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Onkarmal and anr. Vs. Banwarilal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 89 of 1956
Judge
Reported inAIR1962Raj127
ActsContract Act, 1872 - Sections 15 and 72; Evidence Act, 1872 - Sections 43
AppellantOnkarmal and anr.
RespondentBanwarilal and ors.
Appellant Advocate J.P. Jain, Adv.
Respondent Advocate P.N. Dutta, Adv. for Respondents Nos. 1 and 2
Cases ReferredRamdas v. Raja
Excerpt:
- - the plaintiffs have described themselves in the plaint as respectable businessmen belonging to a well-to-do family. the findings of the learned judge were that the plaintiffs had failed to prove that the sum of rs. the learned judge also held that the plaintiffs had failed to prove that the defendants nos. in the fourth place, the learned judge also held that the plaintiffs had failed to prove that they had suffered special damage to the extent of rs. 14 of 1953). 8. before proceeding further, i might as well state that the plaintiffs in their cross-objection have raised certain grounds seeking relief against the defendant jagannathsingh also. 10. now, as i look at the matter, the question whether the finding of the learned judge in this respect is well founded or not is.....i.n. modi, j.1. this is an appeal by the defendants onkarmal and nagarmal against the judgment and decree of the district judge, jhunjhunu dated the 20th february, 1956, reversing the judgment and decree of the civil judge, jhunjhunu dated the 8th december, 1954 by which he had dismissed the suit, and partially decreed it. the plaintiffs have also filed a cross-objection. i propose to dispose of both these matters by a single judgment.2. plaintiffs banarsilal and banwarilal are brothers, and the former having died during the pendency of this appeal has been substituted by his widow and his other heirs who being minors are represented by the said widow.3. the parties, apart from defendant no. 1 jagannath singh, were residents in the town of jasrapur. the plaintiffs have described.....
Judgment:

I.N. Modi, J.

1. This is an appeal by the defendants Onkarmal and Nagarmal against the judgment and decree of the District Judge, Jhunjhunu dated the 20th February, 1956, reversing the judgment and decree of the Civil Judge, Jhunjhunu dated the 8th December, 1954 by which he had dismissed the suit, and partially decreed it. The plaintiffs have also filed a cross-objection. I propose to dispose of both these matters by a single judgment.

2. Plaintiffs Banarsilal and Banwarilal are brothers, and the former having died during the pendency of this appeal has been substituted by his widow and his other heirs who being minors are represented by the said widow.

3. The parties, apart from defendant No. 1 Jagannath Singh, were residents in the town of jasrapur. The plaintiffs have described themselves in the plaint as respectable businessmen belonging to a well-to-do family. Defendant No. 1 Jagannath Singh was at the time of the happening of the events, out of which this litigation arises, a sub-inspector of police in charge of the Khetri Police station within the jurisdiction of which the town of Jasrapur was situate. It so happened that Ramawatar, a son of the defendant Onkarmal, committed a theft of some ornaments and cash belonging to his father. The suspicions of Onkarmal fell on the plaintiff Banarsilal, and the former thought that his son Ramawatar had made over the stolen property to the said Banarsilal. It is alleged that, at the instance of Onkarmal and his son Nagarmal, defendant Jagannath Singh went to Jasrapur on the 31st May, 1952, and again at their instance, he put the plaintiff Banarsilal under wrongful confinement or illegal detention for about forty-eight hours at the police outpost at Jasrapur and he did so without any lawful excuse or authority, and further abused, beat and humiliated the plaintiff Banarsilal. Thereupon, Banwarilal, the elder brother of Banarsilal, approached the Sub Inspector and requested the latter to release his brother as he was entirely innocent. The Sub Inspector, however, also, abused Banwarilal and maltreated him and hurled out a threat that he would take the plaintiff Banarsilal handcuffed all the way from Jasrapur to Khetri unless a sum of Rs. 300/- was paid to the Sub Inspector himself and another sum of Rs. 1100/- paid to defendants Onkarmal and Nagarmal.

The case of the plaintiffs is that finding no other way of saving the situation and to save Banarsilal and himself from further humiliation and disgrace Banwarilal paid a sum of Rs. 861/- out of which Rs. 150/- were kept by the Sub Inspector and Rs. 711/- were paid to the defendants and thus the plaintiff Banarsilal was released on the morning of the 2nd June, 1952. It was further alleged that accordingly a letter Ex. P. 1 was executed by the defendants Onkarmal and Nagarmal in favour of the plaintiffs, and a reciprocal letter Ex. P. 2 was executed by the plaintiff Banwarilal in favour of these defendants. Both these letters bear the same date, namely, Jeth Sudi 8 Smt. 2009 (corresponding to the 1st June, 1952) and were written simultaneously.

