I.N. Modi, J.
1. This is a civil regular second appeal by the defendant Municipal Board, Baran, against the judgment and decree of the Civil Judge, Baran,. dated the 10th October, 1955, decreeing the plaintiffs' suit for damages and for return of certain money which had been recovered by the defendant from the plaintiffs, in all amounting to Rs. 550/-.
2. The material facts leading up to this appeal may be shortly stated as follows : The plaintiffs carried on business at all material times in the name of Narainji Harishanker in the town of Baran. It is common ground that they had been constructing a house in this town for about three or four years prior to the institution of this suit, and in that connection a Sanitary Inspector of thin Municipality reported to the Board that the plaintiffs had collected certain building material on Khalsa land in front of and behind the house under construction, without the permission of the Board, and that rent was due from them for such occupation from the 15th of October, 1950 to 30th of December, 1950, amounting to Rs. 12-8-0, and that as the plaintiffs had so acted without the permission of the Municipality they were liable to pay four times the rent, that is, a sum of Rs. 50/-in all, and, therefore, the aforesaid sum be recovered from the plaintiffs.
Thereupon a notice was issued by the defendant to the plaintiffs on 6th of January, 1951, to deposit this amount which the latter did not. Thereafter the defendant issued certain demand notices to the plaintiffs, but again without any avail. To the last notice of the Board in this connection dated the llth of November, 1951, the plaintiffs raised their objection Ex. 8 in which inter alia it was contended that the Municipal Board had no authority in law to recover any rent from them, and further that if it thought that it had any legitimate claim, then the proper course for it was to file a suit in a competent court of law. It is important to point out at this place that somehow the plaintiffs had come to know that the defendant was contemplating the issue of a warrant of attachment against them and therefore, in their letter under reference the plainitffs made a special point that if the defendant was so dvised as to issue any warrant of attachment against them, then they wouldhold the defendant responsible for all the loss and consequences, and in particular tor the loss of reputation which was bound to be caused to them and for which they were determined to file a suit against the defendant in the competent court of law. This objection, was dated the 16th of lune, 1952.
As things transpired, the defendant did issue a warrant of attachment against the plaintiffs Ex. A. 5. on the 1.1th of July, 1952, When attachment was sought to be effected by the Sanitary Inspector of the defendant's goods in compliance with the warrant the plaintiffs paid the sum of Rs. 50/- under protest. Thereafter, they gave the usual statutory notice to the defendant, an.d eventually brought the present suit on the 12th of January, 1953, in which it was alleged that the action taken by the defendant against them was altogether unauthorised and mala fide; and, therefore, they claimed a sum of Rs. 1,000/- as damages for the loss of reputation caused to them by the illegal and mala fide attachment, and further claimed the refund of the sum of Rs. 50/- which had been paid by them to the Board in compliance with the warrant of attachment.
3. The defendant resisted the suit. Its main defence was that it had the power to realise the rent for the municipal land occupied by the plaintiffs without its permission in connection with the construction of their house and that the warrant of attachment issued by it was perfectly legal.
4. Both courts below, repelled the defence and decreed the plaintiffs' suit, though while the. trial court decreed it for the entire amount of damages claimed in addition to the refund of the sum of Rs. 50/-, the lower appellate court reduced the damages to Rs. 500/- only. It may be stated, however, that there is a concurrent finding of both the courts below that the defendant had no authority in law to issue the warrant of attachment, and further that there was malice on the part of the Board in doing so. The defendant Municipal Board has now come up in second appeal to this Court and prays for the dismissal of the suit. The plaintiffs have also filed a cross-objection and pray that the entire damages claimed by them to the extent of Rs. 1,000/-should have been decreed by the appellate court below.
5. The first question to decide in this appeal is whether the Board had acted within its bounds in issuing the warrant of attachment for the realisation of the rent which according to it was recoverable from the plaintiffs in connection with the occupation of certain Municipal land by the plaintiffs. My attention has been drawn on behalf of the defendant in this connection to certain rules for regulating the stacking of the building materials on Municipal land in Baran Municipality. It is true that according to these rules, a fee of annas ten per hundred feet and a fourfold penalty in case of default can be charged per month from a person who occupies certain land within the limits of the Municipality for temporary purposes in connection with the construction of a house or a like purpose. These rules further provide thatany person so intending to occupy land within the Municipality must first obtain permission from it to do so.
