Delhi District Court
Smt. Lakshmi ) vs Dilip Kumar Ray on 5 May, 2020
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
CS DJ ADJ No. 517808/2016
CNR No. DLSW010082932016
IN THE MATTER OF:
1. Smt. Lakshmi )
W/o Sh. Abdul Salam )
R/o WZ-420 )
House No. 24-A, 25-A, 26-A & 27-A )
Mai Dayal Building )
Palam Colony, New Delhi - 110045 )
2. Sh. Abdul Salam )
S/o Sh. Mohd. Iqbal )
(Plaintiff No.2 through plaintiff No.1) )
R/o WZ-420 )
House No. 24-A, 25-A, 26-A & 27-A )
Mai Dayal Building )
Palam Colony, New Delhi - 110045 ) ... Plaintiffs
v.
1. Sh. Ajay Kapahi )
S/o Late Sh O.P. Kapahi )
R/o 3/143, Subhash Nagar )
New Delhi - 110027 )
2. Sh. Bijender Singh )
CS DJ ADJ No. 517808/2016
Page No. 1/29
S/o Sh. Baldhari Singh )
House No. C-1/2742 )
Sushnt(sic) Lok-1, Gurgaon, Haryana )
3. Sh. Dev Raj )
S/o Sh. Rewti Prasad )
R/o WZ-418, Flat No. S-1 )
Gali No. 4A, Sadh Nagar, Palam Colony )
New Delhi - 110045 )
4. Sh. Raj Kumar )
S/o Late Mohan Lal )
R/o 53 A, WZ-420 )
Mai Dayal Building, Sadh Nagar )
Palam Colony, New Delhi - 110045 ) ... Defendants
Date of institution of suit: 02.11.2016
Date of judgment reserved: 04.02.2020
Date of pronouncement of judgment: 05.05.2020
JUDGMENT
1. A husband and wife duo, namely, Abdul Salam and Lakshmi on being aggrieved by being impleaded as defendants and accused in various legal proceedings such as civil suit and a criminal complaint initiated by Ajay Kapahi and Bijender Singh and in which Dev Raj and Raj Kumar falsely testified against them have preferred the present suit seeking damages to the tune of ₹50,00,000/- (Rupees Fifty lakhs only).
CS DJ ADJ No. 517808/2016 Page No. 2/29Facts
2. The facts of the case deciphered from the plaint are that one Lakshmi (plaintiff No. 1) and Abdul Salam (plaintiff No. 2), a married couple claim themselves to be owners in possession of an immovable property i.e. WZ-420, House No. 26-A, 27-A, Mai Dayal Building, Palam Colony, New Delhi and residing along with the mother of plaintiff No. 2, namely, Radha. Ajay Kapahi (defendant No. 1) preferred one criminal complaint case against the plaintiffs and Radha for having trespassed into the aforementioned property and in which Dev Raj (defendant No. 3) and Raj Kumar (defendant No. 4) deposed falsely as witnesses. The said criminal complaint preferred by the defendant No. 1 was dismissed by order dated 15.10.2013 passed by the Ld. Metropolitan Magistrate, South West District, Delhi and against which the defendant No. 1 preferred a revision petition before the Ld. District & Sessions Judge, South West, Delhi. The revision petition was dismissed by the Ld. District & Sessions Judge, South West, Delhi by judgment dated 21.08.2014.
3. Thereafter, Ajay Kapahi (defendant No. 1) and Bijender Singh (defendant No. 2) filed two civil suits against the plaintiffs. One suit before the establishment of District Judge, South West, Dwarka Courts, Delhi and the second suit before the establishment of Senior Civil Judge, South West, Dwarka Courts, Delhi. The defendant Nos. 3 and 4 deposed falsely at the instance of defendant Nos. 1 and 2. One of the suits was dismissed in default by order dated 17.10.2014.
CS DJ ADJ No. 517808/2016 Page No. 3/294. The plaintiffs on being aggrieved by the defendants having dragged them in multifarious litigation not only had to incur expenses but also suffered financial loss, loss of time, humiliation and loss of reputation. A legal notice dated 16.07.2016 seeking ₹50,00,000/- (Rupees Fifty lakhs only) as damages was sent by the plaintiffs to the defendants on the account of filing false criminal complaints and civil cases against them. The notices stood served, as the envelopes dispatched were never received back unserved by the plaintiffs. However, no response was lodged by the defendants to the said notice, hence the present suit.
5. The plaintiffs are husband and wife duo, wherein the husband (plaintiff No. 2 herein) has appointed his wife (plaintiff No. 1 herein) as his constituted attorney to file, represent him in the present suit by virtue of a special power of attorney dated 05.10.2016.
6. Pursuant to the service of summons for settlement of issues, a joint written statement was filed by the defendant Nos. 1 and 2, whereas the defendant Nos. 3 and 4 filed a joint written statement in their defence.
7. The defendant Nos. 1 and 2 urged in their written statement that the suit preferred by the plaintiffs is without any cause of action and is time barred, thus the same is liable to be dismissed. The aforesaid defendants had also urged in their written statement that the plaintiffs did not approach the Court with clean hands and suppressed material facts and particulars from the Court.