The gist of these writings is that Ramawatar (son of Onkarmal) had been suspected of having given certain valuables belonging to these defendants to the plaintiff Banarsilal, whereupon the defendants had made a report to the police and the Kotwal (meaning thereby the Sub-Inspector Jagannath Singh) had come to investigate the matter as a result of which a sum of: Rs. 711/- had been given by Banwarilal and Banarsilal and taken by Onkarmal and Nagannal. The money was paid and received in the presence of Murlidhar, Jhabarmal. Narainram and Satyanarain.

The grievance of the plaintiffs was that the aforesaid money had been taken by the defendants by coercion and undue influence, and, therefore, they were entitled to get the same back from the defendants. The plaintiffs further claimed damages for the wrongful confinement of the plaintiff Banarsilal and the ill-treatment accorded to the other plaintiff Banwarilal which had subjected them to disgrace, humiliation, bodily discomfort and mental suffering and the total amount claimed in this connection was a sum of Rs. 2039/-, the particulars of which were given as follows:

(1) Rs. 2000/- as general damages for disgrace, humiliation, physical discomport and mental suffering.

(2) Rs. 30/- as loss of two days' business occasioned by the plaintiffs' inability to attend to their business owing to the events leading to this suit. Adding to the amount of Rs. 2039/-, the sum of Rs. 861/- which, as already stated, was alleged to have been, extorted by the defendants the plaintiffs claimed a sum of Rs. 2900/- in all from the defendants jointly and severally. It may also be stated that prior to the institution of the suit, a notice under Section 80 C. P. C. was given by the plaintiffs to the defendant Jagannath Singh.

4. All the defendants resisted the suit. Sub-Inspector Jaganathsingh flatly denied the allegations made in the plaint thereby suggesting that the matter had neither been reported to him, nor had he ever gone to Jasrapur in connection with the alleged theft of Onkarmal's valuables by his son Ramawatar and the suspected receipt of the same by the plaintiff Banarsilal. The other defendants admitted the execution of Exs. P-1 and P. 2 and also the receipt of Rs. 711/- by them from the plaintiff Banwarilal. They also maintained that the plaintiff Banarsilal 'had fraudulently and dishonestly persuaded Ramawatar to remove ornaments and cash from his father's (defendant No. 2) house and in pursuance of this evil design plaintiff No. 2 dishonestly took away the property of defendant Nos. 2 and 3 consisting of Band Jodi (one) and Gold Guinea (One) and Rs. 235/-cash' The defendants further maintained that the plaintiffs had executed the document Ex. P-2 and paid the sum of Rs. 711/- thereunder of their own free will and that this was in lieu of a compromise arrived at between the plaintiffs and defendants Nos. 2 and 3 and further that no opportunity at all arose for the arrest or detention of the plaintiff Banarsilal or for the extortion of any money from the plaintiffs. Consequently the defendants prayed that the plaintiffs' suit be dismissed.

5. On these pleadings, the trial court (Civil Judge, Jhunjhunu) framed as many as eighteen issues which it is entirely unnecessary to recapitulate for the purposes of the present appeal, and eventually dismissed the suit. The findings of the learned Judge were that the plaintiffs had failed to prove that the sum of Rs. 711/- had been obtained by the defendants appellants from the plaintiffs by undue influence, coercion or intimidation, and he likewise found that the sum of Rs. 150/- was neither demanded nor taken by defendant No. 1 Jagannathsingh from the plaintiffs. The learned Judge also held that the plaintiffs had failed to prove that the defendants Nos. 2 and 3 had falsely accused the plaintiff Banarsilal of having received the stolen property and that the defendant Jagannathsingh had never charged him as such. The learned Judge further found that the said plaintiff had never been kept under confinement by Jagannathsingh at the police outpost at Jasapur, and, therefore, no question of humiliation or physical discomfort or mental suffering at all arose. In view of these findings the learned Civil Judge dismissed the plaintiffs' suit with costs.

