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Khanchand Pokardas Vs. Harumal D. Varma - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1324 of 1963
Judge
Reported in(1964)66BOMLR829; 1965CriLJ75; 1965MhLJ143
ActsCode of Civil Procedure (CPC), 1908 - Sections 19
AppellantKhanchand Pokardas
RespondentHarumal D. Varma
Appellant AdvocateKeshavdas Dalpatrai, Adv.
Respondent AdvocateS.M. Mhamane, Adv.
Excerpt:
.....19 - suit for damages for malicious prosecution--suit instituted where plaintiff served with summons of criminal court--jurisdiction of court to entertain suit.;a malicious prosecution is in essence a malicious abuse of the process of the criminal court, and if such abuse of the process of the criminal court is made at a particular place by serving that process upon the person, who was maliciously prosecuted, the wrong would be done at the place where the person was served with the summons. therefore, under section 19 of the civil procedure code, 1908, the court within the local limits of whose jurisdiction the wrong was done will have jurisdiction to entertain a suit for malicious prosecution.;gokaldas v. baldevdas [1961] a.i.r. mysore 188 and alexander v. indrakrishna [1933]..........in a suit for malicious prosecution, the cause of action consists of 3 things : (a) filing of a criminal prosecution, (b) doing so maliciously and (c) acquittal of the accused by the criminal court, and the plaintiff, if he establishes these facts, would be entitled to get his damages without proving the fact that he was served with the summons in the criminal case. he further went on to point out that in a conceivable case the criminal court may even without issuing any notice or process to the accused (plaintiff) dismiss the criminal complaint filed by a complainant. defendant and even in such a case, if such criminal complaint was filed maliciously the plaintiff would be entitled to claim damages. he, therefore, contended that the mere fact that the summons in the criminal case was.....
Judgment:
ORDER

(1) This revisional application raises a neat question of jurisdiction. Whether the Poona Court can entertain a pauper suit to recover damages for malicious prosecution. The relevant facts are these. Some time prior to 4th February 1962 the Defendant in Bombay entrusted certain diamonds of the value of Rs. 15,000/- to one Jairamdas, the brother of the Plaintiff for the purpose of sale on commission, but while Jairamdas was travelling from Bombay to Poona his pocked was picked. However, the Defendant filed a Criminal complaint against Jairamdas and the Plaintiff (both of whom carry on business as jewellers at Poona) in the Court of the Presidency Magistrate at Esplanade, Bombay, charging them with the offences of criminal misappropriation and criminal breach of trust and abetment thereof under Sections 403 and 406 read with Section 114 of the I.P.C. This criminal complaint was filed by the Defendant on 14th February 1962 and after obtaining the process from the criminal court in that behalf, the Defendant effected service of the summons upon the Plaintiff and his brother at Poona. It appears that evidence of witnesses on behalf of the Complainant (Defendant) was led in the criminal court but on 27th November 1962 a compromise was arrived at whereunder, Jairam and the Plaintiff agreed to pay back Rs.15,000/- to the Defendant in certain instalments notwithstanding the fact that the diamonds had been stolen during Jairamdas's journey from Bombay to Poona. As a result of the compromise the criminal complaint was dismissed and both the plaintiff as well as his brother were discharged. But while discharging them the criminal Court in its judgment observed as follows:

'There is no iota of evidence to connect accused No. 2 (Plaintiff) with this offence. In my opinion Accused No. 2 (Plaintiff) is wrongly prosecuted in this case.'

Thereafter the plaintiff filed a pauper suit against the Defendant claiming Rs. 10,000/- as damages for malicious prosecution by presenting Miscellaneous Application No.206/63 to the Court of Civil Judge, Senior Division, Poona, on 15th April 1963. The pauper petition was in due course transferred to the 2nd Joint Civil Judge, Junior Division of Poona. After notice to show cause was issued and served upon the Defendant, the Defendant raised several contentions at Ex. 10. Inter alia it was contended by the Defendant that the Poona Court had no jurisdiction to entertain and try the suit as no cause of action had arisen within the jurisdiction of that Court. The Plaintiff urged that inasmuch as the process of the criminal Court had been served upon him at Poona on 26th October 1962, a part of the cause of action arose in Poona and therefore the Poona Court had jurisdiction to entertain the suit. The learned Joint Civil Judge, Junior Division, Poona at the instance of both the parties raised a preliminary point about the jurisdiction and after hearing the Advocates, held that since the summons in the criminal case had been served upon the Plaintiff in Poona, he had jurisdiction to entertain and try the suit and he, therefore, directed that the hearing of the proper petition be proceeded further. Against this order passed by the trial Court on 31st July 1963 the Defendant has come up in revision to this Court.

