Delhi District Court
Mahinder Seth vs Sh. Raman Chandiok on 24 September, 2012
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
CS No. 405/11
Date of Institution of Suit : 06.06.2011
Date on which Reserved for Judgment : 12.09.2012
Date of Judgment : 24.09.2012
Case I.D. Number : 02402C0174562011
IN THE MATTER OF:-
1. MAHINDER SETH
S/O LATE AVINASH SETH
2. SMT. ARVINDER SETH
W/O SH. MAHINDER SETH
BOTH R/O 6/319, GEETA COLONY,
DELHI-110031.
........PLAINTIFFS
Versus
SH. RAMAN CHANDIOK,
R/O FLAT NO. C-19/X-2,
DILSHAD GARDEN,
DELHI-110095.
.......DEFENDANT
JUDGMENT
1. By this order, I shall decide two applications of the defendant. First application is under Order 6 Rule 16 read with Order 7 Rule 11 CPC dated 21.09.2011 for striking out certain paragraphs of the plaint on the ground that the same are unnecessary, scandalous and vexatious and for rejection of the CS No. 405/11 Page No.1/13 plaint. Second Application is under Section 9 read with Order 7 Rule 11 (b) and
(d) read with Section 151 CPC dated 07.02.2012 for rejection of the plaint. Replies to both these applications have been filed by the plaintiff. Arguments have been addressed by the Ld. Counsel for the parties.
2. Both the applications call for rejection of the plaint under Order 7 Rule 11 CPC. One of the applications prays for striking out of vexatious pleadings. For the purposes of both these applications, the averments made by the plaintiffs in their plaint are material. The plaintiffs by way of the present suit have prayed for a decree of Rs.4,00,000/- as damages arising out of their malicious prosecution by the defendant. It is averred that plaintiffs are husband and wife blessed with three children, two daughters and a son. Ms. Suchi youngest daughter of the plaintiffs is married to Sh. Tarun Chandiok who is the son of the defendant. It is averred that Ms. Suchi and Sh. Tarun Chandiok met through a common friend and expressed their desire to get married to each other with the consent of their parents. On 02.05.2009, Ms. Suchi and Sh. Tarun Chandiok got married to each other at Regal Banquet amongst friends and well wishers. It is averred that the marriage was pompous and lavish and the plaintiffs spent a huge amount on the wedding. They gave gifts and jewellery to their daughter, son-in-law as well as to in laws of their daughter beyond their means.
3. It is averred that plaintiffs were contemplating the marriage of their elder daughter when news came that Sh. Tarun Chandiok was selected in the Delhi Judicial services on 21.05.2009. It is averred that plaintiffs feeling elated, congratulated the defendant and his family but were shocked by his behaviour when the defendant directed to plaintiff no. 1 to come immediately in person to meet him. It is averred that it was 10.30pm at night and plaintiff no. 1 politely informed the defendant that he will come on the next day in a proper manner as the house of the defendant was the matrimonial home of his daughter. It is averred that despite the request the defendant continued with his rude CS No. 405/11 Page No.2/13 behaviour and arrogantly directed the plaintiffs to immediately visit him at the same night.
4. It is averred that the feeling browbeaten the plaintiffs carried fruits and sweets from the shops which were open in the late hours by requesting the shopkeepers to oblige them and went to the defendant's house. It is averred that the plaintiffs were met with the defendant who was hostile and who responded arrogantly to the congratulations expressed by the plaintiffs. It is averred that the defendant stated that the sweets and fruits brought by them were of poor quality. It is averred that the other members of the family of the defendant stood in support and did not stop the defendant. Plaintiffs were shocked at the change of the behaviour of the defendant and his family members.
5. It is averred that in September, 2009 on the instigation of the defendant, his son Sh. Tarun Chandiok openly proclaimed to the plaintiffs that he would divorce their daughter because after his selection in the Delhi Judicial Services, he could easily find offers from rich families. It is averred that on 29.11.2009, Sh. Tarun Chandiok ordered the plaintiff no. 1 to come to his daughter's matrimonial home and to immediately take her back as he wanted to get rid of her. It is averred that the plaintiff no. 1 at the time was near Gurgaon border and Sh. Tarun Chandiok threatened him. It is averred that the defendant, his family members including Sh. Tarun Chandiok started torturing the plaintiffs and their daughter mentally, physically and demanded and exorbitant amount of Rs. 50 lacs for purchasing a flat on account of their new status. It is averred that defendant has stated that because his son was a judicial officer in Delhi, nobody could harm him as he could manipulate and control the law. It is averred that the defendant and his son tried to pressurize the plaintiffs to yield to their demands or in the alternative to snap the matrimonial relationship.
