1. This appeal by the defendants arises out of an action in tort for recovery of damages of Rs 7937-4-6 only. The defendants are 92 in number and impleaded as joint tort-feasors. The gist of the tort consists in 'a conspiracy to injure'. The main allegation in relation thereto is contained in para. 12 of the plaint:
That on account of the said strained relations between the parties, the defendants entered into a conspiracy amongst themselves with an avowed object of flatting and carrying away the paddy crops from the disputed lands raised by the plaintiffs with their own ploughs.2. According to the earlier paragraphs of the plaint, the aforesaid malevolent conspiracy was but an easy and natural outcome of the Erbag. Village Krushak-Sangha under the leader-ship of one Mohan Das of which the purpose was to defy and disregard the privileges, so far enjoyed by the landlords, in their Nijdakhali lands so as to facilitate acquisition of tenancy rights therein.
3. Common object of the combination was alleged to cut and carry away the crops raised by the plaintiffs in the disputed lands towards attainment of the ultimate object of establishing; tenancy rights in plaintiffs' (proprietors') private lands in the village.
4. The various defendants advanced diverse pleas which need no specific notice in view of the proposed order in the suit. Mainly, they were of two classes, one being complete denial of the plaintiffs' version and the other plea of confession and avoidance (by justification).
5. The learned trial Court negatived the plea of justification and based his finding on what he considered to be proof of illegal conspiracy. His findings are, as I will demonstrate presently, hardly adequate to sustain a decree for damages jointly and severally against all the defendants including those who did not join in cutting and carrying away the crops claimed. This is one of the most unsatisfactory judgments that I have ever met with.
6. The suit, however, has been allowed to be withdrawn with or without liberty to sue afresh on the same cause of action accorded as against some or other of the defendants according as the logic of circumstances in the case and the true position of law could dictate.
7. The test of conspiracy as a delict or tort is the most difficult branch of the law of tort. Its intricacy and not easy comprehensibility called for the following observations from L.C. Viscount Simon in Crofters' case:
We have been much assisted in examining what is undoubtedly a difficult case by the arguments of counsel on both sides.8. The order for withdrawal has already been recorded in the order-sheet in the presence of counsel on both sides. Here I am trying to fulfil the postponed recording of the reasons for such order or orders, as the case may be. For this purpose, a short summary of the law relating to liability deducible from unlawful combination amounting to 'illegal conspiracy' has to be adverted to, as that mainly, if not solely, forms the reason why we granted leave to sue as against some of the defendants.
9. According to Salmond, in his 1945 Edition of Law of Torts, 'It could not till recently be said with any certanity that there was any such tort as conspiracy.'
10. According to him, conspiracy was not a delict, though it could be indictable as a misdemeanour, except as an instance of intimidation. This theory of his was disapproved by Lord Dunedin, who described it as 'the leading heresy.' See Sorrel v. Smith 1925 A.C. 700. This last named case was the first of its kind that attempted to introduce order into the chaotic condition to which irreconcilable dicta in the House of Lords and numerous decisions of the Court of Appeal and the puisne Judges had reduced the law. Sorrel's case 1925 A.C. 700 however, did not succeed in the attempt, because of diversity of views among the members of the Court. The famous triology of cases made by far the largest contribution to the confusion that prevailed. They are: (i) Mogul Steamship v. Mogregor 1892 A.C. 25, (ii) Allen v. Flood, 1898 A.C. 1 and (iii) Quinn v. Leathern 1901 A.C. 495. Lastly, in Crofter Company's Case 1942 A.C. 435 it could be premised with confidence that it is now, however, too well established to be the subject of controversy that conspiracy is the gist of the wrong in many cases and it is in the fact of the combination that the unlawfulness resides. In such cases, conspiracy is an independent tort.
11. The classical definition of conspiracy is that given by Willes J. in advising the House of Lords in Mulchay v. Reg, (1868) L.R. 3 H.L. 306:
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means.12. This is the definition of 'conspiracy' as a crime.
