Skip to content


B. Nityanand Mathur Vs. Lala Babu Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1937All506
AppellantB. Nityanand Mathur
RespondentLala Babu Ram and ors.
Excerpt:
.....a direct injury as to his property. 674 were clearly of opinion that an action analogous to malicious prosecution would lie for maliciously and without reasonable and probable cause instituting certain forms of civil proceedings against another. in my judgment, once such proceedings are instituted a mukhtar's good name and reputation must suffer and that being so, these proceedings do, in my mind, come within that class of civil proceedings which cause actual damage the moment they are launched and therefore give rise to an action for malicious prosecution if such proceedings are instituted maliciously and without reasonable and probable cause. he got a decree in the court of first instance, but the high court held the award to be good. , and that p had a good cause of action. the..........mal brought a cross suit against the plaintiff olaiming damages for malicious prosecution. this suit by ramji mal was dismissed by the learned munsif and hia decision was upheld on appeal to the lower appellate court. no appeal has been preferred against that decree and consequently the facts of that case need not be further considered.4. as i have stated previously the learned munsif and the learned civil judge on appeal dismissed the case brought by the present plaintiff, appellant on the ground that no action lay. both the lower courts accepted the defendants' contention that there had been no prosecution of the plaintiff and therefore he could recover no damages for malicious prosecution. both courts were of opinion that the only tort or civil wrong committed fey the defendants.....
Judgment:

Harries, J.

1. This is plaintiff's second appeal against a decree of the lower appellate Court, confirming a decree of the Court of first instance dismissing the claim. The appeal arises out of a suit brought by plaintiff against four defendants for Rs. 2,000 damages for malicious prosecution. Both the lower Courts have held that no action would lie and there, fore have dismissed the suit. The facts of the case are somewhat unusual and it is desirable that they should be stated in some detail : The plaintiff is a Mukhtar practising at Sambhal in the district of Moradabad. The defendant Ramji Mal is a zamindar in the district and the defendant Babu Ram is his son and mukhtar-i-am. The defendants Dhanna and Narpat are two tenants of Ramji Mal.

2. It is admitted that the plaintiff and the defendants Ramji Mal and Babu Ram had been on hostile terms for some time and it is the case for the plaintiff that Ramji Mal and Babu Ram conspired together with the two other defendants to ruin the plaintiff. It appears that Ramji Mal had filed a suit for the recovery of arrears of rent against the tenant Narpat, in the Court of the Tahsildar of Sambhal. On the date fixed for the hearing of that suit Dhanna went to the plaintiff and engaged him to conduct the suit. At this interview Dhanna posed as Narpat and the plaintiff was under the impression that he was being instructed by the real defendant Narpat. He prepared a written statement which he was about to file, but on that day for some reason or another the case was not taken up. The reader of the Court however obtained Dhanna's thumb impression on the order sheet. The next day the plaintiff filed his written statement and his mukhtarnama and eventually a day was fixed for the final disposal of the case. On the suit coming up for hearing no one appeared to defend it and consequently the plaintiff informed the Court that he had no further instructions in the case. The suit was decreed ex parte in favour of Ramji Mal, but shortly afterwards Narpat, the real defendant, appeared in Court. He stated that he had never engaged the plaintiff to act for him and had never given instructions that a written statement should be filed. Narpat admitted the claim which was decreed.

3. On 1st February 1932 Ramji Mal, through a vakil, made an application to the High Court under Section 13, Legal Practitioners' Act, praying that action should be taken against the plaintiff for professional misconduct. This application was supported by an affidavit sworn by the defendant Babu Ram as mukhtar-i-am of Ramji Mal setting out the facts of the case. The High Court sent the case to the learned District Judge of Moradabad for enquiry and report. The latter conducted an enquiry and ultimately reported that the plaintiff was entirely innocent of any professional misconduct and that in fact he had been tricked by Babu Ram and Ramji Mal. The learned District Judge found that Dhanna had been sent to the plaintiff with a view of making this false charge of professional misconduct at a later stage. The High Court accepted the finding of the learned District Judge and dismissed the application. After the termination of these proceedings in favour of the plaintiff, he instituted the suit claiming damages for malicious prosecution. He further instituted certain criminal proceedings against Ramji Mal and Babu Ram, but these proceedings were dismissed and as a result of them Ramji Mal brought a cross suit against the plaintiff olaiming damages for malicious prosecution. This suit by Ramji Mal was dismissed by the learned Munsif and hia decision was upheld on appeal to the lower appellate Court. No appeal has been preferred against that decree and consequently the facts of that case need not be further considered.

