1. This second appeal marks, I hope, the close of a sequence of unedifying litigation which reflects no credit on any of the parties engaged in it. The suit itself, No. 436 of 1939, was filed in the Court of the Munsif of Nagina for damages for malicious prosecution, the alleged prosecution being an application made in 1939 by the present appellant-defendant and his co-defendant to the suit moving the High Court to institute contempt proceedings against the two present plaintiff-respondents. It will be necessary in the first place to relate the circumstances in which this unfortunate application in the High Court came to be made. The matter began with a suit - not the present suit-started in January 1939 by the present plaintiff, Ram Sarup, against the present defendant 2, Baldeo Sahai, con, concerning a small matter of trespass. Ram Sarup is a Professor of Sanskrit in the Aligarh University and he lives at Aligarh but happens to possess the house in respect of which the 1939 suit was brought at a place called Sahore, which is in the jurisdiction of the Munsif of Nagina. That is how Eani Sarup came to bring a suit in that Courts Ram Sarup, moreover, has a son, Sheo Duttt Sharma, who is plaintiff 2 in the present proceedings. This gentleman is an agent of the Hindusthan Co-operative Insurance Society Limited of Calcutta and carries on his activities at Nagina. As a matter of convenience, therefore, Professor Ram Sarup made use of his son as his pairokar or agent for the purpose of handling his litigation in Nagina. In those circumstances a plaint was duly filed by Earn Sarup. In March 1939 the written statement in this suit was put in on be half of the defendant Baldeo Sahai. Now Baldeo Sahai had engaged a gentleman named B. Sumat Prasad Jain, who is defendant 1 to the suit with which we are now concerned and the appellant before us at this moment, as his advocate for the purpose of defending Earn Sarup's suit. On 27th March 1989, we find the written statement from which the whole of the trouble started. In para. 2 of the 'special pleas' there is the following statement:
2. That the plaintiff has no cause of action for the present suit. All the allegations as to the arising of the cause of action are wrong and the suit of the plaintiff is liable to be dismissed. The present suit has been filed at the instigation of Bhagwan Das, brother of the plaintiff, and an opponent of the defendants, in collusion with Sheo Dutt, an 'award' son of the plaintiff in order to harm the defendants.
I should explain that it is common ground in this case that the word 'awara' is an Urdu word bearing a highly offensive mean, ing indicative of a 'vagabond.' On the same day, immediately on receipt of this written statement, an application on behalf of the plaintiff, Earn Sarup, was made to the Munsif in some such terms as these - that the defendant Baldeo Sahai should be ordered to withdraw the offensive word 'awara' and to apologise to the plaintiff's son for ever having used it. This application was dealt with, I venture to think somewhat inexpertly by the learned Munsif who seems to have accepted a compromise since we find that on 5fch April 1939, after some discussion, he permitted an amendment to be made by substituting the word 'awaragard' for the word 'awara.' It seems that the word 'awaragard' means an 'aimless wanderer' and is slightly, but only slightly, less offensive than the word 'awara.' If I may say so, it would have been better if the application of 27fch March 1939 had been dealt with strictly in accordance with 0rder 6, Rule 16, Civil P.C., and if the offensive passage - if indeed -, not the whole of the paragraph had been ordered to be struck out as unnecessary and scandalous. At the very best it was an idle and irrelevant piece of pleading and one which should have found no place in any written statement professionally drawn. I do not blame the Munsif; but a more experienced Judge would probably have taken that course, and a good deal of the subsequent trouble might possibly have been saved. On 14th April the next event happened. The plaintiff's son Sheo Dutta, sent a letter to the defendant's advocate, B. Sumat Prasad Jain, in which he demanded damages for defamation, alleging that the passage in the written statement to which I have referred above was defamatory of him. This letter is one of the things which gave rise to the events which followed and it is desirable to set it out here. It purports to be a notice given to Mr. Sumat Prasad Jain, M.A., LL. B., Advocate of Nagina, by Sheo Dutt Sharma, Insurance Agent, Nagina, and it is in theae terms:
Whereas you have filed a written statement on 27th March 1931 in Suit No. 43/1939 Pandit Earn Swarup Shastri v. Baldeo Sahai pending in the Court of Additional Munsif, Nagina, and in para. 2 of that written statement you, without any justification called me an 'awarah'. The imputation is not only false but is made in bad faith inasmuch as it was uncalled for for the purpose of that case, and yet, to add insult to injury, you insisted on its inclusion in the written statement. The word is slanderous and defamatory and it lowers me in public estimation and injures the confidence the public repose in me. My business of an Insurance Agent of a leading National concern, the Hindustan Co-operative Insurance Society Ltd., Calcutta, requires a high standard of honesty and character of which I have given ample proof by putting a good record of business during all these years. The defamatory words which you have' intentionally used for me affect my business adversely and set my reputation and labours at nought; since you have made the unfounded and wrong averment I have undergone loss in business. Therefore, I hereby inform you to pay me Rs. 1000 (Rupees one thousand only) as damages for defamation within a week, otherwise I will take action against you in law.
