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Gokaldas Melaram Vs. Baldevdas T. Chabria - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1410 of 1960
Judge
Reported inAIR1961Kant188; AIR1961Mys188
ActsCode of Civil Procedure (CPC), 1908 - Sections 9, 15, 16, 17, 18, 19 and 20; Indian Succession Act, 1925 - Sections 306
AppellantGokaldas Melaram
RespondentBaldevdas T. Chabria
Appellant AdvocateK.R. Gopivallabha Iyengar and ;B.V. Vedantha Iyengar, Advs.
Respondent AdvocateS.K. Venkataranga Iyengar, Adv.
Excerpt:
.....to the letters of administration sought for. - order 1. an interesting question of jurisdictions arises in this civil revision petition in this way. gopiballabha iyengar appearing on behalf of the petitioner laid emphasis on the provisions of section 19 of the code of civil procedure and urged that the court in which the plaintiff could institute the suit for recovery of the damages claimed by him was the court within whose jurisdiction the wrong complained of by him was done or the defendant resides, or carries on business, or perso-nally works for gain. gopivallabha lyengar, since no wrong was done within the jurisdiction of the bangalore court and the defendant neither resided, nor carried on business, nor personally worked for gain within its jurisdiction, he suit brought by the..........or in part arises. 9. section 19 provides for the institution of a suit for compensation for wrongs to person or movables, either in the court within whose jurisdiction the wrong is done or the defendant resides or carrieson business or personally works for gain. it is true that to some extent as rightly pointed out by mr. gopivallabha lyengar, the provisions of section 19 overlap the provisions of section 20. if, as provided by section 19, a suit of the kind referred to by that section can be instituted either in the court within whose jurisdiction the wrong was done or the defendant resides or personally works for gain or carries on business, that court would be the court referred to in section 20 also.the place where the wrong is done to the person is undoubtedly also a place.....
Judgment:
ORDER

1. An interesting question of jurisdictions arises in this civil revision petition in this way. The plaintiff who is the respondent in this civil revision petition, brought a suit in the Court of the Principal Civil Judge, Bangalore, for the recovery of a sum of Rs. 15,000/- as damages from his father-in-law who is the petitioner in this revision petition. The plaintiffs case was that ho was subjected to a malicious prosecution by the defendant in the Court of the 19th Presidency Magistrate, Bombay which ended in bis acquittal. On September 25, 1956, according to the defendant's case, a defamatory communication was addressed by the plaintiff to his wife which however was enclosed in an envelope addressed to a friend of the plaintiff's wife.

This Communication was made the subject matter of the prosecution for defamation by the defendant against the plaintiff and the summons in that criminal case which was commenced in the Bombay Court was served on the plaintiff in Bangalore on December 18, 1956, The order of acquittal in the criminal case was made on May 16, 1958, and the suit out of which this revision petition arises was instituted in the Principal Civil Judge's Court, Bangalore on June 1, 1959. According to the plaintiff it was possible for him to institute the suit in the Bangalore Court since he was served with summons in the criminal case within the jurisdiction of that Court.

2. Before the Court below, a contention was raised on behalf of the defendant that the plaintiff had to bring his suit only within the jurisdiction of the Bombay Court in which the plaintiff was prosecuted and that the fact that he was served with the summons issued by the Bombay Court, within the jurisdiction of the Bangalore Court would not entitle him to bring the suit in the Bangalore Court. The Court below repelled that contention and was of the view that it had jurisdiction to try the suit. This civil revision petition is directed against that order made by the Court below.

3. Mr. Gopiballabha Iyengar appearing on behalf of the petitioner laid emphasis on the provisions of Section 19 of the Code of Civil Procedure and urged that the Court in which the plaintiff could institute the suit for recovery of the damages claimed by him was the Court within whose jurisdiction the wrong complained of by him was done or the defendant resides, or carries on business, or perso-nally works for gain. According to Mr. Gopivallabha lyengar, since no wrong was done within the jurisdiction of the Bangalore Court and the defendant neither resided, nor carried on business, nor Personally worked for gain within its jurisdiction, he suit brought by the plaintiff in the Bangalore Court was clearly incompetent.

4. This contention does not appear to me to be one to which I can accede. A malicious prosecution is in essence a malicious abuse of the process of the Criminal Court. If such abuse is made of the process of a criminal Court in a particular place by serving that process upon the person who was maliciously prosecuted, it is clear that the wrong was done in the place where he was so served. It does not appear to my mind that there is any substance in the contention that no wrong is done in the place where the service of summons takes place in that way. Nor can I accede to Mr. Gopivallabha Iyengar's contention that the service of summons in a criminal case, if the prosecution involved in that case is a malicious prosecution, is of no materiality when the question of jurisdiction arises tor determination.

