1. These appeals have arisen out of one suit brought by Ganga Ram and Piare Lal against Jaswant Rai, Basant Rai and Abir Chand for damages for malicious prosecution. The Court of first instance decreed Rs. 550 as damages to the plaintiff Piare Lal against the principal defendant Jaswant Rai and his servant Abir Chand. Piare Lal's claim was dismissed as against Basant Rai. Ganga Ram's claim was dismissed against all the three defendants. Three appeals were preferred in the lower appellate Court, one jointly by Ganga Ram and Piare Lal (the former claiming damages and the latter claiming enhanced damages), the second by Jaswant Rai and Abir Chand impugning the decree of the first Court so far as it awarded damages to Piare Lal, and the third by Basant Rai claiming costs against the plaintiffs whose suit had been dismissed as against him. By a consolidated decree, dated 8th March 1927, the claim of both the plaintiffs was decreed against all the three defendants, with the result that the appeals of Jaswant Rai and Abir Chand and of Basant Rai were dismissed, while that of the plaintiffs Ganga Ram and Piare Lal was decreed almost in its entirety. In all Rs. 1,100 were decreed to them as damages against all the three defendants jointly.
2. Three second appeals were preferred to this Court, which, by an order dated 11th April 1929, reversed the judgment of the lower appellate Court and remanded the three appeals to it for decision in accordance with the directions therein contained. The lower appellate Court then dismissed the appeal of the defendants Jaswant Rai and Abir Chand as also that of the defendant Basant Rai, and decreed the appeals of the plaintiffs Ganga Ram and Piare Lal, awarding Rs. 1,250 as damages against two only of the defendants, namely, Jaswant Rai and Abir Chand, exempting Basant Rai, as had been done by the Court of first instance. Three appeals on the lines of those preferred in the lower appellate Court have been filed in this Court and will be disposed of by this judgment.
3. Jaswant was a contractor from the Cantonment Committee for collecting certain rents. The prosecution in respect of which damages are claimed by the plaintiffs was started in consequence of two letters addressed to the Executive Officer, Agra Cantonment, and one formal complaint made to a Magistrate of that district. The first letter, dated 3rd June 1925, sent by the defendant Basant Rai, acting for Jaswant Rai, to the Executive Officer, Cantonment, complained that a number of persons, including Piare Lal, did not pay rent and obstructed the contractor in the realization of rents assigned by the Cantonment Committee to its contractor, Jaswant Rai. No action was taken on this letter and no further notice need be taken of that letter. On 15th June 1925, the defendant Abir Chand filed a complaint before a Magistrate complaining that the plaintiff Piare Lal, 'proprietor of the firm Shiv Lal Ganga Ram,' had obstructed the complainant's master, Jaswant Rai, in collecting rent, which he was entitled to collect as the contractor of the Cantonment Committee. The Magistrate ordered process to be issued against Ganga Ram and Piare Lal, and the case was fixed for hearing on 18th July 1925. It should be noted that the only accused named in the complaint was Piare Lal but as he had been described as the proprietor of the firm Shiv Lal Ganga Ram, summonses were issued not only to Piare Lal but also to Ganga Ram, another partner in the firm. On the date fixed for hearing the complainant Abir Chand did not appear, and the complaint was dismissed. Subsequently on 15th August 1925, Abir Chand wrote a letter to the Executive Officer, Cantonment, repeating his complaint against Piare Lal describing him as before. The Executive Officer thereupon prosecuted the plaintiffs Ganga Ram and Piare Lal for an offence under Section 249, Cantonment Code, (obstructing the contractor of the Cantonment Committee in the realization of rent). The plaintiffs Ganga Ram and Piare Lal were eventually acquitted after a trial lasting for some hearings. They instituted the suit which has given rise to this appeal on 26th January 1926. alleging that they had never obstructed Jaswant Rai and his servants in collecting rents and that their prosecution was the outcome of ill feeling and malice which existed between Jaswant Rai on the one hand and the plaintiffs on the other. The Court of firs; instance decreed the claim of the plaintiff Peare Lal to the extent of Rs. 550, as already stated, and dismissed that of the plaintiff Ganga Ram in toto on the ground that he had not been prosecuted by any of the defendants. The lower appellate Court however decreed Ganga Ram's claim also and its decree is assailed in second appeal by the defendants.
4. There is nothing on the record to justify the assumption that Ganga Ram was prosecuted by any of the defendants. Basant Rai's letter of 3rd June 1925 having proved infructuous, the complaint of Abir Chand filed on 15th June 1925 or his letter of 15th August 1925 have to be examined to find whether Ganga Ram was prosecuted by any of the defendants. There is nothing in either of them to indicate an intention on their part to prosecute Ganga Ram or to suggest that any criminal act was done by him. No prayer was made by Abir Chand for process being issued against Ganga Ram. It must have been through some misunderstanding that process was issued against Ganga Ram on Abir Cnand'a complaint of 15th June 1925. As regards proceedings following his letter of 15th August 1925, it might have been due to a similar misunderstanding or to some order of the executive officer that Gangaram was prosecuted. the learned advocate for the plaintiffs relies on the circumstance that during the pendency of criminal proceedings instituted on Abir Chand's letter of 15th August 1925, none of the defendants drew the attention of the Magistrate to the fact that Ganga Ram bad not been complained against by any of the defendants 1 do not think this circumstance justifies the inference that Abir Chand or any of the defendants prosecuted Gangs-, Earn. Not having themselves complained against Gangaram, it was not their duty to have taken exception to the prosecution of Ganga Ram. They might well have thought that Gangaram had been summoned at the instance of the Executive Officer of the cantonment. 1 am satisfied from the circumstances of the case that Gangaram cannot be said to have been prosecuted by Abir Chand, much less by Jaswant Rai, who did not himself file any complaint or address any letter to the executive officer.