13. In order to give rise to the civil right of action, it is not complete unless the conspirators do acts in pursuance of their agreement to the damage of the plaintiff. The emergence of civil liability out of 'conspiracy' is confined to 'conspiracy to injure' even though the end were brought about by conduct and acts which by themselves and apart from the element of combination or concerted action could not be regarded as a legal wrong. In this sense, conspiracy is the gist of the wrong though damage is necessary to complete the cause of action. 'A conspiracy to injure' is a tort which requires careful definition in order to hold the balance between the 'defendants' right' to exercise their lawful rights and the 'plaintiffs' right' not to be injured by an injurious conspiracy. In this respect, there is a clear and definite distinction between what Lord Dunedin in Sorrel v. Smith (1925) A.C. 700 calls 'a conspiracy to injure,' and 'a set of acts dictated by business interests.' 'Business interests,' according to Lord Wright in Crofter's case 1942 A.C. 435 would include 'other legitimate interests.' Referring to this aspect, it is well established that the plaintiff cannot complain simply because his right to freedom in conducting his trade or business has been interfered with. That right is not an absolute or unconditional right:
It is only a particular aspect of the citizens right to personal freedom and like other aspects of that right is qualified by various legal limitations, either by Statute or Common Law.Per Lord Wright in Crofter's case 1942 A.C. 435
14. Quoting Lord Herschell in Allen v. Flood (1898) A.C. 1 that noble Lord observed in the same case with regard to the tortious acts of an Employees' Union:
The members of these unions, of whichever class they are composed, act in the interest of their class. If they resort to unlawful acts they may be indicted or sued. If they do not resort to unlawful acts they are entitled to further their interests in the manner which seems to them best, and most likely to be effectual. This statement was criticized adversely by Lord Lindley in Quinn's case, (1901 A.C. 495) but in my opinion it states the law correctly.15. Lord Cave in Sorrel's case 1925 A.C. 700 stated the law in two propositions:
'(i) A combination of two or more persons wilfully to injure a man in his trade is unlawful and, if it results in damage to him, is actionable.
(ii) If the real purpose of the combination is, not to injure another, but to forward or defend the trade of those who enter into it then no wrong is committed and no action will lie although damage to another ensures
16. 'A conspiracy to injure' involves ex vi termini (an intention to injure) or, more accurately, 'a common intention and agreement to injure.' The word 'injure' is here used in its correct meaning of 'wrongful harm' (damnum cum injuria) as contrasted against 'damnum absque injuria' (a damage without injury, that is, effected without legal wrong in which case no action is maintainable. (See Stephenson's Commentaries).
17. The question that obviously arises in every case is when is the harm wrongful? Broadly speaking, it is that harm which flows from infringement of a legal right without any justification on the part of the wrong-doer. As already hinted, illegal conspiracy presupposes 'mens rea' that is an intention to injure. 'Intention' is very difficult to define. Intention is generally determined by reference to overt acts and to the circumstances in which they are done. There is every danger to confound internal feelings with outward acts and to treat the motive of the actor as one of the means employed by him. Sometimes in determining the real object, a contrast between what is immediate and what is remote is made. But modem authorities repudiate the so-called test. For example, a competitive combination of traders to undercut prices may be said to have been the immediate result of excluding rivals from the trade, but if its real object is the ultimate increase of business and profits by the traders it is lawful. See Mogul's case 1892 A.C. 25. A perfectly lawful strike may aim at dislocating the employer's business for the moment, but its real object is to secure better wages or conditions for the workers. The true contrast, to my mind, is between the case where the object is the legitimate benefit of the combiners and the case where the object is deliberate damage without any such just cause. In their practical aspects, there is hardly any distinction between intention and object. Intention has to be judged by the ultimate object in view. Serving one's own legitimate interest irrespective of its immediate result injurious or other, wise upon another would not make the intention unlawful, particularly in civil activities in tort.
18. The next question that arises for consideration is how far malevolence is to be regarded as an essential element of 'canspiracy to injure.' This has given rise to much difference of opinion amongst the authorities. But Lord Cave's two propositions, already adverted to, are generally speaking workable rules. It can be premised with certainty on review of almost all authorities on the subject that 'malevolence is not a necessary element to constitute tort.' Per Lord Wright in Crofters' case 1942 A.C. 435.
19. It is worth quoting a passage from the speech of Lord Wright in Crofters' case 1942 A.C. 435 on the subject with which I most respectfully agree:
Mere malevolence does not damage any one. I cannot gee how the pursuit of a legitimate practical object can be vitiated by glee at the adversary's expected discomfiture. Such glee, however deplorable, cannot affect the practical result. I may add that a desire to injur does not necessarily involve malevolence. It may be motivated by wantonness or some object not justifiable. As to the authorities, the balance, in my opinion, is in favour of the view that malevolence as a mental state is not the test. I accordingly agree with the appellant's contention that they are not concluded by the finding that the respondents were not malevolent. It thus becomes necessary to consider the further arguments on which the appellants base their claim to succeed. (1942) A.C. 471.
