Delhi District Court
Sh. Dal Chand vs Sh. Bir Singh on 28 November, 2015
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IN THE COURT OF MS. NISHA SAXENA, ADDITIONAL DISTRICT
JUDGE03, KARKARDOOMA COURTS, DELHI
RBT/C.S. NO. 177/15/11
Unique Case ID No. 02402C0319882011
Sh. Dal Chand
S/o Late Mao Singh
R/o IIB204, Vaishali
Ghaziabad, U.P. ....Plaintiff
v/s
Sh. Bir Singh
s/o Late Budh Singh
R/o I2, Sector27,
Noida, U.P. ....Defendant
Date of Institution : 20.10.2011
Date of reserving judgment : 23.11.2015
Date of pronouncement : 28.11.2015
JUDGMENT
This is a suit for damages for Rs. 5,00,000/ filed by the plaintiff who is father inlaw of Sh. Shyam Singh (brother of defendant). A property dispute was going on between the defendant and his brothers.
1 of 25 RBT CS No. 177/15/11 2 The defendant herein filed a complaint case U/s 200 Cr.PC against his brother (Shyam Singh), his wife, his father inlaw, his son and one Sh. Mitin Singh for their trial U/s 323/452/506 r/w section 34 IPC alleging that the plaintiff herein alongwith his brother Shyam Singh and one Sh. Mitin Singh entered forcibly in his room and gave beatings to him with kicks and fists and that the plaintiff herein alongwith his son inlaw Shyam Singh also gave beatings to his wife and sons with kicks and fists. In the said complaint case, Ld. M.M. Sh. Satish Kumar Arora, vide his order dated 03.05.2011 discharged the accused therein including the plaintiff. On the strength of that order especially certain observations made by the court, the plaintiff has filed the present suit for damages. Plaintiff's case The case of the plaintiff is that a property dispute is going on between the defendant and his brothers and he is father in law of one of the brothers of the defendant. The defendant herein filed a false, frivolous and vexatious criminal complaint U/s 200 Cr.PC against his brother (Shyam Singh), his nephew and the plaintiff etc. titled as 'Sh. Bir Singh v/s Sh. Shyam Singh & ors.' bearing C.C. no.3264/2008 which has been decided by the court of Sh. Satish Kumar Arora, Ld. M.M.(East) KKD, Delhi vide order dated 03.05.2011. In the said complaint case, the defendant levelled false, frivolous and defamatory allegations against the plaintiff and his relatives. However, Ld. M.M. was pleased to discharge the 2 of 25 RBT CS No. 177/15/11 3 plaintiff and his relatives in the said criminal case by holding that the said case is nothing but a cooked up story by the complainant (defendant herein), his wife and son. Ld.M.M. further held that there are no grounds to proceed against the plaintiff and his relatives for the offence punishable U/s 323/506 r/w section 34 IPC. The cause of action arose on 03.05.2011 when the plaintiff was discharged in the said criminal case.
It is alleged that the defendant has caused unnecessary harassment to the plaintiff by filing the said criminal case, due to which the plaintiff is suffering mental agony, pain, harassment and monetary loss. The defendant has levelled highly serious, mischievious, unfounded, half baked, malicious and defamatory allegations against the plaintiff. The defendant unnecessarily dragged the plaintiff in the said false, frivolous litigations without any rhyme and reason. The plaintiff had to spend huge amount of money and time for contesting the said false and frivolous criminal case. By filing the said false and frivolous criminal case, the defendant has maligned the reputation of the plaintiff in the society, relatives and have defamed him. The image of any person is his credibility and once it is lost, the same causes undue hardship. The defendant by filing the false litigation has made defamatory allegations against the plaintiff before the public at large. Thus the plaintiff's reputation and goodwill has suffered a great harm due to illegal acts of the defendant.
