Himachal Pradesh High Court
Mohan Lal & Anr vs Wattan Chand on 5 January, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 631 of 2014.
Decided on: 05.01.2015.
.
Mohan Lal & anr. ......Appellants.
Versus
Wattan Chand .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
For the appellant(s): Mr. Y.P.Sood, Advocate.
For the respondent: Nemo.
----------------------------------------------------------------------------------------------
Justice Rajiv Sharma, J.
This regular second appeal is directed against the judgment and decree of the learned District Judge, Una, H.P. dated 27.09.2014, passed in Civil Appeal No.85 of 2014.
2. Key facts, necessary for the adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff) instituted a suit for recovery of Rs. 1,20,000/- alongwith interest @ 12% per annum as compensation against the appellants-defendants (hereinafter referred to as the defendants for the convenience sake). According to the plaintiff, he is a businessman and doing work of interior decorator at Chandigarh. Village Bathari is his native place. He visits his village occasionally. Defendant No. 2 Sudesh Kumari, without any locus standi had filed civil suit bearing No. 176/2002 against the plaintiff and his brother Sh.
Pritam Dass. The plaintiff and his brother had engaged the counsel and faced trial for more than five years. The defendant No. 2 got the civil suit dismissed as withdrawn on 1.5.2007. The defendants also instituted civil suit bearing ::: Downloaded on - 15/04/2017 17:28:38 :::HCHP 2 No. 25 of 2007 for permanent injunction against the plaintiff and his brother Sh. Pritam Dass. On 3.4.2007, the summons was served upon the plaintiff.
.
The civil suit was also dismissed for non-prosecution on 17.11.2008.
According to the plaintiff, he and his brother had been dragged into unnecessary litigation. They had to face the trial for more than six years. The plaintiff had purchased Kh. No. 2407/1 and 2408 through sale deed alongwith Tatima-Naksha and these khasra numbers were not the subject matter to be partitioned.
3. The suit was contested by the defendants. According to them, when the plaintiff started threatening to raise construction in the joint land, the civil suit was instituted. When the plaintiff again extended threats to raise construction, the defendant also was constrained to file civil suit No. 25 of 2007.
4. The replication was filed by the plaintiff. The learned Civil Judge (Jr. Divn.), II, Una, framed the issues on 5.8.2011. The learned Civil Judge (Jr. Divn.), II, Una, dismissed the suit on 9.9.2013. The plaintiff preferred an appeal before the learned District Judge, Una, against the judgment and decree dated 9.9.2013. The learned District Judge, Una allowed the appeal on 27.9.2014 and decreed the suit for recovery of Rs. 50,000/- as compensation for malicious prosecution. Hence, this regular second appeal.
5. Mr. Y.P.Sood, Advocate, for the defendants has vehemently argued that the learned District Judge, Una has misread and mis-appreciated Ext.
PW-1/A, order dated 1.5.2007 and PW-1/B order dated 17.11.2008.
According to him, the suits were never decided on merits.
::: Downloaded on - 15/04/2017 17:28:38 :::HCHP 36. I have heard the learned Advocate and gone through the judgments and records of the case carefully.
.
7. PW-1 Kewal Krishan has produced the record pertaining to Civil Suit No. 176/2002, RBT No. 422/08/07 as well as the copy of order dated 1.5.2007 Ext. PW-1/A and copy of order dated 17.11.2008 Ext. PW-1/B.
8. The plaintiff has appeared as PW-2. He has tendered the evidence by way of affidavit. He has reiterated the entire contents of the plaint. In his cross-examination, he deposed that he is doing business at Chandigarh for the last 40 years. He used to appear alongwith his counsel on each and every date of hearing. He denied that the previous suit was compromised between the parties.
9. DW-1 Mohan Lal has also led his evidence by way of affidavit. In his cross-examination, he testified that he is a Carpenter by profession. He is living at Chandigarh alongwith his family. He admitted that his wife has filed the civil suit against the plaintiff and his brother in the year 2002. His wife has no immoveable property at Village Bathari. According to him, his wife was his Power of Attorney. He denied that civil suit No. 176 of 2002 was instituted by his wife with malafide intention. Volunteered that the suit was withdrawn on 1.5.2007, as compromised.
