Delhi District Court
Adarsh vs Kajal on 15 January, 2024
IN THE COURT OF SH. PRITU RAJ: CIVIL JUDGE : NORTH DISTRICT,
ROHINI COURTS : DELHI
CS SCJ 524/23
CNR No. - DLNT03-001010-2023
In reference:
Adarsh
S/o Sh. Surjeet
R/o C-516, Madipur Colony, New DELHI-110063. ........... Plaintiff
vs.
1. Kajal
D/o Sh. Raj Kumar
2. Raj Kumar @ Pappu
S/o Sh. Hari Chand
3. Dropati
W/o Sh. Rajkumar
4. Shakuntala @ Mansuri Wali
W/o Sh. Hari Chand
5. Rajesh
S/o Sh. Hari Chand
6. Parmila
W/o Rajesh
7. Sagar
S/o Sh. Rajesh
All R/o C-35, Madipur Colony, New Delhi-110063 ........... Defendants
Date of Institution : 18-05-2023
Date of reservation of Judgment : 18-12-2023
Date of Judgment : 15-01-2024
Suit No. 524/23 Adarsh v. Kajal & Ors. Page 1 of 11
EX-PARTE JUDGMENT
1. The present suit has been filed by the plaintiff seeking the reliefs claimed in the
prayer clause of the plaint.
FACTS AS PER THE PLAINT :
2. The case of the plaintiff, as made out from the plaint is that the plaintiff is the brother-in-law of D-1 and he alleges that he was maliciously prosecuted by the defendants with the D-1 lodging a false complaint against him and his family members at PS Punjabi Baghdad 13-04-2015. He claims he was a minor at the time of lodging of the complaint and subsequently the charge-sheet was filed by before the concerned Court. It is the case of the plaintiff that he was summoned as an accused despite him being a minor at the time of the alleged offence and subsequently charges were framed against him on 26-07-2018. The plaintiff claims he approached the Ld. ASJ in revisional jurisdiction and vide order dated 17-12-2018, the LD. ASJ directed the LD. MM to decide on the issue of juvenility of the plaintiff while setting aside the order on charge and subsequently the plaintiff had to appear before the Juvenile Justice Board, Delhi where he was discharged vide order dated 18-05-2022 after the JJB observing that there were no specific allegations against the plaintiff.
3. The plaintiff has claimed that ordeal of malicious prosecution had been faced by him for almost seven years and the defendants have been making various false and defamatory imputations regarding the plaintiff to the social friends of the plaintiff while calling him a criminal. He further claims that he had been prosecuted with the only motive to harass him and due to the same he has suffered mental, physical and monetary damages. He claims that as a result of the prosecution, his educational and marriage prospects have suffered immensely. He Suit No. 524/23 Adarsh v. Kajal & Ors. Page 2 of 11 claims that as a result of the prosecution, he suffered massive damage to his reputation which led to humiliation and abject degradation of his reputation in his social circle, family, acquaintances with the defendants constantly spreading misinformation. Hence the present suit.
RELIEF:-
4. The following are reliefs claimed by the plaintiff in the plaint:
(a) That a decree against the defendants qua recovery of legal expenses incurred by the plaintiff in defending the malicious prosecution to the tune of Rs. 50,000/-.
(b) Pass a decree of damages and compensation for malicious prosecution in favour of the plaintiff and against the defendants for malicious prosecution which led to diminished reputation in society, educational opportunities loss and suffering extreme mental and emotional trauma to the tune of Rs. 2,00,000/-.
(c) Pass a decree of permanent and mandatory injunction thereby restraining the defendants, their agents, associates, legal representative etc. from defaming the plaintiff and making any statement or spreading any false information in social circle of the plaintiff which is likely to reduce his reputation, in the interest of justice.
(d) Interest at the rate of 12% per annum on the damages awarded from the date of filing of the suit till the date of realisation.
(e) Costs
(f) Any other Relief.
DEFENCE :-
5. In defence, all the defendants were duly served. Despite such service, no one appeared on their behalf nor was any WS filed. Hence they were proceeded ex- parte vide order dated 23-08-2023 Suit No. 524/23 Adarsh v. Kajal & Ors. Page 3 of 11 ISSUES:-
6. No issues were framed in the present suit.
DOCUMENTS & EVIDENCE:-
7. In support of her case, plaintiff has examined himself as PW1. Thereafter, PE was closed vide order dated 07-11-2023.
FINAL ARGUMENTS
8. Ex-parte final arguments were heard on behalf of Plaintiff and matter was fixed for judgment.
FINDINGS OF THE COURT:-
9. Section 101 of the Evidence Act, 1872 defines "burden of proof" and lays down that the burden of proving a fact always lies upon the person who asserts the facts. Therefore, the burden of proof always lies on the plaintiff initially to prove the facts alleged by him. This principle of law remains the same even in cases where the suit has been proceeded ex-parte qua the defendant or where the Defendant has failed to put forward any defence.
10. The law with regard to burden of proof of plaintiff in such cases has been well settled in a plethora of judgments of the Hon'ble Supreme Court. Though, the burden of proof on the plaintiff in such proceedings is not very heavy, but the necessity of proof by the plaintiff of his case to the satisfaction of the court cannot be dispensed with. The Hon'ble Apex Court in Ramesh Chand Ardawatiya v. Anil Panjwani, (2003) 7 SCC 350 explained the law with regard to burden of proof of plaintiff in an ex-parte suit. The observations of Suit No. 524/23 Adarsh v. Kajal & Ors. Page 4 of 11 the Hon'ble Apex court may be reproduced herewith as follows:-
"Even if the suit proceeds ex parte and in the absence of a written statement, unless the applicability of Order 8 Rule 10 CPC is attracted and the court acts thereunder, the necessity of proof by the plaintiff company of his case to the satisfaction of the court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff company is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the court would grant the plaintiff company such relief as to which he may in law be found entitled. In a case which has proceeded ex parte the court is not bound to frame issues under Order 14 and deliver the judgment on every issue as required by Order 20 Rule 5. Yet the trial court should scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the "points for determination" and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence."
11. Also, it is also a settled law that merely because a suit has proceeded ex parte against a Defendant, that does not itself entitle the Plaintiff to a decree and instead a special duty of care is cast upon the Court while dealing with such cases. Reliance in this regard is placed on Maya Devi V/s Lalta Prasad, (2015) 5 SCC 588, wherein it was observed as follows:
"The absence of the Defendant does not absolve the Trial Court from fully satisfying itself of the factual and legal veracity of the Plaintiff's claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the Trial Court as well as the Executing Court to be fully satisfied that the claim has been proved and substantiated to the hilt by the Plaintiff.Suit No. 524/23 Adarsh v. Kajal & Ors. Page 5 of 11
Reference to Shantilal Gulabchand Mutha vs Tata Engineering andLocomotive Company Limited, (2013) 4 SCC 396, will be sufficient. The failure to file a Written Statement, thereby bringing Order VIII Rule 10 of the CPC into operation, or the factum of Defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order VIII Rule 10 CPC and on the invocation of Order IX of the CPC, the Court is nevertheless duty bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted."
12. The entire case of the plaintiff is based upon the act that he had been maliciously prosecuted by the defendant and a perusal of the relief clause of the plaint shows that the all the reliefs claimed emanate from the said claim. Hence it becomes mandatory to determine whether the plaintiff has been able to prove the said claim in order to determine whether the plaintiff is entitled to any of the reliefs claimed.
13. Before proceeding any further, this Court deems it expedient to state that since a suit for malicious prosecution will lie only against that person at whose instigation the proceedings commenced, no cause of action exists in favour of the plaintiff against D 2 to D-7 since it is the own case of the plaintiff that prosecution was set in motion on the complaint of D-1. Hence no case s made out against D-2 to D-7. However, since the complaint was lodged by D-1, the plaintiff does have a cause of action against her.
14. As regards the D-1, coming to the facts of the present case, the entire case of the plaintiff revolves around the fact that the prosecution faced by him was malicious in nature. He claims that he had been discharged by the Ld. Principal Magistrate (JJB-III) dated 18-05-2022 while further claiming the the prosecution instituted by D-1 was malicious in nature. Therefore, in order to Suit No. 524/23 Adarsh v. Kajal & Ors. Page 6 of 11 effectively adjudicate the present case it becomes imperative to determine whether the ingredients required to be satisfied for a prosecution to be malicious prosecution have been satisfied.
15. Malicious prosecution, as defined by the Merriam-Webster dictionary means the the tort of initiating a criminal prosecution or civil suit against another party with malice and without probable cause. Black‟s Law Dictionary Eight Edition defines "malice" as the intent, without justification or excuse, to commit a wrongful act and as reckless disregard of the law or of a person‟s legal rights and ill will or wickedness of heart. It defines "malicious prosecution" as the institution of a criminal or civil proceeding for an improper purpose and without probable cause. As regards the ingredients, the tort of malicious prosecution requires proof of (a) initiation or continuation of a lawsuit; (b) lack of probable cause; (c) malice; and, (d) and favourable termination of lawsuit. The plaintiff in a suit for malicious prosecution has to necessarily disclose in the plaint the ulterior reason or purpose for which the defendant prosecuted him. (TIRLOK CHAND BANSAL v. BHARAT BHUSHAN BANSAL CS(OS) 470/2016 & IA No.13763/2016) The same have been reiterated in Bharat Commerce and Industries Ltd. vs. Surendra Nath Shukla and Ors. (AIR 1966 Cal 388), where it was held that the following ingredients must be satisfied in order to succeed in a suit for malicious prosecution:
"7.....In a suit for malicious prosecution, the plaintiff must prove (1) that the defendant prosecuted him, and (2) that the prosecution ended in the plaintiff's favour, and (3) that the prosecution lacked reasonable and probable cause, and (4) that the defendant acted maliciously.
16. The first two ingredients in the present case have been duly made out from the documents/evidence adduced by the plaintiff. The fact that an FIR was lodged against the plaintiff by D-1 with a subsequent charge-sheet being filed against Suit No. 524/23 Adarsh v. Kajal & Ors. Page 7 of 11 him and the fact that he was subsequently discharged by is aptly made out from the order of Ld. Principal Magistrate (JJB-III) dated 18-05-2022. Hence, the first two requirements as stated above stand satisfied. The ingredients which are now required to be fulfilled by the plaintiff is that the prosecution was without any reasonable and probable cause and that the act of the D-1 was motivated by malice.
17. The term 'lacked reasonable and probable cause' is an essential requirement in order to succeed in a suit for malicious prosecution. A prosecutor/complainant would be said to have reasonable cause if, (i) The prosecutor must believe that the accused is probably guilty of the offence; (ii) The belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise; (iii) The information, whether it consists of things observed by the prosecutor or things told to him or her by others, must be believed by him or her to be true; (iv) This belief must be based upon reasonable grounds; (v) The information possessed by the prosecutor and reasonably believed by him or her to be true, must be such as would justify a person of ordinary prudence and caution in believing that the accused is probably guilty. In the present case, the entire conspectus of the case of the plaintiff is that he had been discharged vide order dated 18-05-2022 passed by Ld. Principal Magistrate (JJB-III). That alone in itself would not give rise to the presumption that the D-1 lacked any reasonable and probable cause. It is settled law that mere acquittal by a criminal court does not give rise to a cause of action for malicious prosecution (Tirlok, supra). Moreover it is also settled law that in a suit for malicious prosecution, it is for the civil Court to go into all the evidence and decide for itself whether such malice or cause existed or not.
18. Therefore the plaintiff was required to prove that the prosecution initiated by D-1 was without any reasonable basis or that it was devoid of any reasonable or probable cause.. From the evidence led by the plaintiff, this Court finds that Suit No. 524/23 Adarsh v. Kajal & Ors. Page 8 of 11 the plaintiff has failed to discharge the said burden. It has been stated over and over again in the evidence affidavit of the plaintiff that due to the prosecution faced the plaintiff before the Ld. Trial and Ld. Revisional Courts, he had to suffer mental, physical and economic setbacks. However the said averments do are completely silent regarding the lack of any reasonable/probable cause on part of D-1. In fact a perusal of the order of discharge shows that the plaintiff had been discharged not because there was no reasonable or probable evidence on record against the plaintiff. He had in fact been discharged as there were no specific allegations against him. These two conclusions are entirely different and cannot be taken to mean one and the same thing. Merely because D-1 had not stated the particulars of the allegations does not give rise to the presumption that there was not reasonable or probable cause. In fact on the same statement of D-1, the remaining defendants in the said case were not discharged. Hence this Court is of the considered opinion the the plaintiff has failed to prove the lack of a reasonable cause behind initiation of prosecution.