Shiva Datt Sharma, 14th, April 1939.
2. It is now necessary to see what B. Sumat Prasad Jain did when he received that letter. On 20th April he wrote a letter to a certain Mr. Surendra Nath Varma, an advocate of the High Court at Allahabad. This letter is exhibited in the present proceedings and it runs thus:
My dear Mr. Verma,
This is to give you some little trouble. I am herewith enclosing (1) Plaint, (2) Written statement, (3) Application, (4) Statement of the lawyer, (5) Order of the Court and (6) Notice in regard to the case pending in the Court of the Additional Munsif of the Nagina jurisdiction. Kindly read the papers carefully. What I wish to know is whether this constitutes a contempt of Court. If so, where should the application in regard to this should be made and against whom? If you want to know anything further about the affair, kindly write to me at an early date. I shall write to you if anything else happens further in this connection.
Thanking you very much indeed for all this trouble in anticipation.
3. It is said that Mr. Varma was a personal friend of Mr. Sumat Prasad Jain. That may very well be so, but, in my view, as I shall presently explain, it makes no difference to this case. It has to be observed that Mr. Sumat Prasad Jain enclosed with his letter to Mr. Verma all the material documents and offered to send any further information that the Allahabad advocate might need. Mr. Verma is an advocate of this Court and has, I believe, some twenty years' standing at the Bar. He is, therefore, by no means a novice. Two days later, Mr. Sumat Prasad Jain addressed a further letter to another friend of his, who is also an advocate at Allahabad, Mr. Brij Lal Gupta. In the letter to Mr. Gupta he said:
My dear Mr. Gupta,
I am herewith enclosing copies of the following papers, viz.
Notice from plaintiff's son.
The case was filed by Pt. Ram Swarup against a person for whom I appear in this Court. My client is upset. Please go through the documents and also the law on contempt of Court and then advise whether it is a good case for action under the Contempt of Courts Act. Kindly consult others also. I have written to Mr. S.N. Verma separately.
If you think that an application can be successfully made, please draft an application and the other papers that may be necessary.
As to our First Appeal from Nainital, please advise whether a Receiver can be appointed on the property of Ali Husain, since he has been paying us nothing so far.
Thank you very much.
4. Mr. Gupta is also an established advocate of this Court and has, I believe, some ten years' seniority at the Bar. In this letter also all the relevant documents were enclosed and Mr. Gupta was asked to give his own view as to whether what had happened constituted contempt of Court, and he was also asked to consult others as well. I may as well say at once that some point has been made of the fact that Mr. Gupta did informally consult a then very senior Advocate of the Court, Mr. Sinha, who is now a Judge. I do not propose to attach much significance to this consultation, because I am well aware that between members of Bar it very frequently happens that one member meets another and asks him for his opinion. Without intending the slightest disrespect to Mr. Sinha's opinion, it is only natural that views expressed in those circumstances do not purport to be fully considered opinions. I do not propose, therefore, to attach any great significance to the consultation with Mr. Sinha, as he then was.
