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Rama Aiyar Alias Ramasami Aiyar Vs. Govinda Pillai (Died) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1916)30MLJ180
AppellantRama Aiyar Alias Ramasami Aiyar
RespondentGovinda Pillai (Died) and ors.
Cases ReferredMohini Mohan Misser v. Surandra Narayan Singh I.L.R.
Excerpt:
- - the nature of this suit is clearly pointed out in grainger v......before judgment even though maliciously than he is for the action of the plaintiff in bringing a suit maliciously and without reasonable and probable cause on false allegations of fact. if the original suit is protected it seems to me clear that proceedings in the suit must be protected unless they constitute abuse of the process of the court. further even if there is a difference between the presenting of interlocutory applications and the bringing of a suit i am unable to see how the making of an application necessarily and naturally involves a damage. i cannot see how a man's credit naturally suffers more in the one case than in the other. the decisions as to bankruptcy and winding up are special cases arising out of the publication of the petitions. there is no such publication in.....
Judgment:

Napier, J.

1. This is an appeal from the Judgment of the District Judge of Tanjore, on Appeal from the Judgment of the District Munsif of Tiruvalur in a suit in which the plaintiff claimed damages from the defendant in respect of his action in applying for attachment before judgment and coming to attach his movables. The District Munsif gave judgment for the plaintiff, while the District Judge holding that there was in fact no attachment dismissed the suit on the ground that the taking out of notice gave no cause of action. It has been argued before us that this view is incorrect and that as the District Judge has found that there was no reasonable and proper cause for obtaining an order for attachment and that it was obtained maliciously, the plaintiff is entitled to recover damages in respect of that order. Great reliance has been placed on the decision of this Court in Nanjappa Chettiar v. Ganapathi Gowndan I.L.R. (1911) M. 598. That was, however, a case where the attachment had been made and is of no assistance to us in this question. It was argued that the procuring of the order was an abuse of the process of court and alternatively that, however it may be termed, a suit lies where the application is malicious and without reasonable or probable cause. The first point may be shortly disposed of Abuse of the process of Court does not mean an improper procuring of the process of Court but the applying of the process of Court in an improper manner and for improper purposes. The nature of this suit is clearly pointed out in Grainger v. Hill (1838) 4 Bing. N.C. 212. There, the defendants, being desirous to possess themselves of a ship's register, sued out a capias indorsed for bail in a certain sum and sent two Sheriffs officers with the writ to the plaintiff who was lying ill in bed. The defendant accompanied the Sheriff's officers and told the plaintiff that they had not really come to take him but to get the ship's register; but that if he did not hand over the ship's register or find bail, they must take him. The plaintiff, being unable to procure bail and being much alarmed, gave up the register. The Court held that this was an abuse of the process of Court. Bosanquet, J., puts the matter thus : 'This is not an action for malicious arrest or prosecution, or for maliciously doing that which the law allows to be done: The process was enforced for an ulterior purpose, to obtain property by duress to which the defeadants had no right. The action is not for maliciously putting process in force, but for maliciously abusing the process of Court.' And Tindal, C.J. says, 'the complaint of the plaintiff is that the process of the law has been abused, to effect an object not within the scope of the process.'