10. It is duly proved from the record that civil suit No. 176 of 2002 was instituted by defendant No. 2 Sudesh Kumari against the plaintiff and his brother on 1.8.2002. It was withdrawn on 1.5.2007. The explanation given for the withdrawal of the suit was that the matter was compromised. The defendants have not placed on record the copy of alleged compromise.
Defendant No. 2 Sudesh Kumari is not the co-owner of the suit land.
::: Downloaded on - 15/04/2017 17:28:38 :::HCHP 4According to defendant No. 2, she was the Power of Attorney of her husband.
However, no such Power of Attorney and copy thereof was placed on record. It .
is apparent that the suit was withdrawn on the oral submission of the learned counsel for the plaintiff. The defendants have also instituted another civil suit bearing No. 25 of 2007 on 3.4.2007. The suit was dismissed for non-
prosecution on 17.11.2008. The defendants have never moved any application for restoration of the suit. The first Appellate Court has rightly come to the conclusion that the suits have been instituted by the defendants against the plaintiff and his brother without any reasonable and probable cause. The plaintiff and his brother have to face trial in the Court for about 6 years. He resides with his family at Chandigarh. Not only this, he had to engage counsel. He has spent his valuable time for proceedings in the Court being a businessman. He has deposed that he had attended each and every hearing by coming to Una. It cannot be said that civil suit filed by the defendants was frivolous. The loan statement of the plaintiff was never to benefit the case against the defendants. It is the quality what matters and not the number of witnesses cited. The first Appellate Court has correctly appreciated the orders Ext. PW-1/A and PW-1/B dated 1.5.2007 and 17.11.2008, respectively. There is no misreading or mis-appreciation of evidence by the first Appellate Court.
11. In the case of P.V. Sriramulu Naidu vrs. Kolandaivelu Mudali reported in AIR 1918 Madras 990, the Division Bench has held that a suit for damages for malicious prosecution is not confined to criminal proceedings alone, nor would such an action lie for all criminal prosecutions. The cases for which such a suit lies are those in which there is either (a) damage to man's ::: Downloaded on - 15/04/2017 17:28:38 :::HCHP 5 reputation, or (b) danger to his liberty, or (c) damage to his property. It was held as under:
.
".......Brett, M.E. and Bowen, L.J. accepted the dictum of Lord Holt in Saville v. Roberts (1698) 1 LD. Raym. 374 as practically exhausting the classes of cases for which a suit for malicious prosecution would lie. There must be in the previous proceedings either (a) damage to a man's reputation, or (b) danger to his liberty, or (c) damage to his property. ...."
12. In the instant case, the case has been filed by the defendants for permanent injunction against the plaintiffs and the suit remained pending for more than five years.
13. In the case of Har Kumar De vrs. Jagat Bandhu De, reported in AIR 1927 Calcutta 247, the Division Bench has held that when a temporary injunction is wrongfully obtained on insufficient grounds a suit for damages is maintainable.
14. In the case of Lala Babu Ram and another vrs. B. Nityanand Mathur, reported in AIR 1939 Allahabad 168, the division Bench has held that a suit for damages for malicious prosecution is maintainable though the proceedings complained of are not strictly criminal.
15. In the case of Nagendra Kumar vrs. Etwari Sahu and others, reported in AIR 1958 Patna 329, the Division Bench has held that whenever the law has been set in motion not for the bonafide purpose of vindicating justice, but there is a perversion of the machinery of justice for improper purposes, an action will be maintainable.
16. In the case of Bachcha Pandey and another vrs. Mt. Deo Sunder Devi and ors., reported in AIR 1968 Patna 248, the Division Bench ::: Downloaded on - 15/04/2017 17:28:38 :::HCHP 6 has held that suit based on injury to property is maintainable. It has been held as follows:
.
"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."