CS DJ ADJ No. 517808/2016 Page No. 4/298. The defendant Nos. 1 and 2 have urged in their defence that they are the bona fide purchaser of an immovable property bearing No. WZ-420, Sadh Nagar, Mai Dayal Building, Opposite Palam Railway Station, New Delhi, which was purchased by them from the previous owners, namely, Rakesh Kumar and Umesh Kumar Agarwal through an agreement to sell dated 08.09.2008 along with various other documents. It is also urged by the defendants in their written statement that both Rakesh Kumar and Umesh Kumar Agarwal are sons of Mai Dayal.
9. The defendant Nos. 1 and 2 have also averred in their defence that the present suit has been preferred by the plaintiffs to harass and humiliate them and seek wrongful benefit by extorting money from them. It is also urged by the said defendants that the plaintiffs have resorted to tactics to file false, malicious and frivolous suit against the defendants and other innocent persons of locality for gaining undue benefits of their own wrongs.
10. The defendant Nos. 1 and 2 have urged in their defence in the written statement that they are within their lawful right to file a complaint against anyone who have asserts and humiliates them. It is further averred in the written statement that if anyone trespasses their property they would raise their voice and which was rightfully done by the defendant Nos. 1 and 2. The defendants have pleaded in their defence that the plaintiffs are the one who have committed wrong and they rightfully resorted to filing complaints and initiated legal CS DJ ADJ No. 517808/2016 Page No. 5/29 proceedings against the wrongful acts of the plaintiffs.
11. Regarding the averments made in the paragraph 7 of the plaint, the defendant Nos. 1 and 2 denied the same in toto. It is denied by the said defendants that they entered into a criminal conspiracy and connived with the common motive to harass, humiliate the plaintiffs and filed false cases and deposed falsely. It is urged by the defendant Nos. 1 and 2 that the defendant Nos. 3 and 4 are in occupation of their property as their tenants. It is also urged by the defendant Nos. 1 and 2 that when the plaintiffs did not mend their ways and continue to harass, humiliate and spread nuisance in the locality, they were constrained to file a suit/complaint against the plaintiffs. It is averred by the defendant Nos. 1 and 2 that the defendant Nos. 3 and 4 were only witnesses. It is urged by the aforesaid defendants that they are the victims of harassment, humiliation meted out to them by the plaintiffs.
12. The defendant Nos. 1 and 2 have urged in their defence that no loss and harassment has been caused to the plaintiff and thus the question of damages does not arise, and the suit be dismissed.
13. The defence urged by the defendant Nos. 3 and 4 is the same as that urged by the defendant Nos. 1 and 2 in their written statement. On perusal of the written statement filed by the defendant Nos. 3 and 4 it is observed that they have averred to be inducted as tenants in the property i.e. WZ-420, Sadh Nagar, Mai Dayal Building, Opposite Palam Railway Station, New Delhi by the owners (defendant Nos. 1 and 2 herein). The defendant Nos. 3 and 4 have also sought dismissal CS DJ ADJ No. 517808/2016 Page No. 6/29 of the suit for want of cause of action, the suit being time-barred and no relief sought by the plaintiffs can be granted to them for the wrongs committed by them. It is also urged by the aforesaid defendants that no loss and damages have been suffered by the plaintiffs and thus the suit shall be dismissed by this Court with exemplary costs being awarded to them.
14. The plaintiffs filed replication to the respective joint written statement of the defendant Nos. 1 & 2 and defendant Nos. 3 & 4, wherein the plaintiffs refuted the defence urged by the defendants. The plaintiffs denied that their suit is barred by law of limitation. The plaintiffs reiterated the averments made in their plaint and prayed that their suit may be decreed against the defendants. Issues
15. On completion of pleadings, admission-denial of documents and submissions advanced by the learned counsels for the parties, the following issues were framed vide order dated 27.09.2017:
1. Whether the plaintiff is entitled to damages of Rs50,00,000/-, as prayed for? ... OPP
2. Whether suit of the plaintiff is time barred? ... OPD 1 &2
3. Relief.
16. Thereafter, the matter was listed for plaintiff's evidence. The plaintiffs examined a solitary witness i.e. plaintiff No.1 (PW1) to prove their case. The plaintiff No. 1 (PW1) stepped into the witness CS DJ ADJ No. 517808/2016 Page No. 7/29 box on 07.02.2018, tendered her examination-in-chief by way of an affidavit marked as Ex.PW1/1. The PW1 relied upon and proved the following documents:
S. No. Exhibit Mark put Description and Date, if any of the on the Document Document i. Ex.PW1/A Special power of attorney dated 05.10.2016.
ii. Ex.PW1/B(Colly.) Certified copy of the complaint case, status report filed by the police, statements (examination) of defendant Nos. 1, 2 and 3 and order dated 15.10.2013 passed by the Ld. Metropolitan Magistrate, Dwarka, Delhi in Ajay Kapahi v. Abdul Salam - CC No. 127/1.
iii. Ex.PW1/C(Colly). Revision petition along with certified copy of order dated 21.08.2014 passed by the Ld. District & Sessions Judge, South West, Dwarka, Delhi in Ajay Kapahi v.
