1. The appellants were defendants in a suit for damages for malicious prosecution arising out of an application which they preferred to the Magistrate against the plaintiffs and others praying the Magistrate to take proceedings under Section 144 of the Criminal Procedure Code.
2. The trouble arose out of a dispute between two sections of Sengundars with reference to the conduct of a festival managed by their community in the village temple. The appellants belong to the minority faction, which, owing to dissensions, had refused to pay its subscriptions to the funds out of which the festival is financed. As a consequence of this refusal, the majority faction, represented by the plaintiffs in this case, refused to allow the appellants' party certain privileges at the festival. The one with which we are now concerned was the privilege of making an offering known as Deeparadhana before the God, and having it returned intact after it had been offered. Although the appellants asserted before the Magistrate that their offerings had been refused, the whole grievance appears to have been that they were not allowed to get back their offerings intact as they thought they should be allowed. The complaint to the Magistrate, Ex. VI, describes the history of the quarrel, states that the respondents were preventing the petitioners from participating in the Deeparadhana as per mamool and that the continuance of the festival in view of this dispute is likely to involve serious breach of the peace; the petitioners therefore pray the Magistrate either to direct the majority faction and the Gurukkal to give the petitioners the customary facilities for Deeparadhana, or to prevent the conduct of the festival in the absence of such facilities. The Magistrate apparently went to the village on the same day; the respondents to the petition asked time to file their objections; consequently, on that same day, an order was issued (Ex. E) temporarily prohibiting the festival. On the 10th, that is to say, three days later, both parties presented an adjournment petition with a view to compromise. On the 13th, the Magistrate passed orders referring to the admissions regarding the customary levy of contributions, stating that though the respondents might not be justified in enforcing the payment by refusing Deeparadhana, there was no necessity to prevent the conduct of the rest of the festival in view of the undertaking of the respondents that it should be peaceful and of the arrangements made for a police guard. After this order the festival was concluded.
3. There were two other suits filed by the appellants, one relating to their rights in the Kappukattu ceremony with which we are not now concerned and the other relating to the rights in the Deeparadhana ceremony. The appellants succeeded in all the suits in the trial Court and in all the suits failed before the lower appellate Court. I have passed orders dismissing the second appeals from the decisions in the two connected suits mainly on the ground that they relate to matters of ritual outside the jurisdiction of the Civil Court.
4. In the present second appeal, various contentions have been raised; firstly, it has been contended that there was no prosecution properly speaking and therefore that no suit for damages for malicious prosecution can lie. Now, with reference to this contention, it cannot, I think, be denied that a suit for damages for malicious prosecution can be based on the institution of proceedings under Section 144 of the Criminal Procedure Code, provided that the necessary facts are established. So much has been laid down by this Court in Appala Narasimhulu v. Mahant Hari Narayana Das Bavaji (1900) 11 M.L.J. 122 and it seeme to me that the view taken by the Bench which decided that case is one which necessarily follows from the principles upon which the action for malicious prosecution is based. These have been succinctly-stated in the case of Wiffen v. Bailey (1915) 1 K.B. 600 wherein it is laid down that an action for malicious prosecution can be supported by any one of three sorts of damage: - firstly, damage to a man's fame, as if the matter whereof he is accused be scandalous; secondly, damage to his person, as where a man is put in danger to lose his life, limb or liberty; thirdly, damage to his property, as where he is forced to expend money in necessary charges to acquit himself of the crime of which he is accused. Buckley, L.J., goes on to point out that an action for malicious prosecution may lie where the proceedings are civil and not criminal, though in the ordinary civil action, any damage which the defendants may have suffered by reason of the proceedings is normally compensated by the award of costs, so that there is nothing left to justify a separate action. The point to note, however, is that the action for malicious prosecution does not depend on the institution of a prosecution in the narrowest sense of the term. The basis of the action is the malicious and unjustified institution of unsuccessful proceedings in a court which have resulted in damage to the good name, the person or the property of the individual prosecuted. The fact that an action of this kind lies as a result of proceedings by way of civil injunction or attachment of a temporary nature which could not have been compensated by the award of costs in the suit, is recognised by the provisions of Section 95, Criminal