3 of 25 RBT CS No. 177/15/11 4 Defendant's case In the written statement, the defendant has taken the preliminary objection that the relief of damages as claimed by the plaintiff is not maintainable and tenable in the eyes of law ; that the plaintiff has not mentioned even a single word in his whole plaint which allegedly caused defamation. It is alleged that the plaintiff has not mentioned on what basis, he has assessed the damages @ Rs. 5,00,000/ ; that no cause of action ever arose in favour of the plaintiff and against the defendant; that the suit is not maintainable as the plaintiff has not paid the advalorem court fee. ISSUES
1.Whether the plaintiff is entitled to recover the suit amount from the defendant? OPP
2.Whether the plaintiff is also entitled to recover any interest? If so, at what rate? OPP
3.Whether the suit of the plaintiff is not maintainable? OPD
4.Whether the suit of the plaintiff is without any cause of action? OPD
5.Whether the plaintiff has not affixed the requisite court fees on the plaint? OPD
6.Relief.
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PLAINTIFF'S WITNESSES
PW1 The plaintiff Dal Chand
The plaintiff has proved his affidavit as Ex. PW1/A. DOCUMENTS RELIED UPON BY THE PLAINTIFF PW1/1 Plaintiff's pensioner's identity card PW1/2 Complaint case U/s 200 Cr.PC filed by the defendant against the plaintiff, his daughter, son in-law, grandson and one Sh. Mitin Singh for their trial U/s 323/452/506 r/w section 34 IPC PW1/3 Order dated 03.05.2011 passed by Sh. Satish Kumar Arora, Ld. M.M. discharging all the accused including the plaintiff for the offence punishable U/s 323/506/34 IPC in the abovesaid complaint.
DEFENDANT'S WITNESSES
DW-1 Sh. Bir Singh ( the defendant)
DW-2 Sh. Ravinder Singh (brother of
the defendant)
The defendant (DW1) has proved his affidavit as Ex. DW1/A and Sh. Ravinder Singh DW2 has proved his affidavit as Ex. DW2/A. However, they have not placed reliance on any document.
5 of 25 RBT CS No. 177/15/11 6 I have heard Ld. Counsel for the plaintiff Sh. Harish Kumar Mehra and Sh. Durgesh Pal, Ld. Counsel for the defendant and scrupulously and meticulously gone through the entire record including the testimonies, documents proved on record and written arguments filed on behalf of the defendant.
FINDINGS : ISSUE NO.3 Whether the suit of the plaintiff is not maintainable? OPD The onus to prove the issue was upon the defendant as in his written statement he has taken the stand that the relief of damages as claimed by the plaintiff without any basis is not maintainable and tenable in the eye of laws. In fact, the plaintiff has not mentioned even a single word in his whole plaint which allegedly caused defamation to the plaintiff. Hence, the suit is liable to be dismissed. There is no suggestion given to PW1 Dal Chand that the suit is not maintainable. The defendant has also not brought any evidence on record to show that the suit filed by the plaintiff is not maintainable. No arguments were advanced on the issue of maintainability. Since the defendant has failed to lead any evidence on the issue of maintainability of the present suit, issue no.3 is decided in favour of the plaintiff and against the defendant.
6 of 25 RBT CS No. 177/15/11 7 ISSUE NO.4 Whether the suit of the plaintiff is without any cause of action? OPD The onus to prove this issue was upon the defendant as in his written statement he alleged that no cause of action ever arose in favour of the plaintiff and against the defendant. In the plaint, the plaintiff has averred that cause of action for filing the present suit arose in favour of the plaintiff and against the defendant when the defendant levelled false allegations against the plaintiff and filed a false, frivolous and misconceived criminal case. The cause of action also arose on 03.05.2011 when the plaintiff was discharged in the said criminal case. The cause of action also arose when the plaintiff suffered mental agony, harassment, inconvenience due to illegal and unlawful acts of the defendant. In his cross examination, PW1 has categorically denied the suggestion that he has not suffered any loss on account of reputation, mental agony, harassment and inconveniences due to illegal act of the defendant. He has also denied the suggestion that he has no cause of action for filing the present suit and he has filed the present suit to harass the defendant. Defendant has neither lead any evidence nor advanced any argument on the point. The defendant has miserably failed to discharge the onus placed upon him. Accordingly, the issue is decided in favour of the plaintiff and against the defendant.