Abdul Salam & Ors. - CR No. 64/2013.
iv. Ex.PW1/D(Colly). Certified copies of the legal proceedings titled as Ajay Kapahi & Anr. v. Abdul Salam & Ors. - C.S. No. 197/2013 including the order sheet, examination-in-
chief, cross-examination, court fees, plaint, written statement, replication, certified copy of order dated 15.05.2012 passed in Mahender Kumar & Ors. v.
Rakesh Aggarwal & Ors. - CS(OS) No. 318/2009 before High Court of Delhi, application under Section 151 CPC read with Order XXXIX, Rules 1 & 2, CPC, reply to said application, exemption CS DJ ADJ No. 517808/2016 Page No. 8/29 application to file court fees, list of documents & documents and list of witnesses.
v. Ex.PW1/E (Colly.) Certified copy of evidence by way of affidavit (examination-in-chief), cross-
examination in the legal proceedings titled as Ajay Kapahi & Anr. v. Abdul Salam & Anr. - CS No. 318/2015.
vi. Ex.PW1/F Certified copy of judgment dated 30.03.2016 passed by the Ld. Addl.
District Judge - 04, South West, Dwarka Courts, Delhi in Ajay Kapahi & Anr. v.
Abdul Salam & Anr. - CS No. 315/2015 (sic).
vii. Ex.PW1/G Certified copy of complaint dated 17.03.2010 lodged by Ajay Kapahi with the Commercial Officer, BSES Rajdhani Power Ltd.
viii. Ex.PW1/H Legal notice dated 16.07.2016 issued by Ravinder Singh Dakha.
ix. Ex.PW1/I(Colly.) Postal tickets dated 16.07.2016.
17. PW1 was cross-examined on 07.02.2018, 06.04.2018 and 16.05.2018. The plaintiffs closed their evidence on 16.05.2018.
18. Whereas, three witnesses stepped in the witness box on behalf of the defendants, DW1: Ajay Kapahi (defendant No. 1 herein, as DW1), DW2: Ravinder Kumar, Assistant Section Officer, ZRO - South West - 1, Delhi Jal Board, Kakrola More, Dwarka, Delhi, and CS DJ ADJ No. 517808/2016 Page No. 9/29 DW3: Nagender Pal Singh, Section Officer, BSES, Division Palam, New Delhi.
19. DW1 recorded his examination-in-chief by evidence by way of affidavit on 26.07.2018. DW1 was cross-examined on 18.03.2019 and 29.08.2019. DW2 and DW3 were summoned witnesses who produced the record summoned on 16.08.2018. The defendant No. 1 (DW1) closed the defendants' evidence on 29.08.2019. Submissions advanced by the learned counsels for the parties
20. Mr. Sunny Jain, learned counsel for the plaintiffs and Mr. S.S. Pawar, learned counsel for the defendant Nos. 1 and 2 advanced their oral arguments on 04.02.2020. Though, none appeared on behalf of the defendant Nos. 3 and 4 on 04.02.2020 to advance oral arguments but the learned counsel for the defendant Nos. 1 and 2 filed written ar- guments on behalf of the defendant Nos. 3 and 4.
21. Mr. Sunny Jain, learned counsel for the plaintiff submitted that the suit for damages has been preferred by the plaintiffs within one year from the judgement dated 30.03.2016 passed by the Ld. Addl. District Judge - 04, South West, Dwarka Courts, Delhi. The learned counsel for the plaintiff further submitted that the suit preferred by the defendant Nos. 1 and 2 herein against the plaintiffs with regard to im- movable property bearing Unit Nos. 24A and 25A forming part of a building No.WZ-420, Saadh Nagar, (Mai Dayal Building), New Delhi titled as Ajay Kapahi & Anr. v. Abdul Salam & Ors. - CS No. 197/2013 was dismissed vide judgement dated 30.03.2016 and till date CS DJ ADJ No. 517808/2016 Page No. 10/29 the plaintiffs (defendant Nos. 1 and 2 herein) did not prefer any appeal against the said judgement before the Superior Court and the same has attained finality.
22. The learned counsel for the plaintiff further submitted that the defendant Nos. 1 and 2 engaged in nefarious activities to harass the plaintiffs by lodging false complaints such as one of the complaint dated 11.03.2010 was lodged with the electricity distribution company, namely, BSES Rajdhani Power Ltd. The learned counsel for the plain- tiff further submitted that the defendants acted in conspiracy and con- nivance to harass the plaintiffs by filing false and frivolous legal pro- ceedings against them.
23. Per contra, Mr. S.S. Pawar, learned counsel for the defendant Nos. 1 and 2 contended the submissions advanced by the learned counsel for the plaintiffs on the ground that no cause of action has arisen in favour of the plaintiff to prefer the present suit. The learned counsel further contended that the suit preferred by the plaintiff is hopelessly time-barred and the same is apparent nay evident from the bare perusal of the plaint.