17. In the case of Vijai Nath vrs. Damodar Das Chela Shiv Mangal Das and ors., reported in AIR 1971 Allahabad 109, the learned Single Judge has laid down the following principles to prove malicious prosecution. It has been held as under:
"17. I will now consider the second ground urged by the learned counsel for the appellant. In the case of Balbhaddar Singh v. Badri Shah reported in AIR 1926 PC 46, it was held that the ingredients to be established for maintaining an action for malicious prosecution are--
(1) That the plaintiff was prosecuted by the defendant.
(2) That the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating.
(3) that the prosecution was instituted against him without any reasonable or probable cause.::: Downloaded on - 15/04/2017 17:28:38 :::HCHP 7
(4) That it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect.
.
In that case, Balbhaddar Singh plaintiff was accused of having participated in a murder and it was alleged that the prosecution had been initiated at the in stance of Badri Shah. In this connection the Privy Council observed as follows:--
"......... but in their Lordships opinion the Subordinate Judge has a little left out of view that this is not a case which must be determined on a balance of probabilities. The question is not: Did the appellant commit the murder? or Did Badri Shah invent the murder against them? The two queries exhaust the possibilities of the situation. The question is: Have the appellants proved that Badri Shah invented and instigated the whole proceedings for prosecution:............ The appellants must therefore go the whole way. There is no half way point of rest. They must show that Badri Shah invented the whole story as far as it implicated the appellants and tutored Raghunath and Teja to say it. That is a very heavy onus of proof, arid unless they sustained it the appellants must fail."
18. In the case of Devi Atma Nand v. Shambhu Lal, reported in 1965 All LJ 317, Dhawan, J. observed:--
"It is elementary that a plaintiff who claims damages for having been made a victim of malicious prosecution must prove that the defendant prosecut ed him without reasonable or probable cause and was also actuated by malice. The absence of reasonable cause and malice are two separate ingredients to be proved in every suit for malicious prosecution and a plaintiff will not succeed if he proves absence of reasonable cause but not malice or vice versa. The absence of reasonable and probable cause does not lead to any presumption that the person in filing the complaint must have acted maliciously. Of course he may rely on total absence of reasonable cause as part of his evidence that the defendant must have been actuated by wrongful or evil motive in prosecuting him. The Court can regard the absence of reasonable cause as evidence of wrongful motive to be weighed against other evidences on the issue of malice ...."::: Downloaded on - 15/04/2017 17:28:38 :::HCHP 8
19. A perusal of the aforesaid authorities clearly brings out that in an action for malicious prosecution, burden of proving the four ingredients pointed out by the Privy Council in AIR 1926 PC 46 is on the plaintiff.
.
Further plaintiff is not required to prove that the allegations made in the complaint are incorrect. What he is required to make out is that there was no reasonable and probable cause for initiating his prosecution.
20. In the present case it is not disputed that the first two ingredients out of the four ingredients are made out namely that the plaintiffs were prosecuted by the defendant and that the proceedings complained of terminated in favour of the plaintiff. The only controversy between the parties that remains is whether plaintiff has been able to prove that he was prosecuted without any reasonable and probable cause and whether the action of the defendant in initiating the action was malicious. As pointed out by Dhawan, J. in Devi Atma Nand's case, 1965 All LJ 317 absence of reasonable and probable cause and malice are two separate ingredients both of which are to be proved in a suit for malicious prosecution and a plaintiff cannot be expected to succeed if he merely proves absence of reasonable and probable cause and not malice or vice versa. Absence of reasonable and probable cause in all cases does not necessarily lead to an inference of malice. But a total absence of reasonable cause may be relied upon as a piece of evidence for showing that defendant acted wrongfully or with evil motive in prosecuting the plaintiff.
In the case before me, the defendant initiated criminal proceedings on the allegation that the incident of grazing of a sugar-cane field took place in his , presence. Further there was a Marpit in which the plaintiff assaulted him. If the plaintiff is able to prove that the incident of grazing and the Marpit did not take place and that the complaint against him was false, in the absence of any explanation from the defendant court of law would be justified in believing that there was no reasonable and probable cause and that the defendant was actuated by malice in initiating criminal prosecution. At any rate in such circumstances there would be nothing wrong if the Court considers existence of malice and absence of reasonable and probable cause so probable that a prudent man ought to act on this supposition."