The plaintiffs went in appeal to the learned District Judge Jhunjhunu. The findings of the learned Judge in the appeal may be briefly summarised as follows. In the first place, he found that the amount of Rs. 711/- had been paid by the plaintiffs to the defendants appellants under coercion. In the second place, although he did not give a clear finding as to whether the plaintiffs had paid a sum of Rs. 150/- to the Sub-Inspector Jagannathsingh, he held that even if this sum had been paid, it could not be recovered in view or Section 23 of the Contract Act as being opposed to public policy. In the third place, he held that even though having regard to the evidence on the record it could be premised that Banarsilal was called at the outpost Jasrapur and subject to pressure and undue influence it was still not possible to hold that he had been kept under wrongful confinement, and, therefore, the plaintiffs were not entitled to any damages on this score. The learned Judge also held in this connection that no damages (and by this the learned Judge evidently means general damages) had been proved to have been suffered. In the fourth place, the learned Judge also held that the plaintiffs had failed to prove that they had suffered special damage to the extent of Rs. 39/- on account of loss of business for the two days during which plaintiff Banarsilal was alleged to have been kept at the police outpost and the events which arose in that connection. In the net result the learned Judge decreed the plaintiffs' suit for Rs. 711/- only against the defendants appellants only as the sum had been paid by them to the latter under coercion but otherwise dismissed the plaintiffs' suit. The learned Judge also allowed proportionate costs to the plaintiffs.

6. Aggrieved by this decision, the defendants have come up in second appeal to this Court, and their prayer is that the entire suit should have been dismissed, while the plaintiffs have filed a cross-objection and their prayer is that their entire claim should have been decreed as disclosed in the plaint.

7. Before I deal with the appeal on the merits, there is one important fact which has to be mentioned as it seems to have had perceptible influence on the mind of the learned District Judge. That fact is that the defendant Jagannathsingh was prosecuted under Sections 220, 342 and 384, I. P. C., and defendants Onkarmal and Nagarmal for abetment of these offences in connection with the very events which have culminated in this litigation, in the court of the Sessions Judge, Jhunjhunu, and by his judgment dated the 27th March, 1954, the said defendants were acquitted (vide certified copy of the judgment of the Sessions Judge Jhunjhunu, in case No. 14 of 1953).

8. Before proceeding further, I might as well state that the plaintiffs in their cross-objection have raised certain grounds seeking relief against the defendant Jagannathsingh also. It was conceded before me that as Jagannathsingh was not one of the appellants in the defendants' appeal, the cross-objection so far as that defendant was concerned was incompetent and as such it was not pressed against him. I may also mention here that hereinafter I shall refer to the other two defendants, namely, Onkarmal and Nagarmal as the defendants in the case.

9. I now turn to the defendants' appeal. The first question which has been mooted before me on behalf of the defendants was that the learned District Judge fell into serious error in disagreeing with the learned trial Judge and finding that coercion was proved to have been exercised on the plaintiffs when they executed Ex. P-2 on the 1st June, 1952, and paid the sum of Rs. 711/- to the defendants, and that the fact of the matter was that both the letter and the payment thereunder had been given voluntarily by way of compromise.

10. Now, as I look at the matter, the question whether the finding of the learned Judge in this respect is well founded or not is essentially a question of fact and it is not for this Court to interfere with that finding if there was evidence before the learned Judge on which such a finding could be based. I have no doubt that, of such evidence, there was no dearth before the learned Judge below. The proved facts in this connection may be shortly tabulated as follows:

(1) The defendants made no 'formal' report whether orally or in writing to the police of the alleged theft by Ramawatar, Onkarmal's son, and the alleged receipt of the stolen goods by the plaintiff Banarsilal. See the evidence of D. W. 2 Nagarmal in this connection where he says that he never made a report to the police and that he never requested the Thanedar to come over to Jasrapur.

(2) The Sub-Inspector Jagannathasingh although he denied to have had anything to do with this affair or to have gone to Jasrapur in this connection admitted at the trial to have gone there.

(3) The very language of the two documents Exs. P-1 and P-2 shows that Jagannathsingh not only went to Jasrapur but that the matter had been brought to his notice and that he embarked upon some kind of investigation.

(4) As a result of all this, a compromise wasarrived at to save Banarsilal from the hands ofthe police.

(5) Earlier, Banarsilal had been called at the police outpost by a police constable and abused, beaten and humiliated, and the other plaintiff was also abused and disgraced when he went to have his brother released from the police and the evidence of the plaintiffs and their witnesses was on the whole worthy of belief in this connection as against the evidence of the defendants' witnesses.