5. On 23rd April a reply was received from Mr. S.N. Verma. Mr. Verma said:
Dear Mr. Jain,
I am in due receipt of your letter and the papers of the case Bam Swarup Shastri v. Baldeo Sahai. I have gone through the notice of Shiva Datta Sharma and the connected papers and I am of opinion that there has been a contempt of Court. It was highly improper on the part of the plaintiff's son to have served you with that notice. An advocate is an officer of the Court and a threat to him in relation to a case, in which he is appearing as a counsel, does amount to a contempt of Court. It is nothing short of a blackmail. There is no doubt that in the circumstances of the case it is an interference with the course of justice. Plaintiff's application of 27th March is to be read with this notice. I would advise that with yourself the defendant should move the High Court for proceedings of contempt against the father and son.
On receipt of further instructions I shall do the needful.
With regards, I am,
6. On 26th April 1339 the reply was received from Mr. Gupta:
My dear Sumat Prasad,
I am in receipt of your letter of the 2nd instant. I have read through all the papers carefully, and have considered the law and the rulings on the subject. The case seems to be covered by the ruling reported in Rajendra Sing v. Uma prasad : AIR1935All117 . I have consulted some seniors also including Mr. Sinha. Opinion seems to be unanimous that it is a clear case of contempt and an application is advised. I have drafted the application and the affidavit and am forwarding the same to you. The application is both against Shiva Datt and the plaintiff and on behalf of both yourself and the defendant.
As re : the application for the appointment of a Receiver in your F, A., I shall advise yon when you come here.
With kind regards,
7. At that point in view of the reference in Mr. Gupta's letter to the Allahabad Law Journal Beports it will be convenient to point out that very recently there had been a case in the Allahabad High Court, Rajendra Sing v. Uma prasad : AIR1935All117 involving a question somewhat similar to the question upon which Mr. Verma and Mr. Gupta were asked to advise. In that case there were proceedings on foot to enforce a mortgage executed by the defendant's father. The defendant's written statement in that case had alleged, to put it briefly, that the plaintiff's father had obtained this mortgage in collusion with certain money-lenders who had in effect cheated the. defendant's father and the general plea was that the mortgage-debt was not-binding on the defendant, inasmuch as it was 'tainted with immorality'. Thereupon the plaintiff had sent a notice to the defendant's guardian threatening proceedings for defamation unless a substantial sum was paid. Subsequently the defendant commenced proceedings against the plaintiff for contempt of Court, and a Bench of this Court held that the sending of the notice threatening proceedings amounted to an interference with the administration of justice and had held both the plaintiff and his counsel guilty of contempt of Court. It is, however, important to observe that in that case the passage in written statement complained of constituted an integral part of the defence of the defendant and the ratio decidendi of the case was that the letter threatening proceedings amounted to interference with the administration of justice in the sense that it was calculated to put pressure on a party to the litigation to mould his pleadings to the opposite party's wishes. That has some relevance at a later stage of the present case. It is also material to be borne in mind since this case was then fresh in the minds of the lawyers at Allahabad.
8. On 5th May 1939, B. Sumat Prasad Jain and Beldeo Sahai lodged an application in the High Court, asking that 'proceedings for contempt of Court may be drawn up against' Mr. Ram Sarup Sharma and his son Mr. Sheo Dutt Sharma. This application obviously followed the advice which the Advocate of Nagina had received from Allahabad and it was accompanied by an affidavit dated 2nd May 1939, which incidentally was sworn before the proceedings were launched. There are only two paragraphs of that affidavit to which I need refer in any detail. By para. 7 the deponent, who was in fact Baldeo Sahai, set out the application of 27th March made to the Munsif for the purpose of extracting an apology and getting the word 'awara' withdrawn, and in para. 8 the deponent stated as follows:
That the deponent submits that the making of the above application was calculated to coerce the deponent to amend his pleadings, thus to deflect the course of justice by preventing the deponent from substantiating his plea, and amounts to a. contempt of Court.
The affidavit then went on to set out the notice of 14th April and again complained that that notice was:
clearly intended to put extraneous pressure, on the deponent's counsel to deter him, under threat of drastic action being taken, from doing his duty fearlessly....
