1. On the 20th of January 1908 Muhammad Zahid granted a lease to one Bhola Ram and Sarda Prasad of a share in a certain market. That lease was not to take effect until the 22nd of June 1912, because at that time other lessees were in possession of the market. On the 21st of June 1912 Muhammad Zahid executed another lease of the same share in favour of Musammat Lalta Bibi. That led to litigation between Bhola Ram, and Sarda Prasad and Muhammad Zahid. Muhammad Zahid was in the wrong because he had contracted to give possession to Bhola Ram and Sarda Prasad on June 22nd 1912, There were proceedings before the Magistrate, initiated by Bhola Ram. There were proceedings in revision in the High Court. There was also a remand by the High Court to the lower Court and a second hearing in the High Court, and there is no doubt whatever that Bhola Ram and Sarda Prasad who were in the right in the matter from the beginning were put to very considerable expense in the source of this litigation. Bhola Ram died somewhere about the year 1913 and on the 25th of February 1915 Mr. Kanhaiya Lal, a Vakil, evolved a plaint which he thought was good enough to be filed in the Court of the Subordinate Judge, and by that plaint he alleged a right in the plaintiffs to recover various heads of damages. The plaint is a document which has had a good deal of criticism passed upon it here during the argument in this case and, there fore, it ought to be looked at a little carefully, because it is the foundation of the plaintiffs' case, and if, on an examination of that document, no cause of action is disclosed, the proper course would have been for the Subordinate Judge to have struck the whole of the claim out, and that would have saved the Subordinate Judge and, to some extent, the District Judge from having a confused notion that this was some species of action which had some sort of relationship to an action for malicious prosecution. There is no doubt that, although we do not find the words 'malicious prosecution' used in this case, all those Courts thought that this case had some affinity to a claim of that kind. We propose to show that it was not an action based on malicious prosecution and we propose to demonstrate that it was an action making claims for damages which were in law too remote. Once we appreciate the principles on which damages are said to be too remote, the whole action falls to the ground. Now, it is to be remembered that the original application to the Magistrate was by Bhola Ram and Sarda Prasad. They had a perfect right to make that application, but every body knows that when a complainant, or a plaintiff, commences an action in Court, the probability is that, even if he be successful, the amount of costs which may be awarded to him will not indemnify him against the actual necessary expenses of the suit or proceedings. It is clear law that an independent action cannot be maintained to recover the balance of costs over and above that awarded by the Court which tried the matter. It is equally clear that if, under any particular proceeding, the Court is not empowered to grant costs, no costs can be granted in an independent action by any other Court. If those two very simple propositions of law had been in the mind of the Subordinate Judge and the District Judge, the backbone of this case would have been broken at once.
2. There now comes a different point. It is said that the heirs of Bhola Ram can recover damages for the pain and suffering which Bhola Ram was put to in having to institute proceedings and it may be that in paragraph 9 of the plaint the descendants of Bhola Ram also claim to have damages as well. If such a claim is maintainable and is not in law too remote, then every plaintiff in a civil action, who commences a case against a defendant, and who, after successive stages of litigation, proves that he was right in commencing that action, can at its conclusion bring a claim for damages for the anxiety occasioned to him by having to institute a suit to enforce his rights. The proposition has only to be stated to show how nonsensical the whole thing is, and nonsensical is the right word to apply to this action, which is one that ought never to have been brought. It ought to have been disposed of without any ceremony at the outset.
3. The appeal is, therefore, dismissed with costs including fees on the higher scale.