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1. This is an appeal by the plaintiffs against the judgment of the learned Subordinate Judge of Purneah dated the 18th of March 1912. The suit was instituted to recover from the defendants Rs. 1,91,932-8-6, as damages for malicious prosecution Of a civil suit brought against the plaintiffs. On the 1st of December 1896, the oxecutor of the father of the defendant No. 1 instituted a suit in the Court of the Subordinate Judge of: Purneah against the present plaintiffs for the purpose of obtaining an injunction restraining the present plaintiffs from erecting an indigo factory on the land let for agricultural purposes and on the same date an application was made ex parte to the Subordinate Judge for an interlocutory injunction restraining the defendants, till the trial of the suit, from proceeding with the erection of the buildings. The learned Subordinate Judge on that application granted the interlocutory injunction prayed for. An appeal was preferred against that order to the District Judge who dismissed the appeal.

4. I now come to the case that has been principally relied upon by the plaintiffs in this appeal; namely, the ease of Nand Coomar Shaha v. Gour Sunkar (1870) 13 W. B. 305. That case was a reference by a Small Cause Court Judge. The questions referred for the opinion of this Court were, first, whether a fresh suit for compensation on account of damages incurred in consequence of obtaining improperly an injunction under Section 92 of Act VIII of 1859 can be entertained when the question had been once brought forward for decision before an Appellate Court but rejected on a distinct ground; and, secondly, if the suit can be admitted on the ground of its not being decided on its merits by the Appellate Court, is the cause of action tube considered as having accrued from the 18th of August 1868, the date of the decision of the Minis if or from the 23rd of November 1869 when the cross appeal by the plaintiff was dismissed? The learned Judges (L. S. Jackson and Glover JJ.) in answering the questions referred to them remarked that Section 96 of Act VIII of 1859 (which for the present purpose is the same as Section 95 of the present Code) would not debar the Small Cause Court from entertaining the suit. They do not, however, express any opinion on the question whether the cause of action set up by the plaintiff: was or was not a good cause of action although no doubt their judgment implies that the cause of action was sufficient. No authority is cited in the course of the judgment, and the counsel who argued the case before us were unable to cite to us any other authority either in England or in India in which a plaintiff has recovered damages against a defendant who had obtained maliciously and without probable cause an interlocutory injunction. I must confess that the case of Nand Coomar Shaha v. Gour Sunkar (1) appears to me to be a questionable authority in so Ear as it decides that a plaintiff can maintain a suit for damages against a defendant for maliciously and without probable cause obtaining an interlocutory injunction. Nand Coomar Shaha's Case (1) was decided by this Court on the 30th of March 1870. In the Limitation Act of 1871, first appears Article 86 fixing a period of limitation in which a suit must be brought to recover compensation for damages caused by an injunction wrongfully obtained, the Article in the present Act of 1908 being Article 42. The reason for the insertion of Article 86 in the Act of 1871 was obviously the decision in Nand Coomar Shaha's Case (1870) 13 W. R. 305. But of course nothing in the Limitation Act can give a party a fight of suit unless such a right exists independent of the Limitation Act Hart Nath Chatterjee v. Mothur Mohun Goswami (1899) I. D. R. 305. Another case that has been relied upon is the case of Chunder Cant Mookerjee v. Ram Coomar Coondoo (1874) 22 W. R. 138. But all that that case decided was that a suit will lie for bringing a suit in the name of a third party maliciously and without reasonable or probablo cause whereby the party against whom the action is brought sustains damage. Tins had already been decided by the Court of Common Pleas in the case of Cotterell v. Jones (1851) 11 U. B. 713.

6. The result, therefore, is that there is no case in the books of a suit for damages against a defendant for maliciously and without reasonable or probable cause obtaining a perpetual injunction which was subsequently dissolved on appeal. The only case in which a suit of a similar nature was maintained with reference to an interlocutory injunction: is Nand Coomar Shaha's Case (1870) 13 W. R. 305. authority of which I think is questionable. But assuming that case to be a binding authority for that proposition, the interlocutory injunction in the present case ceased and came to an end when the Subordinate Judge at the trial on the 30th September 1899 granted a perpetual injunction. The present suit was not instituted until the 13th of May 1910. Under Article 42 of the Indian Limitation Act, 1908, time begins to run from the date when the injunction ceases. Any right of suit that the plaintiffs might have with reference to the obtaining of the interlocutory injunction, is therefore barred by limitation. It is further to be noticed that nowhere in the plaint in this suit is it stated that the suit for an injunction was instituted or prosecuted without reasonable or probable cause, ft would appear, however, that the plaintiff's allegations in support of want of reasonable and probable cause are that the defendants were actuated by malice and that the suit for an injunction ultimately proved unsuccessful when the decree of this Court was wet aside by His Majesty in Council.

8. In the result I agree with the conclusion arrived at by the learned Subordinate Judge though for different reasons. The present appeal, therefore, fails and must be dismissed with costs.

Richardson J.

9. I agree that if relief is sought by the plaint on the ground that the previous suit, which was a suit for a perpetual injunction, was instituted maliciously and without reasonable and probable cause, that, is not a good cause of action. Paragraph. 15 of the plaint, however, points rather to the issue of the interlocutory injunction as the cause of action on which the plaintiffs rely. The interlocutory injunction is treated as though it subsisted up to the date of the order of His Majesty in Council. I agree that the interlocutory injunction was ipso facto dissolved by the decree of the first Court granting a perpetual injunction and that assuming that damages may be claimed by suit for "wrongfully " obtaining such an injunction, the present suit, as a suit for damages, is barred by limitation under Article 42 of the Schedule of the Limitation Act. As to the word "wrongfully," Clause (2) of Section. 95 of the Civil Procedure Code of 1908 seems to contemplate the possibility of a suit being brought to recover compensation in respect of a temporary injunction applied for on insufficient grounds or in a suit instituted without reasonable and probable cause. It is at the least doubtful whether such a suit is maintainable in the absence of an undertaking to pay compensation: Dhurmo Narain v. Sreemutty Dossee (1572) 18 W. B. 440. But if it be maintainable, it would no doubt be governed in regard to limitation by Article 42. The conduct imputed to the defendant in such a suit would be in Uh nature tortuous or wrongful. It is idle to say that the suit could not have been instituted until the determination of the appeal to the Privy Council. The words of Ac tide 42 are clear. Time runs from the date " when the injunction ceases."