1. Now, the first thing to be considered is: Was there the procuring and applying of process of the Court? At the commencement o! the hearing Mr. Jape, learned counsel for the defendant, raised the contention that the plaint did not disclose any cause of action because all that the plaint showed, so it was said, was that the defendant had procured the order of attachment and that did not afforda complete cause of action for a suit for damages for wrongful attachment.
It was also urged that it had been held by this Court that merely showing a warrant of attachment to the defendant against whom an order of attachment before judgment had been passed would not amount to enforcing the process (sic) the Court. The suggestion was that it was (sic) cumbent on the plaintiff to aver facts necessary to show that there was actual attachment(sic) seizure of the goods of the plaintiff. The argument proceeded that taking the facts set out (sic) the plaint as correct, they did not amount to complete cause of action for the nature of the suit before me and the suit must, therefore, (sic) dismissed 'in limine'.
I was asked to try that question as a preliminary issue. I would have done so if the decision had not necessitated determination of any facts on evidence to be adduced before me. The plaintiff had, however, in his plaint alleged a number of facts which were denied by the defendant and I did not think it desirable to deal at that stage with the plea of demurrer particularly in view of those allegations made in the plaint and being of the opinion that this was not a case in which it would be convenient to try that question as a preliminary issue.
2. Now, it is well established law that a suit lies for abuse of the ordinary civil process. As a general rule the law allows a person to employ its process to enforce his rights and does not subject him to any liability on the ground that he has brought the suit maliciously and without reasonable or probable cause, on allegations of fact which may ultimately be proved to be false. If the original suit is protected, then there is considerable scope for saying that the proceedings in the suit should also be protected. Nevertheless there are certain civil proceedings involving interference with the liberty or property of a person or which affect or are likely to affect his reputation in case of which the law recognises the cause of action where it is alleged that such proceedings were motivated by malice and were undertaken without reasonable and probable cause.
An outstanding and not uncommon instance of this is an action for malicious procuring and levying the process of the Court through the instrumentality of an order of attachment before Judgment. Another instance is of an action for damages for malicious prosecution. It was said in the case before me by Mr. Mody, learned counsel for the plaintiff, that principles of law to be applied to the present case are the same as those applied by Courts in a case of the latter type. Now, it is true that it is generally assumed that in a case for maliciously procuring an attachment before judgment the plaintiff has to allege and prove a case similar 'mutatis mutandis' to a case for malicious prosecution.
The essential requirements of such action are that malice and absence of reasonable and probable cause must be shown. It differs, however, from malicious prosecution in that the gist of it seems to be special damage. Where these elements are present the action must succeed. It must, be shown by the plaintiff that the defendant wrongfully and maliciously procured an orderof attachment before judgment and the process of the Court was applied in pursuance of the order. He must show that the order was obtained Irregularly. AS a general rule he must get the order set aside and then proceed by way of a suit to establish that there was an abuse of process of civil law.
I have to examine whether the evidence adduced before me establishes the several matters before enumerated. Although as I have already stated the first thing to be considered by me is whether there was a procuring of the order and process of Court by the defendant, I think it Will be more convenient to discuss and dispose of the other questions that will also have to be determined by me in this suit.
3. That the proceedings by way of attachment before judgment terminated in favour of the plaintiff cannot be disputed. There is also satisfactory evidence to show that the defendant had in the matter of the application for and enforcement of the process of the Court acted without reasonable or probable cause. As I have observed while discussing the evidence I believe the evidence of the plaintiff and his munim at Chalisgaon as also the other witnesses examined on his behalf. Then there is also the evidence of the President of the Butter Merchants Association and the unsatisfactory evidence of the defendant himself. There is evidence to show that the allegations made by the defendant in the Dhulia Court proceedings were not true and not true to the knowledge of the defendant.