4. As I have stated previously the learned Munsif and the learned civil Judge on appeal dismissed the case brought by the present plaintiff, appellant on the ground that no action lay. Both the lower Courts accepted the defendants' contention that there had been no prosecution of the plaintiff and therefore he could recover no damages for malicious prosecution. Both Courts were of opinion that the only tort or civil wrong committed fey the defendants was that of libel. The two Courts held that the plaintiff had in fact been tricked by Ramji Mal and Babu Ram and that he had acted innocently throughout under the mistaken belief that Dhanna who actually instructed him was the defendant Narpat. Both the lower Courts were of opinion that the application to the High Court praying that proceedings be taken against the plaintiff under Section 13, Legal Practitioners' Act, contained defamatory matter and that an action for damages for libel would lie for the publication of such defamatory matter to the High Court. Both the Courts however held that a suit for damages for libel was barred by reason of limitation because this suit was instituted more than one year from the date of the receipt by the High Court of Ramji Mal's application which contained the defamatory matter. There can be no doubt that this suit was brought more than a year from the date of the publication of the matter contained in the application, but it has been argued before me that this claim is not in fact a claim for damages for libel but a claim for damages for something in the nature of a malicious prosecution. It is therefore necessary to consider whether or not the plaintiff has any claim to damages for the tort of the malicious prosecution or for some analogous tort or civil wrong.

5. The findings of fact of the lower appellate Court have not and could not be challenged before me. The learned Civil Judge who heard the appeal held that the application to the High Court for proceedings under Section 13, Legal Practitioners' Act, was made maliciously and without reason, able and probable cause. It is clear from the findings that Ramji Mal and Babu Ram had engineered the whole plot and had procured Dhanna to go to the plaintiff and give him instructions in order that this charge should be ultimately made. The plaintiff did in fact file a written statement and mukhtarnama without any instructions from the real defendant Narpat, but the lower appellate Court was clearly of opinion that he had done so because of a conspiracy between the four defendants to create a state of affairs out of which the plaintiff could be charged with acting in a case without instructions which would undoubtedly constitute gross professional misconduct. The facts as found make it clear that Ramji Mal and his son Babu Ram out of enmity towards the plaintiff had caused the latter to be charged with a very grave professional offence which might well have led to his suspension or dismissal as provided by Section 13, Legal Practitioners' Act. There can be little doubt that as a result of the defendants' conduct the plaintiff's professional reputation was imperilled and, indeed, his whole livelihood was at stake. In such circumstances, can it be said that the plaintiff had a remedy by way of a suit for damages for those malicious proceedings?

6. At the outset it must be conceded that proceedings under Section 13, Legal Practitioners' Act, cannot be described as a prosecution, but on the other hand these proceedings are something very akin to a prosecution. The jurisdiction conferred on the High Court by the Legal Practitioners' Act is a penal jurisdiction and in the event of a mukhtar being found guilty of an offence or offences with which he is charged the High Court can suspend or even dismiss him. Cases have been cited to me in which Courts have held that the jurisdiction of the Court under the Legal Practitioners' Act, is a quasi criminal one and therefore the procedure enjoined by the Criminal Procedure Code so far as it is applicable should be applied to such cases. There are cases, on the other hand, which suggest that this jurisdiction is, a particular and special one which is neither criminal nor civil. In my judgment these cases do not afford much assistance to either party because the question at issue here is somewhat different. Even admitting that proceedings under the Legal Practitioners' Act are not criminal proceedings, that does not dispose of the matter; because Courts in England and in India have held that in certain circumstances an action will lie for maliciously instituting proceedings-other than criminal proceedings. In Johnson v. Emerson (1972) 6 Ex. 329, Kelly, C.B. and Cleasby, B. held that an action would lie for maliciously and without reasonable and probable cause procuring an adjudication under the Bankruptcy Act of 1869 because by the petition which was the first process the credit of the person against whom it was presented was injured before he could show that the accusation made against him was false.