(6) The Ex. P-2 which was admittedly executed by the plaintiff Banwarilal did not bear the signature of the other plaintiff Banarsilal nor was his presence shown at the time of the enforced compromise, which all went to support the plaintiffs' case that Banarsilal had been detained in the police outpost for some time.

(7) Jagannathsingh's denial that he had never called Banarsilal to the police outpost was entirely false, and that he did interfere in this matter stood amply proved by the writings Exs. P-1 and P-2.

(8) There was no reason for Banwarilal to pay any money to the defendants but for the pressure of the police and the fear that if he did not do so, he and his brother will have to undergo further suffering.

11. On the cumulative effect of these factors, concluded the learned Judge, that, there was sufficient ground to hold that 'the compromise was due to compulsion or under undue influence and coercion and not with a view to compensate the respondents for any wrong done to them, if there was any, with a free will.' As I have stated above, it is not for this Court, sitting in second appeal, to re-assess evidence, and all that it has to see is whether there was legal evidence before the learned Judge below to come to the conclusion to which he did. I would unhesitatingly say that such evidence there existed in plenty, and I would go further and maintain that no fault could be found with the learned Judge in the appeal court below when he came to the conclusion to which he did and held in disagreement with the trial court that the so-called compromise was not a voluntary affair but was a result of coercion and undue influence which the defendants could exercise with the help of the Sub-Inspector Jagannathsingh.

12. It was next argued by learned counsel for the appellants that even if this Court came to the conclusion mentioned above, this would not amount to coercion in law within the meaning of Section 72 of the Contract Act. Three contentions were raised by learned counsel in this connection as below:

(a) The plaintiffs had not proved that the accusation made by the defendants against Banarsilal was false or unfounded or that the money which they had paid was not due from them. The argument was that if money was due and it had been paid, there could be no case of coercion in law.

(b) In any case, the parties were in pari delicto, and, therefore, the money which had been paid by the plaintiffs to the defendants was not recoverable at law.

(c) The payment had been made by Banwarilal and not by Banarsilal, and Banwarilal was absolutely free to have made the payment or not. He had never been sent for by the police nor is there any allegation that he had been detained at the police outpost, and, therefore, if he made the payment which is now impugned, it should be held that it was a perfectly free payment on his part and could not be recovered back.

13. In support of his submissions, learned counsel placed considerable reliance on Mg. Chit Su v. Mg. San Gyaw, AIR 1928 Rang. 173, Gyaw and Jharia Coal Field Electric Supply Co Ltd. v. Kaluram, AIR 1951 Pat 463. In the first case, it was held that the fact that a man's son was in custody on a criminal charge and that he subsequently made an attempt to settle a non-compoundable case out of Court by money payment, did not make the payment as having been made under coercion and that mere fear of punishment in a criminal case did not amount to an undue influence, much less coercion. In the second case it was held that

'Where money is voluntarily paid under an illegal agreement which has been carried into effect, the money so paid cannot be recovered back, if parties are in pari delicto and they had knowledge of the illegality of the agreement before payment.'

I shall deal with these points ad seriatim.

14. As to (a). Now let us see what is the nature of the present suit. Quite clearly, it is a suit for recovery of money allegedly extracted by coercion from the plaintiffs. Again, it is partly a suit for damages for wrongful confinement (or what is called in English law 'false imprisonment') and for loss of reputation and for damages for physical and mental suffering as well. In such a case, it is for the plaintiff to prove that he was wrongfully detained or falsely imprisoned and that such detention or imprisonment was caused by the defendant. Once these facts have been proved, the case of the plaintiff is prima facie complete, and then it is for the defendant to prove that there was lawful justification for such detention. In such a case, it is entirely unnecessary for the plaintiff to prove malice or improper motive. If the defendant fails to establish justification which the law recognises, then he must fail.

15. Thus under the heading 'Trespass to the person' in Part IV of Halsbury's Laws of England (Second Edition) Volume XXXIII the law on the subject has been so laid down in paragraph 67:

'Any total restraint of the liberty of the person, for however short a time, by the use of threat of force or by commencement, is an imprisonment. To compel a person to remain in a given place or to go in a given direction against his will is an imprisonment................

The gist of the action of false imprisonment is the mere imprisonment; the plaintiff need not prove that the imprisonment was unlawful or malicious, but establishes a prima facie case if he proves that he was imprisoned by the defendant; the onus then lies on the defendant of proving a justification.'