6. It is averred that on 18.10.2009, the son of the defendant took the CS No. 405/11 Page No.3/13 daughter of the plaintiffs from his house in Vaishali, Uttar Pradesh to police station Mansarovar Park in Delhi and tried to direct the SHO to take his wife into custody. It is averred that as the SHO expressed his inability to comply with his baseless and illegal demands, Sh. Tarun Chandiok left the police station leaving behind his wife in the police station from where plaintiffs had to bring their daughter home.
7. It is averred that on 23.09.2010, Sh. Tarun Chandiok asked the plaintiffs' daughter on phone to save her marriage or to forget the past. It is averred that influenced by his sweet manner of talk, the plaintiffs' daughter was trapped by her husband who took her to police station Geeta Colony and directed her to give an application against the plaintiffs. He took her to Dowry Cell, Nand Nagri for withdrawal her complaint which was pending inquiry on the pretext of restarting their lives. It is averred that the defendant's son represented the plaintiffs' daughter as a captive in her own house and alleged that he rescued her from the clutches of the plaintiffs.
8. It is averred that on 31.01.2011 plaintiffs' daughter was thrown out from the car by Sh. Tarun Chandiok at the doorsteps of the house of the plaintiffs due to which she sustained injuries. An MLC was prepared and she was advised to undergo a CCT Brain scan.
9. It is averred that the defendants used to tow the line of his son and he openly professed to the plaintiffs that their daughter would be divorced and a new bride would be brought in her place. It is averred that plaintiffs suffered mentally when the defendant and his son would address them with vulgar words and abuses. It is averred that the stridhan and jewelery items of the daughter of the plaintiffs were misappropriated and disposed by Sh. Tarun Chandiok for buying luxuries such as car.
10. It is averred that the defendant filed a false, frivolous and baseless criminal complaint against the plaintiffs and their daughter Ms. Suchi for CS No. 405/11 Page No.4/13 defamation which was dismissed by the Court of Sh. Ankur Jain, Metropolitan Magistrate on 19.02.2010. It is averred that defendant filed a revision petition before the Court of Additional Session Judge, Karkardooma Court against the said order in which notice was issued to the plaintiffs who engaged their own advocates and contested the same. It is averred that the revision petition was dismissed by the Court of Sh. B.S. Chumbak, Ld. ASJ, Karkardooma Courts, by order dated 04.09.2010 against which the defendant approached the Hon'ble High Court by filing Crl. Misc. Case No. 3295 of 2010 which was also dismissed by order dated 02.12.2010.
11. Plaintiff have averred that they had suffered emotional, mental and physical damages due to malicious acts of the defendant. Plaintiffs therefore filed the present suit claiming Rs.4,00,000/- as damages from the defendant on account of their malicious prosecution by the defendant.
12. Written statement has not been filed by the defendant. As recorded above, the defendant has moved an application under Order 6 Rule 16 read with Order 7 Rule 11 CPC dated 21.09.2011 for rejection of the plaint and to strike out vexatious pleadings from the plaint and to reject the same. Defendant has also moved an application under Section 9 read with Order 7 Rule 11 (b) and (d) read with Section 151 CPC dated 07.02.2012 for rejection of the plaint. I have heard the arguments of the Ld. Counsel for the parties and have perused the record.
13. Question which arises for consideration is whether they averments made in the plaint in respect of the acts of the defendant can be stated to constitute "malicious prosecution" which could entitle the plaintiffs to compensation on that account. Contention of the defendant is that since the criminal complaint of the defendant was dismissed by the Court of Ld. Metropolitan Magistrate without issuance of summons or process to the plaintiffs, the complaint of the defendant did not reach the stage of prosecution and as such there was no CS No. 405/11 Page No.5/13 cause of action to file the present suit.
14. Facts relating to filing of the criminal complaint under Section 500/501/34 IPC by the defendant against the present plaintiffs and their daughter Ms. Suchi Chandiok are not in dispute. The defendant has filed a criminal complaint in the Court of the Metropolitan Magistrate making allegations that the plaintiffs and their daughter on several occasions had used objectionable words against the defendant with the intention to lower his reputation in the society and were thus liable to be prosecuted for having committed offence of defamation defined under Section 499 and punishable under Sections 500 and 501 of the Indian Penal Code, 1860. The Ld. Magistrate proceeded with the complaint under Section 200 of the Code of Criminal Procedure, 1973, recorded the evidence of the complainant and thereafter dismissed the complaint by order dated 19.02.2010, without issuing summons to the accused in the complaint, i.e. the present plaintiffs and their daughter. The operative portion of the order dated 19.02.2010 of the Ld. Magistrate reads as under:-
"In my opinion, this is not a fit case where accused could be summoned for the offence u/s 500/501/34 IPC and the allegations which have been levelled are at best abuses and un-parliamentary languages used by the respondents in anger. It is further observed that there is no imputations and no case of defamation is made out against the accused and allegations which have been leveled in the complaint does not tantamount to defamation and accordingly, the complaint was dismissed."