7. This case was followed in Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674 in which it was held that an action would lie for falsely and maliciously and without reasonable or probable cause presenting a petition under the Companies Acts, 1862; and 1867, to wind up a trading company, even although no pecuniary loss or special damage to the company could be proved, for, the presentation of the petition was from its very nature, calculated to injure the credit of the company. These two cases make it clear that English Courts have held that a suit for damages for instituting malicious Civil process would lie in certain circumstances. In Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674 at p. 688, Bowen, L.J. dealt with the cases in which the Courts have held that actions in the nature of malicious prosecution would lie where civil proceedings had been brought against the plaintiff maliciously and without reasonable and probable cause. He observed:

I start with this, that at the present day the bringing of an action under our present rules of procedure, and with the consequences attaching; under our present law, although the action is brought falsely and maliciously and without reasonable or probable cause, and whatever may be the allegations contained in the pleadings, will not furnish a ground for a subsequent complaint by the person who has been sued, nor support an action on his part for maliciously bringing the first action. To speak broadly and without travelling into every corner of the law, whenever a man complains before a Court of justice of the false and malicious legal proceedings of another, his complaint, in order to give a good and substantial cause of action, must show that the false and malicious legal proceedings have been accompanied by damage, express or implied. The reason why, to my mind, the bringing of an action under our present rules of procedure and under our present law, even if it is brought without reasonable or probable cause and with malice, gives rise to no ground of complaint, appears to me easily to be seen upon referring to the doctrine laid down by Holt, C.J. in Savile v. Roberts (1698) Carth 416. He there said that there were three sorts of damages, any lone of which would be sufficient to support an action for malicious prosecution : '(1) The damage to a man's fame, as if the matter whereof he is accused be scandalous.... (2) the second sort of damages, which would support such an action, are such as are done to the person; as where a man is put in danger to lose his life, or limb, or liberty, which has been always allowed a good foundation of such an action; (3) the third sort of damage which will support such an action, is 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, which is the present charge....' It is clear that Holt, C.J. considered one of those three heads of damage necessary to support an action for malicious prosecution. To apply this test to any action that can be conceived under our present mode of procedure and under our present law, it seems to me that no mere bringing of an action, although it is brought maliciously and without reasonable or probable cause, will give rise to an action for malicious prosecution. In no action, at all events in none of the ordinary kind, not even in those based upon fraud where there are scandalous allegations in the pleadings, is damage to a man's fair fame the necessary and natural consequence of bringing the action. Incidentally matters connected with the action, such as the publication of the proceedings in the action, may do a man an injury; but the bringing of the action is of itself no injury to him.

At p. 691, Bowen, L.J. further stated:

But although an action does not give rise to an action for malicious prosecution, inasmuch as it does not necessarily or naturally involve damage, there are legal proceedings which do necessarily and naturally involve that damage; and when proceedings of that kind have been taken falsely and maliciously and without reasonable or probable cause, then, inasmuch as an injury has been done, the law gives a remedy. Such proceedings are indictments - I do not say every indictment, but I mean all indictments involving either scandal to reputation or the possible loss of liberty to the person, that is, all ordinary indictments for ordinary offences.... But there are other proceedings which necessarily involve damage, such as the presentation of a bankruptcy petition against a trader. In the past, when a trader's property was touched by making him a bankrupt in the first instance, and he was left to get rid of the misfortune as best he could, of course he suffered a direct injury as to his property. Bat a trader's credit seems to me to be as valuable as his property, and the present proceedings in bankruptcy, although they are dissimilar to proceedings in bankruptcy under former Acts, resemble them in this that they strike home at a man's credit and therefore I think the view of those Judges correct who held in Johnson v. Emerson (1872) 6 Ex. 329 that the false and malicious presentation, without reasonable and probable cause of a bankruptcy petition against a trader, under the Bankruptcy Act, 1869, gave rise to an action for malicious prosecution.

