1. The plaintiff respondent was prosecuted in the Criminal Court by the appellants on charges of riot and robbery. He was convicted by the Court of First Instance and sentenced to a fine of Rs. 10. That conviction was set aside by this Court on revision, the Sessions Judge who reported the case to this Court for revision having been of opinion that the charge had not been substantiated. The plaintiff thereupon instituted this suit claiming Rs. 600 as damages. The Lower Appellate Court has granted him a decree for Rs. 75. That Court refused to enter into the question of reasonable and probable cause. As it was essential that in a suit of this kind the plaintiff, in order to succeed, must prove not only that the charge was unfounded and was instituted through malice, but also that it was without reasonable and probable cause, I referred an issue to the Lower Appellate Court for a finding as to the existence or non-existence of reasonable and probable cause. That Court has returned a finding in favour of the plaintiff, to which exception has been taken by the appellants.
2. The question of the presence or absence of reasonable and probable cause is a mixed question, both of law and fact. In this case, as I have said above a Magistrate believed in the truth of the complaint brought by the appellants. That alone was sufficient evidence of the existence of reasonable and probable cause. In the case of Parimi Bapirazu v. Bellamkonda Chinna Venkayya 3 Mad. H.C. Rep. 238, the learned Judges observed:--'We do not know of any instance of a suit of this kind being successfully maintained after a conviction of the plaintiffs by the sentence of one competent tribunal.' No doubt, as observed in the said judgment, the judgment of one competent Court against the plaintiff should not in every case be considered a sufficient answer to the suit. But the fact of a Court of competent jurisdiction having believed that the complaint is a true complaint is strong evidence to show that it was not brought without reasonable and probable cause. The conviction by the first Court was no doubt subsequently set aside; but on referring to the judgment of the learned Sessions Judge, dated the 11th of November 1895, which is to be found on the record of the connected suit, No. 622, out of which Second Appeal No. 455 has been brought, it appears that he held the charge not to be established because he had doubts in his mind as to the truth of the complainant's story. He did not find that the complaint was an utterly false one. On the contrary, it appears from his judgment that a riot did take place that night, for which the complainant's party was convicted by the first Court along with the party of the present plaintiff. We have thus a judgment of a Court of First Instance convicting the plaintiff and the judgment of an appellate Court which gave the plaintiff only the benefit of a doubt. Such being the case, it cannot be said that the complaint was totally without probable cause. I have not been referred to any instance in which, under similar circumstances, a decree for damages has been granted. In my judgment the suit ought to have been dismissed. I allow the appeal, and, setting aside the decree of the Courts below, dismiss the suit with costs in all the Courts. The objection under Section 561 of the Code of Civil Procedure necessarily fails and is also dismissed.