Madras High Court
Babu Naidu vs / on 30 January, 2012
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :30.01.2012 CORAM THE HONOURABLE Mr. JUSTICE M.VENUGOPAL Second Appeal No.20 of 2002 Babu Naidu .. Appellant/Appellant/Plaintiff /vs/ Gandhi ..Respondent/Respondent/Defendant Appeal filed under Section 100 of the Civil Procedure Code against the Judgment and Decree dated 16-08-2000 in A.S.No.60 of 2000 on the file of the Additional District Judge of Tiruvannamalai in confirming the Judgment and Decree dated 29.10.1999 passed in O.S.No.75 of 1997 on the file of the District Munsif-cum-Judicial Magistrate, Chengam. For Appellant : Mr.P.Mani For Respondent : Mr.A.Thameem Mohideen for M/s T.R.Rajaraman J U D G M E N T
The Appellant/Plaintiff has filed the instant Second Appeal as against the Judgment and Decree dated 16.08.2000 passed in A.S.No.60 of 2000 by the Learned Additional District Judge, Tiruvannamalai in confirming the Judgment and Decree dated 29.10.1999 in O.S.No.75 of 1997 passed by the Learned District Munsif-cum-Judicial Magistrate, Chengam.
2.The first Appellate Court while passing the Judgment in A.S.No.60 of 2000 on 16.08.2000 has inter alia held that the proceedings of the Section 145 (1) of Criminal Procedure Code have been dropped based on the Hon'ble High Court's order dated 11.01.1989 and that the proceedings have not been finally disposed of and that the Hon'ble High Court has quashed the proceedings passed in M.C.No.1 of 1988 by the Learned Executive First Class Magistrate, Chengam and because of the technical flaw committed by the Learned Executive First Class Magistrate, its order has been quashed. Further, it has opined that the Respondent/Defendant has acted with reasonable and probable cause and not without reasonable and probable cause and since he has acted with reasonable and probable cause, the initiation of proceedings before the Learned Executive First Class Magistrate does not amount to malice and resultantly, dismissed the Appeal with costs thereby confirming the Judgment and Decree of the first Appellate Court.
3.Added further, the first Appellate Court A.S.No.60 of 2000 has also observed in its Appeal Judgment that all the criminal proceedings have been initiated with probable and reasonable cause and there is no malicious intention for the Respondent/Defendant to initiate criminal proceedings and finally concluded that the Appellant/Plaintiff is not entitled to claim for damages for malicious prosecution.
4.Earlier, in the main suit, the trial Court has framed one to five issues for adjudication. On behalf of the Appellant/Plaintiff, witness PW1 has been examined and Exhibits A1 to A20 have been marked. On the side of the Respondent/Defendant, witnesses DW1 to DW4 have been examined and Exhibits B1 to B26 have been marked.
5.The trial Court, on an appreciation of entire oral and documentary evidence available on record, has come to a categorical conclusion that it is not established on the side of the Appellant/Plaintiff that the Respondent/Defendant has filed the suit for claiming compensation for damages based on bad intention/motive. Further, the case filed by the Respondent/Defendant has not been decided on merits and that it is held by the Hon'ble High Court that the Learned Executive First Class Magistrate has not passed an order in terms of proper Section and resultantly, disentitled the Appellant/Plaintiff and dismissed the suit with costs.
6.At the time of admission of the Second Appeal, this Court has framed the following Substantial Questions of Law for determination:-
1.Whether in law the presumption that there was no reasonable and probable cause for initiating criminal proceedings by the Defendant against the Plaintiff could be drawn when the criminal proceedings initiated by the Defendant was quashed and orders were passed in favour of the Plaintiff?
2.Whether in law the Judgment and Decree passed by the Courts below are sustainable when they have failed to consider the oral and documentary evidence on record in their proper perspective and based their conclusions on mere surmises and conjectures?
7.The Contentions, Discussions and Findings on Substantial Question of law No.1:-
According to the Learned Counsel for the Appellant/Plaintiff, the trial Court as well as the first Appellate Court have misdirected themselves in coming to the conclusion that there is no mala fide intention on the part of the Respondent/Defendant in initiating criminal proceedings against the Appellant/Plaintiff, without considering the facts that their exists civil dispute and moreover the Respondent/Defendant has been inimical towards the Appellant/ Plaintiff which prompted him to initiate criminal proceedings.
