1. This is a defendant's appeal arising out of a suit for damages for malicious prosecution brought by the plaintiffs-respondents. On 27th November 1930 two complaints were filed in the criminal Court, One by kapal deo Singh against eight persons, i9ncluding the present defendant, Mewa singh, and the other by Mewa ingh, against Kapal Deo, the complainant in he counter case, and the three plaintiffs-respondents. It was common ground that a fight had ensued in which Kapal Deo received injuries and so did the defendant, Mewa Singh, The latter's injuries were grievous, as was subsequently discovered on medical examination. The plaintiffs were acquitted. It is immaterial for the purposes of this case whether the other accused in the two cases were convicted.
2. The suit which has given rise to the present appeal was brought by the plaintiffs-respondents on the allegation that they had been prosecuted by the defendant, Mewa Singh, for an offence under Section 325, Penal Code, though as a matter of fact, the plaintiffs were not present on the scene of occurrence. The defendant pleaded that the plaintiffs joined Kapal Deo in causing grievous hurt to him (Mewa Singh). On these pleadings there was one one material issue in the case, viz., whether the complaint made by the defendant against the plaintiffs was false. The facts alleged in the criminal Court by the defendant against the plaintiffs were such that they must have been true or false to his knowledge. It was-not a case in which the defendant had received information that the persons accused had committed a certain offence. In a case like the present the truth or falsehood of the complaint is decisive so far as reasonable and probable cause is concerned.
3. The plaintiffs produced evidence to establish an alibi. Their case was that they were not present on the scene of occurrence, but the defendant implicated them out of malice. The trial Court accepted this evidence and decreed the plaintiffs' suit for damages amounting to Rs. 372-8-0. There can be no doubt that if the evidence led1 by the plaintiffs be accepted, as was done by the first Court, their suit must be decreed, On that supposition the defendant deliberately prosecuted the plaintiffs for an offence under Section 325, Penal Code, causing grievous hurt, though he must have known that the plaintiffs were innocent and that such charge was groundless. From the decree of the trial Court the defendant appealed to the lower appellate Court, whose judgment is remarkable for the confusion of thought, which it discloses both as regards the issues involved and the grounds on which the plaintiff in a suit for malicious prosecution is entitled to rely. That Court did not accept the finding arrived at by the trial Court, but held:
The respondent's (plaintiffs') alibi is untrue and their taking part in the fight at the place where Kapil Deo was laying foundation of his house is certain.
4. He proceeded to bold that:
this finding of fact makes matters somewhat complicated. In my opinion this finding must affect the amount of damages. Both parties have invented untrue stories, the respondents invent the alibi and the appellant created false scene of occurrence. The appellant must pay damages to the respondents, but in determining damages the respondents part in causing hurt to the appellant and their untrue alibi must be considered,
5. Accordingly he reduced the damages decreed by the trial Court by half. In my opinion the decree of the lower appellate Court cannot be sustained. It cannot be disputed that in a suit for damages for malicious prosecution the burden of proving absence of reasonable and probable cause for the defendant's action in prosecuting the plaintiff lies on the latter. It is not for the defendant, in the first instance, to prove that the charge which he preferred against the plaintiff was true. The plaintiff must establish prima facie that there was no reasonable and probable cause for the defendant to prosecute the plaintiff. If the facts alleged by the defendant in the criminal case were within his knowledge, the form which the issue relating to the absence of reasonable and probable cause generally tables is whether the charge was false. In the present case, the plaintiffs realised that they had to prove the falsehood of the defenidant's allegations in the criminal case. The manner in which they attempted to establish it was to prove an alibi. Their evidence on that point has been disbelieved by the lower appellate Court, whose finding on that part of the case is conclusive in second appeal. In these circumstances, 'it is not possible for the plaintiffs to rely on any evidence on the record to show that apart from their evidence of alibi it is established that they did not take part in the fight as there is mo such evidence. On the contrary, the lower appellate Court deninitely finds that they did take part in the light. If the lower appellate Court had correctly applied the law to its own findings, the plaintiffs' suit should have, been dismissed. It seems to me that that Court did not appreciate the issues involved in the case and awarded damages according to its own peculiar notions of right or wrong. It acted on the principle that both parties have indulged in falsehood and some damages ought to be awarded to the accused who were acquitted. This is a palpably incorrect view, and the decision of the lower appellate Court cannot stand. The result is that the appeal succeeds. The decrees of both the Courts below are set aside, and the plaintiffs' suit is dismissed with costs throughout.
6. The plaintiffs filed a cross-objection against that part of the decree which reduced the amount, of damages awarded to them by the trial Court. In the view of the case I have taken, the cross-objection, must fail. It is accordly dismissed with costs. Leave to appeal under the Letters Patent is applied for by the plaintiffs, but is refused.