Procedure Code. The institution of proceedings under Section 144, Criminal Procedure Code, may be at the instance of a party to the quarrel which is likely to lead to a breach of peace; it may be at the instance of some disinterested person; or as, in the great majority of cases, it may be at the instance of the Police or as a result of action suo motu by the Magistrate. I take it that the action for malicious prosecution as a result of such proceedings would normally be brought only in the case of proceedings brought at the instance of a party to the quarrel, though that need not necessarily be the only ground for such an action. Again, it must be remembered that orders under Section 144 of the Criminal Procedure Code vary widely in their scope and effect. They may have the most drastic effect in curtailing the liberties of individual or communities or they may restrict for a considerable period the use by a man of his private property. On the other hand, in a great number of cases, their effect is merely to control the route of processions, restrict slightly the hours in which property shall be enjoyed in a particular way and generally to cause the minimum of interference with private rights in the interests of the public peace. The point is that it should not be thought that any unwarranted attempt to secure a Magistrate's order under Section 144, Criminal Procedure Code, will justify a suit for malicious prosecution. There must, in order to sustain such a suit, be proof that the defendants moved the Magistrate to take proceedings and that proceedings were taken. It must be shown that the final termination was in favour of the plaintiff. The plaintiff must prove that the institution of the proceedings was malicious and that it was without reasonable and probable cause. Further, it must, I think, in all such cases be proved that there was legal damage suffered as a consequence of the institution of these proceedings. In ordinary criminal prosecutions, the damage will be inferred from the very fact of an accusation of a crime involving moral turpitude and necessarily damnifying the good name of the accused. But when we are dealing with quasi civil proceedings such as those under Section 144, Criminal Procedure Code, in order to establish the essential fact of damage, it is not sufficient merely to prove that there was a petition in which an allegation was made of a danger to the public peace by the withholding of a private right.
5. In the present case, it has been established that the appellants did institute magisterial proceedings as a result of which the festival was stopped for a period of some days. It is also established that the result of these proceedings was the vacation of the temporary order and the decision of the magistrate that there was no danger of a breach of the peace which would justify the continuance of the prohibition of the holding of the festival. There was no finding by the Magistrate that the complaint preferred by the petitioners of refusal of the Deeparadhana facilities to them was unfounded. But it must be held that the proceedings initiated by the appellants terminated in favour of the plaintiffs. Both the courts below have held that the plaintiffs suffered damages as a result of those proceedings, the damages consisting of the legal expenses which they incurred, the cost of the Samprokshana ceremony necessitated by the stoppage of the festival and the deterioration of the provisions which had been made ready for the rest of the festival. The trial Court, although it found in the connected suit that the refusal of the Deeparadhana facilities was unjustified, did not go into the question of reasonable and probable cause, but held that there was no prosecution and that any damage that was sustained was sustained by the plaintiffs owing to their own delay in putting forward their case to the Magistrate. The lower appellate Court finds, to my mind correctly, that the institution of proceedings before the Magistrate under Section 144 may be sufficient ground for a suit for damages for malicious prosecution. On the question of absence of reasonable and probable cause, the learned Subordinate Judge comes to the conclusion that because he himself has decided that the appellants' case with reference to their rights to Deeparadhana was unsustainable they cannot have had reasonable and probable cause for presenting the petition to the Magistrate, He also comes to the conclusion that the only witness for the appellants had not given any very satisfactory reason for apprehending a breach of the peace on the 8th day of the festival, when the previous seven days had gone on without trouble; and he concludes that the conduct of the appellants in, applying to the Magistrate was apparently to wreak their vengeance against the other side for successfully carrying on the festival. Now it is established that though the basis for a finding of absence of reasonable and probable cause and the, presence of malice consists in matters of fact, the inference that should be drawn from the proved facts, and the question whether these facts are sufficient to establish the absence of reasonable and probable cause and the presence of malice, are matters of law upon which interference in second appeal is permissible - vide Herniman v. Smith (1938) A.C. 305 and Nagendra Nath Ray v. Basanta Das Bairagya I.L.R.(1929) 57 Cal. 25.