8.Advancing his arguments, the Learned Counsel for the Appellant/Plaintiff submits that the trial Court has committed an error in dismissing the main suit as if there are no independent witnesses to support the case of the Appellant/Plaintiff, when infact the Respondent/Defendant and his witnesses have themselves admitted that the Appellant/Plaintiff has respect in the village and possessing valuable properties.
9.Proceeding further, the Learned Counsel for the Appellant/Plaintiff contends that there is no independent or acceptable evidence to establish the case of the Respondent/Defendant except the interested testimony of DW1, DW3 and also that DW2 the Respondent/Defendant's vendor and DW4 have not spoken about the alleged occurrence and both the Courts should have come to the conclusion that the criminal proceedings have been initiated without any just and reasonable cause.
10.Per contra, it is the contention of the Learned Counsel for the Respondent/Defendant that both the Courts below have concurrently held that it cannot be said that the Respondent/Defendant has filed the complaint without any reasonable and probable cause and infact, both the Courts have rightly held that there is reasonable and probable cause enabling the Respondent/Defendant to prefer the complaint before the Revenue Authority/Tahsildar and as such the Appellant/Plaintiff has been rightly non-suited by the trial Court as well as the first Appellate Court and these findings need not be interfered with by this Court sitting in Second Appeal.
11.In the plaint, the Appellant/Plaintiff has averred that he is a respectable person and a retired teacher and he is commanding respect and esteem in his native village and also in the surrounding villages. He owns immovable properties worth about Rs.2,00,000/- in Allappanur Village.
12.According to the Appellant/Plaintiff, the Respondent/ Defendant has initiated proceedings as per Section 145 of Criminal Procedure Code against the Appellant/Plaintiff. The proceedings in M.C.No.1 of 88 on the file of the Learned Executive First Class Magistrate, Chengam have been commenced by the Respondent/Defendant with the intention of impairing the reputation of the Appellant/Plaintiff and with improper motive that the institution of such proceedings is without reasonable cause and lawful basis.
13.The plea of the Appellant/Plaintiff is that instead of settling the disputes in a competent civil Court, the Respondent/Defendant has dragged the Appellant/Plaintiff to the Court of the Learned Executive First Class Magistrate, Chengam knowing fully well that the same would cause unnecessary vexation, worry, annoyance, inconvenience, loss of reputation and expenses etc.,
14.The Learned Executive First Class Magistrate, Chengam has passed orders directing the Appellant/Plaintiff to appeal and show cause why he should not be ordered to execute a bond for one year keeping peace in the area. The High Court in Crl.M.P.No. 8657 of 88 has quashed the proceedings of the Learned Executive First Class Magistrate, Chengam and further, the malicious prosecution of the case launched by the Respondent/Defendant before the Learned Executive First Class Magistrate, Chengam has ended in favour of the Appellant/Plaintiff.
15.It is the stand of the Appellant/Plaintiff that the Respondent/Defendant has maliciously set the law in motion which culminated in the proceedings being dropped by the Learned Executive First Class Magistrate, Chengam. The Appellant/Plaintiff has estimated the damages caused to the extent of Rs.10,000/- and issued a pre-suit notice calling upon the Respondent/Defendant to pay the said sum for damages. The Respondent/Defendant has issued a reply notice and as such the Appellant/Plaintiff has filed the suit praying for a Decree in directing the Respondent/Defendant to pay the said sum of Rs.10,000/- with costs of the suit.
16.In the Written Statement, the Respondent/Defendant has stated that the Appellant/Plaintiff is a retired teacher. All the allegations made in the plaint are false and baseless besides being imaginary in nature also that he has never been originating either in malicious or ill will towards the Appellant/Plaintiff. According to the Respondent/Defendant, the fact of the matter is that one Varadharajalu Naidu of Allappanur Village has been owning several items of properties and died intestate during the year 1960, leaving behind his widow Silagapathy Ammal and two daughters, Kamala, and Saroja @ Padmavathi to succeed all his properties equally as per the provisions of Hindu Succession Act, 1956 etc. The said Silagapathy Ammal had settled her 1/3rd share in all the properties in favour of her younger daughter Saroja @ Padmavathi as per the registered settlement deed dated 02.07.1970. The said Saroja @ Padmavathi accepted the settlement and took possession of the settled properties from the settler on the date of settlement itself and hence then she has been enjoying the same. Therefore, she is entitled to 2/3rd share in each one of the items of the properties left behind by her father.