2. The other point is much more difficult. But a careful examination of the Judgment in Quartz Hill Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674, leads to the conclusion that the suit will not lie. The allegation is one of malicious civil prosecution and the circumstances under which such a suit will lie are exhaustively considered by the Court of Appeal in that case. The decision was that an action will lie for falsely and maliciously and without reasonable or probable cause presenting a petition under the Companies Acts to wind up a trading company even though no pecuniary loss or special damages be proved, for the presentation of the petition is from its very nature calculated to injure the credit of the company. Lord Justice Bowen in that case starts with this proposition that the bringing of an action although falsely and maliciously and without reasonable or probable cause will not support an action by the person so sued. The proposition to my mind disposes of the case for reasons which will appear later. He adopts the doctrine of Holt, C.J., in Savile v. Roberts (1698) LRR 374. There are three sorts of damage any one of which would be sufficient to support an action for malicious prosecution. Damage to a man's fame, damage to a man's person and damage to a man's property in that he is forced to expend his money in acquitting himself of the crime of which he is accused. The learned Lord Justice then goes on to point out that although an action does not give rise to an action for malicious prosecution, inasmuch as it does not necessarily or naturally involve damage, there are certain legal proceedings which do necessarily and naturally involve damage, and therefore do found an action, and he places under this head all ordinary indictments for ordinary offences. He then proceeds to consider what other proceedings necessarily involve damages and agrees with the decision in Johnson v. Emerson (1871) L.R. 6 Ex. C. 329, that the false and malicious presentation without reasonable and probable cause of a bankruptcy petition against a trader gave rise to an action for malicious prosecution. He then proceeds to consider the question arising in the suit whether a petition to wind up a company maliciously and wrongfully brought does necessarily involve damage just as in the case of a bankruptcy petition, or does not, in which latter case it would not justify an action for malicious prosecution. He then proceeds to consider the question arising in the suit whether a petition to wind up a company maliciously and wrongfully brought does necessarily involve damage just as in the case of a bankruptcy petition, or does not in which latter case it would not justify an action for malicious prosecution. He then states that as a petition to wind up a company cannot be presented without being advertised in the newspapers, it necessarily follows that the petition must strike a blow at the credit of the company and thereby necessarily involve damage and decides that the action will lie for the reason that special damage is involved in the very institution of the proceedings. Brett, M.R., gave judgment to the same effect. This has invariably been followed and has lately been reaffirmed by the Court of Appeal. In Wiffen v. Bailey and Ramford Urban District Council (1871) L.R. 6 Ex. C. 329. Lord Justice Buckley says 'But as was pointed out by Lord Justice Bowen in Quartz Hill Gold Mining Go. v. Eyre (1883) 11 Q.B.D. 674, it is in very few cages that an action for malicious prosecution will lie where the matter is one of civil proceedings. And the Court held that a complaint under the Public Health Act requiring a householder to abate a nuisance by stripping the paper off the walls, etc., was not a proceeding necessarily and naturally involving damage, and therefore a suit for damages for malicious prosecution did not lie. Reliance is placed on the decision of the Court of Appeal in Clissold v. Cratchley (1910) 2 K.B. 244. But there the Court based its Judgment on the fact that the allegations supported an action for trespass in that the Sheriff's officer levied an exaction on the plaintiff's goods at his farm. The case in Quartz Hill Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674, was never referred to and it is clear that no observation in this judgment could have been intended to throw doubt on {he earlier decision. In this view of the law how will this action lie? The bringing of this original action thus gives no cause of action however malicious, vide Mohini Mohan Misser v. Surandra Narayan Singh I.L.R. (1914) C. 550, where this doctrine is affirmed. An exception has been made ho this broad rule in cases of bankruptcy petitions and winding up petitions. But no case has been shown to us where the procuring of the process of Court in interlocutory proceedings has been held to found an action. And I am unable to see on what principle a man is more entitled to damages for the action of a plaintiff in a suit in applying for attachment before Judgment even though maliciously than he is for the action of the plaintiff in bringing a suit maliciously and without reasonable and probable cause on false allegations of fact. If the original suit is protected it seems to me clear that proceedings in the suit must be protected unless they constitute abuse of the process of the Court. Further even if there is a difference between the presenting of interlocutory applications and the bringing of a suit I am unable to see how the making of an application necessarily and naturally involves a damage. I cannot see how a man's credit naturally suffers more in the one case than in the other. The decisions as to bankruptcy and winding up are special cases arising out of the publication of the petitions. There is no such publication in an application for attachment. I cannot but think that it would be most ill advised to introduce the principle that applications of an interlocutory nature in a suit can found an action however malicious. An application for discovery may result in far more, damage i.e., damnum to a party to a suit than the action itself and for this reason, these applications are frequently taken to the Court of Appeal and have even resulted in settlement of the suit. But it has never been suggested that such an application however malicious, would found an action, I would therefore dismiss this appeal both on the ground that an interlocutory application in a suit does not of itself found an action and also on the ground that damage does not necessarily and naturally flow from such, an application. Appeal dismissed with costs.

Sadasiva Aiyar, J.

3. I agree.


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