24. The learned counsel for the defendant Nos. 1 and 2 further sub- mitted that the plaintiffs have failed to prove their case as they have not led any evidence to prove that what sort of damages have been suffered by them. The learned counsel further submitted that the suit preferred is a frivolous suit and is nothing but an utter abuse of process of law. The learned counsel for the defendant Nos. 1 and 2 CS DJ ADJ No. 517808/2016 Page No. 11/29 further drew attention of the Court to the testimony of the plaintiff No. 1 (PW1) and submitted that the plaintiffs have failed to discharge the onus placed upon them, to prove that they have suffered any damages. The learned counsel further submitted that the plaintiff No. 1 (PW1) during her cross-examination was unable to tell any loss caused to the plaintiffs for the alleged acts of the defendants. The learned counsel for the defendant Nos. 1 and 2 concluded his argument on the note that the suit preferred by the plaintiffs is bound to be dismissed with exem- plary costs as not only the same is without any merit but also the plaintiffs have failed to prove the own case.
25. Mr. Jain, learned counsel for the plaintiffs rejoined his argu- ments and submitted that the defendants have failed to lead any evi- dence in their defence and a decree of damages be passed against the defendants and in favour of the plaintiffs.
Reasoning and Findings
26. I, have perused the complete case record, considered and deliberated over the submissions advanced by the learned counsels for the parties. My issue-wise findings ensue in the following paragraphs of this judgment.
Issue No. 1Whether the plaintiff is entitled to damages of Rs50,00,000/-, as prayed for?
27. The onus to prove the issue No. 1, whether the plaintiffs are entitled for damage of ₹50,00,000/- (Rupees Fifty lakhs only) was CS DJ ADJ No. 517808/2016 Page No. 12/29 casted upon the plaintiffs. The gravamen of the plaintiffs against the defendants is that the defendants have repeatedly embroiled them in frivolous rounds of litigation on account of which not only the plaintiffs have been harassed, humiliated, suffered loss of reputation and had to incur substantial expenses.
28. The suit preferred by the plaintiffs against the defendant is not based upon any contractual liability, however the same is based on tortious liability. The plaintiffs are aggrieved that they had been unnecessarily dragged by the defendant Nos. 1 and 2 in numerous legal proceedings and wherein the defendant Nos. 3 and 4 have deposed falsely at the behest of the defendant Nos. 1 and 2.
29. The position in law is well settled that one who avers must prove. Thus, to justify a claim of damages, the plaintiffs must prove the losses suffered by them for the action and inaction of the defendants. In the present case, it is only the plaintiff No. 1 (PW1), who stepped in the witness box to prove the plaintiffs' case. It is observed from the testimony of PW1 that to prove her case she relied upon certified copies of order dated 15.10.2013 passed by the Ld. Metropolitan Magistrate, South West District, Delhi in Ajay Kapahi v. Abdul Salam - CC No. 127/1; certified copy of judgment dated 21.08.2014 passed by the Ld. District & Sessions Judge, Dwarka Courts, Delhi in Ajay Kapahi v. Abdul Salam & Ors. - CR No. 642013; certified copy of case record along with order sheets of Ajay Kapahi & Anr. v. Abdul Salam & Ors. - CS No. 1972013 before the CS DJ ADJ No. 517808/2016 Page No. 13/29 Court of Senior Civil Judge, South West, Dwarka Courts, Delhi; certified copy of the examination-in-chief, cross-examination of witnesses along with certified copy of judgment dated 30.03.2016 passed by the Ld. Addl. District Judge - 04, South West, Dwarka Courts, Delhi in Ajay Kapahi & Anr. v. Abdul Salam & Ors. - Civil Suit No. 318/2014; a copy of complaint dated 11.03.2010 lodged by Ajay Kapahi with the Commercial Officer, BSES Rajdhani Power Ltd. and a legal notice dated 16.07.2016 issued by Mr. Ravinder Singh Dakha, Advocate on instructions of the plaintiffs to the defendants. During her cross-examination, the plaintiff (PW1) did produce certain documents viz., a handwritten note of Anand Kumar dated 02.08.2008 on a stamp paper of ₹50/-; an electricity bill dated 13.04.2018 in the name of Abdul Salam (plaintiff No. 2 herein); a water bill dated 17.04.2018 in the name of the plaintiff No. 1 and an acknowledgment of the income tax return filed by here husband, namely, Abdul Salam (plaintiff No. 2 herein).1 It is observed that though the plaintiffs have relied upon numerous documents with regard to the immovable property i.e. WZ-420, House No. 26-A, 27-A, Mai Dayal Building, Palam Colony, New Delhi, however the documents constituting part of Ex.PW1/B(Colly.), and Ex.PW1/D(Colly.) are copies of copies. In short, the plaintiffs neither produced the primary documents nor secondary evidence in accordance with law.
30. At this juncture, it is relevant to point out that the question 1 See Ex.PW1/PX-1 to Ex.PW1/PX-4 produced on 16.05.2018 by PW1.
CS DJ ADJ No. 517808/2016 Page No. 14/29about the maintainability of suit for being barred by limitation has been dealt under issue No. 2 in the following paragraphs of this judgment and the same is not repeated herein.
