J.P. Jain, J.
1. The basis of this appeal is a suit instituted by Ram Chandra in the court of Munsif, Alwar for recovery of damages for malicious prosecution against Bhagwat, Swaroop appellant and Mool Chand and Harparsad. The damages were claimed in the sum of Rs. 1,000/-. The case of the plaintiff Ramchandra was that on 16.5.61 Bhagwat Swaroop at the instance of the other two defendants Mool Chand and Har Prasad filed a criminal complaint under Section 323 and 504, Indian P.C. in the Court of Munsif Magistrate First Class, Alwar. According to him the complaint was false, malicious and instituted without; reasonable and probable cause. Though Bhagwat Swaroop succeeded to obtain the conviction of Ram Chandra in the original Court and a sentence of Rs. 50/- on each count was imposed but in appeal he was acquitted by the learned Sessions Judge, Alwar on 31.5.62. It has also been stated by the plaintiff that he had purchased the shop in which firm Moolchand Har Prasad was carrying business in Kedal Ganj, Alwar. It is not disputed that in this firm all the three defendants were partners. The suit was filed for eviction from the shop againts the firm MooL Chand Har Prased and Mool Chand and Harprasad. Bhagwat Swaroop was not made party in his personal capacity. This suit was decreed. The appeal filed by them was dismissed in the lower appellate Court and in the High Court. However, in the High Court they were granted nine months' time to surrender vacant possession of the shop. This period of 9 months expired on 23.5.61. On 24.5.61 an application was filed by the judgment debtors in the Executing Court with the allegation that the parties bad adjusted the decree out of Court and the decree-holder namely, Ram Chandra had agreed to re-let the shop to the firm at Rs. 40/- per month. This case of the judgment-debtors was not accepted by the Executing Court and their application was rejected on 12.1.62 (Ex. 4). The judgment debtors were also unsuccessful in appeal vide order of the District Judge dated 31.5 62.
2. The incident that was alleged in the complaint dated 16.5.61 was that on 15.5.61 near the crossing of the hospital at Alwar, Bhagwat Swaroop was going along with his manson to make purchases of some building material. He met the decree holder there. Chiman Singh (D.W. 4) also happened to be there and according to Bhagwat Swaroop, Chiman Singh congratulated Bhagwat Swroop for having shown grace in allowing the original tenants namely firm Moolchand Harprasad to continue in the shop. It was further alleged that Bhagwat Swaroop stated that he had increased the rent by Rs. 7/- and this resulted into exchange of abuses and Ram Chandra is said to have assaulted Bhagwat Swaroop. It has already been noticed above that this story as alleged by the complainant, was not believed by the appellate Court and Ramchandra was acquitted on 14.11.64 vide Ex. 1. The story of adjustment of the decree was also not believed by the Executing Court and as well as by the Appellate Court. This is the basis for Ramchandra to institute the present suit from which this appeal has arisen in the Court of Munsif on 16.1.64.
3. This suit was resisted by all the three defendants. The learned Munsif, who tried, the case held that the complaint was not false and without reasonable and probable cause. He, however, held that the complaint was not lodged at the instance of Moolchand and Harprasad. And according to him Bhagwat Swaroop alone was responsible for making the complaint. He did not determine the issue No. 2 in view of his finding en issue No. 1 i.e. he failed to find as to what should be the quantum of damages in case the plaintiff succeeded in proving that the complaint was false, without reasonable and probable cause, and malicious. The plaintiff was aggrieved by this order. The learned Additional District Judge Alwar, who dealt with the appeal reversed the finding on issue No. 1. He held that the complaint was false. It was filed without reasonable and probable cause and in the circumstances he inferred that it was malicious but as he did not have the benefit of the view of the learned trial Judge on issue No. 2, he remanded the case to the Munsif, Alwar for his decision on issue No. 2. This order dated 30th of May, 1973, is the subject matter of the the challenge before me.
4. I have heard Mr. Gupta at a considerable length. He took me through the judgment and also the evidence on which he wanted to place reliance to show that the finding of the learned lower appellate court on issue No. 1 was erroneous in law. His first contention is that Bhagwant Swaroop has proved by his statement that the complaint was true. The occurrence had actually taken place on 15-5-61 near the crossing of the hospital at Alwar. His statement, according to the learned Counsel is well supported by the testimony of Sukhram (D.W. 3) and Chimman Singh (D.W. 4). I have considered their statements with care. It is not true that the incident as alleged by Bhagwat Swaroop is supported by the testimony of these two witnesses. Sukhram (D.W. 3) informed the Court that he witnessed Bhagwat Swaroop hurling abuses to Ramchandra, and had seen assaulting him D.W. 4 who is a boy of 27 years said that he saw Ramchandra and Bhagwat Swaroop exchanging abuses and after wards he brought Bhagwat Swaroop from the place of occurrence. None of these witnesses stated that Chimman Singh ever told Ramchandra that he acted with grace in settling the matter between himself and Mool Chand and Harprased, and this was repudiated by Bhagwat Swaroop that there was no act of grace when he increased the rent by Rs. 7/-. This fact as alleged in the complaint and stated by Bhagwat Swaroop, finds no corroboration from them.
5. The learned appellate Court had rightly discussed the incident as alleged by Bhagwant Swaroop had actually taken place. On the other hand, the learned Judge in appeal accepted the statement of Ramchandra, who finds over-whelming support from the circumstantial evidence which has been placed on record in the form of documents. There has been litigation between the pasties Bhagwat Swaroop was a partner in the firm, though he was not a partly in his personal capacity but all the same the firm was a party in the eviction suit instituted by Ramchandra. The story of adjustment as put by the judgment debtors was again found to be false. The application under Order 21 Rule 2, Civil P.C., for adjustment was given on 24-5-61 alleging that the adjustment of the decree had taken place on 2.5.61. This is also admitted that the relations between the parties were not happy, they were rather strained. There is no evidence to support the suggestion that the relations had improved. The learned Judge was therefore, right in accepting the statement of Ramchandra and in holding that the complaint filed by Bhagwat Swaroop on 16.5.61 was without any reasonable and probable cause. It was false and for the reasons stated above he tightly inferred that it was malicious. I find no fault in the finding arrived at by the learned Judge in appeal on issue No. 1. I rather agree with him.
6. The learned trial judge did not decide the case on issue No. 2. It was open to the learned appellate Court to have adopted one of the two ways either to decide the issue No. 2 itself or to remand the case to the trial court for decision on that issue. There is no error of law if the learned appellate court adopted the latter course. The order of remand is proper and cannot be interfered with.
7. In the result the appeal fails and it is hereby dismissed with costs.