Patna High Court
Bachcha Pandey And Anr. vs Mt. Deo Sunder Devi And Ors. on 15 September, 1967
Equivalent citations: AIR1968PAT248, 1969(17)BLJR411, AIR 1968 PATNA 248
JUDGMENT B.P. Sinha, J.
1. Both these appeals arise put of a suit instituted by Ram Chalitar Singh for recovery of Rs. 26,640 as damages from Bachcha Pandey (defendant No. 1) and Jagdeo Tewary (defendant No. 2), who were defendants 1st party, and Amiya Bhushan Banerjee (defendant No. 3), who was defendant second party. First appeal No. 15 of 1961 has been filed by defendants 1 and 2. The other appeal, namely, First Appeal No. 55/1961 was filed by Ramchalitar Singh, plaintiff. This Ram Chalitar Singh died during the pendency of the appeal and in his place his widow, sons and daughters have been substituted as appellants.
2. Plaintiffs' ease was that 61 bighas and 7 kathas of lands appertaining to Khata No. 813 situated in Mouza Jaisinghpur in the district of Champaran, fully detailed in schedule 1 of the plaint, were ghairmazrua Malik lands of Turkaulia Neel Kothi. Kri-pal Narain Singh, Jadu Lal, Kishun Pra-sad and Chaturbhuj Sahai jointly took settlement of those lands. Kripal's share was one half. The other half share belonged to the remaining three settlees in equal shares. Harbans Narain Singh (defendant No. 11) and Chitrakut Narain Singh (defendant No. 12) are sons of Kripal. Chandradeo Lal (defendant No. 9) is grandson of Jadu Lal. Jamuna Prasad (defendant No. 8) is son, and Gagandeo Narain Verma (defendant No. 7) is grandson of Kishun Prasad. Narain Prasad (defendant No. 10) is son of Chaturbhuj Sahai. Jadu Lal and on his death Gagandeo Narain Verma used to manage the settled lands on behalf of all the cosharers. Gagandeo fraudulently brought about the sale of settled lands in 1929 in a certificate case filed by Bettiah Raj and purchased the same in benami name of Suraj Prasad (defendant No. 6) who is brother of his wife.
In spite of that purchase all the co-sharers continued to remain in possession ot the lands as usual. On the death of Kripal Narain Singh his sons defendants 11 and 12 executed a sale deed on 10th October, 1941 in respect of 21 bighas of land out of their share in the entire settled lands in favour of the plaintiff and put him in possession thereof. Experiencing inconvenience in joint occupation of the aforesaid lands the plaintiff instituted T. S. No. 11/3 of 1942/44 for partition of the same. The suit was dismissed by the trial court, but it was decreed by the appellate court on 4-12-1946 and it was held that Surajdeo Prasad, defendant No. 6 was only a Farzidar of defendant No. 7. Second Appeal against that decision was dismissed on 18-1-1950 Thereafter Bachcha Pandey, defendant No. 1 obtained a sale deed dated 10-3-1950 executed by Suraj Prasad, defendant No. 6 in respect of 15 bighas of land in the name of Jagdeo Tewary, defendant No. 2. Petition in Supreme Court appeal No. 19 of 1950 against the decision of this Court in the second appeal was rejected on 16-4-1951 and review No. 17 of 1951 was also dismissed on 12-2-1952.
On a petition by the plaintiff a Commissioner was appointed to effect partition. He submitted his report, to which an objection was filed by Jagdeo Tewary, defendant No. 2 on the basis of the aforesaid sale deed executed in his name by Suraj Prasad, defendant No. 6. This objection was rejected on 13-6-1953 and final decree was passed in the partition suit that very day. According to that final decree 13 bighas 13 kathas and 1 dhoor of plot No. 6779 from east and 7 Bighas 6 kathas and 19 dhoors of plot No. 6776 from east i. e., in all 21 bighat of land were allotted in the patti of the plaintiff. Adjacent west of that patti an area of 9 bighas 13 kathas and 10 dhoon was allotted in the Patti of defendants 11 and 12. The plaintiff executed the final decree in execution case No. 32 of 1953 and obtained delivery of possession over lands of his Patti on 17-11-1953 with Morhan Sugar cane crop which was standing over an area of 8 bighas and came in possession of the same with the standing sugarcane crop.