31. This Court cannot lose sight of the fact that the parties to the suit are no strangers. It is observed from the case record, particularly, from the certified copy of the judgment dated 30.03.2016 passed by the Ld. Addl. District Judge - 04, South West, Dwarka Courts, Delhi in Ajay Kapahi & Anr. v. Abdul Salam & Ors. - Civil Suit NO. 318/2014 (See Ex.PW1/5) that the immovable property i.e. WZ-420, Sadh Nagar, Khasra No. 169, Palam, Opposite Palam Colony Railway Station, New Delhi is under litigation amongst the legal heirs of Mai Dayal, i.e. a suit for partition, rendition of accounts and injunction titled as Sh. Mahender Kumar & Ors. v. Shri Rakesh Aggarwal & Ors. - CS(OS) No. 318/2019. It is further observed that the defendant Nos. 1 and 2 herein moved an application seeking leave to be impleaded in the aforesaid suit under Order I, Rule 10, CPC and the same was allowed by order dated 15.05.2012. However, neither party has apprised this Court about the status and outcome of the aforementioned suit before the Hon'ble High Court of Delhi.
32. In Deepak Rathaur & Anr. v. Shashi Bhushan Lal Dass, 2 the Hon'ble High Court of Delhi in a second appeal upheld the judgment dated 19.09.2015 passed by the first appellate court reversing the judgment dated 06.09.2014 passed by the trial court decreeing a suit 2 RSA No. 1/2016 date of judgment 23.09.2016 CS DJ ADJ No. 517808/2016 Page No. 15/29 for damages for malicious prosecution and defamation.
33. The facts of the case before the High Court were the appellants/ plaintiffs filed the subject suit seeking damages on account of malicious prosecution and defamation as a first information report (FIR) was lodged by the respondent/defendant against the appellants/plaintiffs on 27.04.2004. The incident of 27.04.2004 was of an assault by the appellants/plaintiffs, and therefore, there was a registering of a State case under Sections 308/325/34 of the Indian Penal Code, 1860 (IPC). The criminal case however resulted in acquittal of the appellants/plaintiffs in terms of the judgment of the Additional Sessions Judge dated 06.08.2007. The FIR in question was lodged by the respondent/defendant stating that he was sitting on a bench in the park when the accused Suraj Bhan and Satbir came and an altercation started between them. When the respondent/defendant tried to report the matter to the police, the accused persons went to their house and came again with a cricket wicket and an iron rod. When the respondent/defendant raised hue and cry Rajender Mishra and Nagender Mishra came to the spot to save him. In the meanwhile, two other accused persons, namely Kanshi Ram and his son Deepak i.e. appellants/plaintiffs came to the spot and the appellant no.2/plaintiff no.2/Kanshi Ram exhorted all other persons to kill the respondent/defendant. In the beating Rajender Mishra sustained injuries on his head and hand. Nagender Mishra and Rajender Mishra deposed in favour of the respondent/defendant in the criminal trial.
CS DJ ADJ No. 517808/2016 Page No. 16/29The appellants/plaintiffs on being acquitted in terms of the judgment of the Additional Sessions Judge dated 06.08.2007 filed the subject suit pleading that the respondent/defendant had falsely filed the complaint/FIR and since the appellants/plaintiffs were acquitted by the criminal court by the judgment dated 06.08.2007, hence, respondent/defendant was liable to pay damages for having falsely filed the complaint/FIR.
34. The respondent/defendant contested the suit and pleaded that the suit is liable to be dismissed because there is no malicious prosecution of the appellants/plaintiffs by the respondent/defendant. It was also pleaded that the investigating officer conducted investigation and thereafter the criminal case against the appellants/plaintiffs was registered as a State case and not a private complaint case. It was also pleaded that acquittal in the criminal case would not mean that appellants/plaintiffs are entitled to damages for malicious prosecution in a civil case.
35. His Lordship, Valmiki J. Mehta answered the question, whether on account of the appellants/plaintiffs being acquitted in the criminal case can by itself show that there is malicious prosecution of the appellants/plaintiffs by the respondent/defendant in negative. It was held that mere fact there has been acquittal in the criminal case will not automatically prove malicious prosecution in as much as what is relevant to succeed in a civil suit for seeking damages for malicious prosecution is that it must be found that a criminal complaint case or a CS DJ ADJ No. 517808/2016 Page No. 17/29 first information report (FIR) was initiated without reasonable and probable cause.
36. The Hon'ble High Court placed reliance upon the judgment of the Apex Court in West Bengal State Electricity Board v. Dilip Kumar Ray.3 The relevant extract of Deepak Rathaur & Anr. v. Shashi Bhushan Lal Dass,4 is reproduced as under:
"8. The issue therefore is as to whether on account of the appellants/plaintiffs being acquitted in the criminal case this by itself can show that there is malicious prosecution of the appellants/plaintiffs by the respondent/defendant. In my opinion, the answer to that has to be in the negative because mere fact that there has been acquittal in the criminal case will not automatically prove malicious prosecution inasmuch as what is relevant to succeed in a civil suit for seeking damages for malicious prosecution is that it must be found that a criminal complaint case or an FIR was initiated without reasonable and probable cause. This has been so held by the Supreme Court in the case of West Bengal State Electricity Board Vs. Dilip Kumar Ray, AIR 2007 SC 976 and the relevant paragraph of this judgment is para 14 and which para 14 reads as under:
"..............Malicious Prosecution - Malice. 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 collateral advantage. The principles to be borne in mind in the case of actions for malicious prosecutions are these:- Malice is not merely the doing a wrongful act intentionally but it must be established that the defendant was actuated by mains animus, that is to say, by spite of ill- will or 3 AIR 2007 SC 976 4 RSA No. 1/2016 date of judgment 23.09.2016 CS DJ ADJ No. 517808/2016 Page No. 18/29 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' and 'want of reasonable and probable cause' have reference to the state of the defendant's mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them.