5. It was urged by Mr. Gopivallabha Iyengar that it is not necessary for a plaintiff to establish that he was served with summons in the criminal case which was maliciously commenced, and that therefore the service of summons was itself no part of the malicious prosecution.

6. It is true that it is not necessary for the plaintiff claiming damages for malicious prosecution to establish as a matter of fact that he was served with summons in the criminal case, but, that is something very different from saying that the service of summons, if there has been such service, cannot be regarded as part of the prosecution. It is therefore clear that even if section 19 of the Code of Civil Procedure is the statutory provision determining the jurisdiction of the Court within whose jurisdiction a suit for malicious prosecution has to bo instituted, the Bangalore Court in this case within whose jurisdiction the plaintiff was served with summons in the criminal case commenced by the defendant, is plainly the Court in which it was competent for the plaintiff to institute his suit.

7. In that view of the matter the argument addressed by Mr. Gopivallabha lyengar that Section 19 is in some respects an exception to Section 20 of the Code of Civil Procedure, would not be one which requires investigation. Even if it did, I am of the view that Mr. Gopivallabha lyengar is not right when he contends that the provisions of Section 19 of the Code of Civil Procedure should be regarded as in the nature of an exception to the provisions of Section 20 of the Code.

8. Section 19, in my opinion, is only an extension of Section 20. Under the provisions of Section 20 of the Code which is a residuary section, every suit referred to in that section has to be instituted either in the Court within whose jurisdiction the defendant resides or carries on business or personally works for gain, or the cause of action wholly or in part arises.

9. Section 19 provides for the institution of a suit for compensation for wrongs to person or movables, either in the Court within whose jurisdiction the wrong is done or the defendant resides or carrieson business or personally works for gain. It is true that to some extent as rightly pointed out by Mr. Gopivallabha lyengar, the provisions of Section 19 overlap the provisions of Section 20. If, as provided by Section 19, a suit of the kind referred to by that section can be instituted either in the Court within whose jurisdiction the wrong was done or the defendant resides or personally works for gain or carries on business, that Court would be the Court referred to in section 20 also.

The place where the wrong is done to the person is undoubtedly also a place where the cause of action arises. But the fact that the provisions of Section 19 of the Code to some extent overlap the provisions of Section 20 does not lead to the affirmance of the contention raised by Mr. Gopivallabha lyengar that Section 19 is an exception to Section 20.

10. I am unable to uphold that contention on the ground as pointed out by Mr. Gopivallabha lyengar that the opening words of Section 20 are 'subject to the limitation aforesaid'. Section 19 is not a limitation, as I understand that section, on the provisions of Section 20. The limitation refer red to in that section are only those referred to in Sections 15 and 16 of the Code. That view receives support from the fact that whereas in Sections 15, 16 and 20 the expression which occurs is 'shall' the corresponding expression occurring in Sections 17, 18 and 19 is the word 'may'.

Sections 15 to 20 contain the statutory provisions relating to jurisdiction. Section 15 provides for the institution of a suit in the lowest Court competent to try it. Section 16 provides for the institution of suits relating to movable and immovable properties. Section 17 is the provision made for a suit relating to immovable property situate within the jurisdiction of different Courts and Section 18 refers to suits where the local limits of jurisdiction of Courts are uncertain. Section 19 is a special provision relating to suits for compensation for wrongs to person or movables. And finally Section 20 is the residuary section,

11. It would be clear from this fascicle of the sections in the Code that the six sections to which I have referred are comprehensive enough to provide for the multitude of suits which Can be brought under Section 9 of the Code of Civil Procedure. Sections 17 and 19 contain special provisions. Whereas under the former section a suit may be brought by a plaintiff for compensation for wrong to immovable property, in the Court in which any portion of that property is situate, the latter section expressly provides that a suit for compensation for wrong done to a person or to movable property may be brought either in the Court within whose jurisdiction the wrong is done or in the Court within whose jurisdiction the defendant resides or carries on business or personally works for gain.

That being the position, it would be impossible for Mr. Gopivallabha Iyengar to reasonably suggest that Section 19 places a fetter on the plaintiff's right to bring a suit in the Court referred to in Section 20 if the suit is for compensation for wrong done to the person or to movable property. Section 19 in my opinion, appears to have been enacted only for the purpose of elucidating the position that the place where the wrong is done to the person or movable property is the place where the cause of action arises within the meaning of Section 20(c) of the Code.

12. It was next urged that it would not be right to think of the place where a person is served with the summons in the criminal case as the place where the wrong is done or the cause of action arises, since that view would lead to uncertainty and indefiniteness as to the Court in which the suit should be instituted.