9. In due course this contempt application came before the High Court and it was dealt with in the judgment of a Bench of. the Court which is reported in Baldeo Sahai v. Shiva Dutt : AIR1940All114 . As I understand that judgment, the learned Judges dismissed the application on the ground that the case was distinguishable from the 1935 case in Rajander Singh v. Uma Pasad : AIR1935All117 . The distinction which the learned Judges drew was the one to which I have already referred, namely that in the latter case the pleading against which pressure was exerted was an essential and integral part of the defence, whereas in this case the inclusion of the word 'awara' in the written statement was little more than a gratuitous insult, and an application to remove it was nothing more or less than an application under Order 6, Rule 16, Civil P.C. There could, therefore, have been no threat to the ad-ministration of justice either by reason of the application made before the Munsif for amendment of the written statement or by reason of the notice subsequently given by the plaintiff that he would proceed against the defendant for defamation, since the allegation complained of in the written statement was wholly immaterial to any issue in the case. That is the history of the very unfortunate events which has given rise to this suit. I desire for myself to say at that point that, whatever the result of this present suit may be, I am far from satisfied that the contempt of Court proceedings referred to above were inspired by any genuine desire to protect the administration of justice in these Provinces. I am, on the contrary compelled to think that, notwithstanding that (or perhaps because) he had fortified himself with the advice of two experienced Advocates of the High Court, the present appellant, Sumat Prasad Jain, proposed to use the machinery of contempt proceedings for the purpose of attacking the plaintiff in the 1939 suit and his son, and to that extent I am in substantial agreement with the conclusions reached by the learned Civil Judge, who dealt with this case in first appeal.
10. On the conclusion of the contempt proceedings, this suit was started by a plaint of 16th November 1939, to which Ram Sarup and his son Sheo Dutt Sharma were the plaintiffs and the present appellant B. Sumat Prasad Jain, the advocate of Nagina, and Baldeo Sahai were the defendants. The facts were set out more or less in the way in which I have stated them and an exaggerated claim was made for damages for malicious prosecution - the prosecution alleged being the initiation of the contempt proceedings by the defendants in the High Court. Damages amounting to Rs. 1000 were claimed, out of which Rs. 450 was attributed to insult, Rs. 330 to mental and physical pain, Rs. 50 to travelling and other expenses, and Rs. 150 to loss of work. This suit in the fulness of time came before the Munsif of Nagina, who, by a judgment, upon which, if I may say so, he is to be congratulated, dismissed it. Thereafter it came in first appeal before the learned Additional Civil Judge of Bijnor, who reversed the decision of the Munsif and gave the plaintiffs a decree for damages for Rs. 200. It is from this decree that this second appeal now comes to us. The ingredients of the tort of malicious prosecution are very well known and have been set out on many occasions. There has to be, in the first place, a prosecution. In the second place, there must be an unsuccessful prosecution. Thirdly, there must be an absence of 'reasonable and probable cause' for the prosecution. And, fourthly, there must, in addition to the absence of reasonable and probable cause, be malice as well.
11. In the present case, no question arises as to whether there has been a prosecution or not, because the learned advocate for the appellant has not raised that issue before us. We assume, without deciding, therefore, that in this case the institution of the contempt proceedings did constitute a prosecution. That being so, it is common ground that the prosecution was unsuccessful. Up to that point there is no difficulty whatever. The next question is whether there was 'reasonable and probable cause' for the prosecution. That, to my mind, is the crux of this case. In order that there may be a successful suit for malicious prosecution, there must exist both an absence of reasonable and probable cause, and malice. If, therefore, there is reasonable and probable cause for the prosecution, no question of malice arises, because the existence of reasonable and probable cause in the mind of the plaintiff is sufficient, whatever his motive may have been, to enable him to justify the proceedings he brings or the prosecution he starts. In Sankara Iyer v. Ramaswami Chettair ('32) 19 A.I.R. 1932 Rang. 80, Sir Arthur Page, the Chief Justice of Rangoon, says at p. 292:
In my opinion the fact that the defendant in a suit for malicious prosecution persists in prosecuting a false charge against the plaintiff after it has become reasonably dear that there was no ground to justify the prosecution of the plaintiff would be evidence of malice, but would not be evidence that at the time when he became the prosecutor the defendant had acted without reasonable and probable cause. A man's motive is one thing, his opinion is something very different, and, however, malicious the motive may have been that induced the defendant to launch the prosecution against the plaintiff, the malice of the defendant does not preclude him from justifying the coarse he took by establishing that when he became the prosecutor he honestly and on reasonable grounds believed that the accused was guilty of the offence for which he was prosecuted.