These allegations made by him in support of the application were indeed very serious and extremely mischievous in tendency. The plaintiff denied all those allegations. In the case before me I find that the plaintiff has adduced sufficient and satisfactory evidence to show that there was ho reasonable or probable cause for the defendant to make those serious allegations. Now, from its very nature the plaintiff had to prove the negative and, in general, even slight evidence on his part may be enough to discharge the onus which lies on him. Of course, even the proof of the most express malice cannot amount to proof of absence of reasonable and probable cause.
But if the plaintiff says that there was no ground for even some of the allegations made against him, that would be sufficient to discharge the onus. In such a case it would not make any difference that there was some reason to think that the plaintiff was in financial difficulties. If the plaintiff succeeds in showing that the defendant made even some of those allegations recklessly and without reasonable and probable cause and maliciously, that would be sufficient for the plaintiff to discharge the onus which lies on him on this aspect of the case. But the case before me is stronger than that. Considering the evidence as a whole I have reached the conclusion that the plaintiff has succeeded in establishing that the defendant had acted without any reasonable or probable cause in the matter of the proceedings relating to attachment before judgment.
4. Now, with reference to malice. Malice necessary to be established is not really malice in law such as may be assumed from certain actsand which is known as malice in law, but malice in fact, 'malus animus' indicating that the defendant was actuated by spite against the plaintiff or had indirect or improper motives. At the same time it is now settled by authority that the Court is entitled to take into account circumstances on which it may properly arrive at a conclusion that there is in law absence of reasonable or probable cause, if those circumstances by themselves are indicative of malice.
AS I have already observed while discussing the evidence before me that it was at the instance of the plaintiff that the fine of Rs. 401 had been imposed upon the defendant by the Association at Dhulia. Moreover, the plaintiff had stopped all further dealings with the defendant and was firm in his attitude that he would not pay any amount to the defendant unless the disputes relating to adulteration of goods was settled between the parties. In these circumstances and also from the rest of the circumstances of the case and the evidence before me I am satisfied that in the matter of these proceedings the defendant was actuated by ill-will and spite against the plaintiff. That to my mind is sufficient to dispose of the question of malice.
5. The principal argument urged before me by Mr. Jape, learned counsel for the defendant, was that even assuming that in procuring the order of attachment before judgment from the Dhulia Court the defendant was actuated by malice and acted without reasonable and probable cause in preferring the application to the Dhulia Court and securing that order and even if the plaintiff had pleaded and proved special damage, the suit is not maintainable because a mere procuring of an order of attachment before judgment in a suit does not by itself afford a cause of action for damages for wrongful attachment.
It was also argued that there was in fact no service of the order of attachment before judgment on the plaintiff. I do not think there is any real substance in this argument. I have adverted to this question while discussing the evidence of the bailiff. The order of attachment before judgment was actually served upon the plaintiff, Now, if the matter were entirely at large and wholly 'res integra', I should have seriously considered whether service of the order of attachment before judgment on a defendant in a suit would not be 'applying process of the Court' in an 'action on the case' and whether that would not be sufficient to complete the cause of action of the party when he comes to Court with a suit claiming damages for malicious abuse of that process.
Service of a summons, notice, order or warrant issued by a Court on a party is by itself a process of the Court and it is quite usual and correct to refer to the handing over of the summons, notice, order or warrant as service of the process of the Court. If that be so, speaking for myself, I find, it extremely difficult to understand why that should not be sufficient, as a matter of law, to complete the cause of action of a party if he -has alleged the other necessary elements of the case, by which I mean malice and absence or reasonable and probable cause, and special damage, and as a general rule, termination of the proceedings in his favour.
I do riot, however, propose to discuss this question in any detail in view of a decision of Tara-porewala J. in -- 'Kedarnath v. Biharilal', AIR 1925 Bom 357, where the learned Judge had taken the view that a mere procuring of an order of attachment in a suit does not of itself afford a cause of action for damages for wrongful attachment, and further taken the view that a mere showing by a bailiff of the Court of the order of attachment before judgment to the party whose goods were sought to be attached is not sufficient to complete the plaintiff's cause of action in a suit of a like nature. In so far as the learned Judge expressed the view that a mere procuring of an order of attachment in a suit does not of itself afford a cause of action, I am in respectful agreement with that decision, but with the latter part of the decision, which I have already stated, I must confess that I find it rather difficult to agree if thereby it was meant that mere service of the warrant is not enough.