8. Both Brett M.R. and Bowen L.J. who delivered the judgment in Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674 were clearly of opinion that an action analogous to malicious prosecution would lie for maliciously and without reasonable and probable cause instituting certain forms of civil proceedings against another. In cases where costs awarded by the Court to a successful defendant would give the latter sufficient compensation for the loss which he sustained, no action would lie against the plaintiffs for maliciously and without reasonable and probable cause instituting civil proceedings. On the other hand, where the very institution of such civil proceedings caused the defendant one of the three forms of damage referred to by Holt, C.J., in Savile v. Boberts (1698) Carth 416 then an action would lie at the suit of the successful defendant if he could show that the proceedings were brought maliciously and without reasonable and probable cause. In my judgment the application to the High Court made by Ramji Mal for proceedings being taken against the plaintiff under Section 13, Legal Practitioners' Act, must be regarded as the institution of such proceedings. It was this application which set the law in motion and which put the plaintiff's reputation, honour and even livelihood in peril. The proceedings, as the lower Courts have found, were instituted maliciously and without reasonable and probable cause and terminated in favour of the plaintiff. The question therefore arises whether or not these proceedings, though not criminal, come within that class of proceedings made actionable by reason of the decision in Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674 previously cited, and similar cases.

9. In my judgment the institution of proceedings for professional misconduct against a Mukhtar must inevitably damage his fair fame and reputation. The allegation made against the Mukhtar was vary similar to a criminal allegation. In any event it is an allegation which strikes at his professional reputation and career and which, if established, might ruin him. A man's professional reputation is, to my mind, as valuable as a trader's financial reputation. If, as it has been held, the (presentation of a bankruptcy petition necessarily involves injury to the trader's credit, the presentation of a petition in proceedings under the Legal Practitioners' Act must similarly involve damage to a Mukhtar's professional reputation. In my judgment, once such proceedings are instituted a Mukhtar's good name and reputation must suffer and that being so, these proceedings do, in my mind, come within that class of civil proceedings which cause actual damage the moment they are launched and therefore give rise to an action for malicious prosecution if such proceedings are instituted maliciously and without reasonable and probable cause. In my judgment the reasoning of the Court in Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674 applies to this case, and that being so I hold that the plaintiff has a cause of action for damages for malicious prosecution.

10. No casesimilar to the present appears to have been decided by the Courts in India, but the view which I take of this case is strongly supported by a number of cases of this High Court and other Indian High Courts. In Mohammad Nizullah Khan v. Jai Ram A.I.R. 1919 All. 388 it was held that a person who brought proceedings under Section 107, Criminal P.C., merely from religious animosity or ill-temper or some spiteful or malicious motive and thereby without any legal justification did a serious injury to the person against whom the allegation was made, was liable to an action for malicious prosecution when the proceeding terminated in favour of the person against whom the allegation was made. The learned Judges who decided that case pointed out that proceedings under Section 107, Criminal P.C., were not in the true sense criminal proceedings, but were quasi criminal proceedings, but nevertheless they held that an action for malicious prosecution would lie against a person who instituted such proceedings maliciously and without reasonable and probable cause. In Palani Kumaraswami Pillai v. Udaya Nakan (1909) 32 Mad. 170 a Bench consisting of White, C.J. and Abdur Rahim, J. held that an order of attachment under Section 483, Civil P.C., found by the Court under Section 491, to have been made on insufficient grounds must necessarily cause damage to the credit and reputation of the party against whom the order is made; and such party was entitled, in a suit for damages, to general damages for loss of credit and reputation where the attachment is obtained maliciously and without reasonable and probable cause.