17.Continuing further, the Respondent/Defendant has averred in the written statement that Kamala is the first wife of the Appellant/Plaintiff. The said Kamala and her sister Saroja @ Padmavathi orally divided the properties in and around. In the said partition, Kamala has been allotted 1/3rd share and Saroja @ Padmavathi has been allotted 2/3rd share. Ever since the date of partition, the respective sharers have been separately enjoying the respective shares, paying kist separately to the Government and the said Saroja @ Padmavathi has become the absolute and unimpeachable owner of the properties, which are set out in the schedule of the written statement and several of the properties and that she has been executed for enjoying the same. The said Saroja @ Padmavathy has given the schedule mentioned properties in exchange of some other properties to Santhamoorthy and Ramani S/o Ramadoss Naidu under a registered exchange deed dated 19.11.1980. Since the aforesaid partition has been an oral one, in the exchange deed mentioned supra, the old survey numbers have been mentioned. But the properties, which have been allotted to Saroja Ammal in the aforesaid partition namely schedule mentioned properties have been sub-divided and separate patta bearing No.591 has been issued in favour of Saroja @ Padmavathi by the Tahsildar of Chengam by his order dated 27.04.1980. Since the order of the sub division has not been communicated to Saroja @ Padmavathi till the date the aforesaid exchange, she described the old survey number in the exchange deed. The said Santhamoorthy and Ramani have taken possession of all the schedule mentioned properties from Saroja Ammal on 19.11.1980 itself and since then, they have been in continuous and exclusive possession and enjoyment of the schedule mentioned properties in their own right, title and interest by paying kist due to the Government as per the procedure in the title deed.
18.Accordingly, the said Santhamoorthy and Ramani have become the absolute owners of schedule mentioned properties. Kamala has been separately enjoying the share of properties. The Respondent/ Defendant has mentioned in this written statement that he purchased the schedule mentioned properties from the rightful owner, namely Santhamoorthy and Ramani for a valuable consideration of Rs.27,400/- as per registered sale deed dated 10.12.1986. He has taken possession of all schedule mentioned properties on the date of purchase itself from his vendor and since then, he is in actual possession and enjoyment of the schedule mentioned properties their own right, title and interest etc. patta for the schedule mentioned properties has been transferred in favour of the Respondent/Defendant in I.A.No.43 of 1997 dated 23.12.1997 and a separate patta has been granted to him. As such, he is the absolute owner of the schedule mentioned properties and he has been in possession and enjoyment of the same.
19.The case of the Respondent/Defendant is that the Appellant/Plaintiff, his first wife Kamala and his second wife Kuppu @ Kasthuri have no manner of right in respect of the schedule mentioned properties. The Respondent/Defendant has purchased the scheduled mentioned properties. Therefore, the Appellant/Plaintiff, his first wife Kamala and his second wife Kuppu @ Kasthuri and some other persons have become jealous and inimical towards him. The Appellant/Plaintiff and her husband have lodged a false and vexatious complaint with the Sub Inspector of Police, Vanapuram against him due to jealous, he has raised groundnut crops in the schedule mentioned land with a view to cause loss to him, (1)Kuppu @ Kasthuri (second wife) (2)Babu Naidu (Plaintiff) (3)Kamala(first wife) (4) Sattumuthu Udaiyar (5)Moorthy and (6)Krishna Udiyar have illegally destroyed the standing groundnut crops in the schedule mentioned lands on 10.12.1987 at about 7.00 a.m. by using a Tractor bearing Registration No. M.D.J.7379 which belongs to one Kumarasamy Udaiyar, S/o Ponmudi of Ravanthiavadi village. When he and his father have attempted to resist the unlawful acts of the Plaintiff, the Plaintiff and other persons, they had threatened to do away with him and his father and even thereafter, he has been in possession and and enjoyment of the schedule mentioned properties, with a view to give trouble to him, the Appellant/Plaintiff and her husband furiously without any manner of right, whatsoever, brought registered lease deed dated 09.11.87 pertaining to the schedule mentioned properties and some other properties in favour of the Sattumuthu Udaiyar S/o Ponnusamy Udaiyar. Based on the so called lease deed, (1)Babu Naidu (Plaintiff) and (2)Kuppu @ Kasthuri (second wife) (3)Kamala(first wife) (4)SattuMuthu Udaiyar(so called lessee), (5)Moorthy and (6)Krishna Udiyar have destroyed the groundnut crops raised by him in the scheduled mentioned land by employing a Tractor bearing Registration No. M.D.J.7379 on 10.12.1987.
