1. The appellant in this Second Appeal was a member of the Municipal Council, Coonoor. The Council had farmed out the right to collect fees on cart stands in Coonoor to one Fakeer Muhamad, and it appears that the appellant refused to pay Fakeer Muhammad certain fees which were demanded by him. Fakeer Muhammad took the matter to the respondent who was then the Chairman of the Coonoor Municipality and after exhausting every attempt to induce the appellant to pay the fees to Fakeer Muhammad, the respondent finally prosecuted him before the Bench Magistrate of Coonoor under Sch, IV, Rule 30, Sub-rule 2 read with Section 344 of the Madras District Municipalities Act. The Bench Court acquitted the appellant on the ground that the fees were due not to the Council but to the contractor and therefore Section 344 of the Act did not apply. The appellant thereupon filed a suit against the Chairman (respondent) for damages for malicious prosecution in the Court of the Subordinate Judge, Nilgiris. The Subordinate Judge held that the prosecution was malicious and overruled the objection raised by the Chairman that under Section 350 of the Act he had not been given the requisite notice before the institution of the suit. Damages were awarded to the extent of Rs. 200. Upon appeal the learned District Judge of Coimbatore reversed both these findings and he held that the prosecution was not malicious and was not instituted without reasonable or probable cause and also that under Section 350 the suit would not lie as no notice was given to the Chairman. The appellant has again brought up these two issues in this Second Appeal.
2. Section 350 which lays down the conditions under which notice is requisite, runs as follows, omitting all the unnecessary words:
No suit for damages shall be instituted against any Municipal Officer in respect of any act done in pursuance or execution or intended execution of this Act or any rule, by-law, regulation or order made under it.
3. In support of the appeal we have been referred to an English Decision reported in G. Scammell and Nephew Ltd. v. Hurley (1929) 1 K.B. 419. That is a decision in which there came for consideration a clause in the Public Authorities Protection Act which is drafted in exactly the same way as the material clause in Section 350 of the District Municipalities Act and in discussing that clause quotation was made from a judgment of Blackburn,. J. delivered in Selmes v. Judge (1871) L.R. 6 Q.B.C. 724 in which the learned Judge says,
I agree that if a person knows that he has not under a statute authority to do a certain thing, and yet intentionally does that thing, he cannot shelter himself by pretending that the thing was done with intent to carry out that Statute.
4. Now, the respondent in his own evidence in the suit now in question has admitted that he knew that Section 344 did not authorise him to prosecute the appellant. It is found no doubt by the learned District Judge that in the ordinary sense of the word there was no malice and that the motives of the respondent were good. But it is perfectly clear from his own evidence, and it cannot be challenged, that the respondent was-definitely aware that in filing this complaint he was doing something which the Act did not permit him to do. It seems to us then that the dictum of Blackburn, J., must be taken to> apply to the facts of this case, and that it is impossible for the respondent to argue with any hope of success that in authorising a prosecution which he knew he was not permitted to authorise, he was intending to execute any portion of the District Municipalities Act. It is impossible that any one can intend to do a thing which he knows he is not doing. As against this, however, we have been referred on behalf of the respondent to a ruling reported in Koti Reddi v. Subbiah : (1918)34MLJ494 . In that case a public officer was held to be entitled to notice of a suit under Section 80 of the Civil Procedure Code, even though in the discharge of his duties he had acted mala fide. This is no doubt a good authority for Section 80 of the Civil Procedure Code. But the words 'purporting to be done' in Section 80 of the Civil Procedure Code are not the same words as are found in Section 350 of the District Municipalities Act. Qf the two learned Judges who decided Koti Reddi v. Subbiah I.L.R. (1918) 41 Mad. 792 : 34 M.L.J. 494 Wallis, C.J. definitely says that the words,
'done or intended to be done under the provisions of this Act.
which are practically the same as,
done in pursuance or execution or intended execution of this Act,
are narrower than the words 'purporting to be done'. Sadasiva Ayyar, J., definitely stated that it confuses the mind to attempt to interpret the meaning of the words,
purporting to be done.
by reference to the English decisions which deal with such phrase as 'done in execution or intended execution of his office'. As the two learned Judges who decided Koti Reddi v. Subbiah I.L.R. (1918) 41 Mad. 792 : 34 M.L.J. 494 have been at pains to point out the distinction between the words they were interpreting and' words identical with or similar to the words which we have now to interpret, it is obvious that Koti Reddi v. Subbiah I.L.R. (1918) 41 Mad. 792 : 34 M.L.J. 494 can be no authority against the ruling to which we have been referred, in which Blackburn, J. says that it is impossible for any one to intend that which he knows he is not doing. The result is that in our opinion Section 350 cannot apply to the facts of the present case. No notice was therefore necessary and the suit cannot be dismissed on this ground.
5. The next point is whether this prosecution is malicious. The facts which we have already discussed,' we think, prove that the prosecution must in law be deemed to be malicious. What is the situation here? The situation reduced to its simplest terms is this, that the Chairman knew, that the appellant had committed no offence and that in spite of that knowledge he decided to prosecute him. His motive for doing so may have been not to gratify a personal spite but to promote what he thought the best interests of the Municipality. But the fact remains that he prosecuted a person who, he knew, was not guilty of any offence. That being the case, it seems to us clear that there cannot have been any reasonable or probable cause for the prosecution, and whatever his motive may have been, to have embarked upon a prosecution of this kind without reasonable or probable cause must amount to malice in law.
6. We therefore hold that on both the grounds the decree of the learned District Judge must be set aside and that the suit is competent and must succeed.
7. A final argument was addressed to us with regard to the quantum of damages. Rs. 200, as already stated, has been awarded as damages to the appellant. There is a finding that the actual expenses which he has incurred in defending himself from this prosecution amount to Rs. 100 and the learned Subordinate Judge has also given details to show what standing in life the appellant occupies. We think that in the circumstances the sum of Rs. 200 is the appropriate sum to be fixed for damages and we see no sufficient reason to interfere with it.
8. In the result this appeal is allowed with costs throughout and the decree of the learned Subordinate Judge is restored.