OTHER DEFINITIONS OF "MALICIOUS
PROSECUTION"
"A judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it."
"A prosecution begun in malice, without probable cause to believe that it can succeed and which finally ends in failure."
"A prosecution instituted wilfully and purposely, to gain some advantage to the prosecutor or thorough mere wantonness or carelessness, if it be at the same time wrong and unlawful within the knowledge of the actor, and without probable cause."
"A prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy."
The term "malicious prosecution" imports a causeless as well as an ill-intended prosecution.
"MALICIOUS PROSECUTION" is a prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty CS DJ ADJ No. 517808/2016 Page No. 19/29 and right, or for ends he knows or its bound to know are wrong and against the dictates of public policy.
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 favorably to the defendant therein.
1. The institution of a criminal or civil proceeding for an improper purpose and without probable cause. 2. The cause of action resulting from the institution of such a proceeding. Once a wrongful prosecution has ended in the defendant's favor, lie or she may sue for tort damages - Also termed (in the context of civil proceedings) malicious use of process. (Black, 7th Edn., 1999) "The distinction between an action for malicious prosecution and an action for abuse of process is that a malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to effect - the improper use of a regularly issued process. For instance, the initiation of vexatious civil proceedings known to be groundless is not abuse of process, but is governed by substantially the same rules as the malicious prosecution of criminal proceedings." 52 Am. Jur. 2d Malicious Prosecution S. 2, at 187 (1970).
The term 'malice,' as used in the expression "malicious prosecution" is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives.
As a general rule of law, any person is entitled though not always bound to lay before a judicial officer information as to any criminal offence which CS DJ ADJ No. 517808/2016 Page No. 20/29 he has reasonable and probable cause to believe has been committed, with a view to ensuring the arrest, trial, and punishment of the offender. This principle is thus stated in Lightbody's case, 1882, 9 Rettie, 934. "When it comes to the knowledge of anybody that a crime has been committed a duty is laid on that person as a citizen of the country to state to the authorities what he knows respecting the commission of the crime, and if he states, only what he knows and honestly believes he cannot be subjected to an action of damages merely because it turns out that the person as to whom he has given the information is after all not guilty of the crime. In such cases to establish liability the pursuer must show that the informant acted from malice, i.e., 'not in discharge of his public duty but from an illegitimate motive, and must also prove that the statements were made or the information given without any reasonable grounds of belief, or other information given without probable cause; and Lord SHAND added (p. 940): "He has not only a duty but a right when the cause affects his own property."
Most criminal prosecutions are conducted by private citizens in the name of the Crown. This exercise of civic rights constitutes what with reference to the la of libel is termed a privileged occasion: but if the right is abused, the person injured thereby is, in certain events, entitled to a remedy. (See H. Stephen, Malicious Prosecution, 1888; Builen and Leake, Prec. P1., Clerk and Lindsell. Torts, Pollock, Torts; LQR. April 1898; Vin., Abr., tit. "Action on the Case" Ency. of the Laws of England.) "MALICIOUS PROSECUTION" means that the proceedings which are complained of were initiated from a malicious spirit, i.e., from an indirect and improper motive, and not in furtherance of justice. (10 CWN 253 (FB)) CS DJ ADJ No. 517808/2016 Page No. 21/29 The performance of a duty imposed by law, such as the institution of a prosecution as a necessary condition precedent to a civil action, does not constitute "malice". (Abbott v. Refuge Assurance Co., (1962) 1 QB 432.) "Malicious prosecution" thus differs from wrongful arrest and detention, in that the onus of proving that the prosecutor did not act honestly or reasonably, lies on the person prosecuted." (per Diplock U in Dailison v. Caffery, (1965) 1 QB
348)). (Stroud, 6th Edn., 2000)."
(emphasis is mine)
9. If we see the averments made in the plaint in the present case of the appellants/plaintiffs, it is seen that except stating that the complaint is falsely filed, there is no averment even by a whisper that the complaint/FIR was lodged without any reasonable and probable cause. Not only in the plaint there is no pleading, even in the affidavit by way of evidence which is filed on behalf of the appellants/plaintiffs of the plaintiff no.1 as PW-1, once again the same only repeats and reiterates what is stated in the plaint of the FIR being falsely lodged against the appellants/plaintiffs by the respondent/defendant, and there is no deposition in this affidavit by way of evidence of plaintiff no.1 as PW-1 that the respondent/defendant lodged the FIR without any reasonable and probable cause. Therefore, the appellants/plaintiffs have neither pleaded nor proved the initiation of criminal proceedings by way of lodging of an FIR to be without any reasonable and probable cause, and therefore, the first appellate court was justified in holding that the suit of the appellants/plaintiffs seeking damages for malicious prosecution cannot succeed."