20.In as much as the Appellant/Plaintiff and the aforesaid five other persons have been threatening to cause the breach of peace in the matter of enjoying the schedule mentioned properties with a view to safeguard his enjoyment of the schedule mentioned properties and to avert the breach of peace and tranquillity, filed a petition as per Section 145 of Criminal Procedure Code against the Appellant/Plaintiff and five other persons before the Learned Executive First Class Magistrate, Chengam and prayed for an order of injunction restraining them from in any manner interfering with his possession and enjoyment of the schedule mentioned properties. He has not made any false allegation in the said petition.
21.The Tahsildar, in pursuance of the aforesaid petition, called for a report from the Sub Inspector of Police, Vanapuram, who enquired both parties and submitted a report to the Learned Executive First Class Magistrate, Chengam with regard to dispute instituted in the matter of enjoyment of the schedule mentioned properties. He confirmed the Respondent/Defendant possession and enjoyment of schedule mentioned properties. The Learned Executive First Class Magistrate has fully satisfied about the existence of a dispute which is likely to cause the breach of peace in the matter of enjoyment of schedule mentioned properties and therefore he passed an order as per Section 145 of Criminal Procedure Code against the Appellant/Plaintiff and others. By mistake, he passed the said order as per Section 145(B) of Criminal Procedure Code instead of passing the said order as per Section 145(A) of Criminal Procedure Code.
22.The Learned Executive First Class Magistrate, Chengam passed an order directing the Appellant/Plaintiff and show cause notice as to why they should not be ordered to execute a bond for one year for keeping peace in the area. The Hon'ble High Court has quashed the order of the Learned Executive First Class Magistrate, Chengam on 11.01.89 on the ground that it is not being in consonance with Section 145 (1) of Criminal Procedure Code. Later, the Learned Executive First Class Magistrate, Chengam by its order dated 24.04.1989 dropped further proceedings in M.C.No.1 of 88, in view of the order passed by the Hon'ble High Court in Crl.M.P.No.8657 of 88, the commencement of proceedings as per Section 145 of Criminal Procedure Code has been made with a reasonable cause and lawful basis. The Respondent/Defendant has no malicious intention in filing the petition under Section 145 of Criminal Procedure Code. As a result of the proceedings of the Learned Executive First Class Magistrate, Chengam, the Appellant/Plaintiff has not suffered any damage and further, the said proceedings have not caused any annoyance, worry or vexatious or loss of reputation and expenses to the Appellant/Plaintiff. As such the Respondent/Plaintiff is not liable to pay any damage much less even a single paise. The suit is to be dismissed with exemplary costs of the Respondent/Defendant as per Section 35(A) of Civil Procedure Code.
23.PW1(Plaintiff) in his evidence has deposed that he has been a Teacher for the past 40 years and his family is a respected family in the village and that he has a property worth about Rs.2,00,000/- and he is the head of the family and the Respondent/Defendant has filed a false case against him and he is inimical towards him and that he has filed a case against him before the Learned Executive First Class Magistrate, Chengam as per Section 145 of Criminal Procedure Code and to cause mental agony and hardship. The Respondent/Defendant has commenced the proceedings before the Learned Executive First Class Magistrate and the said case is not a true one and it has no prima facie and further the Respondent/Defendant has not filed the case.
24.It is further evidenced of PW1 that he has attended 33 times for the hearing of Section 145 of Criminal Procedure Code proceedings and therefore his reputation has been affected and it has caused mental agony etc., to him and as against the order passed by the Learned Executive First Class Magistrate in M.C.No.1/88, C.M.P.No.8657 of 1988 has been filed before the Hon'ble High Court, in which the order of the Learned Executive First Class Magistrate has been quashed and later, the Tahsildar have dropped the proceedings as per Section 145 of Criminal Procedure Code.
25.PW1 (in his cross examination) that on 10.12.1986, he has created a lease deed in favour of Sattumuthu in respect of Gandhi's property without any right and it is wrong to state that when the Respondent/Defendant prevented, he has endeavoured to kill then and that Section 145 of Criminal Procedure Code, a petition has been falsely filed by him.