15. Aggrieved by the order dated 19.02.2010 the defendant filed Criminal Revision No. 10/10/10 before the Court of the Ld. ASJ, Delhi. The Ld. ASJ issued notice on the revision petition to the present plaintiffs and their daughter and after hearing both parties dismissed the revision petition by order dated 04.09.2010. The operative portion of the order dated 04.09.2010 reads as CS No. 405/11 Page No.6/13 under:-
"28. In the present case the imputation as alleged never intended to vilify the petitioner or any of the relatives. It is the universally accepted human tendency that a man can commit mistake either due to innocence or under the pressure of circumstances and in the present case admittedly there were incompatible atmosphere in the family which can compel any of the member of family to use such type of words as are mentioned in the present case. NO intention to harm or knowing or having reason to believe that such imputation with harm the reputation of the petitioner is proved and therefore, mere saying that feelings of the petitioner were wounded by such imputation is not enough to attract the provisions of defamation.
29. In view of the aforesaid discussions and taking into consideration the facts and circumstances of this case I am of the considered view that the plea taken by revisionist petitioner is not tenable in law. Accordingly, revision petition is hereby dismissed. No order as to costs. Copy of the order be given dasti to both the parties and be also sent to trial court alongwith trial court record. Revision petition file be consigned to the Record Room."
16. Against the order dated 04.09.2010, the defendant preferred Crl. Misc. Case No. 3295 of 2010 before the Hon'ble High Court of Delhi which too was dismissed on 02.12.2010.
17. The plaintiffs have claimed that these acts on the part of the defendant constituted "malicious prosecution" for which they were entitled to compensation. As noticed above, the Ld. Metropolitan Magistrate did not issue process against the plaintiffs on the complaint of the defendant. The plaintiffs therefore did not face any prosecution on the complaint of the defendant. In CS No. 405/11 Page No.7/13 revision, the Court of the Ld. ASJ did issue notice to the plaintiffs and thereafter dismissed the same. In the proceedings taken up thereafter, no notice was issued by the Hon'ble High Court to the plaintiffs.
18. Whether the plaintiffs can be stated to have suffered any "prosecution" which was "malicious" is the question. The Ld. Counsel for the defendant had relied on the judgment of the Hon'ble High Court in the case of Ram Singh Batra Vs. Sharan Premi reported in 133 (2006) DLT 126. In this case, the Hon'ble High Court was dealing with an application of the defendant under Order 7 Rule 11 CPC for rejection of the plaint on the ground that the same did not disclose any cause of action. The plaintiff in the said case had filed a suit for damages of Rs.50,00,000/- on the basis that the defendant had instituted an FIR under Sections 420/467/468/471 read with 120-B of the Indian Penal Code, 1860 during investigation of which the plaintiff suffered police remand of 3 days and remained in judicial custody for 65 days after which he obtained bail. Charge sheet had been subsequently filed against the plaintiff. However, the trial arising out of the same was still pending and the plaintiff had neither been acquitted nor discharged. The Hon'ble High Court was pleased to allow the application under Order 7 Rule 11 CPC and dismissed the suit holding that the same was premature and did not disclose any cause of action. While holding so, the Hon'ble High Court was pleased to hold 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 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;
CS No. 405/11 Page No.8/13
and
(iv) that it was without reasonable and
probable cause;
15. 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."
16. 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."
19. The Hon'ble High Court in the case of Ram Singh Batra (supra) has been pleased to hold that a plaintiff could maintain a suit for damages on account of malicious prosecution if a plaintiff is able to show that the plaintiff was CS No. 405/11 Page No.9/13 prosecuted; that the prosecution terminated in favour of the plaintiff; that the prosecution was malicious; and that it was without reasonable and probable cause. In the present case, the Ld. Metropolitan Magistrate dismissed the criminal complaint without summoning the plaintiffs. Plaintiffs therefore never faced any prosecution. The criminal complaint of the defendant has been dismissed on the ground that the words which are alleged to have been used by the plaintiffs against the defendant were at best abuses used in anger and would not constitute defamation for the purposes of attracting Sections 499/500/501 of the Indian Penal Code. There is no finding that the said words were never used in order to infer that the complaint of the defendant was without reasonable and probable cause. In fact, the stage of rendering findings on these allegations itself did not arise as no summons were issued to the accused in the complaint.