5. As regards the other plaintiff, Peare Lal, the findings of the lower appellate Court on questions of fact are that, owing to business rivalry and ill feeling between the two a false and groundless complaint was made by Abir Chand acting in concert with his master Jaswanb Ral. The lower appellate Court has also found that there was no reasonable and probable cause for Jaswant Rai and Abir Chand to prosecute Peare Lal, who had done nothing to obstruct Jaswant Rai in collecting rent in respect of which they had obtained a lease from the cantonment authorities. On these facts, no question of law can, in my opinion, arise,, and the plaintiff is undoubtedly entitled to damages from the person responsible for his prosecution. As to whether Jaswant Rai is also liable for the action of his servant, the finding of the lower appellate Court, already referred to, is. decisive. I am clearly of opinion that,, in the circumstances of the case, Jaswanb Rai, though he did not file a complaint, or address any letter to the executive-officer, is as much liable as his servant, who did so at his master's instance.
6. Basant Rai's appeal is confined to the question of costs. His grievance is that, though he was discharged by both the Courts below, no costs have been awarded to him. The Courts below had full discretion as regards costs, and no interference on that score is warranted in second appeal.
7. In view of the foregoing remarks, the appeals of Basant Rai and of Jaswant Rai and Abir Chand must fail, except so far that no decree can be passed in favour of the plaintiff Gangaram against them. As regards the appeal of the plaintiff Peare Lal I see no reason to differ from the Court of first instance-which has properly assessed damaged. All the requirements of the case will be met if the decree of the Court of first instance be restored. Accordingly, I allow Appeals Nos. 1501 and 1502 of 1929 in part set aside the decree of the lower appellate Court and restore that of the Court of first instance, parties paying and receiving costs in proportion to failure and success throughout. I dismiss S.A. No. 1503 of 1929 with costs. The cross-objections filed by Gangaram automatically fail and are dismissed with coats.
8. I am in complete accord witch the judgment of my learned brother, but I would like to add a few words. The complaint dated 3rd June 1925 was dismissed without any process having 'been issued to the parsons charged with an offence under Section 249, Cantonment Act. It is perfectly patent tinder the circumstances that it was not open to any of the persons who had been accused by the complainant to maintain an action for damages for malicious prosecution. Whore a complaint has been summarily rejected by the Magistrate without issuing any legal process against the person or persona complained against, the latter cannot from the rejection of the complaint maintain an action for damages founded upon malicious prosecution.
9. It was contended by the appellants that the finding of the learned District Judge that the complaint was false and groundless was vitiated by a misappreciation of Section 249, Cantonment Act (Act 2 of 1924). This section provides:
Whoever obstructs or molests any person employed by a cantonment authority who is not a public servant within the meaning of Section 21, I.P.C., or any person with whom the cantonment authority has lawfully contracted, in the execution of his duty or of anything which he is empowered or required to do by virtue or in consequence of any of the provisions of this Act or of any law, by-law or order made thereunder, or in fulfilment of his contract, as the case may be, shall be punishable with fine which may extend to one hundred rupees.
10. The head and front of the offence committed by the person or persons charged I was that he refused to pay rent to the contractor under the Cantonment Committee. Where a tenant who is liable to pay rent to a contractor of the Cantonment Committee who had been duly authorized to collect rent from him refused to pay rent either to him or to his |servant, the more refusal to pay rent did not amount to an obstruction within the purview of Section 249. I am therefore of opinion that the complaint founded upon Section 249 was, to say the least of it, clearly misconceived.
11. The lower appellate Court has arrived at a clear and categorical finding that the complaints filed by the defendants were also and malicious and without reasonable and probable cause. Exception has been taken to the finding that there was no justification, in view of the peculiar circumstances of the case, for holding that there was no reasonable and probable cause for the institution of the complaints. Whether or not there is reasonable or probable cause is a mixed question of law and fact. It is also clear that the inference deducible from proved facts is an inference of law and may be examined by this Court in second appeal. After hearing Mr. Baleshwari Prasad at great length, I have not the slightest doubt in my mind that the inference reached by the learned Judge was justified from tha facts proved in the case. The finding therefore stands and cannot be disturbed in second appeal.
12. Gangaram was not a person who had been complained against in any of the three complaints. Either by inadvertence or mistake or deliberately on his own motion, the learned Magistrate chose to issue process against him. He was eventually acquitted. For the consequences of Gangaram's prosecution, the defendants in the action ought not to be made to suffer because they had not complained against him. Where a person has been tried by a criminal Court on its own motion or by mistake or inadvertence and not at the instance of the complainant, the former on his acquittal cannot maintain any action against the complainant for damages founded upon malicious prosecution. I agree in the order proposed.