3. Having failed in the civil actions, the defendants first party, with a view to cause harassment to the plaintiff took resort to the criminal court and in collusion with the local police and the Subdivisional Magistrate, who is defendant No. 3, got proceedings under sections 144 and 145 of the Code of Criminal Procedure started in respect of the entire 21 bighas of land which were allotted in the Patti of the plaintiff. The entire 21 Bighas of land including eight bighas of land, over which sugarcane crops were standing, were attached in the proceeding under Section 145 of the Code of Criminal Procedure on 9-4-1954. The land of the plaintiff fell within the reserved area of Sugauli Sugar Mills. On account of the proceedings under Section 144 and 145 of the Code of Criminal Procedure the plaintiff could not supply the sugarcane of 8 bighas of land to the Sugar Mill. The standing sugarcane crop began to dry, as a result of which it was sold by auction to defendant No. 4 at a low price of RS. 3250 only.
Had the criminal proceedings been not ktartad, the plaintiff could have sold his sugarcane for Rs. 10,200 as per account given in the plaint. Thus the plaintiff was put to a loss of Rs. 6950 on this account. Besides that, on account of the attachment the plaintiff could not cultivate the remain-Ing 13 bighas of land of his Patti, as a result of which he sustained a loss of approximately Rs. 9,215 as per account given in schedule 4 of the plaint. The proceeding under Section 145 of the Code of Criminal Procedure with regard to the 21 bighas of land was quashed by the judgment of High Court and consequently the land was released on 29-1-1955. Again defendants first party in collusion with defendant No. 3 got started another proceeding under section 144 of the Code of Criminal Procedure in respect of raytoon sugarcane (Khunti) standing over the aforesaid 8 bighas of land. The proceeding was subsequently converted to a proceeding under Section 145 of the Code of Criminal Procedure on 18-4-1955. Because of these criminal proceedings ray-toon sugarcane crops also could not be supplied to sugar mill. The standing sugarcane crop were sold by auction on 28-4-1955 and they were purchased by defendants first party in the name of their Farzidar, Damri Lal, defendant No. 5, for a sum of Rs. 1350 only, though they were worth Rs. 5100 as per account given in schedule 4 of the plaint and thereby the plaintiff suffered a loss of Rs. 3750.
4. The plaintiff, therefore, instituted the suit for recovery of the amount of loss referred to above with interest at 1 % per annum as detailed in schedule 4 of the plaint from defendants 1 to 3. No relief was claimed against other defendants of the suit.
5. The suit was contested by defendants 1 and 2 only. Their defence was that Dakhaldehani was not effected on the spot. The plaintiff did not get possession over the standing sugarcane crops. The crops were grown by these defendants and they continued in possession of the same in spite of the Dakhaldehani, which was a mere paper transaction. The plaintiff in collusion with Rani Pahari Singh, defendant No. 17 started trouble with regard to the standing sugarcane crops, as a result of which there was apprehension of breach of peace and consequently in order to avoid such breach of peace the local police reported for action under Section 144 of the Code of Criminal Procedure. The proceeding was subsequently converted to a proceeding under section 145 of the Code of Criminal Procedure and the standing sugarcane crops were auctioned for proper price. Again though the validity of the Dakhaldehani was in dispute and proceedings were pending in respect thereof, the plaintiff in collusion with defendant No. 17 wanted to cut away the standing Khunti sugarcane crops, which were in possession of these defendants, as a result of which further proceedings under Sections 144 and 145 of the Code of Criminal Procedure were started in the following year.