And towards the conclusion of the same judgment, the learned Judge again makes it clear that, in his view, provided there existed reasonable and probable grounds for the prosecution at the time it was launched, the question of malice became immaterial. He says at page 298:
In the circumstances disclosed in the evidence, however, it must not be taken that I should have arrived at the same conclusion upon the issue of malice as that which commended itself to the learned District Judge. But for the reasons that I have stated, and as the Court is of opinion that the plaintiff has failed to prove that the defendant prosecuted the plaintiff without reasonable and probable cause, it is unnecessary to determine the issue of malice, and I refrain from expressing an opinion upon it one way or the other....
This view appears to me to receive confirmation from the recent Privy Council case in Braja Sunder Deb v. Bamdeo Das . That, too, was a case of malicious prosecution and the Board say at p. 141 of the report:
Malice has been said to mean any wrong or indirect motive, but a prosecution is not malicious merely because it is inspired by anger. However wrong-headed a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence, he cannot be the initiator of a malicious prosecution. But malice alone is not enough; there must also be shown to be absence of reasonable and probable cause. If, in the present case, the respondents honestly believed a criminal offence to have been committed and had reasonable cause for so doing, they are not liable in this action, and even though they were malicious, they still would not be liable if they had reasonable and probable cause for believing in the appellants' guilt.
12. This to my mind makes it clear that what we have to consider in this case is, first, whether there was an absence of reasonable and probable cause for the institution of the contempt proceedings in 1939, and only in the absence of such reasonable and probable cause does the question of any malicious motive on the part of the appellant arise. Before turning to the facts of the case, it is necessary to refer to one further case before the Privy Council lest it should be thought that I have lost sight of the established principle that in second appeal findings of fact in the Court below are not to be displaced. This case is the case in Pestonji Muncherji Mody v. Queen Insurance Co. ('01) 25 Bom. 332 (P.C.). In that case, the facts of which are quite immaterial, the Board is reported to have observed that the question whether in any particular circumstances there is reasonable and probable cause in an action for malicious prosecution is in India a question of fact and nothing but fact, Their Lordships say at p. 336 of the report:
There is only one further observation which their Lordships desire to make. The case comes before them with a certificate that the appeal involves a substantial question of law. It appears to their Lordships that the only question involved is a question of fact on which there are concurrent findings. It is quite true that according to English law it is for the Judge and not for the jury to determine what is reasonable and probable cause in an action for malicious prosecution. The jury finds the facts. The Judge draws the proper inference from the findings of the jury. In that sense the question is a question of law. But where the case is tried without a jury there is really nothing but a question of fact and a question of fact to be determined by one and the same person. It appears to their Lordships that the certificate allowing the appeal to Her Majesty must have been granted under a misapprehension.
Some doubt has been expressed whether in the passage just referred to the Board has been correctly reported and whether it is not possible that in the concluding sentences of the quotation the expression 'question of fact,' which is repeated twice, was not intended in one place to be 'question of law:' see Sharma Bibi v. Chairman of Baranagore Municipality ('10) 6 I.C. 675 (Cal.) at p. 679 and Harish Chunder Neogy v. Nishi Kanta Banerji ('01) 28 Cal. 591. In our own Court, however, comparatively recently in Dharam Nath v. Muhammad Umar Khan : AIR1939All554 it has been held by a Bench of two Judges that in a suit for damages for malicious prosecution the question of absence of reasonable and probable cause is a question of fact, and a finding thereon cannot be called in question in second appeal.
On the other hand, there are decisions in Indian Courts subsequent to 1900, the year in which the Privy Council case was decided, which have treated the matter as & mixed question of law and fact. In the view I take, however, it is not necessary for me to pursue this question as, even treating it as a question of fact and of nothing but fact, I should still be compelled to conclude, in this case that the learned Civil Judge has failed to appreciate the real issue be fore him and to distinguish the issue of malice from the issue of reasonable and probable cause. In the result he has wrongly allowed himself to be influenced by the question of malice in reaching his conclusion as to reasonable and probable cause with the consequence that, in my view, he has found an absence of reasonable and probable cause in a case in which there are no materials whatever on which he could properly arrive at such a finding.