::: Downloaded on - 15/04/2017 17:28:38 :::HCHP 918. In the present case, the suit has been instituted by the defendants without any reasonable and probable cause and the same was withdrawn. The .
suit was not filed with bonafide purpose, reasonable and probable cause. It amounted to gross misuse of the process of the Court. The suit was stated to have been withdrawn on the basis of the compromise but no compromise was placed on record.
19. In the case of Genu Ganapati Shivale vrs. Bhalchand Jivraj Raisoni and another, reported in AIR 1981 Bombay 170, the Division Bench has held that in order to succeed in establishing malicious abuse of civil proceedings, the plaintiff is required to prove a number of ingredients. It has been held as under:
"4. It is the case of defendant No. 2 that even assuming as valid all the findings on facts which have been given by the trial Court against him, the plaintiff's claim must be dismissed with costs. Defendant No. 2 has submitted that the plaintiff has no cause of action against him. In order to appreciate this contention of defendant No. 2, it is necessary to examine the nature of the cause of action which the plaintiff has against defendant No. 2. Essentially, the cause of action of the plaintiff is for damages as a result of malicious abuse of civil proceedings. This cause of action is similar to the cause of action for malicious prosecution. Both these actions are in tort. In order to succeed in establishing malicious abuse of civil proceedings, the plaintiff is required to prove a number of ingredients. (1) In the first place, malice must be proved. (2) Secondly, the plaintiff must allege and prove that the defendant acted without reasonable and probable cause and the entire proceedings against him have either terminated in his favour or the process complained of has been superseded or discharged. (3) The plaintiff must also prove that such civil proceedings have interfered with his liberty or property or that such proceedings have affected or are likely to affect his reputation. For example, if the civil proceedings have resulted in the arrest of the plaintiff or if they are in the nature of bankruptcy proceedings or winding-up proceedings, they may adversely affect the plaintiff's reputation. The plaintiff must establish that he has suffered damage. Ordinarily, apart from cases involving interference with liberty, it is difficult to establish legal damage. If the malicious action is tried in public, the name and fame of the defendant will be cleared. If the action is not tried, his name is not assailed. Ordinarily, a civil action involves no damage to person. The only damage is ordinarily the expense of fighting such a litigation. Since the ::: Downloaded on - 15/04/2017 17:28:38 :::HCHP 10 order in such civil proceedings for costs adequately compensates the aggrieved party for this damage, an action for malicious abuse of civil proceedings is not normally maintainable. As stated in para 717 at page 367 of Halsbury's Laws of England, 3rd Edn., Vol. 25:
.
"The law allows every person to employ its process for the purpose of asserting his rights without subjecting him to any liability other than the liability to pay the costs of the proceedings if unsuccessful."
Hence one seldom comes across an action for malicious abuse of civil proceedings."
20. In the case of Filmistan Distributors (India) Pvt. Ltd., Bombay-
1 vrs. Hansaben Baldevdas Shivalal and others, reported in AIR 1986 Gujarat 35, the Division Bench has held that abuse of legal process is the crucial element of tort. The Court further held that the Court grants the interim injunction for proper purpose of protecting the interest of the party seeking injunction. However, if such party were to abuse such injunction for other improper and collateral purpose of oppression or harming the other party, that would be clearly abuse of process of Court. It has been held as under:
"21. Fleming on Torts under the heading 'abuse of process' has discussed this question. He has first dealt with the question of malicious prosecution in Chap. 24 and held that elements of absence of reasonable and probable cause and malice are necessary ingredients for action on Tort of malicious prosecution. Then under the second head of 'abuse of process' has observed that "Quite distinct, however, are cases where a legal process, not itself devoid of foundation, has been perverted to accomplish some collateral purpose, such as extortion or oppression. Here an action will lie at the suit of the injured party for what has come to be called abuse of process."
