Deoki Nandan, J.
1. Each one of the sixrespondents in the six appeals filed a suit each against the defendant-appellants for damages for malicious prosecution. All the six suits were consolidated by the trial court and decreed by a common judgment. Hari Chand's suit, being Suit No. 149 of 1969 of the court of IV Additional Munsif, Meerut, was treated to be the leading case. As against the sum of Rs. 1,500 claimed by Hari Chand as damages the amount awarded to him by the trial court's decree was Rs. 675. Satya Prakash was awarded Rs. 600 as against the claim of Rs. 1,000 in his Suit No. 139 of 1960. Chuttan Lal, Sunder Lal and Ghasi Ram, plaintiffs in Suit Nos. 138 of 1969, 140 of 1969 and 141 of 1969, were each awarded Rs. 340 as against the claim of Rs. 600 in their respective suits. Raja Ram, plaintiff in Suit No. 142 of 1969, was awarded Rs. 250 as against the claim of Rs. 700 made by him. The lower appellate court confirmed the decrees in all the six suits. Hence the six second appeals in this Court.
2. It appears that there had been litigation between Hari Chand and his sons and grand-sons on the one hand and Zargham Abbas and his sons on the other. The dispute between them related to dolbandi of the boundaries of theirlands. Zargham Abbas, the first appellant in this Court, since deceased and now represented by his legal representatives, lodged a first information report at the police station Jani with the allegations that on 17th May, 1967 while his son Ali Abbas was tending the garden at about 7 in the morning, Hari Chand and his son Satya Prakash went there and beat Ali Abbas with a khurpa; that on the raising of alarm by Ali Abbas, some people arrived who rescued him; that Ali Abbas then went to the house of Shaukat Husain; that when news reached Zargham Abbas, he went there with his sons and was taking Ali Abbas to the police station on a bus; that while he was on his way to the police station Hari Chand with his three sons Satya Prakash, Chuttan Lal and Sunder Lal, and grand-sons Ghasi Ram and Raja Rani, came armed with lathis and entered the house of Zargham Abbas where his daughters were living, and tried to force their entry into the house but the daughters bolted the door from inside and the said persons could not harm them because of the arrival of the witnesses. Hari Chand, his sons and grand-sons, were thereupon prosecuted for offences under Sections 147 and 452 of the Indian Penal Code. There was a compromise between the parties but the offence under Section 452 of the Indian Penal Code could not be compounded and the learned Magistrate proceeded with it. The prosecution resulted in the acquittal of Hari Chand and his sons and grand-sons. The only point considered by the lower appellate court in this case was whether the prosecution of the defendant-respondents was malicious, false and without reasonable and probable cause.
3. Mr. R. H. Zaidi, learned counsel for the appellants, criticised the finding of the two courts below on this point and urged that it was vitiated in law. He relied on the decisions of this Court in Devi Atma Nand v. Shambhu Lal (1965 All LJ 317); Sumat Prasad v. Ram Sarup Sastry : AIR1946All204 ; and of the Privy Council in Braja Sunder Deb v. Bamdeb Das . He also contended that the compromise in this case was filed even before the police had submitted a charge-sheet and under the circumstances although the offence under Section 452 of the Indian Penal Code was not compoundable, it could not be said that the defendants appellants were the initiators of a prosecution.It was the police and the court who in spite of the compromise which amounted to a withdrawal of the information lodged by the deceased first appellant before the police, continued with the prosecution and since he was summoned as a witness he had no option but to appear before the court and state the truth. The fact that he was not believed by the learned Magistrate or the fact that the learned Magistrate did not find his evidence sufficient for convicting the respondents of the offence for which they were being prosecuted does not mean that he was the initiator of a false prosecution.
4. It was also suggested by the learned counsel for the appellants that the cause of action in the suit for damages for malicious prosecution does not survive the death of the deceased first defendant-appellant against his heirs.
5. Learned counsel for the respondent on the other hand relied on Gaya Prasad v. Bhagat Singh, (1908) ILR 30 All 525 (PC) and urged that the deceased first appellant did in fact maliciously initiate a false prosecution by his act of lodging a false first information report with the police. Taking up the last point urged by the learned counsel for the appellants as the first point, it may be observed that although an appeal is in a sense a continuation of the suit, decrees for damages had already been passed against the deceased first appellant and it is he who had along with his son Ali Abbas appealed to this Court. If the cause of action does not survive the death of the first appellant, it is the appeal which would abate and not the suit and the decree under appeal could still be executed against his assets in the hands of his heirs. Confronted with this situation learned counsel for the appellants gave up the point and did not press it further. At any rate the decree seems to have been passed jointly against the deceased first appellant and his son Ali Abbas who is the second appellant and the other heirs of the deceased first appellant have already been substituted in his place. Under the circumstances it must be held that the death of the deceased first appellant does not affect the maintainability of the appeals from the decrees.
6. Coming to the first point raised by the learned counsel for the appellants it must be observed that the lower appellate court did not consider the question about the existence of malice and the absence of reasonable and probable cause for the prosecution separately; and further that it did not appreciate the true import of malice as explained by the Privy Council in Braja Sunder Deb's case (supra). In order to succeed in an action for malicious prosecution the plaintiff must in the first instance prove two things: (1) that the defendant was malicious, and (2) that he acted without reasonable and probable cause. 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 initiator of malicious prosecution. But malice alone is not enough. There must also be shown to be absence of reasonable and probable cause. Malice was denned by a Division Bench of this Court in Sumat Prasad's case : AIR1946All204 'to mean 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.'
7. Seeing in this light, it is apparent that the lower appellate court did not approach the question of the existence of malice and the absence of reasonable and probable cause for the prosecution, from the correct legal stand-point, and its finding is vitiated in law on that (account. The lower appellate court first proceeded to record a finding that the appellants had failed to prove that the incident alleged by them ever took place. That was not the question which arose for determination of the court in these suits. That was the question which arose in the prosecution before the learned Magistrate. The question which arose in the suit was whether the deceased appellant had reasonable and probable cause for believing what he alleged in his first information report against the respondents, and whether he was actuated by malice in having lodged that report. The allegations were not found proved by the learned Magistrate, but that does not mean that there was no reasonable or probable cause for the making of those allegations by the deceased first appellant in his first information report to the police. I also find that the learned Judge of the lower appellate court has based his finding on conjectures and surmises, when he ob-served with regard to the allegation about house trespass, namely the offence punishable under Section 452 of the Indian Penal Code, for which alone the respondents were prosecuted after the compromise, that 'it is very difficult to believe that the plaintiff-respondents being Baniyas by caste and being in acute minority would have dared to beat Ali Abbas who is a Mohammedan and whose community is in a majority.' The allegations about this offence were made by the deceased first appellant on the basis of the information received by him while he was carrying his son Ali Abbas to the police station. The deceased first appellant was himself an old blind man. It has not been shown by anything said on behalf of the respondents that he had no reasonable or probable cause for believing in the truth of the allegations when he made them party in the first information report lodged by him. The burden was on the plaintiff-respondents to have proved this fact before they could succeed in their respective suits for damages for malicious prosecution.
8. The other error into which the learned Judge of the lower appellate court appears to have fallen is that he had equated malice with enmity. The lodging of a report by one person against another is normally preceded or followed by enmity. A person does not normally lodge a report with the police against a friend. The question is not about the existence of enmity between the complainant and the accused. The question is whether the complainant was actuated by an oblique motive, that is, a motive other than the desire of bringing the accused to book. In many cases the existence of enmity gives rise to the desire to harass an enemy by having him prosecuted for an offence, not with the desire of having him punished in accordance with law, but merely for harassing him or for extracting a bargain out of him as a price for withdrawing the prosecution. But that does not mean that enmity and malice must always co-exist or that from the proof of enmity, malice must be presumed. Apart from the question whether there was reasonable and probable cause for the allegations made by the deceased first appellant against the respondents, the oblique purpose of the prosecution, - ii any, has not been suggested, much less proved, by the several plaintiff-respondents in these cases.
9. On the second point too, there is much to be said for the contention raised by Mr. Zaidi on behalf of the appellants. The appellants had in their application to the court withdrawn the allegations against the respondents. The charge-sheet had not been submitted till then. The learned Magistrate's court accepted the withdrawal of their allegation in respect of the offence under Section 147 as the same was compoundable but not with regard to the offence under Section 452 of the Indian Penal Code as it was not compoundable. The learned Magistrate decided to proceed with the prosecution. The police could have at that stage submitted a final report on the ground of lack of sufficient evidence to support the prosecution of the respondents on the charge under Sec. 452 of the Indian Penal Code. The learned Magistrate was also not bound to proceed with the prosecution. But the learned Magistrate having decided to proceed with the prosecution and the first appellant having been compelled by the process of the Magistrate's court to appear as a witness for the prosecution in that case, he was bound to state the truth. He could not have said that although the allegations made by him in the report were true, he was not prepared to state them on oath in view of the compromise, In such a situation the mere fact that the learned Magistrate found the evidence insufficient to support the charge, or even in case he disbelieved the evidence given by the deceased first appellant, it cannot be said that he was the immediate cause of the prosecution, in spite of the fact that he had lodged the first information report on the basis of which the prosecution was taken up and proceeded with in spite of his withdrawal therefrom by the compromise, On the peculiar facts of this case it is not possible to say that the deceased first appellant was the prosecutor such as to make him liable for damages for the prosecution on the ground that it was malicious and without reasonable or probable cause. Gaya Prasad's case ((1908) ILR 30 All 525) relied upon by the learned counsel for the respondent is clearly distinguishable on the facts. In the present case it cannot be said that the deceased first appellant ever took any active and malicious interest in the prosecution of the respondents for the offence under Section 452 of the Indian Penal Code.
10. In the result all the six appeals must succeed and are allowed. The decrees under appeal in all the six cases are set aside and all the six suits are dismissed but in the circumstances there will be no order as to costs, in any of these cases, and each one of the parties shall bear their own respective costs throughout.