These rules were sanctioned by the Mahakama khas of the former State of Kotah on the 7th of May, 1946, wituin the jurisdiction of which State the down of Baran was situate at that time If these rules had continued in force at the time, with which we are concerned in this case, pernaps all this trouble would not have arisen. But the State of Kutah, as it then existed, merged in the first United State of Rajasthan some time in 1948, and these rules stood repealed bv the United State of Rujasthan Municipalities Ordinance 1949 (Ordinance No. IV of 1949) which came into force on the 16th of February, 1949. By Section 2 of this Ordinance, the United Provinces Municipalities Act (No. II of 1916) as adapted and amended upto 1945, subject to certain adaptations and changes mentioned to the schedule to the Ordinance, which have no relevance for the purposes of the present appeal, was made applicable to all the component States of the United State of Rajasthan including the former State of Kotah. Again, by Section 4 of this Ordinance all laws, orders, rules, notifications, and other instruments having the force of law, which related to the Municipality or to any particular, municipality in the whole or any part of the areas of any Covenanting States which had become part of the United State of Rajasthan, were repealed. There is a proviso to this Section, but it has no relevance for our present purposes which, therefore, need not be considered.
The legal position, therefore, was that the rules of 1946, on which the defendant relies, stood repealed with effect from the 16th of February, 1949 and could not be pressed into service by the defendant at the time the dispute arose between the parties to this case towards the end of 1950 in October. This brings us to Section 293 of the United Provinces Municipalities Act which reads as follows:
''293- Fees for use otherwise than under a lease of municipal property.-
(1) The Board may charge fees to be fixed by bye-law or by public auction or by agreement, for the use or occupation (otherwise than under a lease) of any immovable property vested in, or entrusted to the management of the board, including any public street or place of which it allows the use or occupation whether by allowing a projection thereon Or otherwise.
(2) Such fees may either be levied along With the fee charged under Section 294 for the sanction, licence or permission or may be recovered in the manner provided by Chapter VI'.
6. Chapter VI lays down the procedure for recovery of certain municipal claims. Broadly speaking, it may be stated that the procedure contemplated in this chapter is this. Where a person has become liable for the payment of any tax or fee to the Municipal Board according to law, a bill of demand shall be presented to the person concerned. If this bill should prove fruitless and the dues of the Board are not paid, then a notice of demand is to be 'issued. Should the notice ofdemand also prove fruitless, then within a certain time from the service of the notice of demand, the Board has been authorised, to issue a warrant of attachment for recovery of the sum due by distress and sale of the movable property of the defaulter. It is further provided that every warrant issued under this Section shall be signed by the chairman of the board, or by an officer to whom the board has delegated its powers by regulation or by the executive officer, if any. It may be stated at once, however, that after the 16th February, 1949 the defendant Board had not made any bye laws for charging rent in connection with the occupation of Municipal land by residents within this Municipality, and that being so, I have no hesitation in holding that Section 293 did not come into play in this case. It also did not come into play because land had not been rented out here either by public auction or by agreement between the parties.
It was strenuously contended before me that there was no doubt that the plaintiffs had occupied certain land within the limits of this Municipality in connection with the construction of their house therein, and, therefore, there was nothing improper if the defendant called upon the plaintiffs to pay rent for such land, according to principles of justice, equity and good conscience. There is some force in this submission. But the question that still arises is whether the defendant was Justified in issuing a warrant of attachment ia the manner it did.
The only provision of the United Provinces Municipalities Act which, in my opinion, can apply in the present case for governing the matter is Section 291, which provides that where any sum is due on account of rent from a person to a board in respect of land vested in, or entrusted to the management of the board, the board may apply to the Collector to recover any arrear of such rent as if it were an Arrear of land revenue. SubSection (2) of this Section further provides that the Collector on being satisfied that the sum is due shall proceed to recover it as an arrear of land revenue.
In this state of Jaw therefore, the only proper course for the defendant, to which it could resort, was that it should have submitted a request to the Collector to recover the rent which, according to it, was due from the plaintiffs, and it did not, and could not, have the authority to issue a warrant of attachment under Chapter VI the provisions whereof I have discussed above. Unfortunately, the Board, over-zealous as it was, did not do anything of the kind and instead adopted an entirely unlawful course for which it has been dragged into this litigation. Having regard to this state of circumstances, I have no hesitation in coming to the conclusion that the courts below were right when they held that the defendant had acted beyond the limits of its due authority in issuing the warrant of attachment against the plaintiffs, though my reasons for coming to that conclusion are Somewhat differentfrom those which prevailed with the courts below.
7. It was next contended by learned counsel for the defendant that even if this Court came to the conclusion mentioned above, there was, or would be, no lawful occasion for any damages to be awarded to the plaintiffs, because the warrant of attachment was not actually executed on the plaintiffs, they having paid the sum of Rs. 50/- before that could be done. Learned counsel places his reliance' in this connection on Rama Aiyer v. Govinda Pillai, AIR 1917 Mad .145. It was held by the Madras High Court in this case that the mere procuring of an order of attachment before judgment or the making of an application for attachment, however malicious, without attachment having been effected, does not amount to an abuse of the process of the court or result in damage, and, therefore, no suit for damages would lie. But this case is entirely distinguishable on facts as pointed out in a later decision of ihe same High Court reported in Joseph Nicholas v. M. R. Sivarama Iyer, AIR 1922 Mad 206. It was held in this last mentioned case that notwithstanding that an attachment may not have been completed by seizure of any of the plaintiff's goods, the plaintiff would be entitled to com-pensation provided he has sustained injury by what had been actually done. With respect, I am in perfect agreement with the Principle laid down in this case.
