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The Municipality of Ahmedabad Vs. Panubhai Laljibhai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 151 of 1931
Judge
Reported inAIR1935Bom355; (1935)37BOMLR468; 158Ind.Cas.31
AppellantThe Municipality of Ahmedabad
RespondentPanubhai Laljibhai
DispositionAppeal dismissed
Excerpt:
.....support action-liability of corporation for prosecution by its officers.;an action for false and malicious prosecution can lie in respect of a prosecution under the municipal act.;wiffen v. bailey and romford urban council [1915] 1 k.b. 600, distinguished.;to support an action for malicious prosecution, there are three sorts of damage. first, damage to a man's fame, as if the matter whereof he is accused be scandalous. secondly, damage to his person as where he is put in danger to lose his life, limb or liberty. thirdly, damage to his property, as where he is forced to expend money in necessary charges to acquit himself of the crime of which he is accused.;savile v. roberts (1698) 1 ld.. raym. 374, followed.;a corporation can be deemed to be actuated by that kind of malice which is..........are questions of fact and cannot be gone into in second appeal.6. apart from that, i find that the learned judge has discussed the evidence bearing on these questions in detail, and he has pointed out that it was not a case of an excessive regard for duty, which induced the municipal officers to set the criminal law in motion against the plaintiff, but that they knowingly launched this prosecution as there were certain records available to them which ought to have made them hesitate before this action was taken. the learned judge also felt that defendants nos. 3 and 4, who were officers of the municipality, were instrumental for the disappearance of the relevant municipal papers. finally, the learned judge came to the conclusion that defendants nos. 2, 3 and 4 had no reasonable and.....
Judgment:

Rangnekar, J.

1. The Ahmedabad Municipality served the plaintiff with a notice under Sections 96 (5) and 91 (4), (13), of the Bombay District Municipal Act, 1901, calling upon him to remove certain building work done by him without the necessary sanction. As the plaintiff failed to comply with the notice, the Municipality prosecuted him under Section 155 of the Bombay District Municipal Act. The plaintiff was acquitted of the charge brought against him. Thereupon, the plaintiff brought the present suit to recover Rs. 725 from the defendant for damages for malicious prosecution. The trial Court dismissed the suit; but, in appeal, the learned Assistant Judge awarded the claim. It is against the decree of the lower appellate Court that the present appeal is made.

2. Two points are taken before me by the learned advocate on behalf of the appellant. The first is, that an action for false and malicious prosecution cannot lie in the case of a prosecution under the Municipal Act. In support of this contention the learned advocate relies on Wiffen v. Bailey and Romford Urban Council [1915] 1 K.B. 600. That was a case of a prosecution under Section 95 of the Public Health Act, 1875, and all that was decided there was that such a complaint is not a proceeding necessarily and naturally involving damage to the fair name of the person prosecuted, or putting him in peril of losing his liberty, sufficient to support an action by him for malicious prosecution. Apart from that, it was pointed out by Lord Justice Buckley in his judgment that ' There are three sorts of damage, any one of which is sufficient to support this action. First, damage to a man's fame, as if the matter whereof he is accused be scandalous. Secondly, damage to his person, as where a man is put in danger to lose his life, limb or liberty. Thirdly, damage to his property, as where he is forced to expend money in necessary charges to acquit himself of the crime of which he is accused'. Then the learned Lord Justice dealt with the last ground and with regard to it observed : 'The last is not in question in this case. There is no pecuniary damage.' He then dealt with the first two grounds and held that the action was not maintainable. Lord Justice Phillimore explains in his judgment what is meant by 'damage to a man's property' in these words : 'And thereby damage to a man's property as where he is forced to expend his money in necessary charges to acquit himself of the crime of which he is accused. This last head of damage was held to apply in Savile v. Roberts (1698) 1 Ld. Raym. 374, and the action was held to be maintainable.' It may be stated that the leading case on the point is Savile v. Roberts which first laid down the three canons which have been accepted ever since.

3. In the present suit, the action was inter alia based on damage to property and the plaintiff was compelled to incur expenses in order to defend himself against the charge brought by the Municipality against him, and the case relied upon is not of much use to the appellant.

4. It is well established by authority that a corporation can be actuated by that kind of malice which is essential to the maintenance of an action for malicious prosecution, instituted by its officers in the scope of their duty, provided the necessary ingredients of such a prosecution are made out, and, in the assertion of its rights, a corporation may render itself liable for malicious prosecution. It is not contended before me that the Municipal officers were acting outside the scope of their duty in prosecuting the plaintiff.

5. The second point made is, that there was no evidence of malice in the case. Now, this must always be a question of fact. The learned appellate Judge raised the following issues :-

Was the prosecution launched against the plaintiff by the Municipality, without reasonable and probable cause? 'Was the said prosecution maliciously false?

He recorded his findings in the affirmative on both these issues. These are questions of fact and cannot be gone into in second appeal.

6. Apart from that, I find that the learned Judge has discussed the evidence bearing on these questions in detail, and he has pointed out that it was not a case of an excessive regard for duty, which induced the Municipal officers to set the criminal law in motion against the plaintiff, but that they knowingly launched this prosecution as there were certain records available to them which ought to have made them hesitate before this action was taken. The learned Judge also felt that defendants Nos. 3 and 4, who were officers of the Municipality, were instrumental for the disappearance of the relevant Municipal papers. Finally, the learned Judge came to the conclusion that defendants Nos. 2, 3 and 4 had no reasonable and probable cause for prosecuting the plaintiff ; that the prosecution itself was false; that no enquiries were made from the plaintiff or his father ; and that neither of these defendants knew personally that any part of the building was raised without permission. He wound up the discussion by saying that he had no hesitation in holding that their conduct in prosecuting the plaintiff was actuated by malice and with the indirect object of harassing the plaintiff.

7. In this view, the appeal fails and must be dismissed with costs.


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