Andhra HC (Pre-Telangana)
A. Narayan Rao vs Shanta Bai And Ors. on 17 December, 2002
Equivalent citations: 2004(2)ALD585, 2004(3)ALT104
JUDGMENT C.Y. Somayajulu, J.
1. Respondents 1 and 2 filed the suit claiming damages of Rs. 5,000/ - from the appellant and Respondents 3 to 7, alleging that on a false report given by the appellant, third respondent (first defendant) who was the then Sub-Inspector of Police, Sirpur, filed criminal cases against the second respondent, who is the son of the first respondent, alleging that he trespassed into the land of appellant, when in fact, that land belongs to the first respondent. Appellant and Respondents 3 and 4 filed a common written statement denying the averments in the plaint and putting 1st respondent to proof of the averments in the plaint. Respondents 5 to 7 remained ex parte. The Trial Court framed four issues for trial. In support of their case, Respondents 1 and 2 examined themselves as PWs. 3 and 1 respectively and two other witnesses PWs.2 and 4 and marked Exs.A1 to A17. On behalf of the appellant and Respondents 3 and 4, third respondent examined himself as DW1 and marked Ex.B1. The Trial Court dismissed the suit holding that Respondents 1 and 2 failed to establish that they were honourably acquitted in the criminal cases. Aggrieved thereby, Respondents 1 and 2 preferred an appeal to the Court of the Subordinate Judge, Asifabad, who by the decree and judgment under appeal decreed the suit with costs as against the appellant and dismissed the suit against Respondents 3 to 7. Hence, this Second Appeal by the second defendant. Respondents 1 and 2 did not prefer an appeal against the dismissal of the suit against Respondents 3 to 7.
2. The point for consideration is whether Respondents 1 and 2 are entitled to claim damages against the appellant and if so to what amount.
3. The main contention of the learned Counsel for the appellant is that the appellant, is that the failure of the first appellate Court in framing a point for consideration, as contemplated by Rule 31 of Order 41 C.P.C. and its failure to discuss the evidence adduced by the parties in the trial resulted in its coming to wrong conclusion and upsetting the well considered judgment of the Trial Court. It is his contention that the first Appellate Court was in error in awarding subsequent interest at the rate of 18% p.a. on the amount of damages awarded, and was in error in entertaining the appeal when Respondents 1 and 2 did not pay Court Fees on the interest pendente lite, as per Section 49 of A.P. Court Fees and Suits Valuation Act, 1956, (the Act) by relying on Rai Saheb Seth Gopikishen Aganval v. The Union of India (Ministry of Railways) Represented by General Manager, South Eastern Railway, Calcutta, 1966 (I) AWR 149. Relying on R.L. Arora v. The State of Uttar Pradesh, 1964 (II) AWR 148 and Yerram Seshi Reddi v. Badduri Chandra Reddi, AIR 1957 AP 347, he contended the failure of the first appellate Court in keeping in view the necessary ingredients for awarding damages in cases relating to malicious prosecution resulted in its passing an erroneous judgment. The contention of the learned Counsel for Respondents 1 and 2 is that the well-reasoned judgment of the first Appellate Court need not and cannot be interfered with in a Second Appeal in which no substantial question of law is raised.
4. I would first consider the question as to whether the first Appellate Court erred in entertaining the appeal against the decree of a dismissal of the Trial Court when the plaintiffs (respondents 1 and 2) did not pay Court fee on the interest accrued pendente lite.