7 of 25 RBT CS No. 177/15/11 8 ISSUE NO.5 Whether the plaintiff has not affixed the requisite court fees on the plaint? OPD The onus to prove that the plaintiff did not affix the requisite court fees was upon the defendant as the defendant in his written statement has claimed that the plaintiff has not paid the advalorem court fee for the relief as claimed and hence the suit is not maintainable and is liable to be dismissed. There is not even a word of evidence on the point the court fee affixed is deficient nor any arguments were led on the point. Even in the cross examination of the plaintiff, no such suggestion was put by the defendant. The plaintiff has claimed damages to the tune of Rs. 5,00,000/ on which the plaintiff has paid court fee of Rs. 7,250/. Therefore, I am of the opinion that the requisite court fee has been paid by the plaintiff. Issue no.5 is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NO.1 Whether the plaintiff is entitled to recover the suit amount from the defendant? OPP It is an admitted case of the parties that plaintiff is father in law of Sh. Shyam Singh (real brother of the defendant). There was a property dispute between the defendant and his brothers. The defendant filed a criminal complaint case U/s 200 Cr.PC against his brother, his brother's wife, son, father inlaw (the plaintiff) and one Sh. Mitin Singh. In that case, 8 of 25 RBT CS No. 177/15/11 9 the plaintiff and other co accused were discharged for the offence punishable U/s 323/506/34 IPC by Sh. Satish Kumar Arora, Ld. M.M. vide order dated 03.05.2011. While discharging Ld. M.M observed as under :
"Having heard the respective submissions and having gone through the judicial record, it is apparent that there are material contradictions in the testimony of complainant CW1 Bir Singh on the one hand and of his wife CW2 Smt. Batto Devi and his son CW3 Ravinder Singh on the other hand. Whereas complainant in his examination in chief testified that accused Shyam Singh, Dal chand and Mitin visited the ancestral property at about 8.30 am and gave beatings not only to him but also his wife and son, contrary to this, CW2 Batto Devi testified that on 28.07.2001 at about 8.30 pm, accused Shyam Singh, Muni Devi, Dal chand and Mitin entered the room and gave them beatings. Contrary to the testimony of CW1 Bir Singh and CW2 Batto Devi, CW3 Ravinder Singh testified that it was Shyam Singh and Mitin who alone visited their house on 28.07.2001 at about 8.40 pm and gave them beatings. Clearly, even the complainant and his wife and son are not sure as to who visited the premises bearing no. 87, Patparganj, Delhi on 28.07.2001 at about 8.30pm and caused them injury. Further the testimony of complainant and his wife and son is altogether silent with respect to extending of threats by the accused persons when they visited the aforesaid premises on 28.07.2001 at about 8.30 pm. Testimony of complainant CW1 Bir Singh is also at complete variance with the testimony of his wife CW3 Smt. Batto Devi and of
9 of 25 RBT CS No. 177/15/11 10 his son CW3 Ravinder Singh with respect to subsequent incident when they were allegedly beaten up while they were returning from the police station. Also, both the complainant and his wife have admitted as correct that if the partition of the property in question is done between the parties, the present case would be solved. This admission by the complainant and his wife in their respective cross examinations clearly leads to the only conclusion that the present complaint is nothing but a cooked up story so as to coerce the accused/respondents who all are relatives of the complainant to accede to the complainant's demand and terms as to the partition of the ancestral property. There is also variance in the testimony of complainant and his wife and son with respect to their receiving medical aid. Whereas, complainant in his cross examination admitted as correct that neither he nor his son and wife were medically examined with respect to the alleged injuries inflicted by the accused/respondents. Contrary to this, CW2 Smt. Batto Devi testified that she and her husband/complainant were medically examined in a hospital, the detail of which she does not remember. Again, this is a pointer to the only conclusion that the present case is nothing but a cookedup story by the complainant and his wife and son. The contradictions are more than enough to raise a doubt on the veracity of the complainant's case and is not sufficient to presume that offence punishable U/s 323 IPC has been committed by the accused persons. As already observed, testimony of complainant and 10 of 25 RBT CS No. 177/15/11 11 other witnesses is completely silent with respect to extending of threats by the accused/respondent. In view of the foregoing, it is held that there are no grounds to proceed against the accused/respondents for the offence punishable U/s 323/506 r/w section 34 IPC. All the accused are accordingly discharged of the offence. "
On the basis of their discharge and observations by Ld. M.M. in the abovesaid criminal complaint case, the present suit for damages for Rs.
