Delhi District Court
In The Matter Of Vinod Kumar vs . Mahender on 26 March, 2013
IN THE COURT OF SH. PRANJAL ANEJA
CIVIL JUDGE-14, CENTRAL, THC, DELHI
IN THE MATTER OF VINOD KUMAR VS. MAHENDER
KUMAR SHARMA
SUIT NO.1026/11
UNIQUE ID NO. 02401C0304632011
SH. VINOD KUMAR S/O SHRI MAHDEV PRASHAD,
R/O 3270, LAL DARWAJA, BAZAR SITARAM,
DELHI-110006.
...... PLAINTIFF
VS.
SHRI MAHENDER KUMAR SHARMA
R/O 3270, LAL DARWAJA, BAZAR SITARAM,
DELHI-110006.
..... DEFENDANT
DATE OF INSTITUTION OF THE CASE :31.03.2000
DATE ON WHICH RESERVED FOR ORDER :15.03.2013
DATE OF ORDER/ JUDGMENT :26.03.2013
JUDGMENT:
CS No. 1026/11 Vinod Kumar Vs. Mahender Kumar Sharma Page No. 1 of 13 SUIT FOR MALICIOUS PRSECUTION
1. The present suit has been filed by the plaintiff against the defendant for the recovery of Rs.11,100/- in respect of illegal and malacious prosecution and also for costs.
2. The brief facts of the case as per the plaint are that the plaintiff states himself to be renowned manufacturer of musical instruments having good reputation in the society. That plaintiff is residing on the 3rd floor at 3170, Lal Darwaza, Bazar Sita Ram, Delhi-06 and the defendant is residing on the second floor of the same premises and is purposely creating mischief for which the plaintiff has filed a suit against him and his wife. The defendant have active support from bad elements and local police. That the defendant was instrumental in getting false kalandras made and the same was contested by the plaintiff and the same were got quashed but the defendant even thereafter did not bother to desist from the illegal design and mischief and got another kalandra registered against the plaintiff in July 1999 and plaintiff filed a criminal revision petition CS No. 1026/11 Vinod Kumar Vs. Mahender Kumar Sharma Page No. 2 of 13 on receiving summons thereof and the said kalandra was quashed by the Court of Sh. Satnam Singh, Ld. ADJ, Delhi vide order dated 27.01.2000. That plaintiff had to contest the said kalandra and to file the said revision petition due to the false and mischievous complaint of the defendant and the plaintiff have to pay a lawyer fee of Rs.11,000/- besides attending 7 to 8 hearings and during all this period the plaintiff had been under severe mental and physical strain for which there cannot be any adequate compensation in terms of money but the plaintiff is only claiming the token damages of Rs.100/- only in this respect. Plaintiff also issued legal notice to the defendant on 03.03.2000 but the defendant intentionally did not receive the same.
3. In WS filed on behalf of defendant, it is stated that the plaintiff has been threatening the defendant for life and the defendant lodged a report against him and the police made an investigation in the matter and a kalandra u/s 107/150 CrPC was sent against both the parties and thereafter the said kalandra was finished by Special Executive Magistrate and now CS No. 1026/11 Vinod Kumar Vs. Mahender Kumar Sharma Page No. 3 of 13 a suit is filed by the plaintiff. That the residential address of both the parties is admitted. That the civil suit filed by the plaintiff against the defendant and his wife is false and frivolous in order to harass the defendant. That it is denied that the defendant succeeded in getting false kalandra made against the plaintiff but it is the plaintiff who has been creating nuisance in the house and so the defendant was having no other alternative but to lodge a police report and the police after making enquiry came to the conclusion that the plaintiff is creating nuisance in the house as well as the locality and so they sent a kalandra u/s 107/150 CrPC against both the parties and the said kalandra after some time was dropped by the said Special Executive Magistrate. That the plaintiff has been harassing the defendant and putting holes on the roof of the plaintiff and pouring water from the said holes to compel the defendant to leave the house.
4. As alleged, it is denied that defendant was instrumental in getting false kalandra made and it is also denied that plaintiff filed a criminal revision petition and the kalandra was quashed. That in fact defendant has no knowledge of the CS No. 1026/11 Vinod Kumar Vs. Mahender Kumar Sharma Page No. 4 of 13 said criminal revision petition as no summon was issued to the present defendant. All the other averments of the plaint are denied.
