004 the plaintiff had threatened the defendant since he was witness in the said case FIR. The defendant therefore prayed that the bail granted to the plaintiff be canceled. The said application was dismissed by the Court of learned Metropolitan Magistrate, vide order dated 3.5.2005. In the said order, the learned Metropolitan Magistrate has observed that the defendant did not have any locus to move the application for cancellation of the bail as he was not even a witness in the said matter.
23. From a perusal of the record of the application for cancellation of bail, it is apparent that the allegations the defendant was being threatened by the plaintiff as he was witness in the said case FIR was found incorrect as the defendant was RCA 161 of 2011 11/13 not a witness in FIR No.200/2002, PS Mandawali which was instituted by the MCD. The defendant in the cross examination has admitted that he was not a witness in the said FIR and came to know of the same only in the year 2003. The defendant moved this application for cancellation of bail on 10.12.2004, much after gaining knowledge that he was not witness in the case FIR.
24. PW-4 HC Amarjeet Singh brought the FIR register containing FIR 336/2003. PW-4 has deposed that the said FIR was instituted by the defendant Hari Shankar Srivastav and therein cancellation report has been filed in the Court of learned Metropolitan Magistrate. The defendant during his cross examination has stated that he could not remember as to on whose complaint, FIR 336/2003 was registered against the plaintiff. He stated that he could not remember the reason for lodging the said FIR. He admitted that the cancellation report has been filed by the police which has not been challenged by him. In para 4 of the application for cancellation of the bail under section 437(5) of the Cr.PC Ex.PW-3/1 the defendant has averred that on his complaint, FIR 336/2003 was registered against the plaintiff. Version of the defendant in the cross examination is contrary to his own application filed for cancellation of bail of the plaintiff. The defendant has deposed that he was not aware as to who lodged FIR and reasons thereof. The defendant has deposed contrary to the record and contrary to his own averments made in the application for cancellation of bail.
25. As recorded above, the Hon'ble Court in the case of Ram Singh Batra (supra) has held that ingredients to be proved by the plaintiff in an action for malicious prosecution are:
(i) that plaintiff was prosecuted at the instance of the defendant;
(ii) that the prosecution terminated in favour of the plaintiff;
(iii) that the prosecution was malicious; and
(iv) that it was without reasonable and probable cause.
26. In the present case, the defendant himself instituted FIR 336/2003 under sections 452/448/323/506/427/34 IPC against the plaintiff at PS Mandawali but during his cross examination the defendant has feigned ignorance about RCA 161 of 2011 12/13 institution of the FIR by him and reason thereof. He was, however, aware that the cancellation report had been filed by the police in the said matter. The evidence on record reveals that the defendant has instituted the said FIR without any cause and the prosecution ended in failure. The same is, therefore, malicious and the plaintiff is entitled to damages on this count alone.
27. The defendant has made several complaints against the plaintiff to the Supreme Court of India containing allegations which are totally unsubstantiated and contrary to his own knowledge. The tenor of the same reveal a malicious intent on the part of the defendant to cause harm to the plaintiff by having a disciplinary proceeding initiated against him by any means. In the opinion of this court, the Trial Court has correctly held that the plaintiff was maliciously prosecuted by the defendant.
28. As regards the contention of the defendant that the plaintiff instituted the present suit due to the number of litigation in which the plaintiff was involved, record reveals that most of the legal proceedings initiated by the plaintiff or his mother were challenging the actions of the MCD for demolition of unauthorized construction in the premises of the plaintiff. Every citizen is entitled to take appropriate legal remedies to protect his rights. Filing of Writ petition by the mother of the plaintiff before the Hon'ble High Court against the MCD; filing of Special Leave Petition before the Hon'ble Supreme Court of India against the order of the Hon'ble High Court and filing of appeal before the Appellate Tribunal (MCD) were the legal remedies available to the plaintiff. The present suit can not be regarded to be a counter-blast to these legal proceedings.
29. For the reasons recorded above, the appeal of the appellant has no merit and is dismissed. Trial Court Record be sent back with a copy of this this judgment and appeal file be consigned to the record room.
Announced and Dictated to the steno
in Open Court today i.e. 21.12.2012 (REETESH SINGH)
Addl. Distt. Judge-01 (NE)
Karkardooma Courts, Delhi
RCA 161 of 2011 13/13