26.The main contention advanced by the Learned Counsel for the Appellant/Plaintiff is that the Respondent/Defendant has given a complaint before the Learned Executive First Class Magistrate and that the Learned Executive First Class Magistrate has taken action based on a false complaint given by the Respondent/Defendant. The Learned Counsel for the Appellant/Plaintiff submits that even though the Hon'ble High Court as per the order in Crl.M.P.No.8657 of 88 dated 11.01.89 has set aside the order of the Learned Executive First Class Magistrate, Chengam in Exhibit A1 dated 24.04.1989 and later the Learned Executive First Class Magistrate, Chengam has dropped the proceedings as per Ex.A1 dated 24.04.1989.
27.It is the case of the Appellant/Plaintiff that he suffered mental agony, inconvenience, hardship and worry and therefore, he has instituted the present suit in O.S.No.75 of 1997 on the file of the Trial Court for recovery of Rs.10,000/-. Since the Respondent/Defendant has initiated Section 145 of Criminal Procedure Code proceedings before the Learned Executive First Class Magistrate, Chengam without any reasonable or probable cause against the Appellant/Plaintiff, the Appellant/Plaintiff is entitled to file the present suit claiming a sum of Rs.10,000/- as damages for compensation from the Respondent/Defendant. To put it differently, it is the contention of the Appellant/Plaintiff that the Respondent/Defendant with a malicious intention has commenced Section 145 of Criminal Procedure Code proceedings before the Learned Executive First Class Magistrate, Chengam.
28.The Learned Counsel for the Respondent/Defendant has denied the case of the Appellant/Plaintiff and according to him, the Respondent/Defendant has not acted with malicious intention and only when (1) Babu Naidu(Appellant/Plaintiff), (2)Kamala(frist wife) (3)Kuppu @ Kasthuri(second wife), (4)Sattumuthu Udaiyar (so called lessee) and (5)Moorthy (his friend) and (6) Krishna Udiyar have destroyed the groundnut crops, which have been mentioned in the schedule mentioned land by engaging a Tractor bearing No.M.D.J.7379 and since they have threatened to cause the breach of peace in the matter of enjoyment of the schedule mentioned properties by the Respondent/Defendant, to safeguard his possession and enjoyment of the properties and to prevent the breach of peace and maintenance of tranquillity, a petition under Section 145 Criminal Procedure Code has been rightly filed by the Respondent/Defendant and the same by any stretch of imagination cannot be termed as an act for lack of bona fide when there being any absence of probable or reasonable cause.
29.It cannot be gain said that the word 'Reputation is what is reputed. The said term 'Reputation' is meant to mean the estimation in which an individual is held by others, the character imputed to him/her in the society or in the community to which he/she belongs. As matter of fact, the word 'Harm' is not defined in the Indian Penal Code. The term 'Harm' as per Section 95 of Indian Penal Code includes financial loss, loss of reputation, or even apprehension of injury as per decision Mrs.Veeda Menezes V.Yusuf Khan Haji, Ibrahim Khan, AIR 1966 SC 1773 at p.1774, 1775. The term 'Harm' as per Section 499 of Indian Penal Code is to be the reputation of an aggrieved party.
30.Apart from the above, 'Malice' is a State of mind of an individual. An individual can rebut the evidence of malice of the Plaintiff often malice is inferred from the lack of reasonable and probable cause. It must be proved by a Plaintiff that the Defendant has animus i.e. by indirect or improper motive or ill will or by spite.
31.In Glinski v. McIver 1962 AC at p.726 at p.762 Lord Devlin observed that all 'reasonable' and 'probable' cause means that there must be cause (i.e. Sufficient grounds).
32.It is noted that Winfield on Torts 6th Edition at p.753 observed that there does not appear to be any distinction between 'reasonable' and 'probable'.
33.The Plaintiff must prove that the prosecution has been initiated against him without any reasonable and probable cause and that it has been filed with intention viz. not with mere intention of carrying the law into effect, but with an intention, which is wrongful in point of fact as per decision in Darshan Pandey v. Ghaghu Pandey, AIR 1948 Patna at p.167 at p.168.
34.In law 'Malice' ought to be independently established and cannot be inferred merely from the absence of probable and reasonable cause.
35.It is to be borne in mind that 'Malice' and want of reasonable and probable cause must concur. Without the other either of them is insufficient as per decision N.P.Sankaran Nair v. P.V.Rama Iyer, AIR 1960 Kerala at p. 131 and at p. 132.