5,00,000/ has been filed. The plaintiff has claimed that he is a highly reputed person belonging to a well connected and well reputed family. The plaintiff has links with the elite class of the society and has unblemished and clean credibility and reputation. The plaintiff retired on 31.08.1996 as ClassI Officer as Dy. Controller of Accounts from the Ministry of Finance.
He has proved his pensioner's identity card as Ex. PW1/1. The defendant filed a false, frivolous and vexatious criminal complaint case against the plaintiff and his relatives. The certified copy of the complaint has been proved as Ex. PW1/2 and the discharge order passed by Ld. M.M.( as reproduced above) has been proved as Ex. PW1/3. The plaintiff has averred that the defendant has caused unnecessary harassment to the plaintiff by filing the said criminal case due to which the plaintiff is suffering mental agony, pain, harassment, inconvenience, monetary loss etc. The defendant has levelled highly serious, mischievous, unfounded, half baked,
11 of 25 RBT CS No. 177/15/11 12 malicious and defamatory allegations against the plaintiff. The defendant unnecessarily dragged the plaintiff in the said false and frivolous litigation without any rhyme or reason. The plaintiff had to spend huge amount and many years for contesting the said false and frivolous criminal case.
By filing the said false and frivolous criminal case against the plaintiff, the defendant has maligned the reputation of the plaintiff in the society, relations and has defamed him. The image of any person is his credibility and once it is lost the same causes undue hardships. The defendant by filing the false litigation has made defamatory allegations against the plaintiff before the public at large. Thus, the plaintiff is suffering great harm to his reputation/goodwill due to such illegal acts of the defendant.
It has further been averred that though no amount is sufficient to compensate the loss suffered by the plaintiff due to harm caused by the defendant to the reputation/goodwill of the plaintiff, however, in order to get some relief, the plaintiff claims a sum of Rs 4,50,000/ (Rupees Four Lacs Fifty Thousand only) from the defendant towards damages which the defendant is liable to pay to the plaintiff. Besides the damages, defendant is also liable to pay a sum of Rs. 50,000/ (Rupees Fifty Thousand only) to the plaintiff for contesting the said false and frivolous criminal case initiated by the defendant against the plaintiff without any basis.
12 of 25 RBT CS No. 177/15/11 13 In his cross examination, PW1 has admitted that he has not challenged the summoning order in the case filed by the defendant. In his cross examination, he also stated that he did not have any proof to show that he suffered a loss of Rs. 5,00,000/ but he had attended the court proceedings in the criminal court for nine years. He denied the suggestion that the incident dated 28.07.2001 was the true incident. He also engaged a lawyer Mr. H.A. Khan in the criminal complaint filed by the defendant against him and he was his counsel throughout the criminal proceedings. He paid Rs. 50,000/ to Mr. H.A. Khan as his professional fees but it was given at different times during those nine years of criminal proceedings. He asked for the receipt of Rs. 50,000/ but his counsel informed him that there was no such provision for issuance of professional fee receipt. He denied the suggestion that he never paid Rs. 50,000/ as fees to his counsel Mr. H.A. Khan for pursuing his criminal proceedings. He did not know whether Mr. H.A. Khan had taken any fees from the other persons named in the criminal complaint but he asked from him for Rs. 50,000/ as his professional fees. He made all his payments in cash. He had not filed any criminal complaint for defamation against the defendant. He denied the suggestion that no such complaint was filed because there was no defamation to him. In his cross examination, he has claimed that he attended 3040 dates in the criminal case. He did not have any proof regarding his goodwill. He also stated that due to criminal case no adverse 13 of 25 RBT CS No. 177/15/11 14 effect was caused to his pension; that due to the criminal case he was defamed as his social reputation was lowered down in the society. To a question as to how he assessed the value of defamation, he replied that there was no parameter for assessing the value of defamation, he could claim Rs. 20,00,000/ but he claimed less because he was not having sufficient money for paying the court fee for filing the case. He has denied the suggestion that the complaint filed by the defendant was correct and based on true facts.