I was next referred to a single Judge decision of the Bombay High Court reported in Sada-shiv Govind Samant v. Sheduram Sukhdev, AIR 1955 Bom 67. In this case, the facts were that an order of attachment had been procured by the defendant against the plaintiff and the defendant was actuated by malice in securing that order and the order of attachment was served on the plaintiff but his goods had not been actually seized. On these facts, it was contended that all this would no be enough for affording a cause, of action for a suit for damages for wrongful attachment. Having regard to an earlier single Judge decision of the same High Court reported in Kedar-nath TulsLdas v. Beharilai Jagamal, AIR 1925 Bom 357 which the learned Judge thought was binding on him the learned Judge felt constrained to uphold the view that the procuring of an order of attachment in a suit did not of itself afford a cause of action for a suit for damages for wrongful attachment even though the order of attachment might have have been shown by the bailiff of the Court to the party whose goods were sought to be attached. But he further went on to hold that the bailiff had proceeded to apply the process for attachment although there was no actual seizure of goods, and, that view of the matter, held that the plaintiff had acquired an actionable cause for his suit for abuse of the process of the court.
8. Now, so far as the first part of the proposition set out above namely that the mere procuring of an order of attachment would not be sufficient to found an action is concerned, I have no quarrel whatsoever. But as the learned Judge in Sadashiv Govihd's case, (S) AIR 1955 Bom 67himself observed, it is extremely difficult to understand why, where an order of attachment before judgment is actually shown to the plaintiff and thus served on him, to all intents and purposes, it should still be held that that would not give any cause of action for a. suit for damages provided the other ingredients of such an action were fulfilled. Speaking with all respect, J am on the whole disposed to think that although it is correct that the mere procuring of an order of attachrnent albeit malicious, would not be enough to sustain an action for damages for an abuse of process, but once the process has been issued and served on the party concerned, the employment of the coercive process should be held to be sufficient to found an action for damages and the circumstance that the person sought to be proceeded against averted the actual seizure of goods by paying the money required should hardly improve the position of the wrong doer. I may also add that the answer to the question whether a coercive process has been effectually employed or not is bound to depend upon the facts and circumstances of a particular case, and no hard and fast formula can be laid down which would apply to all cases. I hold accordingly.
9. Applying the principle which I have formulated above to the present case, I am definitely of the opinion that the plaintiffs here had acquired a perfectly good cause of action when the defendant had not simply issued the warrant of attachment but it further deputed one of its personnel to serve it on the plaintiffs, and that person proceeded further and had shown the warrant of attachment to ihe plaintiffs, and as stated by the serving officer himself, it was in connection with the service of the warrant that the plaintiffs paid the sum of Rs. 50/- under protest to him. There 13 also evidence on the side of the plaintiffs to show that they had. raised a strong protest when the serving officer had sought to serve them with the warrant of attachment and a number of persons had been attracted to their shop at that time, and thereby they had suffered in their reputation. There is also evidence on the record that the plaintiffs are men of substance and respectability in the locality in which they live. Again I have, no manner of doubt that if the plaintiffs had not paid the money in connection with which the warrant of attachment had been issued by the defendant, actual seizure of goods would have inevitably followed. There is, therefore, no force in this contention either, and I overrule it.
10. So far as the question of malice which, It is settled law, means malice in fact and not in law is concerned, and which is the next essential element fo the plaintiffs to prove in such a case, we have a concurrent finding of the two courts below on this aspect of the case which was based on the material which was properly before them, and I see no reason to re-assess it in second appeal to see whether that conclusion was correct or not.
11. The last point which then remains to consider in this appeal is whether the quantum of damages awarded by the court of appeal below is just and proper having regard to all the circumstances of the case. It cannot be forgotten in this connection that the defendant here was a statutory local body and. not an individual. It should not be forgotten also that any damages which the defendant is called upon to pay to the plaintiffs will come out of a public fund, and, so far as J know, the local bodies in our towns have very limited funds at their disposal. Having regard to all the circumstances, therefore, J am disposed to think that the requirements of justice will be amply fulfilled if the decree passed by the lower appellate court is reduced to a sum of Rs. 200/- only. The plaintiffs will get their proportionate costs in all the courts. The defendant will bear its own costs throughout. In view of this decision of the appeal, the plaintiffs' cross-objeetion automatically fails, and is hereby dismissed. The parties will bear their own costs of the cross-objection.