19. Another consideration which is paramount importance for proving malicious prosecution is the element of 'malice'. Malice can be established if it can be demonstrated that the prosecutor has an improper and collateral purpose in bringing the prosecution. The Hon'ble Del. HC in Gangadhar Padhy v. Prem Singh, RFA 269/2013 , DOD 15th January, 2014, while dealing with the requirement of malice, held,
9. Reference may also be made to the judgment of the Division Bench of the Calcutta High Court in Bharat Commerce and Industries Ltd. Vs. Surendra Nath Shukla AIR 1966 Calcutta 388 observing, that though 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 but the concept of malice is to be kept distinct from the concept of lack of reasonable and probable cause; malice denotes spite or hatred against an individual and prosecution can be held to be malicious only if it is found to be vindictive, initiated to malign the plaintiff before the public or guided by purely personal Suit No. 524/23 Adarsh v. Kajal & Ors. Page 9 of 11 consideration. It was reiterated that if there is an honest belief that the accusation is true, then even though the belief is mistaken, the charge may still be reasonable and probable.
20. In the present case, while there is no specific averment in the examination-in-
chief of the plaintiff imputing malice to the extent state above against the defendant, from a conjoint reading of the evidence affidavit, the case which is sought to be proved by the plaintiff is that the malice intended was the loss of educational, job and marriage prospects of the plaintiff coupled with the intention to harass and humiliate him. The plaintiff claims that as a result of such prosecution, he had been deprived of the opportunity to avail scholarships for betterment of his education and job prospects while also suffering damage to his reputation and marriage prospects. He has claimed that he lost several job opportunities due to the stigma attached with being falsely accused of a crime. I have gone through the statement of the complainant on the basis of which the FIR had been lodged. She has stated in her complaint that the plaintiff herein had been abusing and assaulting her in conjunction with her other in-laws. Other allegations have also been made as to how the Defendant no. 1 allegedly suffered at the hands of her in-laws. I am unable to find any malice in the said statement. Merely because the plaintiff had been discharged doe not give rise to the assumption that the prosecution initiated by the defendant no. 1 was reeking of malice. Furthermore, the plaintiff has not led any evidence to substantiate the said averments of loss of educational, job and marriage prospects. He has neither examined any witness to whom D-1 had been making false imputations. No person from his social circle had been examined by him to prove such imputations. Nothing has been brought on record by him to show the exact job opportunities which were missed due to the pendency of the criminal case against him. Similarly, nothing has been brought on record to prove the alleged loss of marriage prospects. The allegations have been made in a general manner and are not sufficient in themselves to justify the requirement of malice on part of D-1. Hence, in the Suit No. 524/23 Adarsh v. Kajal & Ors. Page 10 of 11 considered opinion of this Court, the essential ingredient of 'malice' remains unproved by the plaintiff along with the requirement of a loss of reasonable and probable cause.
21. At this stage it would also be apposite to refer to the general principle qua the tort of malicious prosecution, reiterated in Anil Dutt Sharma Vs. Union Of India 2015 SCC Online Del 7615, where dealing with the issues of desirability of a suit for malicious prosecution, it was held,
4. One of us (Rajiv Sahai Endlaw, J.), sitting singly in Gangadhar Padhy Vs. Prem Singh 211 (2014) DLT 104 and in Akbar Ali Vs. State MANU/DE/1109/2014 has held that an action for malicious prosecution is not favoured in law and should be properly guarded and its true principles strictly adhered to, since public policy favours the exposure of a crime and it is highly desirable that those reasonably suspected of crime be subjected to the process of criminal law for the protection of society and the citizen be accorded immunity for bona fide efforts to bring anti-social members to the society to the bar of justice. It was further held that to show that there was no reasonable and probable cause for prosecution, it has to be established that the prosecution did not believe in the guilt of the accused. It was yet further observed that police is an impartial agency constituted by the State for investigation into offences, booking of offenders and bringing them to justice, on their being satisfied by their enquiries that the case is truthful and merits prosecution and if such an agency prosecuted the offender, it would certainly be a factor in favour of the complainant having reasonable and probable cause.
22. In light of the aforesaid discussion and the failure of the of the plaintiff to fulfil of the two essential requirements, of malice and reasonable/probable cause, the suit of the plaintiff fails.
23. No order as to costs. Decree sheet be prepared accordingly.
24. File be consigned to the record room after necessary compliance.
ANNOUNCED IN THE OPEN (PRITU RAJ)
COURT ON 15.01.2023 CIVIL JUDGE (NORTH)
ROHINI/DELHI/15.01.2023
Suit No. 524/23 Adarsh v. Kajal & Ors. Page 11 of 11