Again, in paragraph 69, it is further laid down as follows:

''A private person is liable if he unlawfully detains another, or if he gives him in charge to a police officer who thereupon arrests him, or if he causes a police officer to arrest or detain the other, or if he participates in the arrest or detention.'

Then in paragraph 70, it is further laid down that

'A police constable who unlawfully arrests or detains another person without a warrant is liable to an action for false imprisonment. He is also liable, if he lawfully arrests another person and detains him for an unreasonable time without taking him before a magistrate.'

It may be noted that an action like this is different from an action for damages for malicious prosecution where the person is required to prove both malice and want of reasonable and probable cause before he can be held entitled to damages. The reason is that in a case of malicious prosecution, the opinion and the judgment of a judicial officer are interposed between the charge and the imprisonment, and a magistrate cannot be said to be the agent Of the complainant and that makes all the difference. It may also be borne in mind that in order to amount to 'wrongful confinement' or 'false imprisonment' what is essential is that there must be a total restraint for howsoever short a time on the liberty of person without lawful justification, and actual imprisonment in a jail is not necessary. Thus it has been held that where a police head constable detained some persons as suspects for several days and they were not fettered but they were made to stay in a circumscribed limit and their meals were brought to them there, or police or village servants were sent with them to their houses for their meals and they were brought back, the police constable was guilty of wrongful confinement. See King Emperor v. Shamlal Jairam, 4 Bom LR 79.

16. Now, there is evidence in this case of Banarsilal plaintiff that the defendants had accused him of receiving property which had been stolen by Ramawatar, which, according to the plaintiff, was entirely false and that he was taken to the police outpost by a constable, where Ramawatar Nagarmal and Onkarmal were already present, and the Sub-Inspector Jagannathsingh called him names and beat him and asked him to remain at the outpost and did not permit him to go anywhere for two days, and it was on the third day that he was allowed to go, and during the interval even if he had to go answer a call of nature, the police constable used to accompany him. This evidence is strongly supported by the evidence of the other plaintiff Banwarilal, P. W. 1 Murlidhar and P. W. 4 Ganpat, and this, on the whole, has been believed by the learned District Judge. There is also no doubt that this detention had been caused by the defendants although they have denied it. The mere fact that it was not the defendants who had detained the plaintiff Banarsilal, but Sub-Inspector Jagannathsingh, if at all, had done so, is no answer. For it is well established law that if A gets a police officer to arrest B or put him under wrongful confinement and the police officer acts more or less as a ministerial agent of A, the latter cannot escape his liability in an action for false imprisonment. See Gouri Prosad Dey v. Chartered Bank of India, Australia and China, ILR 52 Cal 615 : (AIR 1925 Cal 884). The entire circumstances of the case and the facts found by the learned District Judge to which I have referred above clearly lead me to the conclusion that the defendants had moved the Sub-Inspector to use his influence and authority in the matter, and the latter did so notwithstanding the fact that he had not recorded a first information report and did not enter upon any lawful investigation into it. The position, therefore, is that the plaintiff in this case have proved that one of them was put under wrongful confinement and that such confinement had been caused by the defendants. The cause of action, therefore, on the principles of law discussed by me above was complete, and then it was for the defendants to prove that they had any lawful justification for taking the action which they did nor that any money was due to them and this they have entirely failed to do. See in this connection Thakdi Hajji v. Budrudin Saib, ILR 39 Mad 208 (sic) also. In this view of the matter, the contention of learned counsel that it was for the plaintiffs to prove that the accusation against them was false and unfounded or that it was made malicionsly, falls to the ground and I hereby reject it as baseless.

17. I may also point out in this connection that the case reported as AIR 1928 Rang 173 (supra) is easily distinguishable, on facts from the present case. The facts there were that the plaintiff's son was in custody on a criminal charge, and that he subsequently made an attempt to settle a non-compoundable case out of Court by money payment, and arbitrators were appointed in that connection who made an award that the plaintiff should make a payment of Rs. 150/- to the defendant which was accordingly made. The plaintiff subsequently sued for a declaration that the award made by the arbitrators for the payment of Rs. 150/- was void and for recovery of that sum. The trial court granted the plaintiff a decree. On appeal, the district court held that the money was paid under an illegal and void contract, and both parties were in pari delicto and therefore the money was not recoverable. On further appeal, it was also held by the Rangoon High Court that the money was not recoverable.