The Khunti crops were also auction sold for adequate price. In all these litigations the defendants were acting bona fide in assertion of their right and not with a motive to harass the plaintiff. The Sub-Divisional Magistrate, defendant No. 3 also acted in good faith in due discharge of his public duties and not with any mala fide intention. With regard to 13 Bighas of land the contention of the defendants was that they never asserted claim over those lands and as such they were not liable for any damage for any loss sustained by the plaintiff on account of non-cultivation of such lands. The defendants disputed the kind, quantity and sale rate of the produce over those lands. They contended that the lands were capable of growing only Kodo and maize at the rate of 5 to 8 maunds per bigha. The claim of the plaintiff was said to be excessive.
6. The trial court found that the plaintiff had got actual possession over the 21 bighas of lands allotted in his patti with the standing sugarcane crops. It was found that all the criminal proceedings were started at the instance of the defendants without any reasonable and probable cause. Consequently these defendants were found liable for the damages. The learned Additional Subordinate Judge allowed the claim for Mor-han sugarcane crops @ 35 maunds per bigha and the Khunti sugarcane crops @ 15 maunds per bigha. With regard to the 13 bighas of land, the claim of the plaintiff was reduced by 50%. Rate of interest was also reduced to 61/4%. The trial court found that the action taken by defendant No. 3 was bona fide in due discharge of his duties and as such he was not liable for any damage. Accordingly the suit was decreed in part against the contesting defendants with corresponding cost and ex parte against the rest excepting defendant No. 3, against whom the suit was dismissed ex parte without cost.
7. Being dissatisfied with the judgment of the trial court the plaintiff and the contesting defendants have filed separate appeals as mentioned above.
8. Learned counsel for the defendants, who are appellants in First Appeal No. 15 of 1961, has assailed the judgment of the trial court on the grounds; first, the suit for recovery of damage was not maintainable; secondly the claim was barred by limitation; thirdly, the defendants' contest in the criminal proceedings was bona fide one; fourthly the claim with regard to sugarcane crops was not maintainable, as they were not grown by the plaintiff: and fifthly, the claim allowed is excessive
9. Learned counsel for the appellants of First appeal No. 55 of 1961 has pressed the appeal only on the ground that the amount of damage allowed is low. He has not pressed for decree against defendant No. 3.
10. In connection with the first Around of attack it has been submitted by the learned counsel for the defendants that when there is a provision for awarding cost in respect of a proceeding under Section 145 of the Criminal Procedure Code, it is no longer open to the plaintiff to claim damages for malicious prosecution by a suit and as such the suit is not maintainable. In support of his contention he has referred to the following observation in a decision of the Privy Council reported in 74 Ind App 193 = (AIR 1947 PC 108), Mohammad Amin v. Jogendra Kumar Banerjee.
"The reason why the action does not lie " for falsely and maliciously prosecuting an ordinary civil action is, as explained by Bowen L. J. in the last mentioned case, that such a case does not necessarily and naturally involve damage to the party sued. A civil action which is false will be dismissed at imputations made against him, and he will be indemnified against his expenses by the award of costs against his opponent. The law does not award damages for mental anxiety, or for extra costs incurred beyond those imposed on the unsuccessful party."
He has also referred to an observation in a decision of this Court, Jagdeo v. Dwarka reported in ILR 26 Pat 68 = (AIR 1948 Pat 88) which is :--
"True, it is not an actionable wrong to institute civil proceedings without reasonable and probable cause even if malice be proved, for in the contemplation of law the defendant who is unreasonably sued is sufficiently indemnified by a judgment in his favour, which gives him his costs against the plaintiff. But there are proceedings which, though civil, are not ordinary actions, and fall within the reason of the law which allows an action to lie for malicious prosecution.
In my judgment, proceedings of a quasi criminal type fall within this class, because they are proceedings under the Criminal Procedure Code in the Criminal Courts, and there is no question of the person proceeded against being indemnified in costs. He must seek his remedy elsewhere."