However, the matter, so far as it is covered by that decision, is not open to me to question and I find myself bound to follow that decision in so far as it lays down that the mere showing of an order to a party whose goods were sought to be attached is not a sufficient averment in a case of the nature under consideration. Being bound to follow that case on that point, I shall proceed to examine the arguments urged before me bearing in mind the 'ratio decidendi' of that decision.
6. Considerable reliance was placed by Mr. Jape, learned counsel for the defendant, on that decision -- 'Kedarnath v. Biharilal (A)'. The argument was that in the case before me all that the bailiff had done was to serve the notice of the filing of the suit on the plaintiff and to show to him the provisional order of attachment issued by the Dhulia Court. Learned counsel relied on the order of that Court to show that the attachment was a conditional one. It was urged that the attachment was to be levied only if security to the extent of Rs. 15,000 directed to be given was 'not forthcoming. Learned counsel also drew my attention to the application made by the defendant in the Dhulia proceedings in which he had stated:
'It is not necessary to levy attachment as aforesaid if the defendant immediately gives proper and suitable security (surety) for one and a quarter times of the amount due to the plaintiffs.'
It is, however, necessary to add that in that very application the defendant further stated as follows: 'If no security (surety) is given immediately the above-mentioned goods may please be attached immediately.' The argument ran that security was promptly furnished and, therefore, no attachment at all was levied. Learned counsel referred to Order 21, Rule 43, Civil P. C,. and also Order 38, Rule 5(3), of the Code. The argument ran that it was only where attachment was actually levied that the plaintiff can have a cause of action for damages for malicious attachment before judgment. Now, in the application made by the defendant he had also stated that notice of the riling of the suit and the prohibitory attachment order should be served together on the plaintiff before me.
The argument was that as soon as the intimation of the order was given to the plaintiff he offered to furnish and in fact furnished the requisite security. Therefore, so it was argued, there was no attachment at all at any time levied on the plaintiff's goods, and the facts established are not sufficient to afiord a complete cause of action to the plaintiff. Since absolute reliance was placed by learned counsel for the defendant on the decision in -- Kedarnath v. Biharilal (A) (ante)', I shall very briefly state the facts of that case. The defendant in that suit had previously filed a suit in the Bombay High Court claiming a sum of Rs. 8,000 from the plaintiff in the subsequent suit.
On 7-6-1921, the defendant obtained from the Court in the first suit an 'ex parte' order directing the plaintiff in the second suit to show cause why the plaintiff should not furnish security in the sum claimed by the defendant and further directing certain lands of the plaintiff at Cawnpore as well as his stock-in-trade to be attached. When the order was served on the plaintiff's firm at Cawnpore by a bailiff of the Court a relation Of the plaintiff paid the amount under protest with a view to saving the plaintiff's credit. The order of attachment was confirmed by the Court on 26-6-1921, in absence of the plaintiff. The suit was heard and ended in a decree against the plaintiff. Immediately the plaintiff with a view to get the order of 7-6-1921 set aside, took out a chamber summons. That summons was heard by Macleod C. J. on 30-7-1921, when the learned Chief Justice discharged the same.
On 29-8-1921, the plaintiff filed the suit which came on for decision before Taraporewala J. In that suit the plaintiff claimed to recover Rs. 1,05,000 as damages suffered by him in credit, by the issue of the attachment before judgment alleging that the order of attachment before judgment was applied for and obtained on insufficient grounds and that the application was made by the defendant wrongfully, maliciously and without reasonable and probable cause. These were all the material facts that were set out in the plaint in that suit. At the hearing of the suit a preliminary objection was raised by learned counsel appearing on behalf of the defendant that the plaint did not disclose a cause of action.