37. The High Court also rejected the contention of the learned counsel for the appellants/plaintiffs that the civil Court can look into a judgement passed by the Court in a criminal case. It was held that the CS DJ ADJ No. 517808/2016 Page No. 22/29 reliance placed by the appellants/plaintiffs on Rizwan Shah v. Shweta Joshi & Ors.5 was misplaced in light of the judgment of the Supreme Court in Vishnu Dutt Sharma v. Daya Sapra (Smt.),6 wherein it was held that a judgment in a criminal case between the parties which has resulted in acquittal is not binding on the civil Court and any finding in the criminal proceedings by no stretch of imagination would be binding upon civil proceedings.
38. The relevant extract of paragraph No. 23 of the Apex Court's judgment in Vishnu Dutt Sharma v. Daya Sapra (Smt.) 7 reads as under:
"23. It brings us to the question as to whether previous judgment of a criminal proceeding would be relevant in a suit. Section 40 of the Evidence Act reads as under:
"Previous judgments relevant to bar a second suit or trial-The existence of any judgment, order or decree which by law prevents any Courts from taking Cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial."
This principle would, therefore, be applicable, inter alia, if the suit is found to be barred by the principle of res judicata or by reason of the provisions of any other statute. It does not lay down that a judgment of the criminal court would be admissible in the civil court for its relevance is limited. (See Seth Ramdayal Jat v. Laxmi Pras). The judgment of a criminal court in a civil proceeding will only have limited application, viz., inter alia, for the purpose as to who was the accused and what was the result of the criminal proceedings. Any fining in a 5 (2012) 2 ILR Del 2005 6 (2009) 13 SCC 729 7 ibid.
CS DJ ADJ No. 517808/2016 Page No. 23/29criminal proceeding by no stretch of imagination would be binding in a civil proceeding."
[Emphasis laid by underlining and highlighting of text]
39. Keeping in mind the ratio of West Bengal State Electricity Board v. Dilip Kumar Ray,8 Deepak Rathaur & Anr. v. Shashi Bhushan Lal Dass,9 and Vishnu Dutt Sharma v. Daya Sapra (Smt.).10 I, am of the considered view that the plaintiffs have failed to prove any malice on the part of the defendants which can be attributed that the legal proceedings initiated by the defendant Nos. 1 and 2 was false and malicious. The defendants if at all asserted their rights against the plaintiffs herein by staking claim to the immovable property i.e. Unit Nos. 24A, 25A and 26A forming part of a building No.WZ-420, Saadh Nagar, (Mai Dayal Building), New Delhi and lodged protest against the actions and inactions of the plaintiffs. There is no evidence to ascertain the damages suffered by the plaintiffs. It is also observed that the plaintiffs have also led no evidence to prove that in whose eyes they lost their reputation. This Court observes and holds that the plaintiffs have failed to lead any evidence to prove harassment, loss of reputation and above all there is no shred of evidence on record to prove any expenses incurred by the plaintiffs. The plaintiffs' claim of damages must fail as they have failed to lead evidence be it substantial to prove losses, harassment and disrepute suffered by them. This Court 8 AIR 2007 SC 976 9 RSA No. 1/2016 date of judgment 23.09.2016 10 (2009) 13 SCC 729 CS DJ ADJ No. 517808/2016 Page No. 24/29 finds that the plaintiffs are not entitled for any damages be it ₹50,00,000/- (Rupees Fifty lakhs only) against the defendants.
40. Accordingly, the issue No. 1 is answered against the plaintiffs and in favour of the defendants.
Issue No.2 Whether suit of the plaintiff is time barred?
41. The onus to prove issue No. 2 rests upon the defendant Nos. 1 and 2. The defendants have flanked challenge to the plaintiffs' suit for damages in their written statement on the count that the suit preferred is barred by law of limitation.
42. The defendants have urged that the limitation period to prefer a suit for damages on the cause of action urged by the plaintiffs is 1 (one) year, whereas the plaintiffs have preferred the plaint on 27.10.2016, which is much beyond a period of two years from the passing of order dated 27.11.2013 by the Ld. Metropolitan Magistrate, South West, Dwarka Courts, Delhi and the judgment dated 21.08.2014 passed by the Ld. District & Sessions Judge, South West, Dwarka Courts, Delhi.
43. The plaintiffs in their replication have stated that the objection to the maintainability of the suit has no force in the eyes of law. The plaintiffs have averred that they have filed a suit for damages, as the defendant Nos. 1 and 2 filed false and frivolous litigation against the plaintiff and Radha Amma (mother of plaintiff No. 2) and the defendant Nos. 3 and 4 have deposed as false witnesses against the CS DJ ADJ No. 517808/2016 Page No. 25/29 plaintiffs. The plaintiffs have also averred in the paragraph No. 8 under the heading reply to preliminary objections in their replication to the defendant Nos. 1 and 2's written statement that the suit preferred by them is within limitation, as the last suit preferred by the defendant Nos. 1 and 2 against them in which the defendant Nos. 3 and 4 deposed was dismissed by the Court of Mr. Virender Bhatt, Addl. District Judge, South West, Dwarka Courts, Delhi.