11. The learned counsel has argued that now when by amendment provision for award of cost has been made in Section 148 (3) in respect of a proceeding under Section 145 of the Code of Criminal Procedure, any proceeding under that section can be equated to a civil action for the purpose of application of the aforesaid principles. In support of the application of that principle to a claim for damage for malicious prosecution of a proceeding under Section 145 of the Code of Criminal Procedure he has referred to a decision reported in AIR 1951 Mad 659, Akkuliya Naidu v. M. Venkata-swamy Naidu. In that case it was held that the suit for damages for malicious prosecution was not maintainable as costs are provided for in respect of the proceedings under Section 145 of the Code of Criminal Procedure.
This proposition has not been disputed by the learned counsel for the plaintiff. He has, however, submitted that there are two aspects of claim for damages in respect of prosecution (civil or criminal); one is action for damages for interference with the exercise of property rights, that is to say, for an act in the nature of trespass to the property, if any. It has been argued that claim for damage for malicious prosecution may not lie if there is a provision for awarding cost of the prosecution proceeding, but this principle will not apply to a case where by the prosecution there has been interference in the exercise of the property rights by the plaintiff, for which a separate civil action for recovery of damage is maintainable. In support of his contention he has relied upon a number of decisions, which will be referred to immediately.
12. The first case is Clissold v. Crat-chley reported in (1910) 2 K. B. 244 In that case in spite of the payment of the cost allowed by the court in a litigation to the agent of the defendants' solicitor, of which the defendant or his solicitor had no notice, execution was levied against the goods of the plaintiff The very next day when the defendants' solicitor could learn about the payment of the decretal dues he withdrew the execution. The plaintiff then started an action against the defendant and his solicitor to recover damages for improperly levying execution and in the alternative for trespass. It was found as a fact that neither the defendant nor his solicitor acted maliciously Therefore, it was held, that though in absence of malice the defendant and his solicitor were not liable in an action on the case, they were liable in trespass and the claim was allowed So the distinction between a claim for damage for malicious prosecution and a claim for damage on account of trespass was recognized. Another case is of Privy Council Mudhan Mohan Doss v. Gokul Doss (1863-66) 10 Moo Ind App. 563 (PC). In that case suit was brought to recover the damages alleged to have been sustained by the plaintiff in consequence of an attachment made at the instance of the defendant as the holder of a decree The question was whether the plaintiff was entitled to any damage. Their Lordships observed :--
"If it be important in India to check any tendency to resist the execution of legal process, it is hardly less important to maintain the principle that they who misuse legal process are responsible for the consequence of that misuse. "
It was therefore, held that the gist of the action was unlawful attachment and the plaintiff could not be precluded from recovering damages for that actionable wrong. These decisions have been followed in several decisions of the Calcutta High Court referred to by the learned counsel for the plaintiff One of those decisions is Bishun Singh v. A. W N. Wyatt (1911 14 Cal LJ 515. It has been held therein that where the defendant obtained an attachment of the property of the plaintiff under an erroneous impression that he had a decree capable of execution, he is liable to be sued by the plaintiff for damages in trespass. Mukherjee, J. observed :
"The broad proposition, formulated by the learned Vakil for the appellant, that the suit as framed is not maintainable, cannot consequently be supported, and the statement, that the institution of an ordinary civil action, however unfounded, vexatious and malicious it may be, is not a good cause of action, must be qualified when there has been arrest of person or seizure of property ....... In our opinion, the plaintiff, if entitled to damages, can succeed, not on the ground of malicious abuse of legal process, but on the ground that the defendant has committed an act of trepass ...... .The substance of the matter is that, if a litigant executes any form of legal process which is invalid for want of Jurisdiction, irregularity, or any other reason, and in so doing he commits any act in the nature of trespass to person or property, he is liable therefor in an action of trespass; it is not necessary to prove any malice or want of reasonable or probable cause."