The defendant has examined two witnesses in support of his case including himself. The other witness is his son Ravinder Singh @ Ravi. In his affidavit, DW1 (the defendant) has deposed that his complaint case no.3264/2008 was based on true, correct and material facts and on their deposition and that of material witnesses, the trial court summoned the plaintiff and other accused persons in the criminal case. The plaintiff was discharged in the criminal complaint in the absence of the evidence of CW4 Krishan Bharti s/o Hari Singh and CW5 Shish Pal s/o Kali Ram who did not support the criminal complaint case of the defendant in pre charge evidence as they had been won over by the plaintiff and other accused persons. The said witnesses also belong to the same village where the plaintiff is residing. It was just a legal battle between the plaintiff and defendant which finally ended in favour of the plaintiff. There was no defamation or damage of reputation by order of the court while summoning 14 of 25 RBT CS No. 177/15/11 15 the plaintiff and there was no malice in the mind of the defendant. That no loss or injury of any kind have been faced by the plaintiff and there was no documentary evidence in his support or the plaintiff has not filed any statement of losses or any reason so the suit is highly imaginary and there is no defamation or libel at all. PW1 in his cross examination has denied the suggestion that by filing the criminal case he caused unnecessary harassment to the plaintiff due to which plaintiff suffered mental agony, pain, harassment, inconvenience, monetary losses etc. or that he maligned the reputation of the plaintiff in the society or defamed him. He also denied the suggestion that due to the harm caused to the plaintiff by filing the said criminal case, the plaintiff is entitled to a compensation of Rs. 4,50,000/ and for a sum of Rs. 50,000/ towards litigation expenses incurred by the plaintiff in the said criminal case. DW2, Sh Ravinder Singh @ Ravi (son of DW1)has also deposed on similar lines.
It has been contended by counsel for the defendant that suit is liable to be dismissed as it is not maintainable in the present form. It is submitted that actually the plaintiff filed the present suit for damages on the basis of defamation. His grievance was that the defendant has maligned the reputation of the plaintiff in the society and has defamed him. The defendant by filing false litigation has made defamatory allegations against the plaintiff before the public at large. Thus the plaintiff has suffered great harm to his reputation/goodwill due to illegal acts of the 15 of 25 RBT CS No. 177/15/11 16 defendant. The plaintiff alongwith one Mithan Singh was accused in the criminal complaint titled as Sh. Bir Singh v/s Sh. Shyam Singh & Ors. bearing CC No. 3264/2008. The said Mithan Singh also filed a suit for damages of Rs. 3,00,000/ which was pending in the court of Ms. Kiran Bansal, Ld. Sr. Civil JudgecumRC, East. The suit was filed by Mithan Singh on 19.10.2011 and the present suit was also filed by Dal Chand on 19.10.2011 which is pending before this court. The said suit no.275/12 was decided by Ms. Kiran Bansal, the then Ld. Sr. Civil Judge on 20.02.2013 wherein she observed 'As far as plaintiff's prayer for a decree of Rs. 2,50,000/ as damages is concerned for loss of his reputation, the same is barred by limitation. The cause of action for seeking relief of damages due to loss of reputation arose when the defamatory allegations are made. Suit for compensation on behalf of the plaintiff was to be filed within one year from the date when the defamatory allegations are first made. Perusal of Ex. PW1/1 shows that the complaint case was filed in the year 2001 and therefore, the claim of the plaintiff for an amount of Rs. 2,50,000/ for loss of reputation is barred by limitation.' Since the suit was partly decreed for a sum of Rs. 50,000/ in favour of the plaintiff and against the defendant, the plaintiff herein Dal Chand got wiser and started claiming damages for malicious prosecutions. As per Article 75 of the Limitation Act in a suit for damages for libel, the period of 16 of 25 RBT CS No. 177/15/11 17 limitation is one year and the time from which the period begins to run is "when the libel is published" and since in the instant case, the complaint case was filed by the defendant herein on 20.08.2001 and the present suit for damages was filed on 19.10.2011 the suit for compensation for defamation is barred by limitation. However, as per Article 74 of the Limitation Act, in a suit for damages for malicious prosecution the period of limitation is one year and the same begins to run when the plaintiff is acquitted or the prosecution is otherwise terminated, since in the complaint filed by the defendant herein, the plaintiff and others were discharged on 03.05.2011 and the present suit was filed on 20.10.2011 the plaintiff could pursue for malicious prosecution.