It was also urged before the learned Judge that there was another ground for holding that the plaint did not disclose any cause of action, but with that I am not concerned. The learned Judge dismissed the suit on a demurrer after trying the preliminary issue whether the plaint disclosed any cause of action. Now, in that case it was admitted by the plaintiff that no attachment was in fact levied. It was further alleged on behalf of the plaintiff that from the facts of the case it appeared that the Court's bailiff had gone to the shop of the plaintiff with a view to enforce the warrant of attachment and that was sufficient to cause damage to the credit of the plaintiff and that the fact of the bailiff going to execute the warrant which was said to have been obtained maliclously and without reasonable or probable cause was abuse of the process of the Court.
It was also urged that in those circumstances it was not incumbent on the plaintiff to urge anything further to entitle him to damages for thesaid act. The learned Judge after considering the arguments urged on behalf of the plaintiff proceeded to observe that even assuming that the plaintiff was entitled to prove that the bailiff had gone to the shop of the plaintiffs to enforce the warrant of attachment which fact they had not set out in the pleading and to prevent that attachment moneys were paid by a relative of the plaintiff the said act of the bailiff did not give any cause of action to the plaintiff. The learned Judge then observed that in that case what happened according to the plaintiff was that the bailiff had gone to the shop to attach but in fact no attachment was levied as the relative of the plaintiff paid the amount mentioned in the warrant as being payable by the plaintiff as security on his failing to show cause to the contrary.
7. Now, when I turn to the order passed by the Dhulia Court it is a provisional order and in fact directs the plaintiff to furnish security to the extent of Rs. 15,000 and states that the attachment was not to be levied if the security was furnished. The learned Judge does not appear to have followed the usual form in which conditional orders of attachment before judgment are passed by the Court under Order 38, Rule 5, Civil P. C. Mr. Jape conceded that the order was not strictly in accordance with that rule. He, however, asked me to construe the order of the Dhulia Court as one of conditional attachment. Not being inclined to take too technical a view of the matter I shall assume that the warrant is in conformity with Order 38, Rule 5.
Even so, on facts the present case is clearly distinguishable from the case decided by Tara-porewala J. I have already discussed what happened after the order was served on the plaintiff and during the time that elapsed between the service of the order and the payment to the bailiff of the amount of the security by the plaintiff and it is not necessary to rehearse that evidence.
8. But it was strongly urged by Mr. Jape that no cause of action can be complete unless there was actual seizure of the plaintiff's goods. Reliance was strongly placed on Order 21, Rule 43, and it was argued that attachment of moveable properties can only be made by actual seizure of the goods and the attaching officer must take the property in his own custody and follow the provisions of the Code relating to attachment as also the rules of procedure and practice of the Small Causes Court. The argument was stressed that it is only when attachment is levied in conformity with those rules that a cause of action would arise in favour of the plaintiff. Emphasis was laid on the words 'actual seizure' in Order 21, Rule 43. The argument so founded was that the warrant of attachment in the case before me was not in fact executed.
That seems to me a mere quibble. It matters not whether actual physical possession of the goods was taken or not. It may be observed that physical contact is not necessary to constitute actual seizure. Symbolical acts may in my opinion satisfy the requirements of that rule. In --'Multan Chand Kanvalal v. Bank of Madras', 27 Mad 346, the view was expressed that where a warrant of attachment was affixed on the outer door of a warehouse in which the goods intended to be attached were stored that amounted toactual seizure within the meaning of the rule.In --'Grainger v. Hill' (1838) 4 Bing NC 212 the question was whether physical contact was necessary to amount to an arrest, and it was held that if the party was under a restraint and the officer manifests his intention to mane a capture it is not necessary that there should be any contact. The analogy applies where the question arises whether actual seizure is necessary in tarrying out the attachment of goods.