The next case is of Bhut Nath Pal v. Chandra Benode, (1912) 16 Ind Cas 443 (Cal). That was a case in which plaintiff was injuncted from making construction of the house on the application of the defendant in a suit instituted by him. The suit was dismissed. The plaintiff then instituted a suit and claimed damages for the injunction alleged to have been wrongfully issued against him at the instance of the defendant. It was held that "the dismissal of the previous suit shows that the injunction was improperly obtained, in other words, the defendants have unlawfully interfered with the exercise of property rights by the plaintiff. The defendants have thus committed an action in the nature of trespass to property, and are, consequently liable in an action for trespass; it is not necessary for the plaintiff to prove any malice or want of reasonable or probable cause. It it indisputable, as fully explained in (1911) 14 Cal LJ 515, that mistake, however, honest or inevitable, is no defence for him who intentionally interferes with the person or property of another". The plaintiff was, therefore, found to be entitled to damages on the first ground urged, namely, that the defendants unlawfully interfered with thp exercise of his property rights.
The principle of this decision was recognized in a Full Bench decision of the Calcutta High Court, Norendra Nath v. Bhusan Chandra, AIR 1920 Cal 357 (FB). The Full Bench referred to two sets of decisions, one laying down that a person who unlawfully interferes with the exercise of the property rights of another commits an act in the nature of trespass to property and is liable for damages in an action for trespass; the other laying down that no suit lies for damages against a defendant for maliciously and without reasonable and probable cause instituting a civil action. The Full Bench opined that there was no conflict in principle between the two classes of cases. In other words, the Full Bench impliedly approved of the principles inundated in the two different series of cases. It clearly supports the contention of the learned counsel for the plaintiff that though action for malicious prosecution may not lie because of equating a proceeding under Section 145 of the Code of Criminal Procedure with a civil action on account of a provision for payment of cost, a suit for damage on account of interference in exercise of the right to the property is maintainable.
These decisions yet support from the provision of Section 95 of the Code of Procedure which impliedly recognizes the right to institute & suit for compensation for wrongful arrest, attachment or injunction in spite of provision for cost being there with regard to any civil action. No decision to the contrary has been cited by the other side except a case reported in (1867) 7 Suth WR (Civil) 355. Raibullub Gope v. Issan Chunder Hirjrah. In that case it was held that a party is not liable to damage in respect of an attachment made under a warrant issued by a court. Reasons for such broad proposition have not been given in the judgment. This has not been followed in later decisions of the Calcutta High Court referred to above There does not appear any reasonable basis for making a distinction between an interference to property right by a direct act of a person and an interference to such right by an order of a court passed at the instance of such a person.
13. Cost is awarded in a civil or a quasi criminal action to compensate the, winning party for the expenses incurred in that action. For a case of vexatious nature there is a provision in the Code of Civil Procedure for award of cost by way of compensation. The cost so allowed is to be taken into account in any suit for damage in respect of such vexatious claim. But in awarding cost no account is taken of any injury to property right. Person suffering injury to property right cannot be left without any remedy. A person, who is deprived of exercising the acts of ownership over his property by a direct act of another person or through a motion in a law court at his instance, is certainly entitled to such damages as are necessary and proximate result thereof. When such act of that other person was intentional it is of no avail to him to urge that he acted bona fide for which he had reasonable ground. It is not necessary for the person injured to prove any malice or want of reasonable or probable cause. Any person should not be allowed to suffer for an Intentional act of other. All these are based upon sound principles of equity and justice.
14. In the instant case it would appear from the reading of the plaint that the plaintiffs have not claimed damages for malicious prosecution, rather, the claim is based upon injury to the property and the interference with the exercise of the property rights by the plaintiffs. Under such circumstances, in view of what has been said above, the suit is maintainable, though there is provision for award of cost in respect of the proceeding under Section 145 of the Code of Criminal Procedure in which the property was attached giving rise to the cause of action of this litigation.