5. The first prayer in the plaint is to pass a decree for Rs. 3,500/- for the actual loss of crop due to the criminal cases filed by appellant preventing the plaintiffs (Respondents 1 and 2) and their farm servants from entering into their land and for awarding damages of Rs. 1,500/- for malicious prosecution resulting in mental worry to them. In fact there is no prayer in the plaint seeking interest on the amount claimed in the suit as damages. It is well known award of interest subsequent to the filing of suit is governed by Section 34 CPC and is entirely in the discretion of the Court and the discretion of the Court to grant interest under Section 34 CPC is not excluded by the fact that there is no claim for subsequent interest in the plaint. So, the fact that there is no prayer for subsequent per se is not a bar for the Court granting subsequent interest. Since the Trial Court dismissed the suit, question of the plaintiffs paying Court fees on interest pendents lite does not arise because Explanation (3) to Section 49 of the Act strongly relied on by the learned Counsel for the appellant lays down that "In claims which include the award of interest subsequent to the institution of the suit" interest accrued during the pendency of the suit would be deemed to be part of the subject-matter of suit. When the plaintiffs (Respondents 1 and 2) did not claim subsequent interest in the plaint and when the Trial Court dismissed the suit, plaintiffs paying Court fees on interest which is not claimed nor awarded does not and cannot arise.
6. Rai Saheb Seth Gopikishen Agarwal (supra), relied on by the learned Counsel for the appellant does not in fact lend support to the contention that plaintiffs in their appeal against the dismissal of the suit by Trial Court should and ought to pay Court fee on pendente lite interest. In that case the suit was filed for recovery of the value of goods not delivered by the Railways with interest. The Trial Court decreed the suit with interest. On appeal by the defendant a learned Single Judge of this Court dismissed the suit as barred by limitation. In the Letter Patent Appeal filed against the judgment of the learned Single Judge, the plaintiffs paid Court fee on the value of the goods with interest till date of suit. Registry took an objection that Court fees has to be paid on interest accrued up to date of decree in appeal. While considering the objection taken by the Registry a Division Bench of this Court held that in appeals which raise a controversy as to pendente lite interest, interest from the date of suit till date of decree appealed against would be deemed to be subject-matter of appeal as per Explanation 3 to Section 49 of the Act and upheld the objection taken by the Registry. In that case the suit for recovery of the value of the goods was filed on 3-7-1957 seeking interest at 6% p.a. from 15-11-1952 (the date of claim) till date of payment. Thus there is a specific prayer in the plaint, in that case, for interest from date of claim till date of payment. So, the claim in that case included award of interest subsequent to the institution of the suit also. But in this case, there is in prayer in the plaint for payment of interest subsequent to suit and in fact the suit was dismissed by the Trial Court. So, Explanation 3 to Section 49 of the Act had no application to the appeal preferred by Respondents 1 and 2 (plaintiffs) the first Appellate Court. In fact State of Maharashtra v. Mishrilal, , referred to and distinguished by the Division Bench, the Supreme Court held that when plaintiffs has no right as such to claim interest subsequent to suit and costs, which are at the discretion of the Court as per Sections 34 and 35, as a right, they do not form subject-matter of dispute. In view thereof, I find no force in the contention of the learned Counsel for the appellant that the first Appellate Court ought not to have entertained the appeal since proper Court fees was not paid.
7. Now I would consider the point for consideration. It is true that the learned Judge who decided the first appeal did not frame the point for consideration. In my considered opinion the requirement of Rule 31 of Order 41 CPC should not be taken too technically, and literal compliance thereof need not be insisted upon. If the Court considers all the questions raised before it and gives reasons for its decision, its judgment cannot be said to be vitiated just because it did not formulate a point or points for determination in the appeal, as substantial compliance with the said rule would be sufficient. Therefore, the first Appellate Court not framing a point for consideration, by itself, is not a ground to set aside or reverse its judgment.
8. It is well know that in a suit for damages for malicious prosecution, the plaintiff has to prove:
(a) That Criminal proceedings were instituted and continued against him by the defendant;
(b) That there was no reasonable or probable cause for the defendant instituting those proceedings;
(c) That institution of such proceedings was malicious; and
(d) That those proceedings ended in his favour.