It is further contended by counsel for the defendant that since the suit was not being pursued as a suit of malicious prosecution, no separate issue was framed that the prosecution lodged by the defendant was malicious. Since no separate issue was framed by the court regarding the malicious prosecution, the defendant has been prevented from leading relevant evidence on the point. It has been contended by Ld. Counsel for the plaintiff that it is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised, the enquiry should not be so much about the form of pleadings instead the court must find out whether in substance the parties knew the case and the issues upon which they 17 of 25 RBT CS No. 177/15/11 18 went to trial. Once it is found out that the parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise question of absence of pleadings. Counsel for plaintiff has placed reliance upon Ram Sarup Gupta v/s Bishun Narain Inter College & Ors. AIR 1987SC 1242. Counsel for the defendant has submitted that in the entire pleadings the word malicious has occurred only once. There was no issue framed regarding malicious prosecution in the absence of the pleadings and even in his affidavit Ex. PW1/A the word malicious occurs at one place and now the plaintiff is seeking damages to the tune of Rs. 5,00,000/ for malicious prosecution. As no separate suit has been filed for malicious prosecution, it cannot be presumed or ascertained whether the suit for damages is based on malicious prosecution or for defamation. He has relied upn West Bengal State Electricity Board v/s Dalip Kumar Ray AIR 2007 SC 976. It has been argued by Ld. Counsel for the defendant that in the entire cross examination, the plaintiff pleaded that he filed the suit for damages for his alleged defamation and reputation. It is well settled that no defamation suit shall be filed after the lapse of one year of alleged publication as laid down in N.N.S.Rana v/s Union of India in RFA No. 757/10 decided by Hon'ble Mr. Justice J.R.Midha and it has been urged that since the suit has been filed for damages on account of defamation, the same is liable to be dismissed on account of being barred by limitation.
18 of 25 RBT CS No. 177/15/11 19 It is well established that in the absence of the pleadings, evidence, if any produced by a party, cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleadings and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleadings is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that the other party may not be taken by surprise. In the instant case, the plaintiff has shifted its stand from defamation to malicious prosecution in order to bring the case within limitation. Therefore, I may observe that the plaintiff has to base its case only on the pleadings and it cannot change the stand subsequently as per its suitability.
Malicious prosecution is the commonest form of the test of abuse of legal procedure which is available against persons who deliberately abuse the legal process in order to harm another. The Black's Law dictionary defines 'Malicious prosecution' as the institution of criminal or civil proceedings for an improper purpose and without probable cause. In a suit for damages for malicious prosecution the plaintiff must prove that the defendant acted without reasonable and probable cause and that the defendant was actuated by malice.
In a suit for malicious prosecution in order to succeed the plaintiff 19 of 25 RBT CS No. 177/15/11 20 must prove that following conditions have been fulfilled :
(1)that the criminal proceedings were instituted by the defendant;
(2)that in doing so the defendant acted without any reasonable and probable cause;
(3)that the defendant acted maliciously;
(4)that the criminal proceedings terminated in favour of the plaintiff in his acquittal or discharge and the defendant was unsuccessful.
Therefore, in order to succeed in an action for malicious prosecution the plaintiff has to prove that the prosecution ended in the plaintiff's favour and that the defendant had acted without any reasonable and probable cause and was actuated by malice in launching the criminal prosecution. Absence of reasonable and probable cause for criminal prosecution is, therefore, an essential prerequisite for action for malicious prosecution.
As per the settled propositions, in Malicious Prosecution, there are two essential elements namely that no probable cause existed for instituting the prosecution or suit complained of and that such prosecution or suit terminated in some way favourably to the defendant therein. The law relating to malicious prosecution, has been elaborately dealt with by the Apex court in West Bengal State Electricity Board v. Dalip Kumar Ray (AIR 2007 SC 976), wherein it was held as under : 20 of 25 RBT CS No. 177/15/11 21 Malicious prosecutionMalice Malice means an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill will. It may be due to a desire to obtain a collatteral advantage.
The principles to be borne in mind in the case of actions for malicious prosecution are these : Malice is not merely the doing of a wrongful act intentionally but it must be established that the defendant was actuated by malus animus, that is to say, by spite or ill will or any indirect or improper motive. But if the defendant had reasonable or probable cause of launching the criminal prosecution no amount of malice will make him liable for damages. Reasonable and probable cause must be such as would operate on the mind of a discreet and reasonable man : malice 'andwant of reasonable and probable cause' have reference to the state of defendant's mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them.