36.Ordinarily, a suit for damage for a tortious Act or for a civil wrong is maintainable, even if the criminal prosecution is initiated at the earlier point of time. This Court aptly points out that Section 145 of Criminal Procedure Code has three requirements (1)There must be a real breach of peace inviting such proceedings (2) There must be material on record to prove the actual breach of peace (3)The Executive Magistrate shall form a subjective satisfaction to initiate such proceedings.
37.It is essential for the assumption of jurisdiction by Magistrate that "he should be satisfied" either from a police report or from other information which would include an application by the party dispossessed. The aim of Section 145 proceeding is to preserve peace and not to determine the right and title of the parties. In the considered opinion of this Court, no specific and hard and fast rule can be prescribed as to the sufficient of materials for the satisfaction of the Executive Magistrate. The Executive Magistrate, of course must record the finding as to 'danger of peace'. Whether the materials before the Magistrate, he should initiate the proceeding under Section 145 of Criminal Procedure Code or not is purely within his discretion. The absence of materials to suggest likelihood a breach of peace would result in the entire proceedings being vitiated without jurisdiction. The order passed under Section 145 of Criminal Procedure Code, must be reasoned and speaking order, failure to indicate the grounds for finding that the likelihood for breach of peace will vitiate the order. If one party lays a claim of entire property and the other side claims a portion of the property, then it is open to a Magistrate to drop the proceedings.
38.The proceedings under Section 107 of Criminal Procedure Code are for public peace and tranquillity whereas Section 145 of Criminal Procedure Code pertains to dispute in regard to possession between parties concerning any land or water or boundaries thereof as per decision of Hon'ble Supreme Court in Prakash Chand Sachdeva V. The State and another, AIR 1994 Supreme Court 1436. The Magistrate should satisfy his satisfaction about the existence of dispute concerning the possession of immovable property which is likely to cause breach of peace. The discretion used by the Magistrate should not be interfered with in revision except in any exceptional cases where the order is either unreasonable or unjustifiable as per decision of Hon'ble Supreme Court in P.M.Krishnamurthy 1979 Criminal Law Journal Notes of Cases 82 (Karnataka). As matter of fact, the police report and the evidence contained therein about the factum of possession is inadmissible in evidence except for the purpose of initiating the proceedings as per decision Kulbans 21 Criminal Law Journal 735.
39.The term 'Dispute' means a reasonable dispute, a bone fide dispute, a dispute between parties who have each some semblance of a right or supposed right as per decision Gobind Chandra ILR 20 Calcutta 520. Under Sections 145 and 146 of Criminal Procedure Code disputes regarding possession cannot be referred to Civil Court as per decision Vijayamma V. Padmanabhan, 1980 Criminal Law Journal 118, 119 (Kerala).
40.The Magistrate acquires jurisdiction to proceed as per Section 145 of Criminal Procedure Code only there is a likelihood of a breach of the peace. If there are materials before the Magistrate upon which he feels satisfied that there is such a likelihood, an omission to record a formal order as required by Sub-Section (1) of Section 145 of Criminal procedure Code, may be treated as a mere irregularity, which can be cured by Section 465 of Criminal Procedure Code as per decision Ram Piari 50 Criminal Law Journal 655 (Allahabad).
41.The term 'Land' includes crops or other produce of land. But crops mean standing crops and not standing crops which have been severed from the land stored on the thrashing floor as per decision Ramzan ILR 30 Calcutta at page 110. Section 145 of Criminal Procedure Code, being a preventive Section, it ought to be given a liberal interpretation, and if the dispute is relating to land, then the Magistrate would clearly have jurisdiction to pass an order relating to movable property, which may be attached to the land or appertaining to it. If the main dispute is relating to the immovable property and crops or the produce have not yet been removed from the land which is in dispute, the word 'land' as employed in Section 145 of Criminal Procedure Code is wide enough to include such crops or such produce as per decision Gaya Prasad AIR 1948 Allagabad at Pages 94, 95. As per Section 145 of Criminal Procedure Code, the enquiry is limited to the issue as to who has been in actual possession on the date of passing of the preliminary order, notwithstanding the rights of the parties as per decision in R.H.Bhutani V. Mani.J. Desai, AIR 1968 Supreme Court 1444. As per proceedings under Section 145 of Criminal Procedure Code, the Executive Magistrate has no power to enquire into and decide on the rights of the parties to the possession of property as per decision of Hon'ble Supreme Court in Bhinka V. Charan, AIR 1959 SC 960.