6. I must say that the decision of the lower appellate Court on this question is not particularly satisfactory. The learned Subordinate Judge seems to have overlooked the fact that the burden of proof lay upon the plaintiffs in this matter. The plaintiffs had to show not only that the petition was malicious but that the petitioners had no reasonable and probable cause for bringing it. And to show this, it was necessary not merely to point to the eventual failure of the petitioners to establish the civil right which they claimed; there should also be some indication that they did not believe that they had this civil right for which they were contending. The question which the learned Subordinate Judge decided in favour of the majority party was not one entirely free from difficulty. The trial court took a different view from that which the learned Subordinate Judge has taken and the decision in the second appeal was not so much on the merits of the claim of the minority party, as on the power of the Civil Courts to adjudicate upon it. It is indisputable that the rights which the appellants were claiming in this festival were rights which they had been exercising for a long period in the past. Those rights had been denied to them solely on the ground that they had failed to pay certain customary contributions to the funds out of which the festival was financed; and it was certainly a very arguable question, granting that there had been a default in the payment of contributions, whether the majority faction was justified in enforcing payments of contributions by refusing the usual facilities to the dissenting faction to take part in this religious festival. The argument put forward in this connection was that the payment of contributions should have been enforced by the usual machinery of caste discipline and not by the withholding of religious privileges. I do not propose to say whether this argument is a correct one or not; but it is, at any rate, an argument which cannot be dismissed as frivolous. Surely therefore, the appellants in demanding the privilege which had been accorded to them in the past without question and had been refused to them on account of the default in the matter of payment of subscriptions, when it is not clearly established, that the denial of the privilege was the customary way of enforcing liability for subscriptions, cannot be said to have manifestly acted without reasonable and probable cause in asserting their rights before the Magistrate. Whether they were acting without reasonable and probable cause in saying that a breach of the peace was likely as a result of the withholding of those rights is a more debateable question. But at any rate, feelings must have been somewhat strained at the time and it is noticeable that the Magistrate, though he cancelled the order stopping the processions, did so on an undertaking by the majority party that they should keep the peace, at the same time providing for police facilities to see that this undertaking was carried out. In these circumstances I do not think, that it can be said to have been proved positively that the appellants had no reason to apprehend a danger of a breach of the peace owing to the refusal of the Deeparadhana facilities to their party. On the question of malice, the learned Subordinate Judge conjectures that the minority party were trying to wreak their vengeance for a successful conduct of the festival. There appears to be little or no basis in the evidence for this conclusion. The only witness who speaks to malice had to be asked the same question three times before he could remember the answer which was expected of him. I am therefore of opinion that the facts established did not justify the inference of absence of reasonable and probable cause or the presence of malice as the motive for a petition to the Magistrate. It seems to me quite probable on the facts established that the appellants honestly believed in the justice of their claim and honestly thought that the denial of these alleged rights might lead to a disturbance of the peace.
7. There is a further question which has been argued and that is with reference to the frame of the suit in which the two plaintiffs - one of them being a trustee of the temple - claimed to represent the seventeen persons who were impleaded as respondents in the petition to the Magistrate. No application under Order 1, Rule 8, Civil Procedure Code, appears to have been filed. The case proceeded throughout as if the plaintiffs on the record could bring an action for the damages suffered collectively by the party to which they belonged. Objections to the frame of the action was taken in the written statement and though the proper issue was not framed, the Court framed an issue regarding misjoinder which had no point unless it was a some what unsuccessful attempt to put in issue the question of the frame of the suit in its semi-representative character. It is, I think, well established that a representative suit does not lie for damages in tort, though when a representative suit properly framed for other reliefs incidentally involves a claim for damages put forward by certain individuals among the plaintiffs, such a claim has been permitted to be urged as ancillary to the main suit - vide Kumaravelu Chettiar v. Ramaswami Aiyar and Katha Pillai v. Kanakasundaram Pillai (1918) 8 L.W. 160 It is true that the present suit has not been filed with the formalities prescribed for representative actions. But the plaint quite clearly sets forth the representative character of the suit and the damages for which the suit is filed, are damages which, to a considerable extent, are common to the faction and not peculiar to the two plaintiffs. It is argued for the respondents that the two plaintiffs may be entitled to such damages as can be lawfully ascribed to them personally. It seems to me that this is not the correct way in which the suit should have been framed; but if I had been disposed to hold that the plaintiffs deserved to succeed on the merits, I should have remanded the suit for a fresh finding on the question of the damages which affect personally the plaintiffs themselves.
8. In the view which I have taken on the main question, however, this is unnecessary. The appeal is allowed and the suit is dismissed with costs throughout.
9. Leave to appeal refused.