20. Lord Simon L.C. in the same case at p. 442 of the Report:
So, used, 'injury' is limited to actionable wrong, while 'damage' in contrast with injury, means loss or harm occurring in fact, whether actionable as an injury or not. 'An intent to injure,' 'in strictness', said Bowen L.J. in the Mogul case 1892 A.C. 25 'means more than intent to harm. It connotes an intent to do wrongful harm.' First, then, apart from the effects of combination, it is cleat that (i) if A is damaged by the action of B, A nevertheless has no remedy against B, if B's act is lawful in itself and is carried out without employing unlawful means. In such a case A has to endure damnum absqu injuria. (ii) It makes no difference to the above proposition that B in so acting had the purpose of damaging: A. A bad motive does not per se turn an individual's otherwise lawful act into an unlawful one. (iii) If C has an existing contract with A and B is aware of it, and if B persuaded or induces C to break the contract with resulting damage to A, this is, generally speaking, a tortious act for which B will be liable to A for the injury he has done him. In some cases, however, B, may be able to justify his procuring of the breach of contract, e.g., a father may persuade his daughter to break her engagement to marry a scoundrel. (This is not, of course, to say that the scoundrel would not have an action against the daughter for breach). The father's justification arises from a moral duty to urge C that the contract should be repudiated.21. Real purpose of the combination is the test not existence or otherwise of spite or ill will or bad motive:
The test is not what is the natural result of the combined action, or what is the resulting damage but what is in the truth the object in the minds of the combiners.' (Per Viscount Simon).22. What is next to consider is that there may be cases where the combination has more than one object or purpose. In such cases, it is a settled law that it is the predominant purpose that will settle the controversy, viz., if the predominant purpose is the lawful protection or promotion of any lawful interest of the combiners, it is not a tortious conspiracy. The combiners may feel that they are killing two birds with one stone, and, even though their main purposes may be to protect their own legitimate interests, notwithstanding that this involves damage to the plaintiffs, they may also find a further inducement to do what they are doing by feeling that it serves the plaintiffs' right.
23. It is, at the same time, a matter of indifference that amongst the combiners, different persons have different interests to protect or promote, reasonable self-interest in trade or business being a just cause or excuse. It has been held in the Mogul's case 1892 A.C. 25 that the circumstance that their business interests are by no means the same is not a ground for holding that the combination is illegal. But the defence of those, however, who were actuated merely by hate or vindictive spite or with no just excuse at all should not succeed.
24. In such a case, the question of onus is of great, rather, vital important. It has been held on high authority that the plaintiffs have to establish (i), an agreement (ii) to effect an unlawful purpose (iii) resulting in damage to them. They do not prove that by showing that they have been harmed by acts done by the defendants in combination, those acts being within the defendants' right. They must establish that they have been damnified by a conspiracy to injure, that is, that there was a wilful and concerted intention to injure without just cause and consequent damage. It is not till then for the defendants to justify their acts. Lord Wright, however, would not view it as a question of onus of proof. According to him,
it depends on what is the cause of action. The plaintiff has to prove the wrongfulness of the defendants' object. Of course, malevolence may be evidence tending to exclude a legitimate object or to establish a wrongful object.Cases on this branch of law are few and far between in India. The only case that dealt with the subject exhaustively is that of Bholanath Shankar Das v. Lachminarain : AIR1931All83 . All the several points that I have deduced from the review of the English cases have been accepted by their Lordships in that case. In short, in my view, the law of tort of conspiracy in India is the same as that in England.
25. After thus defining the legal background of the 'tort' known as 'conspiracy to injure', I shall address myself to the facts of the present case in their relation to the principles stated above.
26. To start with, the plaintiffs have not even attempted to prove malevolence as against by far the largest majority of the defendants-joint-tort-feasors so as to prima facie exclude just cause or excuse on their part.
