1. This a defendants' appeal against a decree of the lower appellate Court modifying to some extent a decree of the Court of first instance awarding the plaintiff respondent damages for malicious prosecution. The learned Munsif who heard the case came to the conclusion that the plaintiff was entitled to damages and decreed the suit for Rs. 830. The lower appellate Court while upholding the Munsif on the question of liability held that the damages were excessive and reduced them to Rs. 276. The defendants being still dissatisfied and alleging that they were not in law liable to pay to the plaintiff anything by way of damages have preferred this second. appeal to this Court. The facts of the case are simple and can be stated as follows: The defendants made a report to the police alleging that on 25th September 1931 the plaintiff together with others had been concerned in a marpit in which a little girl Mt. Har Pyari had sustained injuries from which she died. As a result of this report the plaintiff was eventually prosecuted for offences of culpable homicide not amounting to murder, rioting and wrongful confinement and was committed to a Court of Session where he ultimately stood his trial.
2. On 23rd January 1932 he ultimately was acquitted upon all the charges and shortly afterwards brought this suit claiming a sum of Rs. 4,300 as damages for malicious prosecution. The learned Subordinate Judge was perfectly satisfied upon the evidence that on 25th September 1931 a marpit took place in which the little girl Mt. Har Pyari met her death. However, after a consideration of the whole of the evidence adduced in the case the learned Subordinate Judge was not satisfied that the plaintiff was present and consequently he held that the report upon which the prosecution was based was made by the defendants maliciously and without reasonable and probable cause. He therefore held the defendants liable whilst substantially reducing the amount of damages.
3. In my judgment the decree of the lower appellate Court cannot possibly be sustained as the learned Subordinate Judge wrongly placed the burden of proof upon the defendants. He in terms says that he is not satisfied that the defendants established that the plaintiff was present and that being so he has held them liable. In cases of malicious prosecution it is always for the plaintiff to establish affirmatively inter alia that the prosecution was brought without reasonable and probable cause. If the plaintiff fails to establish this the case must be dismissed even if no evidence is called on behalf of the defendants. Mr. Pandey who appears for the respondent and who has said everything that can be said in this case has to concede that the onus of proof of action without reasonable and probable cause always rests upon the plaintiff. At one time in India it was thought otherwise, but recent decisions of this Court and the Privy Council now establish beyond all doubt that the plaintiff to succeed in a claim for damages for malicious prosecution must establish affirmatively that the defendants acted without reasonable and probable cause. In the present case the plaintiff did tender evidence with a view to showing that the report made by the defendants was false and false to their own knowledge and that being so was a malicious report made without reasonable and probable cause. To establish that he was not present at the scene of the marpit the plaintiff himself gave alibi evidence and called others to support his alibi. The learned Subordinate Judge has considered this evidence and was far from satisfied that it was truthful. To use his own words:
I would have been strongly inclined to take the view that the evidence of alibi was fabricated with the help of the Medical Officer but since the burden of proof of alibi lies on the plaintiff only after the appellants have led evidence to convince the Court that the plaintiff was present at the scene 1 do not think any finding is called for.
4. In short, the learned Subordinate Judge was of opinion that the plaintiff had fabricated evidence and had in all probability suborned perjury, yet he has decreed the claim against the defendants. In dealing with the evidence called on behalf of the defendants the learned Judge mentions that there was delay in making the report. He deals with the matter in these words:
The delay is certainly not satisfactorily accounted for and the suspicion raised by the delay must result, in my opinion, in creating a doubt, the benefit of which must go to the plaintiff-respondent. I am therefore not quite satisfied from the evidence of the appellants that Shiama Charan himself went to the spot with his men and ordered them to beat Ram Charan and Mt. Bhago.
5. Again the learned Subordinate Judge throws the onus of proving that the plaintiff was on the scene of marpit upon the defendants. It is quite evident from a perusal of the whole judgment that the learned Subordinate Judge was left in considerable doubt about the matter It is true that the defendants' evidence did not convince him beyond all doubt that the plaintiff was present at the marpit, but on the other hand he was far from satisfied upon the plaintiff's evidence that he was not at the scene of the occurrence. In those circumstances I cannot understand how the learned Subordinate Judge could have found against the defendants having regard to where the onus of proof lay. As I have stated previously it was for the plaintiff to establish affirmatively that the defendants had no reasonable and probable cause for making this complaint. If he had shown that he was not there then the fact that a complaint was made involving him would inevitably lead to the conclusion that such a report was malicious and made without reasonable and probable cause. On the other hand when the evidence left the Court in doubt as to whether he was or was not there, then the Court could not have held affirmatively that the complaint was made without reasonable and probable cause.
6. If the Court was in doubt about the presence of the plaintiff upon the scene of the marpit then there must be the same doubt as to whether the report was made with or without reasonable and probable cause. Upon the findings of the learned Subordinate Judge in this case it is quite impossible to hold that the plaintiff has discharged the onus which the law casts upon him and that being so his claim must fail. In my judgment the claim was. wrongly decreed by both the Courts below and this appeal must be allowed. I therefore allow this appeal, set aside the decree of the lower appellate Court and dismiss the plaintiff's claim in its entirety. The appellants must have the costs of this appeal and of the proceedings in the two Courts below. Mr. Pandey has applied for leave to appeal under Letters Patent. In my judgment the law has now been determined and the only issues in this case are issues of fact. That being so in my view it is not a proper case for a Letters Patent Appeal.