After referring to the case of Grainger v. ill (1838) 4 Bing. N. C. 212, in which case the plaintiff was allowed to recover his loss without proof that the proceedings were destitute of reasonable and probable cause, the learned author observed that:
"Unlike malicious prosecution, the gist of this tort lies not in the wrongful procurement of legal process or the wrongful initiation of ::: Downloaded on - 15/04/2017 17:28:38 :::HCHP 11 criminal proceedings, but in the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to accomplish. It involves the notion that the proceedings were 'merely a stalking horse to coerce the defendant in some way .
entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate, and it is, therefore, immaterial whether the suit which that process commenced was founded on reasonable cause or even terminated in favour of the person initiating it. The improper purpose is the gravamen of liability."
Another learned author Street on Torts has also defined 'abuse of process' thus:
"It is a tort to use legal process in its proper form in order to accomplish a purpose other than that for which it was designed and thereby cause damage".
He has also relied on the leading case of Grainger v. Hill (supra); and has further observed that:
"The case decides that in this tort the plaintiff need not prove want of reasonable and probable cause; nor need the proceedings have terminated in his favour. The plaintiff must show that the defendant has used the process for some improper purpose."
Thus, according to both the learned authors 'abuse (in contradiction to proper use) of legal process is the crucial element of tort.' Both the learned authors have emphasised that when legal process has been improperly used (abused) to accomplish some collateral purpose, such as oppression it makes the defendant liable for damages. It is thus the improper purpose which is the gravamen of liability and when that is proved no question of further proof of malice and absence of reasonable and probable, cause arises; and that is not a necessary element to be proved in such cases. It must be borne in mind that such improper purpose is not an act of Court nor does the Court give any judicial sanction to such improper purpose while granting the interim injunction. The Court grants the interim injunction for proper purpose of protecting the interest of the party seeking injunction. However, if such party were to abuse. Such injunction, (which has been granted to protect its interest) for other improper and collateral purpose of oppression or harming the other party, that would be clearly abuse of process of Court. By voluntary acts, of tile party who obtains the interim injunction blame cannot be laid at the door of the Court and the argument cannot be sustained that such improper purpose was sanctioned by the judicial order. It must be emphasised that the gravamen of this tort is the abuse or improper purpose in obtaining the legal process and not the legal process itself. If it was a case of mere legal process resulting in damage to a party, the question of absence of reasonable and probable cause and malice would be relevant and necessary. However, when it is shown that it was not a case of mere legal process causing damage but the improper purpose and abuse of such legal process by a party that has caused damage, no further proof of any other ::: Downloaded on - 15/04/2017 17:28:38 :::HCHP 12 element is required. Now let us consider the various judgments which have been cited and read before us by the learned counsel for the appellant."
.
21. In the case of Bank of India Vrs. Lakshimani Dass, reported in AIR 2000 SC 1172, their lordships of the Hon'ble Supreme Court have held that where injunction preventing plaintiff from utilizing their premises, could be said to have been obtained on insufficient and improbable grounds, the claim for damages by plaintiff is maintainable. It has been held as under:
"8. As a general principle where two remedies are available under law one of them should not be taken as operating in derogation of the other. A regular suit will not be barred by a summary and a concurrent remedy being also provided therefor, but if a party has elected to pursue one remedy he is bound by it and cannot on his failing therein proceed under another provision. A regular suit for compensation is not barred by the omission to proceed under summary procedure provided under Section 95, CPC, but if an application is made and disposed of, such disposal would operate as a bar to regular suit whatever may be the result of the application. There is, however, a difference between conditions necessary for the maintainability of an application under Section 95, CPC and those necessary to maintain a suit. The regular suit is based on tort for abusing the process of Court. Under the law of torts in a suit for compensation for the tort the plaintiff must not only prove want of reasonable or probable cause of obtaining injunction but also that the defendant was attracted by malice which is an improper motive.