27. The only proof of combination adduced by the plaintiffs consists of their being members of the village Krushak Sangha along with the other villagers and that in one or two meetings of the Sangha, it was resolved that the Muth property shall be Kotha (public or common) property. The proof, however, does not affect the individual defendants, that is, there is no specific proof either of the membership or of the presence and partaking of each and every defendant or any one of them in the aforesaid meetings of the Sangha. But assuming it is so it falls far short of proving 'a conspiracy to injure' which has been defined in the earlier part of this order. The defendants have a right to combine for the protection and promotion of their legitimate interest inasmuch as the plaintiffs have a right not to be interfered with in an unlawful manner, by illegal conspiracy in peaceful enjoyment of their property rights. The avowed object of the Krushak Sangha is to protect the interest of the tenants in the lands, cultivated and cultivable by them, as against the landlords. If they form a combination with the object of achieving that end, it cannot amount to conspiracy in the sense of its being a tort even though the immediate result of the conspiracy will result in damages to the plaintiffs, that is, when the defendants' acts are supported by just cause. This aspect of the case has to be viewed in the background of the events preceding and succeeding the combination. The plaintiffs wanted to introduce a novel system, in the mode of their settlement of their Nijda-Khali lands for cultivation, on annual lease basis with a condition to quit at the end of every year. This was an attempt to take the lands out of ryotwari stock into the proprietor's private (eminent) domain. For this purpose the plaintiffs wanted that no tenant should occupy and cultivate the same land for more than a year. He may be given some other lands and not the same land for every successive year. The tenants, on the other hand, would insist upon holding over the same lands which they and their ancestors have been, cultivating for all time. If the tenants combine to protect and promote their interest in this manner so that they would be protected against arbitrary eviction by the landlords, however selfish, it is certainly a legitimate interest for the protection of which they are entitled to combine. The plaintiffs had suppressed the accounts of the previous years which could have proved the previous mode of settlement of the lands with the defendants. In justification of the defendants' combination, it can be said to their credit that admittedly they did not care to interfere with the plaintiffs to have their own ways with respect to almost half or 2/3rds of the lands claimed to have been cultivated by the plaintiffs with their own ploughs and bullocks. It has further to be noticed with regard to P.W. 8, a big land owner, having 100 acres of land in the village which were being husbanded on Bhag cultivation, that his possession was never interfered with and he wag allowed to enjoy peaceful possession of his Nijdakhali lands. If the defendants wanted to enforce their rights, it was on the basis that they had tenancy rights in them. As observed by Lord Wright in Crofter' case 1942 A.C. 435 the reality of the object is not a matter to be determined by Court who shall hold in favour of the combiners if it has reasons to believe that they had a bona fide belief that the course adopted by them was necessary for protection of their legitimate interest and if they did not take recourse to unlawful means. It is true, with regard to some of the defendants, the position may be otherwise. Evidence shows that all the defendants did not jointly cut and carry away the crops. With regard to some, it can be said without hesitation, that they did not join in the cutting and carrying away at all. Admittedly, all of them did not join in cutting the crops from each and every field but respective tenants or groups of tenants cut and carried away the crops according as they claimed having right to do so in respect of any particular field or fields. If the plaintiffs pleaded anything in justification of their suing them jointly, it was that they all conspired and had a common object as set forth above, Under the circumstances, 'conspiracy to injure', understood in its legal sense having never been established, the plaintiffs were not entitled to join in one suit all the defendants in order to recover damages jointly and severally in consolidated sum of RS. 7000 and odd. Such a claim could only be justified as founded upon a 'conspiracy to injure' and not otherwise. Under the circumstances, the plaintiff's suit is certainly not maintainable in the form in which it has been cast. This, however, will not completely exonerate those particular defendants who, apart from the conspiracy, unlawfully cut and carried away the crops of the lands which had been cultivated by the plaintiffs as their Nijda-Khali lands. Persona who might have abetted the trespassers might also be held liable if and only if they had the requisite knowledge that they were helping an unjustifiable cause. Under these circumstances, the plaintiffs' learned Counsel was given the option to select such of the defendants against whom he can maintain a suit for damages for the tortious acts of wrongfully cutting and carrying away the crops raised by the plaintiffs. It was made clear to him that he cannot be allowed to sue afresh on the ground of 'conspiracy to injure'. In this view, he abandoned his claim against all the defendants except those (mentioned in paras. 2 and 3 of his petition dated 17th December 1948) in respect of whom he sought permission to sue afresh on the cause of action of unlawful removal and appropriation of crops--their individual acts of tort to the plaintiffs' damage. If we have allowed them the lease to sue against some of the defendants, it is on the ground that the frame of the suit suffers from formal defects and that the law of conspiracy as a tort, most complex and intricate as it is, is seldom well-understood in Mofussil Courts. It should be made clear, however, that the plaintiffs are not, by this leave, allowed to recover damages on the ground of conspiracy as that case has failed once for all and cannot be allowed to be reagitated. As on account of misconception of law no discrimination could be made between the members of the combination and the actual wrong-doers, we have allowed the latter to be sued against in another suit. Nothing in this order shall, however, be understood to mean that we have come to any finding that the said defendants are, in fact, wrong-doers. It will be open to the plaintiffs to show that they are so and it will be open to the respective defendants to establish that they are supported in their action by pre-existing rights to the lands.