42.As far as the present case is concerned, it is not in dispute that the Learned Executive First Class Magistrate, Chengam has directed the Respondent/Defendant (Petitioner in M.C.No.1 of 1988) and counter petitioners to appear in the Court on 02.03.1988 at 11.00 a.m. and show cause notice as to why they should not be ordered to execute a bond for one year for keeping the peace in the area. The said order of the Learned Executive First Class Magistrate, Chengam has been set aside by this Court in Crl.M.P.No.8657 of 1988 dated 11.01.1989 holding that the Magistrate has misconstrued the provisions of 145 (1) of the Criminal Procedure Code while in all probability he had in mind the provisions of Section 111 of the Criminal Procedure Code. The order of the Magistrate not being in consonance with Section 145(1) of the Criminal Procedure Code, it is one without jurisdiction and allowed the petition. Subsequently, the Tahsildar and Taluk Executive Magistrate, Chengam on 24.4.1989 has dropped the Section 145(1) proceedings of Criminal Procedure Code, in view of the order passed by this Court in Crl.M.P.No.8657 of 1988 dated 11.01.1989.
43.Be that as it may, in the present case on hand, based on the facts and circumstances of the case, it cannot be said that there is no bona fide dispute between the parties. When there is bona fide dispute between the parties and also there is apprehension of breach of peace between them, the initiation of proceedings as per Section 145 of Criminal Procedure Code is very much justified. The Respondent/ Defendant has been constrained to move the Learned Executive First Class Magistrate, Chengam because of the fact that groundnut crops raised by him have been destroyed by the Appellant/Plaintiff and others by engaging a Tractor bearing Reg.No.MDJ 7379 on 10.12.1987. However, this fact has been totally denied by the Appellant/Plaintiff in respect of the suit properties. There has been a civil dispute. The Respondent/Defendant has claimed that he is the owner of the property by means of the sale deed in his favour. Since he has approached the Learned Executive First Class Magistrate, Chengam for preventing the Appellant/Plaintiff and others in committing the breach of peace in regard to the enjoyment of schedule mentioned properties and also since according to him, the Appellant/Plaintiff and others have destroyed the groundnut crops and they have threatened to cause the breach of peace. He filed a petition under Section 145 of Criminal Procedure Code. It cannot any way be said that the Respondent/Defendant has acted without any reasonable or probable cause or with malicious or with any kind of capriciousness. By mistake, the Learned Executive First Class Magistrate has passed the order as per Section 145(B) of Criminal Procedure Code instead of passing the order as per Section 145(A) of Criminal Procedure Code. In any event, the said order of the Learned Executive First Class Magistrate, Chengam has been set aside by this Court in Crl.M.P.No.8657 of 1988 as per the order dated 11.01.1989.
44.The Sub Inspector of Police, Vanapuram has also submitted its report to the Learned Executive First Class Magistrate, Chengam in the matter of enjoyment of schedule mentioned properties etc. Looking at from any angle, this Court, on an overall assessment of the facts and circumstances of the case and taking note of the entire conspectus and gamut of the case in an integral fashion comes to an irresistible conclusion that the Appellant/Plaintiff has not established to satisfy the judicial conscience of this Court that the Respondent/Defendant has acted with malicious or without any reasonable or probable cause. When the Appellant/Plaintiff has failed to establish her case, then the inevitable conclusion is that the Respondent/Defendant has not acted with any bad intention or malafide motives in initiating the proceedings under Section 145 of Criminal Procedure Code before the Learned Executive First Class Magistrate, Chengam. Consequently, the claim of the Appellant/Plaintiff as prayed for in the suit for damages is negatived by this Court to prevent an aberration of Justice and the Substantial Question of Law No.1 is answered against the Appellant/Plaintiff.
45.The Contentions, Discussions and Findings on Substantial Question of law No.2:-
A perusal of the First Appellate Court Judgment in A.S.No.60 of 2000 dated 16.08.2000 shows three points have been framed for determination by it.
46.The Learned Counsel for the Appellant/Plaintiff submits that the First Appellate Court has failed to frame necessary points for determination as per Order 41, Rule 31 of Civil Procedure Code. At this stage, it is worthwhile for this Court to refer to Order 41, Rule 31 of Civil Procedure Code, which reads as follows:-
Contents, date and signature of Judgment - The Judgment of the Appellant Court shall be in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.