44. On perusal of the plaint it is observed that the plaintiffs have averred in the plaint that the defendant Nos. 1 and 2 embroiled them and the mother of the plaintiff No. 2, namely, Radha Amma in false cases such as a criminal complaint, revision petition arising out of the criminal complaint, and two separate suits for possession, permanent injunction and mesne profits. For the sake of clarity and understanding, the particulars of the legal proceedings amongst the parties to this are stated in the table below:
S.No. Case Particulars Court Date of
Judgment/Order
i. A complaint case filed by Metropolitan 15.10.2013
Ajay Kapahi (defendant Magistrate,
No. 1 herein) against Dwarka, Delhi
Abdul Salam (plaintiff No.
2 herein) titled as Ajay
Kapahi v. Abdul Salam -
CC No. 127/1
ii. Revision petition preferred District & 21.08.2014
by Ajay Kapahi (defendant Sessions Judge,
No. 1 herein) against order South West,
CS DJ ADJ No. 517808/2016
Page No. 26/29
dated 15.10.2013 passed Dwarka Courts,
by the Ld. Metropolitan Delhi
Magistrate in Ajay Kapahi
v. Abdul Salam - CC No.
127/1, titled as Ajay
Kapahi v. Abdul Salam &
Ors. - CR No. 64/2013.
iii. A suit for possession, Sr. Civil Judge, 17.10.2014
permanent injunction, South West,
mesne profits along with Dwarka Courts,
interest preferred by Ajay Delhi
Kapahi (defendant No. 1
herein) and Bijender
Kumar (defendant No. 2
herein) against Abdul
Salam (plaintiff No. 2
herein), Lakshmi (plaintiff
No. 1 herein) and Radha
with regard to an
immovable property
bearing Unit Nos. 26-A /
WZ-420, Sadh Nagar, (Mai
Dayal Building) titled as
Ajay Kapahi & Anr. v.
Abdul Salam & Ors. - CS
No. 1972013.
iv. A suit for possession, Addl. District 30.03.2016
permanent injunction, Judge - 04, South
mesne profits along with West District,
interest preferred by Ajay Dwarka Courts,
Kapahi (defendant No. 1 Delhi
herein) and Bijender
Kumar (defendant No. 2
herein) against Abdul
Salam (plaintiff No. 2
herein), Lakshmi (plaintiff
No. 1 herein) and Radha
with regard to an
immovable property
CS DJ ADJ No. 517808/2016
Page No. 27/29
bearing Unit Nos. 24A and
25A forming part of a
building No.WZ-420,
Saadh Nagar, (Mai Dayal
Building), New Delhi titled
as Ajay Kapahi & Anr. v.
Abdul Salam & Ors. - CS
No. 1972013.
45. The plaintiffs in their replication have admitted that the suit is not barred by law of limitation as their suit is based upon the judgment dated 30.03.2016 passed by the Ld. Addl. District Judge - 04, South West District, Dwarka Courts, Delhi in Ajay Kapahi & Anr. v. Abdul Salam & Ors. - CS No. 1972013.
46. From the above it is abundantly clear that the plaintiffs are aggrieved by being embroiled in various legal proceedings by the defendant such as a criminal complaint, revision petition and two separate suit however the cause of action of the present suit seeking damages on account of being caused great humiliation, harassment, loss of reputation and incurring expenses to contest the legal proceedings. On considering that the suit for damages ought to have been filed by the plaintiffs within a period of one year from the date of the judgement/order, this Court is of the considered view that considering the judgement dated 30.03.2016 passed by the Ld. Addl. District Judge - 04, South West, Dwarka Courts, Delhi in a suit for possession, injunction and mesne profits with regard to an immovable property bearing Unit Nos. 24A and 25A forming part of a building No.WZ-420, Saadh Nagar, (Mai Dayal Building), New Delhi titled as CS DJ ADJ No. 517808/2016 Page No. 28/29 Ajay Kapahi & Anr. v. Abdul Salam & Ors. - CS No. 197/2013 does bring the present suit within the period of limitation, as the plaint in the present case was preferred on 27.10.2016. It is also observed that the defendants have led no evidence on record to prove that the suit of the plaintiff is barred by limitation.
47. In view of the above observations and findings, this Court holds that the present suit seeking damages preferred by the plaintiffs against the defendants is very well within the period of limitation. Accordingly, the issue No. 2 is decided against the defendant Nos. 1 and 2 and in favour of the plaintiffs.
Relief
48. With the issue No. 1 being held and decided against the defendants, this Court deems appropriate to dismiss the suit of the plaintiff with costs of the suits being awarded to the defendants, as it has been held that the plaintiffs failed to prove their claim of damages against the defendants. Consequentially, all interim applications stand disposed of as infructuous. Let a decree sheet be drawn accordingly.
49. File be consigned to record room only after due compliance and necessary action, as per Rules.
HARGURVARIND Digitally signed by HARGURVARINDER SINGH JAGGI ER SINGH JAGGI Date: 2020.05.05 15:41:24 +05'30' Pronounced in the open Court (Hargurvarinder Singh Jaggi) on May 05, 2020 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi CS DJ ADJ No. 517808/2016 Page No. 29/29