(2) On behalf of the defendant, Mr. Keshavdas strenuously urged before me that the plaintiff in his pauper petition claimed jurisdiction in the Poona Court solely on the ground that the summons in the criminal case was served upon him in Poona and he, therefore, contended that that fact by itself could not give jurisdiction to the Poona Court in view of Section 19 of the Civil Procedure Code, which was applicable to the facts of the case. On the other hand Mr. Mhamane, on behalf of the plaintiff, brought to my notice that the plaintiff in the body of his plaint had claimed special damages amounting to Rs. 1500/- comprising of 3 items: (I) Rs. 700/- being fees paid to Shri T.C. Motwani, Advocate (ii) Rs. 300/- for travelling diet and other expenses and (iii) Rs. 500/- for loss of business as a jeweller and further claimed Rs. 8500/- as and by way of general damages comprised of (I) Rs. 1550/- for mental and bodily pain and (ii) Rs. 700/- for loss of reputation and after setting out these particulars of damages claimed by him the plaintiff in paragraph 11 of his plaint averred that the cause of action arose at Poona within the jurisdiction of the Poona Court as the summons of the criminal proceedings was served upon him at Poona on 26th August, 1962. In other words, according to Mr. ., the plaintiff claimed jurisdiction in the Poona Court both on the ground that the summons of the criminal case was served upon him in Poona and that thereby a personal wrong had been done to him in Poona and also on the ground that a part of the cause of action had arisen in Poona inasmuch as some part of the special damages and some part of the general damages were suffered by him in Poona. According to Mr. Mhamane, therefore, the Poona Court had jurisdiction to entertain the suit both under Section 19 and 20 of the Civil Procedure Code. In my view, irrespective of the question as to whether Section 20 of the Civil Procedure Code would be applicable to the facts of the case or not, Poona Court will have jurisdiction to entertain the suit under the provisions of Section 19 of the Civil Procedure Court.

(3) It is clear that under Section 19 of the Civil Procedure Code a suit for compensation for a wrong done to the person can be filed either in the Court within whose territorial jurisdiction the defendant resides or carries on business or personally works for gain or in the Court within the local limits of whose jurisdiction the wrong was done. What has been urged by Mr. Keshavdas is that in the present case the wrong to the person of the plaintiff was already done by the defendant when he instituted the criminal complaint against the plaintiff in the Esplanade Court at Bombay for the alleged offences under Sections 403 and 406 read with section 114 of the I.P.C. and service of summons upon the plaintiff cannot be regarded as any part of the wrong done to the plaintiff. He further urged that in a suit for malicious prosecution, the cause of action consists of 3 things : (a) filing of a criminal prosecution, (b) doing so maliciously and (c) acquittal of the accused by the criminal court, and the plaintiff, if he establishes these facts, would be entitled to get his damages without proving the fact that he was served with the summons in the criminal case. He further went on to point out that in a conceivable case the criminal Court may even without issuing any notice or process to the accused (Plaintiff) dismiss the criminal complaint filed by a complainant. Defendant and even in such a case, if such criminal complaint was filed maliciously the plaintiff would be entitled to claim damages. He, therefore, contended that the mere fact that the summons in the criminal case was served upon the plaintiff at a particular place would not confer jurisdiction upon the Court of the place where such service was effected. It is difficult to accept Mr. Keshavdas's contention, for in my view, it proceeds upon a fallacy, for Keshavdas assumes that a fact which may not constitute a part of the cause of action in a suit for malicious prosecution does not also constitute a part of the wrong done to the person of the plaintiff when the criminal complaint is maliciously instituted against the plaintiff. It is true that the fact that process of the criminal Court was served upon the plaintiff would not go to constitute a part of the cause of action for a malicious prosecution but it is quite a different thing to say that service of process of a criminal court is no part of the wrong done to the person of a plaintiff, when after filing the criminal case the summons is actually served upon the plaintiff. What is required under Section 19 of the Civil Procedure Code is that the wrong to the person must have been done to the plaintiff within the local limits of the jurisdiction of the Court in which the suit to recover damages for the said wrong is instituted and in a given case a wrong may consist of a series of acts. It is clear that a malicious prosecution is in essence of malicious abuse of the process of the criminal court and if made at a particular place by serving that process upon the person, who was maliciously prosecuted, the wrong could be said to have been done at the place where the person was served with the summons. it is one thing to say that it is not necessary for the plaintiff claiming damages for malicious prosecution, to establish that he was actually served with the summons in the criminal case, but it is quite a different thing to say that the service of summons, if one has been done, cannot be regarded as part of the prosecution. If the essence of the malicious prosecution is a malicious abuse of the process of the criminal court then it is obvious that service of the said process of the criminal court upon a person will be a part of the prosecution. It is, therefore clear that the court within the local limits of whose jurisdiction that part of the wrong was done will have jurisdiction to entertain the suit for malicious prosecution. In my view therefore, the learned trial Judge was right in taking the view that the summons in the Criminal case having been served upon the plaintiff at Poona, he had jurisdiction to entertain the suit under Section 19 of the Civil Procedure Code. I may indicate that the Mysore High Court has also taken a similar view in Gokaldas v. Baldevdas, AIR 1961 Mys 188. The other ruling relied upon by the learned trial Judge viz., in Alexander v. Indra Krishna : AIR1933Cal706 it must be pointed out, was in case under the Letter Patent and the question was not considered with reference to Section 19 of the Civil Procedure Code.

(4) In this view of the matter, it is really unnecessary to decide the question as to whether the Poona Court will have jurisdiction to entertain the suit on the basis that part of the cause of action arose in Poona inasmuch as the plaintiff alleged that he suffered part of the damages (special as well as general ) in Poona.

(5) The rule in the revisional application is, therefore, discharged with costs.

(6) Rule discharged.


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