The ratoi decidendi of this case, however, was that the payment by the plaintiff was quite voluntary, and it was, according to the High Court, made on the plaintiff's own initiative and that it had not been proved that any pressure was brought on the plaintiff to make the payment with a view to procuring his son's release. It was in these circumstances held that mere fear of punishment in a criminal case did not amount to undue influence much less to coercion. The case here is entirely different. For, there is overwhelming evidence on the record which has been believed by the learned District Judge that considerable pressure had been brought on the plaintiffs to make the payments in suit to secure the release of Banarsilal plaintiff, and in fact the learned Judge has gone to the length of holding that if such pressure had not been brought, Banwarilal, the other plaintiff would not have made the payment at all.

18. As to (b) This brings us to the next contention raised on behalf of the defendants that the parties were in pari delicto in having entered into what may be assumed for the purposes of the present appeal as an unlawful agreement, and that agreement having been carried but, the plaintiffs were not entitled to claim back the money which they had paid under it. The principle behind this doctrine is that where each party is equally in fault, the law favours him who is actually in possession; or that where both parties are equally culpable, the law will leave them where it finds them and will not engage itself to determine the rights as between them. But this principle is subject to well-known exceptions, one of which is that it will not apply where the parties are or cannot be said to be really in part delicto. It is, therefore, well recognised that where the aggrieved party has done something under coercion or undue influence or fraud, it can never be held that he was equally at fault with the other who exercised coercion or undue influence, or perpetrated fraud. Thus it was held in (1817) 6 M and S 160 (166) Smith v. Cuff, by Lord Ellenborough that, where there was an inequality of situation between the parties, the one being a creditor and the other a debtor, and the latter was driven to comply with the terms which the former chose to enforce,

'This is not a case of par delictum; it is oppression on one side, and submission on the other, it never can be predicated as par delictum, when one holds the rod and the other bows to it.'

The same principle was approved by Cockburn, C. J. later in a case reported as Atkinson v. Denby, (1862) 7 H and N 934 (936) wkere the learned Chief Justice held that where one party can dictate and the other has no alternative but to submit it is coercion, and that although it was true that both were in delicto, because the act therein was a fraud upon the other creditors, yet it could not be said that it was par delictum.

19. Following the same principle, it was held by a Division Bench in Muthuveerappa v. Ramaswami, AIR 1917 Mad 607, that where one party uses his position as prosecutor to secure moneys which but for the arrest he would not have got, the principle of the parties being in pari delicto cannot apply.

20. The same principle has been recognised even in AIR 1951 Pat 463 (supra), on which learned counsel for the defendants places his reliance. It is correct that this case generally lays down that where money was voluntarily paid under an illegal agreement which had been carried into effect, it cannot be recovered back if the parties are in pari delicto and they had knowledge of the illegality of the agreement before payment, yet it clearly recognised that this rule was subject to exceptions when it quoted Halsbury's Laws of England (Vol. 7, 2nd edition, page 175) summarizing the law on the point, which reads as follows:

'If however, the illegal purpose has been carried out or the contract has been substantially performed, money paid under the contract can no longer be recovered, except where it appears that the parties were not in pari delicto, for instance, 'where the plaintiff shows that he was induced to enter into the contract by fraud, duress or oppression on the part of the defendant'.' (The underlining (here into ' ') is mine).

This case, therefore, does not help the defendants in any way.

21. Now, what was the position in the present case? The plaintiff Banarsilal had been detained under unlawful custody at the police outpost by the Sub-Inspector Jagannath Singh at the instance of the defendants. It seems to me that an arrest by a police officer, without authority by law, of a person, at the instigation of his accusers, is virtually an arrest by the latter, and in such a case if the plaintiffs executed a document and paid money under it to secure the release of one of them or to save themselves from further harassment it would be entirely inequitable to hold that the parties were in pari delicto because, to use the luminous phraseology of Lord Ellenborough, 'one of the parties holds the rod and the other bows to it'. In these circumstances, this plea also fails and I hereby overrule it.