11. In Har kumar De v. Jagat Bandhu De : AIR1927Cal247 it was held that an action would lie at the suit of a successful defendant against whom proceedings for a temporary injunction had been brought maliciously and without reasonable and probable cause. In all these cases the Courts held that an action would lie for such malicious institution of proceedings-because from the very nature of the proceedings themselves the person against whom they were brought inevitably suffered damage. In Arjun Singh v. Parbati A.I.R. 1922 All. 465 a Bench of this Court has held that a suit in the nature of a suit for damages for malicious prosecution will lie in certain cases for the institution of a suit of a purely civil nature maliciously and without reasonable and probable cause. The facts of that case were that by au arbitration award a moiety of debts due to P's husband was awarded to her, and the other moiety to A. A brought a suit for a declaration that the award was of no effect and that he was entitled to all the property. He got a decree in the Court of first instance, but the High Court held the award to be good. In the meantime-several debts due to the estate became barred by limitation. Stuart and Kanhaiya Lal, JJ. held that P's suit for recovery of damages sustained by her in consequence of A's suit was not barred by the provisions of Section 144 (2), Civil P.C., and that P had a good cause of action. The learned Judges in this case purported to follow Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674. It may be argued that the learned Judges who decided this case unduly extended the principles laid down in Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674 but even if that be so, I, as a Single Judge, am bound by this decision. In my judgment however the present case is a far stronger one than Arjun Singh v. Parbati A.I.R. 1922 All. 465 cited previously because proceedings under the Legal Practitioners' Act, are very similar to criminal proceedings and do inevitably involve a head of damage which is stated in Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674 to be sufficient to maintain an action for malicious institution of proceedings other than criminal. The Indian cases which I have cited clearly show that the Courts in this country have not been loath to follow the English cases and even possibly to extend the principles enunciated therein. That being so, I hold that the institution of proceedings under the Legal Practitioners' Act maliciously and without reason, able and probable cause affords the person proceeded against a cause of action if he is ultimately acquitted of the charges brought against him. That being so, the lower appellate Court was wrong in coming to the conclusion that no action lay in this case for malicious prosecution.

12. An action in the nature of an action for malicious prosecution can only lie against the person or persons who instituted the proceedings. Ramji Mal undoubtedly caused these proceedings to be launched by making through counsel an application to this Court. His son Babu Ram as his father's mukhtar-i-am swore an affidavit in support of the application and having regard to the findings of the Court below it is clear that he also was concerned in instituting these proceedings. The two tenants Dhanna and Narpat were merely tools in the hands of Ramji Mal and his son Babu Ram and though they played a part in trapping the plaintiff they took no part in the institution of these proceedings. That being so, it cannot be said that they were in any sense the 'prosecutors' of the plaintiff. In my judgment the facts show that Ramji Mal and Babu Ram jointly instituted these proceedings and that being so, it is only against them that an action in the nature of malicious prosecution would lie. Mr. Pathak who argued the case with great ability on behalf of the plaintiff has conceded that he has no real case against Dhanna and Narpat for damages for malicious prosecution. As I have stated previously it has been found that these proceedings were launched maliciously and without reasonable and probable cause merely to ruin the plaintiff. They ended with an acquittal of the plaintiff and that being so, the latter has established all the facts necessary to succeed in a suit for damages for a tort analogous to malicious prosecution and consequently Ramji Mal and Babu Ram are liable for the damages which the plaintiff has suffered. It might be stated here that no question of limitation can arise once it is held that a suit in the nature of a suit for malicious prosecution lies in this case. The suit was brought on 7th July 1933 which was within a. year of the date upon which the High Court acquitted the plaintiff of the charges of professional misconduct brought against him.

13. The learned Munsif, though he held against the plaintiff, assessed the damages suffered by the plaintiff at Rs. 600 and this finding was upheld by the lower appellate Court and it is therefore unnecessary to send this case back to the lower appellate Court to consider the question of damages. The finding as to amount of damages is a pure finding of fact and cannot be challenged before me in second appeal. I therefore hold that Ramji Mal and Babu Ram who instituted these proceedings maliciously and without reasonable and probable cause are liable to pay to the plaintiff Rs. 600 by way of damages. The respondents Dhanna and Narpat are not in my view liable in such an action. The result therefore is that in so far as this appeal is concerned with Dhanna and Narpat it is dismissed. In so far as it is concerned with Ramji Mal and Babu Ram the appeal is allowed and the decree of the lower appellate Court in favour of these two defendants is set aside and the plaintiff's claim against them is decreed for Rs. 600. Having regard to the nature of this case I think it is right that Ramji Mal and Babu Ram should pay to the plaintiff his costs of this appeal and his costs in both the Courts below. The respondents Dhanna and Narpat must bear their own costs of this appeal and their costs in both the Courts below. Leave to appeals under the Letters Patent is granted.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //