Ganga Nath, J.
1. This is a plaintiff's appeal and arises out of a suit brought by him against the defendant-respondent for damages for malicious prosecution. The plaintiff's case was that he had obtained permission for construction of a building a portion of which was constructed in 1927 in respect of which the prosecution of the applicant under Section 307, U.P. Municipalities Act, was launched in 1928. In that case it was decided that in view of the provisions of Section 180, Municipalities Act, the plaintiff would be deemed to have granted sanction and consequently he could not be prosecuted for the construction then in dispute as having been made without permission. The plaintiff made another construction which is in dispute in this suit in continuation of his previous construction, in respect of which another prosecution was launched against the plaintiff by the defendant under Section 307, Municipalities Act, in 1929. The plaintiff was acquitted. On his acquittal the plaintiff brought the suit against the defendant for Rs. 2,900 damages for malicious prosecution. The trial Court decreed the suit for Rs. 150. The defendant filed an appeal and the plaintiff a cross-objection. The learned District Judge dismissed the plaintiff's cross-objection and allowed the appeal, thereby dismissing the whole of the plaintiff's suit. The plaintiff has come here in second appeal. It was urged by the learned Counsel for the respondent that the Criminal Court did not take into consideration Clause (4) of Section 180, Municipalities Act, under which the plaintiff having constructed a wall enclosing a kachcha road which was a public street could not be deemed to have been granted sanction for the wall. Clasue (3) of Section 180, Municipalities Act, lays down that
should the Board neglect or omit for one month after the receipt of a valid notice under Section 178, to make and deliver to the person who has given such notice an order of the nature specified in Sub-section (1), in respect thereof, such person may by a written communication call the attention of the Board to the omission or neglect, and if such omission or neglect continues for a further period of fifteen days, the Board shall be deemed to have sanctioned' the proposed work absolutely.
2. Clause (4) lays down:
Provided that nothing in Sub-section (3) shall be construed to authorise any person to act in contravention of this Act or any by-law.
3. The learned Counsel for the respondent contended that the construction in dispute was in contravention of bye-law No. 23. The question whether the construction in dispute was in contravention of bye-law No. 23 had not been determined and so an issue, 'Whether the construction in dispute was in contravention of bye-law No. 23' was remitted to the lower Court. The lower Court's finding is that the plaintiff has contravened bye-law No. 23 by making the construction in dispute. Consequently, in view of the provisions of Clause (4), the plaintiff cannot be deemed to have been given sanction for the construction in dispute. In view of this fact it cannot be said that the Municipal Board acted without any reasonable or probable cause or with malice, as has been rightly found by the learned District Judge. This finding, as held by their Lordships of the Privy Council in Pestonji M. Mody v. Queen Insurance Co. (1901) 25 Bom 332, at p. 336, is a finding of fact. There is no force in this appeal, and it is, therefore, ordered that the appeal be dismissed with costs and the decree of the lower Court be affirmed. Permission to file an appeal under Section 10 of the Letters Patent is rejected.