22. As to (c). The third and the last contention in the appeal was that the money had been paid by Banwarilal, the other plaintiff, who was under no kind of restraint, and, therefore, the payment made by him was ander no kind of coercion, and it should be concluded that he had paid it voluntarily and that being so, such money was not recoverable. I regret to have to say that this contention is equally devoid of force. There is evidence on the record to show that both the brothers Banarsilal and Banwarilal were carrying on a joint shop and that when Banwarilal paid the money, he had paid it from that shop and the entries Exs. 4 and 5 clearly go to show that Banwarilal had debited this amount to the other plaintiff Banarsilal. These entries are dated Jeth Sudi 8th Section 2009 (corresponding to the 2nd June, 1952). There is no reason to doubt the genuineness of these entries, and it, therefore, clearly seems to me that this money was as good as if it was paid by Banarsilal also, who, it has already been held above, had been detained under unlawful custody at the time. This conclusion is not in any way adversely affected by the circumstance that Banwarilal had not been himself put under any kind of custody and that he was free to report the matter at Khetri which was the headquarters of magistrate's court and which was not far off being at a distance of only five miles away from Jasrapur, the reason being that Banwarilal's first and last endeavour naturally was to save his brother from the clutches of the police, and it would be blinking at hard facts to say that he was a free agent to do what he liked.

There is high authority for the view that the word 'coercion' as used in Section 72 of the Contract Act is used in its ordinary non-technical sense and that its meaning is not controlled by the definition of 'coercion' in Section 15 of the Contract Act, and I am not prepared to hold that in the circumstances Banwarilal could have resisted the payment and refused to fall in with the wishes of the Sub-Inspector Jagannathsingh or of the defendants, and was free to act of his own will. This ground, therefore, is not enough to negative the case of coercion which has otherwise been fully established by the plaintiffs.

23. For the reasons mentioned above, the defendants' appeal should fail and I hold accordingly.

24. I now turn to the plaintiff's cross-objection. The learned District Judge has held that beyond the return of the money which the plaintiffs paid to the defendants, namely, Rs. 700/-, the former were not entitled to get any damages, special or general. The main reason which seems to have prevailed with the learned District Judge was that the defendants had been acquitted in the criminal case of the charge of wrongful confinement among other charges for which they had been prosecuted. As the learned Judge has put it, the accused had been acquitted by a criminal court and, therefore, it must be held that they had not kept the plaintiff Banarsilal under illegal confinement and were innocent in this respect. To me, it clearly appears that, in taking this view, the learned District Judge fell into a grave error of law.

From what I have stated in the foregoing part of my judgment, I have no hesitation in saying that, left to himself, the learned Judge would have been well disposed to hold, on the material which he was prepared to accept as true, that the plaintiff Banarsilal had been detained under illegal custody by the Sub-Inspector Jagannathsingh at the instance of the defendants. In fact, this is the entire foundation of his judgment in so far as he decreed the return of the sum of Rs. 711/-by the defendants to the plaintiffs. And yet, when he came to deal with the question of damages awardable to the plaintiffs in the same connection over and above the return of the money, which had been actually paid by them to the defendants, he thought that he was bound by the finding of the criminal court. There is, however, abundant authority for the proposition that a judgment of acquittal in a criminal court is irrelevant in a civil suit based on the same cause of action, just as a judgment of conviction cannot, in a sub-sequent civil suit, be treated as evidence of facts on which the conviction is based. The correct position in law, therefore, is that the Civil Court must independently of the decision of the criminal court investigate facts and come to its own finding. Thus it was held in Venkatapathi v. Balappa, AIR 1933 Mad 429 that in a suit for damages for malicious prosecution, under Section 43 of the Evidence Act, the judgment of the criminal court can only be used to establish the fact that an acquittal has taken place as a fact in issue in the civil suit, but the civil court cannot take into consideration the grounds upon which that acquittal was based and it would be for the civil court itself to undertake an entirely independent inquiry before satisfying itself of the absence of reasonable and probable cause. Again, it was held in Ramadhar v. Janki, AIR 1958 Pat 49 that a judgment of a criminal court is admissible to prove only who the parties to the dispute were and what order was passed; but the facts stated therein or statements of the evidence of the witnesses examined in the case or the findings given by the court are not admissible at all and the civil court is bound to find the facts for itself. That this view is unchallengeably correct would appear from the judgment of their Lordships of the Supreme Court in Anil Behari v. Latika Bala Dassi, (S) AIR 1955 SC 566. I have, therefore, no hesitation in holding that the learned Judge was completely wrong when he thought that on the score mentioned above the plaintiffs were not entitled to recover any damages from the defendants for the unlawful detention of the plaintiff Banarsilal at the police outpost Jasrapur from the 31st May, 1952, to the morning of the 2nd June, 1952.