20. The Hon'ble High Court in the case of Ram Singh Batra (supra) had relied on the judgment in the case of Mohamed Amin Vs. Jogendra Kumar Banerjee reported in AIR 1947 PC 108 in which it was held that mere presentation of a false complaint which seeks to set the criminal law in motion will not give rise to an action for damages for malicious prosecution. In the present case, no summons were issued by the Ld. Metropolitan Magistrate to the accused on the complaint of the defendant. Hence, for all practical purposes the complaint of the defendant would remain a complaint which sought to set in to motion the criminal machinery against the plaintiffs and did not give rise to any cause of action in favour of the plaintiff to sue for malicious prosecution.
21. In the case of Rama Jena VS Gadadhar Senapati and ors. reported in AIR 1961 ORI 118 the Hon'ble High Court of Orissa relying on the judgment in the case of Mohamed Amin Vs. Jogendra Kumar Banerjee reported in AIR 1947 PC 108 was pleased to hold that where a criminal complaint is dismissed CS No. 405/11 Page No.10/13 under Section 203 of the Code of Criminal Procedure without issuance of process to the accused will not give rise to any cause of action for malicious prosecution as the complaint did not reach the stage of prosecution to lay the foundation for a suit for damages for malicious prosecution.
22. Dismissal of the complaint of the defendant without issuance of summons/process to the accused and without rendering any finding on the contents of the allegations of the defendant made in his complaint would not give rise to any claim for malicious prosecution.
23. In revision against the order of the Ld. Metropolitan Magistrate, the Court of the Additional Sessions Judge issued notice to the accused who were respondents in the same. After hearing the parties, the Court of Ld. Additional Sessions Judge dismissed the revision petition. Ld. Counsel for the plaintiff had submitted that since notice was issued to the plaintiffs by the Court of the Additional Sessions Judge, the plaintiffs faced malicious prosecution. In the opinion of this Court, once the complaint of the defendant had been dismissed by the Court of Ld. Metropolitan Magistrate, a valuable right had accrued in favour of the plaintiffs, i.e. they could not be criminally prosecuted on the same facts and allegations by the defendant. Issuance of notice by the Court of the Ld. Additional Sessions Judge was fulfillment of the basis principle of natural justice, "audi alteram partem", i.e. no person ought to be condemned without affording an opportunity for hearing. Issuance of notice by the Revisional Court was grant of an opportunity of hearing to the respondents / plaintiffs before passing any order on the challenge against the dismissal of the complaint of the defendant. Section 401 (2) of the Code of Criminal Procedure provides that no order under Section 401 (1) can be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defense. Although Section 401 of the CrPC refers to the powers of the Hon'ble High Court in revision, a cue can be taken from the CS No. 405/11 Page No.11/13 same to the effect that when the Court of Sessions issues notice under a petition under Section 397 of the CrPC, it is only granting an opportunity of hearing before passing any final orders on the same. Hence the proceedings before the Court of the Ld. Additional Sessions Judge would not amount to "malicious prosecution" which will give rise to a cause of action to the plaintiffs to maintain this suit.
24. The Ld. Counsel for the plaintiffs had relied on the following judgments in his support:-
(a) Gaya Prasad Vs. Bhagat Singh reported in ILR XXX 525, Allahabad;
(b) Girija Prasad Sharma Vs. Uma Shanker Pathak reported in AIR 1973 MP 79;
25. I have gone through both the reports. In the case of Gaya Prasad (supra), suit for malicious prosecution was filed after the prosecution by the police ended in the acquittal of the accused and the information on the basis of which the prosecution was initiated was found to be false. The judgment in this case would not help the plaintiffs since in the present case, the plaintiffs did not face any trial which resulted in their acquittal with a finding that the case instituted was found to be false. In the case of Girija Prasad Sharma (supra), the plaintiff had been arrested on an FIR registered by the police and later on was discharged of the offences alleged by the concerned Magistrate. This judgment would also be of no help to the plaintiffs as in the case of Ram Singh Batra, the Hon'ble High Court has reiterated that mere presentation of a false case for setting the criminal law into motion could not constitute the basis for an action for damages for malicious prosecution.
26. Hence, for the reasons recorded above, I hold that the plaintiffs do not have any cause of action for maintaining this suit for damages as the acts CS No. 405/11 Page No.12/13 alleged against the defendant would not constitute "malicious prosecution" so as to entitle them for damages. Both the applications of the plaintiffs under Order 7 Rule 11 CPC are therefore allowed. The suit is dismissed. File be consigned to the Record Room.
Dictated to the Steno and Announced in the Open Court today i.e. 24.09.2012 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi CS No. 405/11 Page No.13/13