9. In justifying a claim for damages apart from Section 95, CPC, a distinction has to be drawn between acts done without judicial sanction and the acts done under judicial sanction improperly obtained. Proof of mal* ice is not necessary when the property to a stranger, not a party to the suit, is taken in execution but if the plaintiff bringing a suit for malicious legal process is a party to a suit proof of malice is necessary. The plaintiff must prove special damage. The claim of a person for damages for wrongful attachment of property can fall under two heads - (1) trespass and (2) malicious legal process. Where property belonging to a person, not a party to the suit, is wrongly attached, the action is really one grounded on trespass. But where the act of attachment complained of was done under judicial sanction, though at the instance of a party, the remedy is an action for malicious legal process. In the case of malicious legal process of Court, the plaintiff has to prove absence of probable and reasonable cause. In cases of trespass the plaintiff has ::: Downloaded on - 15/04/2017 17:28:38 :::HCHP 13 only to prove the trespass and it is for the defendant to prove a good cause or excuse. In the former case plaintiff has to prove malice on the part of the defendant while in the latter case it is not necessary. This position has been succinctly brought out by the decision in K. .
Syamalambal v. N. Namberumal Chettiar : AIR1957Mad156 .
10. In the present case, the facts ascertained are absolutely clear that the godown had been let out and the firm M/s. Bansidhar Baijnath or its partners could not establish any title, right or interest in the said godown after the decree was passed in the ejectment suit and, therefore, they had no right to possess the said godown either actually or constructively by keeping their goods therein. M/s. Bhagat Oil Mills which was impleaded as a defendant in the suit was the sub-lessee of the disputed premises and Baijnath Bhagat had appeared in the said suit as proprietor and on his death other defendants were substituted in his place. In those circumstances, all defendants were bound by the decree of the execution of which the recovery of possession was delivered to the plaintiffs-respondents by the bailiff of the Court. Defendants Nos. 2 to 4 could not claim any right independent of Banshidhar Baijnath and, therefore, even apart from Section 95, CPC the plaintiffs could institute an independent suit for damages for wrongful use and occupation of the godown in question by defendants Nos. 1 to 4. The decree-holders plaintiffs had no claim whatsoever over the said oil seeds nor did they make any claim at any stage. There was no dispute regarding the fact that the bailiff had kept the goods in the custody of one of the employees of the plaintiffs and it is the defendants who had made an application on the very next day for an injunction and obtained the same.
11. In the background in which the injunction was obtained and the manner in which the defendants prevented the plaintiffs from utilising their premises, it is clear that the same had been obtained on insufficient and improbable grounds. The intention of the parties is very clear that it is only to deprive the defendants of the possession of the premises that such an order was obtained. The bank was pledgee of the goods and could not claim an independent right in respect of the said premises. The suit premises was not in their possession either under licence or by way of lease. They should not only have ascertained whether the goods belong to the pledge but also should have known as to whether the premises where the goods were kept belonged to them at the time they obtained the pledge. In those circumstances, even the Bank cannot absolve itself of malice arising in the case. Want of pleadings or raising an issue in a suit would arise where any party is put to prejudice. In a case where the facts are writ large and the parties go to trial on the basis that the claim of the other side is clearly known to them, we fail to understand as to how lack of pleadings would prejudice them."::: Downloaded on - 15/04/2017 17:28:38 :::HCHP 14
22. There is already a docket explosion in the Courts. The Court can take judicial notice that off late, the unscrupulous litigants have been .
instituting frivolous civil proceedings. These proceedings are prolonged and cause unnecessary hardship to the litigants on the other side. In all those cases where the civil proceedings have been instituted, not for bonafide purpose but merely to harass the parties, in those cases after the culmination of civil proceedings, the suit for malicious prosecution would lie. It would also reduce the pendency of cases. The person filing frivolous civil proceedings would know that if these are found to be not bonafide and abuse of process of Court, he may have to pay damages for causing injury to the other party.
23. Accordingly, there is no merit in this regular second appeal and the same is dismissed, so also the pending application(s), if any.
January 05, 2015, ( Rajiv Sharma ),
(karan) Judge.
::: Downloaded on - 15/04/2017 17:28:38 :::HCHP