25. The further reason which seems to have weighed with the learned Judge in this regard is that even if Banarsilal plaintiff was called at the police outpost and pressure and undue influence had been exerted on him, it could not be held that he had been placed under wrongful confinement, and, therefore, also the plaintiffs were not entitled to get any damages. With all respect to the learned Judge, I find myself in complete disagreement with him. It is true that the mere summoning of this plaintiff by the Sub-Inspector Jagannathsingh at the police outpost or even the further fact that some pressure was brought to bear upon him to pay some kind of solatium to the defendants would not constitute wrongful confinement. But the learned Judge seems to have completely missed that part of the plaintiffs' case, which as discussed already, there was no reason to doubt, that Banarsilal had been detained at the police outpost for at least two days and not allowed to go to his home, and in this manner he was completely deprived of his freedom of movement. It is this which constitutes wrongful confinement, and I can see no reason why this plaintiff would not be held to get damages on that account.

26. The last ground in this connection which prevailed with the learned Judge was that damages were not proved to have been suffered by the plaintiffs. It seems that the learned Judge thought that even general damages are required to be proved to have been suffered. In so thinking, however, the learned Judge was entirely wrong. As held by me in Ramdas v. Raja ILR (1958) 8 Raj 681: (AIR 1958 Raj 257), broadly speaking, there are two kinds of damages: general and special, and that where the plaintiff claims general damages, it is not necessary for him to prove such damages specifically, the reason is that general damages are considered at law to be pecuniary reparation for the damage which is presumed to follow from the injury, and, therefore, which is not required to be separately averred or proved. On the other hand, special damages are the pecuniary equivalent of the loss actually sustained such as medical expenses incurred by reason of bodily harm or loss of business due to wrongful confinement as in the present case. The plaintiff can recover such damages only if he specifically avers and claims them. This being the correct position in law, the learned Judge was, again, quite wrong when he held that general damages could not be awarded to the plaintiffs because they had not specifically proved them.

27. The next question is what would be a proper quantum of such damages to award to the plaintiffs in this case. They had claimed a sum of Rs. 2000/- in this connection. It seems to me, having regard to all the circumstances of the case, that the ends of justice would be fulfilled if a sum of Rs. 1000/- is awarded to the plaintiffs on this count.

28. Then, the plaintiffs have also claimed a sum of Rs. 39/- as special damages being the loss of profits which they would have earned if they had opened their shop during the two days Banarsilal plaintiff had been kept under illegal detention. The learned Judge disallowed this amount on the ground that there was 'no definite evidence that they would have surely earned so much of profits.' Here again, the approach of the learned District Judge was wrong. The amount claimed is by no means large. There is no doubt that both the plaintiffs were kept away from their shop on account of the events which led to the wrongful confinement of the plaintiff Banarsilal and the other plaintiff Banwarilal was naturally anxious to save his brother from the clutches of the police. Then, we have the evidence of the plaintiff Banarsilal who has definitely stated that they had suffered a loss of Rs. 39/- on account of their shop having remained closed during the the period of his detention at the police outpost. No cross-examination was directed on behalf of the defendants against this statement of his, and in the circumstances, I hold that the plaintiffs were entitled to get a decree for this amount also as special damages. The plaintiffs' cross-objection, therefore, succeeds to the extent mentioned above.

29. No other point was argued before me.

30. The net result is that I dismiss the defendants' appeal and partly allow the plaintiffs' cross-objection and enhance the decree of Rs. 711/-passed by the learned District Judge to Rs. 1750/-only. The plaintiffs will be entitled to receive their proportionate costs from the defendants throughout. The defendants will bear their own costs. So far as defendant Jagannaihsingh is concerned, the cross-objection is dismissed against him but without costs.

31. Before parting with this case, I should liketo express my strong disapproval, of the conductof Sub-Inspector Jagannathsingh in this case whohas shown scant respect for truth and whosebehaviour throughout has been reprehensible inso far as he allowed himself to be reduced to theposition of mere agent of the other defendantsand displayed a deplorable lack of the due senseof responsibility, which rightly attached to hisoffice, in acting in the manner in which he did.And I feel bound to point out that if he escapesthe consequences of his unlawful and high-handedconduct, it is only because no appeal was filedagainst him in this Court and the cross-objectionfiled by the plaintiffs respondents, in so far as hewas concerned, was incompetent and therefore thejudgment of the court below dismissing the suitagainst him had become final.


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