15. With regard to the second ground, on which the judgment has been assailed, it has been submitted on behalf of the learned counsel for the defendants that the claim of the plaintiff can be divided into two parts; one is with regard to the loss sustained on account of damage to the Morham Sugarcane crop standing over 8 Bighas of land and the 13 Bighas of land remaining fallow on account of attachment in the first proceeding under Section 145 of the Code of Criminal Procedure; and the other is with regard to the damages caused to the Raytoon (Khunti) sugarcane crop on account of the second proceeding under Section 145 of the Code of Criminal Procedure. It has been submitted that the entire 21 bighas of land belonging to the plaintiff were included in the proceeding on 9-4-1954 and they were attached. The proceeding was quashed by an order of this court on 23-11-1954 with regard to those 21 Bighas of land and therefore the present suit instituted on 31-1-1957 i.e. more than a year later, is barred under Article 23 of the Limitation Act 1908 In reply to this argument it has been submitted by the learned counsel for the plaintiff that Article 23 is not applicable in this case inasmuch as the suit is not for damage for malicious prosecution.
It has been submitted by him that the proper Article which is applicable to this case, is Article 39 of the Limitation, and consequently the present suit is not barred by limitation. The submission is well founded. Article 23 of Limitation Act, 1908 is meant for a suit for compensation for malicious prosecution. Where this is not a suit of that nature the article has no application. Article 39 provides a period of three years of limitation in a suit for compensation for trespass upon immovable property. Here wrongful act is the attachment of the land with the standing crops and damage to the crops is only a consequence thereof, which is to be considered to ascertain the quantum of damages for the wrongful act. It is a case where attachment giving rise to the cause of action was with regard to immovable property, and as such Article 39 is the proper article applicable to this case. In support of this view reference can be made to a decision of Madras High Court K. Venkataramanujam v. P. Basavayya (1913) 21 Ind Cas 213 (Mad). If it be said that Article 39 does not apply, then in absence of any specific provisions for such a suit the residuary article 120 will apply and even then the suit is within time. AIR 1940 Bom 20, Shridhar Mahadeo v. Godulal Jathmal relied upon by the learned counsel for the defendants was relating to Article 28 of the Limitation Act and it has no application here. I, therefore find that no part of the claim of the plaintiff is barred by limitation.
(After discussing in paras 16 to 29 the evidence and the damages claimable under the circumstances of the case the judg-ment proceeded):
30. It is well settled that in the absence of any usage or contract express or implied, or of any provision of law to justify award of interest, interest byway of damage cannot be allowed In this connection reference can be made to Union of India v. W P. Factories Ltd. AIR 1966 SC 395; State of Bihar v. Thawardas Pheru-mal AIR 1964 Pat 225 and Union of India v. Motilal Kamalia AIR 1962 Pat 384. There is no such thins in this particular ease. Therefore the plff is not entitled to any interest on the amount of compensation prior to the date of institution of the suit. The claim for such interest has to be dismissed.
31. In view of what has been said above, on account of the claim for sugar-cane, the plaintiff is not entitled to anything besides the price of sugarcane (mor-han and khunti) fetched in auction sales. He has already withdrawn that amount (Rs. 3250 + Rs. 1350 = Rs. 4600). Hence there cannot be any decree in favour of the plaintiff on account of the sugarcane crops.
32. In connection with the 13 bighas land the court below has allowed Rupees 4607.50 p. (sic) as total price of the different kinds of crops. This has to be affirmed. Plaintiff will not get any interest on such amount for the period prior to the date of institution of the suit.
33. The result is that First Appeal No. 15 of 1961 is allowed in part and First Appeal No. 55 of 1961 is dismissed. The plffs claim will stand decreed for a sum of Rs. 4607.50 P. only besides interest pen-dente lite and future at the rate of 6 p. .c. per annum and corresponding cost of the trial court. The decretal amount will be payable by defendants first party only. The judgment and decree of the Court below are modified accordingly. Under the circumstances of the case the parties will bear their own costs of this Court in both the appeals.
Tarkeshwar Nath, J.
34. I agree.