13. I am not impressed by the argument. The construction against which Mr. Gopivallabha lyengar contends, does not to my mind introduce any element of uncertainty or indefiniteness as to jurisdiction, It does not appear to me that the fact that jurisdiction becomes ambulatory in that way by reason of the plaintiff being able to bring his suit jn the Court within whose jurisdiction, the process of the criminal Court was served on him would make the place of service immaterial, if otherwise that place is the place where the wrong can be regarded to have been done.

If a person who is maliciously prosecuted is served with summons issued in those proceedings in. a particular place, such service of summons is as I have already held, part of the prosecution and if such service is part of the wrong done to him, it is not easy to understand why the Court within whose jurisdiction that wrong is done would not have jurisdiction to try the suit.

14. The decision of the former High Court of Mysore in Moodlanna v. Basappa, 20 Mys LJ 353 on which Mr. Gopivallabha lyengar relied is, in my opinion, of no assistance to him. What was decided in that case was that a malicious prosecution is a personal tort and that no action could be maintained against the legal representatives of the tort-reason after his death. In the course of their judgment their Lordships of the former High Court of Mysore made reference to the construction placed! by their Lordships of the Calcutta High Court on the expression 'personal injuries' occurring in Section 306 of the Indian Succession Act 1925 and their dissent from that view.

The view taken by their Lordships of the Calcutta High Court in Krishnabehari Sen v. Corporation of Calcutta, ILR 31 Cal 993 that no question of personal injury was involved in a malicious prosecution did not find favour with their Lordships of the former High Court of Mysore. So it was, that they came to the conclusion that the legal representatives of the tort-reason could not be sued for compensation in respect of a tort committed by the deceased.

15. The object with which Mr. Gopivallabhn Iyengar relied on the aforesaid decision of the former High Court of Mysore was to overcome a direct decision of Lort-Williams, J., in Alexander Brault v. Indrakrishna Kaul : AIR1933Cal706 , on which the Court below depended in sup-port of its conclusion that the Bangalore Court with-in whose jurisdiction the plaintiff was served with summons in the criminal case was the Court in which the cause of action for the plaintiff's suit rose. On page 924 (of ILR Cal) : (at p. 708 of AIR) of the report this is what the learned Judge observed:-

'It is true that it is not necessary to prove service of the summons in order to establish a suit for malicious prosecution but the service was part of the proceedings upon which the present suit is founded and is part of the foundation for the claim for both special and general damages.'

The view taken by Lort-Williams, J., accords entirely with the view expressed by me that the place where the process of the criminal Court is abused is the place in which the cause of action arises.

16. But Mr. Gopivallabha Iyengar suggested that the view taken by Lort-Williams, J., was attributable to the misapprehension that Section 19 of the Code of Civil Procedure was inapplicable since in ILR 31 Cal 993, a Bench of that Court had given expression to the view that a malicious prosecution did not involve any personal injury to the person prosecuted. Lort-Williams, J., did not, in support of the conclusion which he reached, depend upon the decision of the High Court of Calcutta in ILR 31 Cal 993.

His view rested upon the principle that the service of the process in a criminal case is part of tho prosecution and that the place where the process is served is the place in which the cause of action arises. The learned Judge did not found his conclusion on the theory that a malicious prosecution does not involve any personal injury to the person prosecuted.

17. Mr. Gopivallabha Iyengar's contention has to be negatived for yet another reason. He is not in my opinion right when he contends that Section 19 of the Code of Civil Procedure applies to all cases where compensation is claimed in respect of a malicious prosecution., That contention urged by Mr. Gopivallabha Iyengar can succeed only if every suit for damages for malicious prosecution can be regarded as a suit for compensation for wrong done to a person or movable property.

Now, a malicious prosecution may result in three kinds of injuries. It may cau.se injury to tho person unjustly prosecuted. It may cause injury to his property and it may cause injury to his reputation. It may be that in the case of the first and third kind of injury, tho injury is the result of a wrong done to the person. But if there is damage to his property as it undoubtedly happens, if he has been unjustly made to expend monies for getting himself exculpated from the charge made against him, it would be impossible to regard the suit as a suit for compensation for injury to his person,

A case of that description would undoubtedly fall within the residuary provision of Section 20 of the Code of Civil Procedure and so long as the suit is brought in the Court within whose jurisdiction the defendant either resides or carries on business or personally works for gain. Or the cause of action wholly or in part arises, it could not be said that the suit is not cognizable by that Court because that Court is not tne Court referred to in Section 19 of the Code of Civil Procedure.

18. In this case, part of the compensation claimed by the plaintiff consists of the expenses which he claims to have incurred for defending himself in the criminal case. If that is so, it cannot be said that the compensation claimed by him is inits entirely compensation for the wrong done to his person.

19. In my opinion, the Court below was right in coming to the conclusion that it had jurisdiction to try the suit. I dismiss this revision petition and I direct that the costs of this revision petition shall be costs in the cause and shall abide the eventual result.

20. Revision dismissed.


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