13. Turning, then, to the facts, we have to see-whether there was reasonable and probable-cause for the initiation of the contempt proceedings in 1939. What is reasonable and probable cause has been explained in many cases including Board v. Ham (1939) 5 Bing (N.C.) 722 at page 723 and Hicks v. Faulkner (1878) 8 Q.B.D. 167 at p. 171. All that is necessary is that the person instituting the prosecution should have a bona fide belief in the guilt of the accused, based on a conviction, founded on reasonable grounds, of the existence of a state of circumstances, which, assuming the facts to be true, would lead to the conclusion that the person charged is guilty of that which is imputed to him. The question in this case, therefore, is whether the present appellant, the advocate of Nagina, bona fide (that is to say reasonably) believed at the date of the application to the High Court that a state of circumstances existed in which the present plaintiff-respondents were guilty of contempt of Court. By 'bona fide' I mean 'actually,' and not that it is necessary that his motive in instituting the contempt proceedings should have been free from any ulterior, or even malicious, object. It is wholly misleading to import into the issue at this stage any question of malice. As I have pointed out earlier in this judgment, provided an actual belief in the guilt of the plaintiff-respondents existed in the mind of the appellant and was based on a reasonable foundation of fact and law, it was wholly immaterial that the motive he had, or may have had, for putting the machinery of contempt in motion was an unworthy one. Still less is it material that he turned out to be wrong. What are the facts? The appellant put the full facts before two advocates of substantial practice and standing. As far as I can see, he withheld nothing. He put before them all the material documents' in the case, and he left it to them to form an unfettered opinion as to whether what those documents disclosed constituted a contempt of Court. The question is not whether these gentlemen turned out to be right or wrong. As it happened, they were wrong; but that is a wholly immaterial circumstance. They advised the appellant that the facts disclosed by the documents before them-and no one denies that these facts were true-justified the view that the respondents to this appeal were guilty in law of a contempt of Court. The gentleman who gave this advice had in mind, no doubt, the recent case in the year 1935 to which I have already drawn attention. That case may possibly have influenced their view. But that, again, as far as I can see, is immaterial. The material point is that two advocates of this Court gave the appellant a bona fide and honest opinion on a question of law which unfortunately turned out to be wrong. That opinion was none the less trustworthy because the advocates who gave it happened to be personal friends of the appellant. Putting it in another way, I think that the appellant took a reasonable and prudent course in consulting his two professional friends and I find it impossible to come to any other conclusion but that, fortified with their view, he both genuinely and reasonably entertained the opinion that the present respondents had been guilty of a technical contempt of Court. It has never, I think, been doubted that the taking by a defendant to a suit for malicious prosecution of competent legal advice, and the acting by him on that advice, are strong circumstances pointing to the existence of reasonable and probable cause for any prosecution based on that advice subsequently initiated by him. Albert Bonnan v. Imperial Tobacco Co. of India Ltd. ('29) 16 A.I.R. 1929 P.C. 222. That assumes, of course, that the facts, upon which the legal advice is sought and given, are themselves reasonably conceived or ascertained by the defendant. In the present case there is no doubt that the facts were actually true.
