1. This second appeal arises out of a suit for damages for malicious prosecution. The defendant-appellant is a lawyer practising in Basti. He and his two sons were entered on the electoral roll for the District Board, but when that roll was revised in the year 1931 their names were omitted. The period for making objections about entries in the rolls expired in September 1931. On 7th October the appellant made an application to the Deputy Magistrate who was acting as the returning officer or election officer and was dealing with the preparation of the roll. He complained that his name and the names of his sons had been omitted and suggested an enquiry into the reasons why this had been done. He, at the same time, said that if such an enquiry foe re made it would appear who the persons were who were concerned in the conspiracy. Then on 15th October 1931 the plaintiff-respondent, who is the editor of a paper called the 'Insaf,' published a notice in which he said that he had learnt with surprise that the names of the appellant who was a pillar of the Aman Sabha and the names of his sons had been omitted from the District Board electoral roll and that they had not discovered this fact till the period for making objections had expired. The appellant then made an application to the election officer in which he drew that officer's attention to the matter published in the paper and. suggested that it constituted contempt of Court. He asked that suitable action should be taken.
2. I may mention that the first application of 7th October 1931 was directed to the Sub-Divisional Officer, but it appears that the Sub-Divisional Officer of that time was also the election officer. His name was Mr. Ahmad Husain. The second application was directed to the election officer as such, but for some reasons it was transferred to another Magistrate of the same name (Mr. Ahmad Husain) who issued a notice to the plaintiff to show cause why he should not be reported to the High Court so that action for contempt of Court might be taken against him. The plaintiff-respondent appeared in answer to the notice and. after the parties had been heard the Magistrate decided that there was no sufficient cause for proceeding and he dismissed the application of the defendant-appellant. It is in respect of this application suggesting a prosecution for contempt of Court that the plaintiff instituted the suit which has given rise to the appeal. He obtained a decree for a sum of Rs. 475 as damages from the trial Court, but that was reduced to a sum of Rs. 150 by the learned Judge of the lower appellate Court.
3. It has been argued in second appeal that there was no cause of action for a suit for damages for malicious prosecution. It is said that there was no prosecution at all. It has been held in Ezid Bakhsh v. Harsukh Rai (1886) 9 All. 59, that an application for leave to prosecute does not give rise to a cause of action far damages, for malicious prosecution. It does not appear that this ruling has been dissented from expressly by this Court, but there have been cases in the High Court at Calcutta which suggest that an opposite view might be taken. I do not think it is necessary in the case before me to express any definite opinion Upon this point.
4. Another argument was that there could be no cause for damages because the defendant-appellant had not in any way misled the Court when he made his application. The facts which he stated were entirely true. There was no doubt that the plaintiff-respondent had published the paragraph to which reference was made in the application. Whether that paragraph amounted to contempt of Court was a question of law and it has been represented that where the facts are true, a person instituting a prosecution cannot be mulcted in damages merely because his notions of the law are incorrect. I have been referred to the case of Mrs. M.J. Powell v. A.E. Hart (1913) 18 I.C. 925. In the present case it does not even appear that the appellant was making any application or intending to make any application in a Criminal Court. He addressed his application to the election officer and it does not appear that it was through any fault of his that it was transferred by the election officer to another Deputy Collector who treated it as though it was a criminal complaint addressed to a Magistrate. In any case the facts stated were perfectly true.
5. It has been argued on behalf of the defendant-respondent that the appellant must have known very well, as he was a lawyer, that there was really no case for proceedings for contempt of Court because in the first place the words used in the paper were not such as would amount to contempt and, in any case, there was no proceeding in any Court which could be prejudiced by the use of those words. On a broad consideration of the matter it appears clear enough that the appellant was agitating before the election officer the question of the removal of his name from the electoral roll and undoubtedly he must have had the intention, which was afterwards carried into effect, that his name should be restored by the District Magistrate under the special powers which that officer has in these matters.
6. It was suggested apparently in the Courts below and to the Magistrate who was dealing with the contempt of Court matter that that contempt consisted in the fact that an impression was created that it was too late for the appellant to get the electoral rolls corrected. On behalf of the respondent it is pointed out that the appellant himself admitted in the first application which he made that the period of limitation for putting in objections to the electoral roll had expired and that there was therefore nothing in the paragraphs in the paper which he himself had not admitted to be true. It seems however that there was a possibility of having the roll corrected, as it ultimately was corrected, by the District Magistrate, and although probably nobody on a strict consideration of the matter would think that the statement in the paper would affect any question which was pending at the time, still it is not unnatural that a person who was affected by the statement might quite honestly believe that he was prejudiced by the paragraph.
7. There is another point which was not apparently agitated in the Courts below for some reason or other, but which I think may well be mentioned. There is a reference in the paragraph to the fact that the appellant is a prominent member of the Aman Sabha, a body which is organised for the purposes of combating subversive political tendencies and which may perhaps be generally supposed to have the support of the executive officers of Government. It may be that the appellant may have thought that the references to his membership of this body made in the same breath as a statement that his opportunities for redress were barred by limitation might be suggestive of an insinuation that if his name was ultimately entered in the electoral roll it would be due to some form of partisanship. If that was so, he might have felt that he would be prejudiced by the publication of such remarks in the paper. In these circumstances, I do not think that it can fairly be said that he had no reason for thinking that the remarks, if they were made with reference to an officer of a Court of law, would not amount to contempt. They were of course actually not made with reference to proceedings before such an officer, but at a time when the only proceeding actually before anybody was the enquiry into the omission of the names from the electoral rolls, an enquiry which was proceeding before an executive officer, namely, the officer in charge of such matters in connection with the election. Doubtless there was no question of any contempt of Court in these circumstances, but it cannot be said that the appellant was obviously no in good faith when he made the suggestion which he did make and if he without a proper consideration of the legal aspect of the matter suggested proceedings against the respondent which could not properly be taken, that in itself is not a sufficient ground for passing a decree in a suit for damages for malicious prosecution. I am doubtful whether it can be said in the circumstances of this case that the appellant did institute a prosecution in any sense of the term against the respondent, but even if he did so, I do not think that it can be said that he had no reasonable and probable cause for so doing. I consider therefore that there was no sufficient ground for passing a decree against him.
8. I allow the appeal and dismiss the suit with costs athroughout. Leave to appeal is allowed.