In R.L. Arora's case, (supra) relied on by the learned Counsel for the appellant, it is held that in an action for malicious prosecution, Civil Court cannot rely on the findings recorded by, or evidence adduced before, the criminal Court for arriving at a conclusion as to the incidence malice, and the absence of reasonable and probable cause, and that the Civil Court should on the basis of the evidence adduced before it only, should reach a conclusion about the absence of reasonable and probable cause, without being influenced by the finding of Criminal Court regarding the credibility of the witnesses examined before it. In Yerram Seshi Reddis case (supra), a Division Bench of this Court held that a plaintiff in a suit for damages for malicious prosecution, must show that he was prosecuted by the defendant and that the prosecution was determined in his favour and that prosecution was launched without reasonable and probable cause and that launching of prosecution was malicious. Keeping in view the principles laid down in the above two decisions, the findings arrived at by the 1st Appellate Court would be examined.
9. The specific case of Respondents 1 and 2, i.e., plaintiffs, is that appellant maliciously gave a police report against second respondent, and that 3rd respondent (DW1) on the basis of that complaint filed a charge-sheet in C.C. 136 of 1977 against the second respondent and others. The contention of the appellant, that inasmuch as there is no evidence on record to show that a charge- sheet was filed against the first respondent, it cannot be said that 1st respondent was prosecuted in a criminal case and so the condition precedent for seeking damages is not established. I am not able to agree with the said contention because in Ex.A.5 notice, got issued by the first respondent to the third respondent's with copies to the appellant and others, it is clearly stated that the appellant, along with his son and supporters, picked up a quarrel with him (first respondent) and filed C.C. No. 136 of 1977 against her and after trial she was acquitted and the paddy seized was ordered to be returned to her. There is nothing on record to show that a reply was sent to that notice. Significantly, appellant, though appeared through an advocate and filed written statement, did not choose to enter into the witness box to state that he sent a reply to Ex.A5 notice nor was a copy of the reply, if any, sent to Ex.A5 was produced by appellant. Therefore, the recitals in Ex.A5 with regard to filing of CC No. 136 of 1977 against the 1st respondent and her being acquitted after trial can be taken to be true. Thus, the evidence on record establishes that C.C. No. 136 of 1977, referred to in plaint, was filed against the first respondent also, and she (first respondent) was acquitted after trial. Ex.A1 shows that in CC 155 of 1979 filed against the second respondent and others and that they were acquitted. Thus the evidence on record shows that CC Nos.136 of 1977 and 155 of 1979 launched against Respondents 1 and 2 and others respectively, on complaints given by the appellant, ended in acquittal. Thus, the first ingredient of launching of criminal prosecution against Respondents 1 and 2 at the instance of appellant, and those criminal proceedings ending in acquittal is satisfied. Here I must refer to the contention of the learned Counsel for appellant that for claiming damages for malicious prosecution, Respondents 1 and 2 have to establish that they were honourably acquitted in the criminal case. In criminal cases there is nothing like honourable acquittal or technical acquittal. There can only be either conviction or acquittal in a criminal case. So, the plaintiff is a suit for malicious prosecution need only to establish that he was acquitted. There is no need for him to establish that he was 'honourably acquitted'.
10. The other two points required to be established, are that there was malice on the part of the appellant in giving those complaints, and that those complaints were given without reasonable and probable cause. Though Respondents 1 and 2 adduced evidence to show that appellant, with the connivance of 3rd respondent, who worked as Sub-Inspector of Police, got them prosecuted for trespass into the property which in fact is in their actual physical possession and enjoyment, appellant for the reasons best known to him, did not choose to go into the witness box, nor adduced evidence to show that he, but not Respondents 1 and 2 was in possession of the property in respect of which he gave a police report against Respondents 1 and 2 alleging trespass. Thus, appellant failed to establish that he was in actual possession of the land prior to the alleged trespass by the Respondents 1 and 2. A person not in possession of land making a complaint of trespass against a person who is actual physical possession of that land, prima facie, smacks malice, and so Court can draw a presumption that such complaint was made without reasonable and probable cause.