14. We have been greatly pressed by para. 8 of the affidavit in which the deponent 'submitted' that the making of the application of 27th March was calculated to coerce the appellant and his client to amend the pleadings and thus to deflect the course of justice. It is said, if I have understood the argument rightly, that this amounted to a false assertion of fact before the High Court of the state of mind of the deponent and of the present appellant, namely that they were actually affected by the application that had been made. Actually it does nothing of the sort; nor should I have been prepared to impute any such frailty of mind to the present appellant. All the affidavit did, as many other ill-drawn affidavits before it have done, was to insert a matter of argument for the consideration of the High Court. There is nothing whatever misleading about that paragraph; nor can it be inferred from it that the appellant did not actually believe that he had the two respondents within his grasp on a charge of contempt of Court. Nothing that I have said must be taken to imply any approval of the use to which the appellant put this conviction, which, as I have explained before, is an entirely different thing. The appellant believed that the respondents were guilty of contempt of Court. He was himself a lawyer. But I have no reason to think that he was a better lawyer than the advocates of Allahabad who had advised him, and he was, I think, entitled to rely on their advice, which must be assumed to have coincided with his own opinion. But, unless I am mistaken, his actual motive in bringing the contempt proceedings in the High Court was not to protect the interests of justice, but to serve the ends of the litigation in which he was interested. That, nevertheless, does not in my opinion alter the fact that there was 'reasonable and probable cause' at the time he brought them.
15. In my judgment, therefore, no question of malice arises. If any question of malice had arisen, possibly it might have been more difficult to decide it in the appellant's favour. Subject to one further point, that is enough to allow this appeal and to restore the decree of the Munsif dismissing the suit. I feel, however, that I should say again that, in reaching the conclusion that there was reasonable and probable cause for the prosecution I have not, I think, violated the rule against setting aside a finding of fact by the lower Court even assuming it is a question of pure fact. The learned Civil Judge has in his judgment given his reasons for finding that there was no reasonable and probable cause. It is to my mind quite impossible to read those passages of his judgment without perceiving a considerable confusion in his mind as to the relation between, 'reasonable and probable cause' and malice. Nowhere in his judgment has he clearly distinguished the two issues. He has, as I read the judgment, come to the conclusion that, because the motive of the appellant was, or may have been, an unworthy or even a malicious one, there was on that account an absence of reasonable cause. I think that, throughout his consideration of this part of the case, the learned Judge has allowed himself to be misled by failing to appreciate that the motive of the appellant in ultimately launching the con-tempt proceeding was something quite different from whether he had any reasonable or probable cause for imputing to the respondents a charge of contempt of Court. Apart altogether from this, I should have been inclined to hold that there was no evidence in the Court below at all on which the learned Civil Judge could have found that there was an absence of reasonable and probable cause, the onus of proving which lay on the plaintiffs to the suit. For these reasons, I think that this appeal should be allowed and the judgment of the Munsif should be restored dismissing the suit.
16. I should desire, before closing this judgment, to point out the deplorable consequences which, as in this case, ensue from a departure from the proper principles of pleading and to emphasise the duty both of Judges in subordinate original Courts and of professional lawyers practising in them to see that pleadings are properly framed. In particular, it is far too common to find invective masquerading as pleading, apart, from much other immaterial matter. I hope that lawyers, whose duty both to their pro-fession and to the Court, it is to see that pleadings are properly framed, will set their faces against this practice; and wherever they do not, that Munsifs and Subordinate Judges will make strict use of those rules which are provided by the Civil Procedure Code for ensuring that the proper principles and practice of pleading are observed.
Wali Ullah J.
17. I entirely agree with my learned brother. I would, however, like to add a few words of my own. It is axiomatic that in order to succeed in an action for damages for malicious prosecution the plaintiff must, inter alia prove two things:
(1) That the defendant was malicious and (2) that he acted without reasonable and probable cause. Malice and absence of reasonable and probable cause, therefore, must unite in order to produce liability. 'I should define reasonable and probable cause,' says Hawkins J. in Hicks v. Faulkner (1878) 8 Q.B.D. 167 at page 171,
to be an honest belief in the guilt of the accused, based upon a full conviction founded upon reasonable grounds, of the existence of a state 'of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accused, to the conclusion that the person charged was probably guilty of the crime imputed.
18. It follows, therefore, that so long as legal process is honestly used for its proper purpose, mere negligence or want of sound judgment in the use of it creates no liability. Malice means the presence of some improper and wrongful motive that is to say some motive other than a desire to bring to justice a person whom the prosecutor honestly believes to be guilty. The onus of establishing the absence of reasonable and probable cause as well as of malice obviously lies upon the plaintiff. It is, therefore, perfectly obvious that if either of these two essentials be absent no action for damages can be sustained.
