Arnold White, C.J.
1. In this case I think the decree of the Subordinate Judge ought to be set aside and that of the District Munsif restored.
2. The issue in the case was correctly framed, but the Subordinate Judge does not seem to have appreciated the actual points which ha had to consider. In his judgment he reviews the facts and states (paragraph 11)--'In the state of things the complaint and prosecution by defendant must be presumed to have been made maliciously,' and he goes on in paragraph 12--'I accordingly find the issue for the appellants.' If he had simply found the issue for the plaintiff, his finding would have been one of fact and could not have been questioned on second appeal. See the judgment of the Privy Council, dated July 21st, 1900, in the case of Mody v. Queen Insurance Co. I.L.R. 25 Bom. 332 where it is pointed out that the question of reasonable and probable cause, when the case is tried without a jury, is a question of fact to be determined by one and the same person. But reading paragraphs 11 and 12 of the judgment together, it seems to me that the Subordinate Judge presumed malice from the fact that the conviction of the accused was ultimately quashed by this Court. Having presumed malice, the learned Judge 'accordingly' finds the issue for the plaintiff, Now, the absence of probable cause does not imply malice in law. See Mitchell v. Jenkins 5 B. & Ad. 588 and the judgment of this Court (which is based on Lord Bowen's judgment in Abrath v. North-Eastern Railway Co. L.R. 11 Q.B.D. 440, in the case of Hall v. Venkatakrishna I.L.R. 13 Mad. 394 In my judgment the learned Judge erred in law in dealing with the question of the want of reasonable and probable causa.
3. In order to succeed the plaintiff must show affirmatively that the defendant acted without reasonable and probable cause. The District Munsif found that the defendant had sufficient and reasonable cause to prefer the complaint. It was not necessary for him to find this, but of course it involves the finding that the plaintiff had Dot shown that the defendant had not reasonable and probable cause. On the evidence it seems to me that the plaintiff failed to show affirmatively an absence of reasonable and probable cause on the part of the defendant, and I think his suit was rightly dismissed.
4. I think this appeal should be allowed with costs in both Courts.
5. The appellant is the defendant in an action for malicious prosecution in which the District Munsif dismissed the plaintiff's action, holding that the defendant had reasonable and probable cause for the complaint he brought against the plaintiff, but on appeal the Subordinate Judge reversed his decree and gave judgment for the plaintiff with damages Rs. 100. From this decision the defendant brings this second appeal. If the Subordinate Judge had found the issue as he stated it in the commencement of his judgment in favour of the plaintiff, there would be no question for this Court to deal with, as the question was one of fact alone when determined by one person sitting alone and acting both as Judge of the law and of the facts--see Mody v. Queen Insurance Co. I.L.R. 25 Bom. 332. This course, however, the Subordinate Judge has not taken, and it is owing to the way in which he has expressed himself in his judgment that any difficulty arises in the case. The plaintiff was in June 1893 charged by the defendant with trespass, rioting, assault and mischief. He was convicted, and upon appeal the conviction was affirmed. Afterwards a criminal revision petition was put in the High Court, and in September 1894 the High Court set aside the conviction.
6. It was argued before us that inasmuch as the order of the High Court setting aside the conviction had omitted to mention one of the sections under which the accused had been convicted, it must be taken that the conviction under that section still remained in force against him and therefore this action did not lie. I am of opinion that the omission was a mere clerical error, and does not affect the case; for the High Court order concludes as follows: 'The conviction of the petitioners and the sentences passed on 'them are quashed and the fines, if levied, will be refunded.' It is obvious from this that it was intended that all the convictions under each and every section under which the petitioners had been convicted should be set aside.
7. The District Munsif found that there was reasonable and probable cause on the facts for the prosecution. In this finding he went further than was necessary, but on appeal to the Subordinate Judge the decree is reversed, In his judgment at the outset the Subordinate Judge states the question to be determined correctly, viz., 'Was the criminal case instituted maliciously and without '' reasonable and probable cause?' But as far as I can judge from his judgment, his answer to this question is arrived at by a process of reasoning which is not legal or logical. He first considers a question of fact as to whether or not part of the charge made by the defendant against the plaintiff was true, and comes to the conclusion that it was not. Ha than proceeds to consider whether or not the previous conclusions arrived at on the trial of the criminal charge against the plaintiff are to be considered, but arrives at no conclusion, so far as I can see, as to the original conviction and its affirmation on appeal, though he does determine that the judgment of the High Court should be considered, and says, as I understand him, as that decision is in favour of the plaintiff, 'the prosecution by the defendant must be presumed to have been made maliciously,' and proceeds as follows: 'I accordingly find that issue for the appellants and against the respondent, and hold that, the latter prosecuted the former falsely, maliciously and without reasonable and probable cause.' If as ha says, he finds this because he finds malice, and has found malice because the decision of the High Court was against the defendant and in favour of the plaintiff, he was not legally justified in doing so and his decree should be set aside. It is suggested that what he means is that he has come to this conclusion on the facts, but if so, he certainly does not say so, and the words 'I accordingly find,' &c.;, would not have been written where they appear. Moreover, he has not considered all the facts or the charges. He has merely considered those relative to the charge of mischief, and has not considered the question of trespass, assault or rioting, and it seams to me that he cannot be considered to have come to the conclusion to reverse the decree of the District Munsif upon facts which he has not referred to in his judgment. I think he has, in the course of his judgment, failed to keep before his mind's eye the legal position of the parties. He has inferred malice from the fact that the High Court reversed the conviction, and has assumed want of reasonable and probable cause because he has found malice.
8. I would reverse his decree and restore that of the District Munsif with costs in this and in the lower Appellate Court. I am of opinion the plaintiff has not shown 'want of reasonable' and probable cause for the prosecution of the defendant.'