11. The evidence of PW3, i.e., the second respondent, is that she has Ac.50.00 of land in Sy.No.34 and is in possession thereof and that police, at the behest of the appellant, filed three cases against her and her farm servants, husband, and all those three cases ended in acquittal and that in view of those cases she sustained a loss of Rs. 3,500/-. During cross-examination, she stated that since appellant also is claiming ownership in respect of the same land she filed a suit against him and others seeking a permanent injunction in respect of that land, and that suit was decreed and that she had shown a copy of that decree to the third respondent. The evidence of PW4 also shows that second respondent alone has been in possession of the disputed land. Since second respondent obtained a decree restraining the appellant from interfering with her possession over the land in her possession, when appellant wants asserts his title to that land, he should have produced his title deed in respect of that land. Appellant who asserted that he has a title deed in respect of that land, failed to produce the same, and even failed to go into the witness box. Such failure entitles an adverse inference being drawn against him. In the said circumstances, appellant giving report to police against Respondents 1 and 2 and their family members, at frequent intervals not only establishes malice but is also a circumstance to show that those complaints were instituted without any reasonable or probable cause. Thus all the four ingredients necessary for awarding damages for malicious prosecution are established by Respondents 1 and 2 though evidence on record. Therefore, the finding of the first Appellate Court that Respondents 1 and 2 are entitled to claim damages for malicious prosecution cannot be said to be erroneous and needs no interference
12. Coming to the quantum of damages, it is no doubt true that first Appellate Court without giving any reasons baldly granted a decree for damages as claimed by Respondents 1 and 2. Appellant consecutively giving three reports and managing to see that police launch prosecutions on the basis of those reports against Respondents 1 and 2 and their men establishes the motive of the appellant is to harass Respondent 1 and 2. Since, Respondents 1 and 2 had to defend three prosecutions, Rs. 1,500/- claimed by them as damages for malicious prosecution cannot be said to be either excessive or unfair and so they are entitled to Rs. 1,500/- as damages for malicious prosecution.
13. Respondents 1 and 2 claimed Rs. 3,500/- as damages towards loss of crop, on the basis that the police, on the basis of the complaints given by the appellant against them, prevented them from entering into their own lands. Since, the extent of land in respect of which the appellant gave reports to police is 50 acres, and since the evidence adduced by Respondent 1 and 2 clearly establish that they and their men were prevented form going into their land by police on the basis of the complaints given by the appellant, which are proved to be false reports, amount of Rs. 3,500/- claimed by Respondents 1 and 2, towards loss of crop in 50 acres of land, cannot be said to be excessive or unreasonable. In view thereof, 1st Appellant Court awarding Rs. 5,000/- as damages to Respondents 1 and 2 needs no interference.
14. In suits for damages, in view of Section 34 CPC, Court cannot grant subsequent interest at a rate more than 6% p.a. Therefore, I find force in the contention of the learned Counsel for appellant that the First Appellate Court granting interest at 18% p.a., from the date of suit till the date of realization is not sustainable and Respondents 1 and 2 are entitled only to interest at 6% p.a., from the date of suit till date of realization.
15. Before parting with the case it has to be mentioned that both the Courts below failed to notice that the suit is a multifarious suit. This Court under Section 11(3) of A.P. CF and SV Act, 1956 can decide to correct Court fee payable. Cause of action for claiming damages for malicious prosecution is different from the cause of action for claiming damages for loss of crop. Though, a plaintiff can file a single suit against defendants for different causes of action as per Rules 1 and 3 of Order 1 CPC as per Section 6(3) of the Act he has to pay separate Court Fee separately for the relied claimed under different cause of action. So, Respondents 1 and 2 have to pay Court Fee for Rs. 1,500/- claimed as damages for malicious prosecution claimed and Rs. 3,500/-claimed as damages for loss of crop, separately.
16. In view of the above, while confirming the decree passed by the 1st Appellant Court for Rs. 5,000/- in favour of the Respondents 1 and 2 against the appellant, it is ordered that amount would carry interest at 6% p.a., from the date of the suit till date of payment. Respondents 1 and 2 are directed to pay the deficit Court Fees payable into this Court. The decree for damages of Rs. 3,500/- towards loss of crops would become executable only after Respondents 1 and 2 pay the deficit Court Fees in to this Court. Respondents 1 and 2 are entitled to costs in both the Courts below, but parties are directed to bear their own costs in this appeal. The appeal is disposed of accordingly.