47. The object of Order 41, Rule 31 of Civil Procedure Code is that it is the duty of an Appellate Court to raise points for consideration with a view to focus the attention of Court and of parties on the contentions raised by them.
48.Order 41, Rule 31 of the Code of Civil Procedure casts an obligation on the author of the Appellate Judgment to state the points for determination, the decision thereon, the reasons for the decision, and when the decree appealed from is reversed or varied, the relief to which the Appellant is entitled as per decision in Lakshmi Ram Bhuyan V. Hari Prasad Bhuyan AIR 2003, SC 351.
49.Order 41, Rule 31 ingredients are mandatory. The matters mentioned in Order 41, Rule 31 of Civil Procedure Code are to be in the Judgment when points in dispute between the parties are projected before the first Appellate Court.
50.The first Appellate Court has to bring its reasoning/independent Judgment to bear on the decision. The reason for Decree of trial Court when it is set aside must be stated, but also when it is affirmed as per decision Krishnamurthy v. Bapanaiya, (1955) Andh.WR at p.304.
51.If points for determination are not mentioned by the First Appellate Court in its Judgment as per Order 41, Rule 31 of Civil Procedure Code, then nothing precludes the Hon'ble High Court in deciding the merits of the matter based on the pleadings and available materials on record. On going through the First Appellate Court Judgment in appeal, it is quite evident that the First Appellate Court has framed the Substantial Point for determination namely, whether the Appellant is entitled to get recovery of Rs.10,000/- as damages from the Respondent/Defendant? Substantial point for consideration is in compliance with Order 41, Rule 31 of Civil Procedure Code. As opined by the Courts below, this is the crux of the point that centers around for determination, by a Court of Law. In the case on hand, the First Appellate Court has rightly framed the specific point for consideration and determination as to whether the Appellant/Plaintiff is entitled to get recovery of Rs.10,000/- towards damages from the Respondent/Defendant, which is quite sufficient to adjudicate the rights of the parties in the present case and the first Appellate Court has also assigned the reasons for dismissing the appeal on the points for determination by First Appellate Court, namely, whether the Appellant/Plaintiff is entitled to get recovery of Rs.10,000/- as damages from the Respondent/Defendant.
52.Per contra, the points for determination raised by the first Appellate Court in regard to the claims for recovery of damages is a broad proposition which goes to the root of the matter and that this is the exact point that has arisen for rumination of the First Appellate Court to consider in right earnest and in threadbare manner. Viewed in that angle, it cannot be said that the First Appellate Court has not framed the required points for determination in Appeal. In short, on an overall assessment of the facts and circumstances of the entire subject matter of the present case, it cannot be said that the trial Court as well as the first appellate Court have not considered the oral and documentary evidence and per contra, it is held by this Court that both the Courts have looked into the available, sufficient, materials on record coupled with the oral and documentary evidence adduced in real and proper, perspective. Accordingly, the Substantial Question of Law No.2 is also answered against the Appellant/Plaintiff.
53.In the result, the Second appeal is dismissed leaving the parties to bear their own costs. Consequently, the Judgments and Decrees of the First Appellate Court in A.S.No.60 of 2000 dated 16.08.2000 and that of the Trial Court in O.S.No.75 of 1997 dated 29.10.1999 are affirmed by this Court for the reasons assigned in this Appeal. The normal Rule is that costs should follow the event. However, as regards the grand of costs, this Court points out the decision in AIR 1971 Kerala at Pages 261 and 262 (A.Yousuf Rawther Vs. Sowramma) in paragraph No.21 wherein it is laid down as follows:-
A direction regarding costs does not always depend on who wins and who loses in the end. The view of the judge on the equity and the tragedy on the human side, on the moral as well as the legal merits, on the conduct of the parties before and during the litigation and other like intangible factors have a play in shaping the judicial verdict regarding costs.
Since awarding of the costs is the discretion of the Court, considering the facts and circumstances of the present case, this Court, exercising its discretion on the merits of the case, award no costs through out the main suit as well as the first Appellate Court Appeal proceedings.
30.01.2012 Index:Yes/No Internet:Yes/No Ari To
1.The Learned District Munsif cum Judicial Magistrate, Chengam.
2.The Additional District Judge, Tiruvannamalai.
M.VENUGOPAL.J., ari S.A.No.20 of 2002 30.01.2012