5. In replication the averments of the WS have been denied and those of plaint have been reaffirmed. That the conduct of the defendant and his wife is evident from the fact that the defendant and his associates have purposely locked the passage for the flow of water from the third floor to the second floor by putting a brick in it and only on 06.05.2000 was a hole made which allow the flow of water and even after that the defendant was creating mischief in not restoring the pipe. That the collusion of the defendant with the police is apparent from the fact that a false kalandra was made by them against the plaintiff for which the plaintiff had to file a revision petition.
6. Vide order sheet dated 10.07.2000 following issues were framed by my Ld. Predecessor:-
(i) Whether the suit of the plaintiff is
maintainable in the form framed and
presented before this court? OPP
(ii) Whether the plaintiff is entitled to recover
CS No. 1026/11
Vinod Kumar Vs. Mahender Kumar Sharma Page No. 5 of 13
the suit amount of Rs.11,100/- as prayed
for? OPP
(iii) Relief.
7. To substantiate his case on judicial record, the plaintiff himself appeared in the witness box as PW1. His evidence by way of affidavit being Ex.PW1/A. Plaintiff also got examined Sh. Jagat Rana, Advocate as PW4, his evidence by way of affidavit being Ex.PW4/A. In documentary evidence, the plaintiff filed and relied upon certified copies of the proceedings of the Revision Petition u/s 397 Cr.P.C. as Ex. P1 and Ex. P2, AD Card and registered cover as Ex. P5 & P6, photographs Ex.P7 (collectively), certified copy of revision petition Ex. PW4/1, certified copy of vakalatnama Ex. PW4/2, Bank statement Ex. PW4/5. On the other hand, defendant No. 1 himself appeared in the witness box as DW1, his affidavit being Ex. DW1/A. In documentary evidence, defendant filed complaint Ex. DW1/1, complaint dt. 4.5.1994 as Ex. DW1/2, complaint dt. 6.9.1995 Mark A and complaint dt. 17.6.94 as Ex. DW1/3.
8. I have heard the arguments and perused the record. CS No. 1026/11 Vinod Kumar Vs. Mahender Kumar Sharma Page No. 6 of 13 My issue wise disposal of the suit as under:
9. Issue No. 1: Whether the suit of the plaintiff is maintainable in the form framed and presented before this court? OPP The plaintiff has filed the present suit for malicious prosecution against the defendant alleging that the defendant got the kalandara registered against the plaintiff in July, 1999 and therefore, the plaintiff filed the criminal revision petition and got the same quashed vide order dt. 27.1.2000. The plaintiff has claimed damages in respect of contesting of the said kalandara. The plaintiff has alleged that he paid his lawyers fee of Rs. 11,000/- and suffered mental and physical strain but is claiming only token damages at Rs. 100/- only.
The plaintiff has thus filed the present suit for claiming Rs. 11,100/- on account of malicious prosecution and there is nothing seen which shows that the suit is not maintainable in the form as framed and presented. Thus, this issue is decided in favour of plaintiff.
CS No. 1026/11 Vinod Kumar Vs. Mahender Kumar Sharma Page No. 7 of 13
10. Issue No.2: Whether the plaintiff is entitled to recover the suit amount of Rs.11,100/-
as prayed for? OPP The onus of proving this issue was upon the plaintiff. It is the case of plaintiff that the defendant was instrumental in getting false kalandaras made and the same were contested by the plaintiff and were got quashed but the defendant even thereafter did not bother to desist from his illegal designs and got another kalandara registered against the plaintiff in July, 1999 which the plaintiff got quashed on 27.1.2000 by filing a criminal revision petition and for contesting the said kalandara, he paid Rs. 11,000/- as lawyer's fee besides attending various dates in the court for which he suffered mental and physical agony but the plaintiff claims only Rs. 100/- on that account as token damages.
The averments of the plaint have been denied by the defendant. However, the defendant states that the plaintiff has been threatening the defendant and the defendant lodged complaint against him and police made a kalandara u/s 107/150 CS No. 1026/11 Vinod Kumar Vs. Mahender Kumar Sharma Page No. 8 of 13 Cr.P.C, which was finished by Special Executive Magistrate. It is also alleged by defendant that the plaintiff has been creating nuisance in the house and putting water in the holes of the roof to trouble the defendant and to compel him to leave the house as the defendant is residing on the 2nd floor, beneath the plaintiff. The defendant denied that the kalandara in question has been falsely made. The defendant further states that he has no knowledge that it has been quashed vide order dt. 27.1.2000.
Malicious prosecution is an action under tort and the plaintiff has to prove the following in order to succeed in a suit for the same:
1) That he was prosecuted by the defendant.