In its order dated 03.05.2011 Ld. M.M. while discharging the plaintiff and other co accused observed that the admission by the complainant and his wife in their respective cross examinations clearly leads to the only conclusion that the present complaint is nothing but a cooked up story 21 of 25 RBT CS No. 177/15/11 22 so as to coerce the accused/respondents who all are relatives of the complainant, to accede to the complainant's demand and terms as to the partition of the ancestral property. The findings given by the criminal court have no bearing on the civil suit for malicious prosecution and the judgment of the criminal court can only be used as an evidence to prove the discharge of the plaintiff and not beyond. I am fortified in my opinion by Kishan Singh (D) through LRS v. Gurpal Singh & ors. reported in (2010) 4 JCC 2547 and more particularly at para 19 which reads as under :
"19. Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subjectmatter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Section 41 to 43 of the Indian Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration."
22 of 25 RBT CS No. 177/15/11 23 In the past, 'malice' was identified with 'lack of reasonable and probable cause' and often malice was inferred from lack of reasonable and probable cause and vice versa. But the present state of law seems to be that the concept of malice is to be kept distinct from the concept of lack of reasonable and probable cause. Ordinarily, malice denotes spite or hatred against an individual but it is often difficult to infer spite or hatred from the conduct of a person. It is said that the devil does not know the mind of man. Therefore, the ordinary meaning of malice cannot be determined by any subjective standard. Clarke and Lindsell have rightly said in their book on Law of tort, 11th Edition. Article 1444 at page 870 :
'The term 'malice in this form of action is not to be considered in the sense of spite or hatred against an individual, but of malice animus and as denoting that the party is actuated by an improper motive. The proper motive for prosecution is of course a desire to secure an end to justice."
In order to show malicious prosecution, it was incumbent upon the plaintiff to prove that the criminal proceedings complained of, were initiated from a malicious spirit i.e. from an indirect and improper motive and not in furtherance of justice. Malice means and implies spite or ill will. Malice can only be appreciated from the records of the case. There are possibly no set guidelines in regard to the proof of malafides or malice and wherever it is alleged it depends on the facts and circumstances of the
23 of 25 RBT CS No. 177/15/11 24 case.
In my considered view the findings of the criminal court is not binding upon the civil court and the civil court has to decide the case on the basis of the evidence adduced before the court. The finding given by the criminal court cannot be considered as a remark upon the defendant and cannot be used as universal truth. On the basis of the evidence adduced, this court has to give a finding whether the prosecution launched by the defendant was malicious and then the question of damages would arise. Admittedly, the plaintiff is not claiming damages on the basis of defamation or loss of reputation as hit by Article 75 of the Limitation Act. No sufficient evidence has been brought on record to show that the prosecution launched by the defendant was malicious. The observation made by Ld. M.M. as reproduced above cannot be taken to impute malice on the part of the defendant as there is no categorical finding on this aspect. Ld. M.M.discharged the plaintiff and other co accused but did not proceed further to take any action against the complainant(defendant herein) on the ground that the complaint was based on a cooked up story. The observations made by Ld. M.M. cannot be taken to mean that the complaint case was actuated by malice and was for an improper purpose or without any probable cause. The onus to prove that the complaint case was actuated by malus animus was on the plaintiff which he could not discharge since no clinching evidence was led by the plaintiff in this 24 of 25 RBT CS No. 177/15/11 25 regard. There is practically no evidence to impute any malus animus on the part of the defendant, denoting that the defendant was actuated by ill will or improper and indirect motive.
In view of the aforesaid observation, I hold that the plaintiff is not entitled to recover the suit amount from the defendant. Issue no.1 is accordingly decided against the plaintiff and in favour of the defendant. ISSUE NO.2 : Since, I have already given a finding that the plaintiff was not entitled to recover the suit amount from the defendant, question of entitlement to recover any interest does not arise. Issue no.2 is accordingly decided against the plaintiff and in favour of the defendant. ISSUE NO.6 - Relief.
In view of the observations and findings given by the court, the plaintiff is not entitled to any relief from the court. The suit is accordingly dismissed without any order as to cost. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court
28th November, 2015 (NISHA SAXENA)
Additional District Judge03
East District/ Karkardooma Courts
Delhi
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