A further distinction was sought to be made by learned counsel for the defendant by suggesting that in the present case even that was not done. Whether there was actual seizure of the goods or not must necessarily be a question of fact. Seizure of goods, as I have already observed, can be symbolical and can be implied from the facts and circumstances of the case. It is extremely difficult for me to accept the contention that on the facts proved before me there was no seizure of the plaintiff's goods by the bailiff. Since considerable stress was laid by learned counsel on the decision of Taraporewala J. in -- 'Kedarnath, v. Biharilal (A)' (ante), I shall immediately go back to that case. The learned Judge, as clearly appears from the report, cited with approval the decision of the Madras High Court in -- 'Rama Ayyar v. Govinda Pillai', AIR 1917 Mad 145 and expressed his entire agreement with the reasoning of Napier J. in that case.
Now, in that case Napier J, has taken the view that procuring an order of attachment before judgment, however malicious, does not of itself afford a cause of action for damages and damage does not flow necessarily and naturally from a mere order for attachment before judgment. The learned Judge in the Madras case took particular care to emphasize that that case fell under the general class of cases described as 'abuse or the process of the Court' and observed that abuse of the process of the Court did not mean an improper procuring the process of the Court but applying the process of the Court in an improper manner and for improper purposes.
As I read that judgment it seems to me that the test to be applied in a case of the nature under consideration is: Was the process of the Court in fact applied? On a careful reading of the Madras decision, and the reasoning of the case, with which Taraporewala J. expressed his entire agreement, I have formed the opinion that the test is not to ascertain whether the order of attachment was fully executed but to ascertain whether the process of the Court was in fact applied. The crucial question that must arise, therefore, is: Was anything done by the bailiff to apply the process of the Court? Was any act done by him in furtherance of the order of the Court? The matter may also be approached by asking: Was there at any time any restraint on the goods of the plaintiff in execution of the order of the Dhulia Court?
If this be the correct test--and I venture to think that it is--when I turn to the evidence before me I find that for over an hour and a half at least the plaintiff's goods remained under restraint. The plaintiff was in fact compelled to refuse delivery of goods to his customers and was not allowed to deal in any manner with the goods lying in his shop. I have at some length discussed the evidence led before me and have reached the conclusion that there is sufficient and reliable evidence to show that such restraint was in fact enforced by the bailiff. The length of time during which the plaintiff was restrained from dealing With the goods in his shop or carrying on the business of the shop does not matter. It may have been an hour and a half as the bailiff says in his evidence, or two hours and a half as deposed to by the plaintiff.
The fact, however, remains that till the plaintiff got the requisite amount of security in cash he was not allowed to sell any goods or conduct the business of the shop and was compelled to turn away at least two of his customers. I do not see any reason why these facts considered as a whole along with the other evidence on record cannot be said to establish that the process of the Court was applied. If I apply the same test as was done by Napier J. in the Madras case I think that the plaintiff has succeeded in establishing that there was an abuse of the process of the Court.
It cannot be gainsaid that what the bailiff had done was in furtherance of the order of attachment the enforcement of which was entrusted to him by the Small Causes Court. He had to enforce the order, and during the time that elapsed before security was in fact furnished, the goods in the plaintiff's shop remained under provisional attachment.
9. Mr. Mody, learned counsel for the plaintiff, has drawn my attention to a decision of the Madras High Court, in -- 'Joseph Nicholas v. Bivarama Ayyar', AIR 1922 Mad 206, where the view was expressed in a case for damages for malicious proceedings that the acts done were sufficient to entitle the plaintiff to sue although there was no completed attachment before judgment. The plaintiff in the case before me has established that the bailiff, although he did not take actual physical possession of the goods, did certain acts in furtherance of the order of attachment before judgment,
10. No absolute rule can be laid down sinceconsiderations which arise, when the Court has todetermine conflicting rights of the parties in execution proceedings and a question arises as towhether there was effective execution, must insome respects differ from the considerations whicharise in a case when the Court has to decidewhether any process of the Court had taken place.The real question for determination in this typeof cases must in my view be whether there wasin applying the civil process an abuse of thatprocess. What acts may amount to this would bea question to be determined from the whole factsand circumstances of the particular case. For allthese reasons I am of the opinion that the plaintiff has a cause of action for abuse of the processof the Court.
11. Order accordingly.