2) That the proceeding complained was terminated in favour of the present plaintiff.
3) That the prosecution was instituted against without any just or reasonable cause.
4) That the prosecution was instituted with malicious intention, that is, not with the mere intention of getting the CS No. 1026/11 Vinod Kumar Vs. Mahender Kumar Sharma Page No. 9 of 13 law into effect, but with an intention , which was wrongful in fact.
5) That he suffered damage to his reputation or to the safety of person, or to security of his property.
In the facts of the present case, it is not dispute that a kalandara was made against the plaintiff. The said kalandara is a show-cause notice u/s 107/111 Cr.P.C dated 17.7.1999. The said show-cause notice was quashed vide order dt. 27.1.2000 by the Hon'ble Court of Sh. Satnam Singh, Ld. ASJ, Delhi. In the case of Khagendra Nath Vs. Jacob Chandra, AIR 1977 NOC 207 (Gau), there was mere lodging of ejahar alleging that the plaintiff wrongfully took away the bullock cart belonging to the defendant and requested that something should be done. The plaintiff was neither arrested nor prosecuted. It was held that merely bringing the matter before the executive authority did not amount to prosecution and therefore the action for malicious prosecution could not be maintained. There is no commencement of the prosecution when a magistrate issues only a notice and not summons to the CS No. 1026/11 Vinod Kumar Vs. Mahender Kumar Sharma Page No. 10 of 13 accused on receiving a complaint of defamation and subsequently dismissed if after hearing both the parties.
In N.N. Ray Vs. Basanta Das Bairagya, the plaintiff was arrested by the police on the statement of the defendant acccusing the former of having committed theft. The plaintiff was subsequently discharged by the Magistrate on the basis of the final police report which didn't show any evidence connecting the plaintiff with the theft. A suit for malicious prosecution brought by the plaintiff was not maintainable because there was no prosecution at all and that mere police proceeding doesn't amount to prosecution.
In the present case also it is seen that neither the plaintiff was arrested and nor prosecuted as such, since only a show-cause notice u/s 107/111 Cr.P.C was served upon him and which cannot constitute to be a prosecution for the purposes of the tort of malicious prosecution. Merely mentioning of the contents in the said show-cause notice that the plaintiff had been abusing, threatening or picking up quarrel with the defendant, cannot be said to be the commencement of CS No. 1026/11 Vinod Kumar Vs. Mahender Kumar Sharma Page No. 11 of 13 prosecution. Although, it is true that the plaintiff got the said show-cause notice quashed by preferring a criminal revision petition but since the issuance of the said show-cause notice is not covered within the scope of prosecution as discussed above, therefore, that does not entitles the plaintiff to claim damages against the defendant. In the facts of the case, it is not disputed that previously also a kalandara was made by the police against both the parties and the same was got quashed by the plaintiff from the court of Sh. A.K. Pathak, Ld. ASJ. This fact is admitted by the plaintiff/PW1 in his cross examination. It is also admitted in this case that the plaintiff has filed a civil litigation against the defendant and his wife. The plaintiff is residing on the 3rd floor of house No. 3170 and the defendant is residing on the 2nd floor of the said house. The plaintiff PW1 has deposed in his cross examination that he has filed application for repair of the house and the local commissioner has visited the premises.
It thus appears that there have been disputes and quarrels going on between the parties. It is seen that the CS No. 1026/11 Vinod Kumar Vs. Mahender Kumar Sharma Page No. 12 of 13 plaintiff has also not been able to prove the malice required to be shown on the part of defendant for the purpose of proving malicious prosecution. The plaintiff also got examined Sh. Jagat Rana Advocate as PW4. Although, PW4 has stated that he has charged Rs. 11,000/- from the plaintiff but merely that does not fulfill the requirements of the claim of malicious prosecution as made in the present suit. Thus, the plaintiff cannot be said to be maliciously prosecuted by the defendant and is, therefore, not entitle to the suit amount. This issue is decided against the plaintiff accordingly.
RELIEF In light of the findings on various issues above, the present suit of the plaintiff is dismissed.
No order as to costs.
Decree sheet be prepared.
File be consigned to record room.
Announced in open Court (PRANJAL ANEJA)
on 26 .03.2013 CIVIL JUDGE-14, CENTRAL
THC/DELHI/ 26.03.2013
CS No. 1026/11
Vinod Kumar Vs. Mahender Kumar Sharma Page No. 13 of 13