19. On the materials on the record, the Court of first instance came to the conclusion that there was no malice and further that there was no want of reasonable and probable cause established. In this view of the matter, the suit was dismissed. On appeal, however, the learned Civil Judge arrived at the con-elusion that the entire conduct of the defendant-appellant, was in his opinion, prompted by malice. After recording this finding the learned Civil Judge proceeded to consider the question whether there was a reasonable and probable cause for launching the proceedings for contempt. The part of the judgment of the learned Civil Judge which deals with this question shows, to my mind, quite clearly that the learned Judge was labouring under a complete misapprehension and was not quite clear in his own mind as to the principles which should be kept in view in arriving at a finding on this question. He has stressed only two points in this connection. He refers to the contents of paras. 8 and 11 of the affidavit which accompanied the application for proceedings for contempt made in the High Court on 5th May 1939. On the basis of what is contained in these two paragraphs the learned Judge appears to have expressed the opinion that the two defendants, namely the defendant-appellant before us and Baldeo Sahai, defendant 2, indulged in misrepresentations even in the High Court and he considered that they made certain assertions of facts which were false and distorted. The two paragraphs in question, however, on the face of them, to my mind, do not contain any assertions of facts much less any distortion of facts which are disproved by anything on the record of this case. On the contrary the two paragraphs of the affidavit in question clearly and as a matter of fact in so many words make certain submissions for the consideration of the Court. The learned Judge, however, appears to have entirely misunderstood the purport of these two paragraphs and to have arrived at his finding on this question which he has expressed thus:
There was not even a reasonable and probable cause to think like the above or act on its basis to launch prosecution. I think that these facts suffice to hold that the prosecution was false and that it was made maliciously and also without reasonable or probable cause.
20. From the above it appears to me perfectly obvious that the learned Civil Judge not only entirely misdirected himself in the law which he had to follow in considering this issue but he was also under a complete misapprehension as regards the relevant evidence or materials on the record on which he could arrive at his finding. His finding on the question of want of reasonable and probable cause is, to say the least, entirely coloured by his finding on the other and quite distinct issue relating to malice. He has failed to keep the two issues distinct and separate from each other. That being the position, to my mind the so-called finding of fact recorded by the learned Civil Judge was entirely vitiated in the eye of law. At any rate it is not a finding which can in any sense be considered to be binding upon this Court in a second appeal. In Basant Rai v. Ganga Ram : AIR1932All386 , which was decided by a Bench of two learned Judges of this Court, Sen J. is reported to have observed at page 389 as follows:
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.
21. In a more recent case, however, Dharam Nath v. Muhammad Umar Khan : AIR1939All554 , two learned Judges of this Court have held, relying upon the observations of their Lordships of the Privy Council in Pestonji Muncherji Mody v. Queen Insurance Co. ('01) 25 Bom. 332 (P.C.) at p. 336, that a finding on the question of the absence of reasonable and probable cause is a question of fact and therefore it could not be reopened in a second appeal. In any view of the matter, however, as I have indicated above, the finding on the question of want of reason, able and probable cause is entirely vitiated in law and is clearly not binding upon us in second appeal. Considering the facts and circumstances of this case which are set out at length in the judgment of my learned brother it seems to me that there was only one answer to the question whether there was any reasonable and probable cause for this prosecution and that was an answer in the affirmative. The defendant-appellant appears to have taken the very salutary precaution of taking legal advice and also of considering the matter himself in the light of the recent decision of this Court reported in Rajender Sing v. Uma Prasad : AIR1935All117 before moving the High Court for contempt proceedings. In view of the finding therefore that there was reasonable and probable cause for the initiation of proceedings in contempt the action must fail and it is not at all necessary to proceed further and discuss the question of the presence or absence of malice on the part of the defendant-appellant.
22. In the result, therefore, I agree with my learned brother that this appeal must be allowed, the decree of the lower appellate Court set aside and that of the Court of first instance dismissing the suit be restored.
23. The appeal is allowed and the suit is dismissed as against the defendant-appellant B. Sumat Prasad. For reasons which we need not further discuss but which sufficiently appear from our judgments we think that the appropriate order for costs is that as between the plaintiffs and the defendant-appellant they shall each bear their own costs in each Court.