1. This is an application for compensation.
2. The facts are: C. S. No. 499 of 1949 was filed by V. Srinivasa Raghavan residing at No. 29, Gangadareswarar Koil Street, Purasawalkam, Madras, against his brother V. Sundararajan, residing at No. 8, Lawders Gate Road, Vepery, Madras. The litigants arc brothers. The plaintiff Srinivasa Raghavan is one of the Auctioneers of the Madras High Court since 1927 and of the High-Court of Bombay, Mysore, Travancore and Cochin for several years, to the Government of India, as Auctioneers to the Collector of Customs and to the Government of Madras, Madhya Bharat, Cooch Behar and Hyderabad in addition to the Central Bank of India, Bank of Mysore, Nedungadi Bank, Palai Central Bank and United Bank of India, Calcutta and Habeeb Bank Ltd., Bombay and several Insurance Companies of Bombay. The defendant is an advocate of this Court, Mysore Court, and the Supreme Court.
3. This suit C. S. 499 of 1949 was filed for taking of an account of the properties forming the subject-matter of the trust under a deed dated 3-8-1917 and becoming subsequently available for partition; discharging the defendant from his office as trustee and directing him to render an account of the income from the trust estate and disbursements thereout during the period of his management as trustee of the said estate from August 1935 to 28-4-1949, the date of death of V. Rajalakshmi Animal, and as co-owner from 28-4-1949 till division is effected and possession of his half share is delivered to the plaintiff and for other ancillary reliefs.
One of the points which was the subject-matter of this controversy was in what proportion the parties should share the moneys borrowed under the mortgage for Rs. 5,600 executed in favour of George Town Co-operative Society in June 1948.
4. There cannot be the slightest dispute that both these gentlemen with much spare time in their hands and a marked inclination for vindictively and cantankerously pursuing the controversy were inundating this Court with a varied assortment of interlocutory applications.
5. One of these matters, concerning which the defendant obtained two interim injunction orders and which applications were subsequently dismissed, related to 80 A Class shares of the value of Rs. 800/- in the George Town Co-operative Society Limited.
6. The dispute regarding these 80 shares between the brothers is that the plaintiff, Srini-vasa Raghavan claims that the 80 shares were obtained by him with his own monies and that these shares are registered in his name in the books -of the company and that no other person has or can have any right in the said shares. On the other hand V. Sundararajan claims that these 80 shares were subscribed from the joint assets of the family.
7. It is in these circumstances that Application No. 4260 of 1952 was filed by the defendant, Sundararajan for the issue of an injunction restraining Srinivasa Raghavan from withdrawing the value of the said shares from the George Town Co-operative Society, Madras and also for a direction that the said society be ordered to deposit Rs, 593-4-0 being the value of the shares into Court. To this application the Co-operative Society was also made a party. An ad interim injunction order was passed on the definite allegation that Srinivasa Raghavan was attempting to withdraw the value of the 80 shares from the Society.
The Secretary of the said Co-operative Society filed a counter-affidavit denying the allegation that Srinivasa Ragjiavan had applied for the withdrawal of the value of 80 shares. On the other hand it was stated that the defendant had applied to the Society for payment to him of the value of the said shares which admittedly stood in the name of Srinivasa Raghavan, and that the Society refused to comply with the request of the defendant as it could not do so obviously because the shares were registered in the name of Srinivasa Raghavan. In addition the rules of the Society do not allow a shareholder to withdraw the snare amount unless sufficient notice is given.
This application was heard by Panchapakesa Ayyar J. who dismissed it on 30-10-1952 but at the same time the learned Judge gave a temporary injunction to the defendant directing him that he might if so advised take separate proceedings to establish his rights if any to the shares & if necessary to obtain appropriate continuation orders. The defendant did not take any steps in terms of the said order dated 30-10-1952. Then after considerable delay and without notice to Srinivasa Raghavan, Sundararajan filed a similar application, before Ramaswami Goundar J. wherein it was alleged that the notice of the said application was sought to be served on the Advocate of Mr. Srinivasa Raghavan but that he refused to receive it.
But the fact appears to be that the advocate was ill and was confined to his residence. Ramaswami Goundar J. gave another ad interim injunction against Srinivasa Raghavan and the Co-operative Society in Application No. 754/53. The application was finally heard on 27-2-53, and was dismissed by Ramaswami Goundar J. holding that there were no grounds for granting an injunction.
8. The contention of Srinivasa Raghavan is that these temporary injunctions were obtained on insufficient grounds and preferred out of malice, and that by reason thereof he has sustained an injury and therefore he asks for compensation of Rs. 1000/-.
9. The short points that arise for determination are two-fold namely whether this application for an injunction was applied for on insufficient grounds and secondly whether Srinivasa Raghavan had sustained an injury and if so to what extent is he entitled to be compensated.
10. As regards point No. 1 the question as to the applicability of the provisions of Section 95, Civil P. C. to suits entertained by Chartered High Courts on their Original Side had arisen in the Bombay High Court and the view expressed in --'Haji Abdul Rehman v. Munjibhai Khatao and Co : AIR1926Bom523 is that Section 95, Civil P. C. does not apply to suits under the ordinary original civil jurisdiction of the High Court by virtue of Rule 329 and therefore the amount of compensation to be awarded for wrongful attachment before judgment is not limited to Rs. 1000/-. A different view was taken in an earlier decision in -- 'Magoomal Jethanand v. Hamid', 10 Bom LR 1002 (B).
This question does not arise here because the Original Side Rules of the Madras High Court do not contain similar provisions; where the original side rules are silent on this matter the provisions of the Code of Civil Procedure will apply with necessary changes. Section 95. however, does not apply where the amount claimed exceeds Rs. 1000. -- 'Kunhi Moidin v. Kunhi Koman Nair AIR 1933 Mad 691 (C).
11. Section 95, Civil P. C. is analogous to Section 250, Criminal P. C. which provides for compensation being awarded to an accused person against whom frivolous or vexatious complaint has been made. Vide the decision in -- 'Ramahari Patro v. Govinda Rona', AIR 1935 Mad 886 (D). But the difference between the two sections is that while the award of compensation under Section 250, Criminal P. C. is no bar to the filing of a suit for compensation the determination on an application for compensation under Section 95, Civil P. C. precludes a separate suit being filed for compensation. Vide -- 'Satyanarayana v. Anjareddi AIR 1941 Mad 719 (E).
12. The grant of compensation under this section is a matter of discretion and this discretion has to be exercised in a judicial manner. Where the Court gives no reasons for refusing the application under this section the order is not one according to law. Vide -- 'Har Dayal v. Raghubar Dayal (F).
13. The section authorises award of compensation to the defendant for the 'expense or injury' caused to him. There is a conflict of decisions as to whether humiliation and loss of prestige can be included in the term injury. The Calcutta High Court has held that such humiliation and loss of prestige cannot be included in the term injury and that no compensation can be awarded under this section on such grounds. Vide -- 'Chandulal Seraoji v. Puma Chandra Pal', 164 Ind Cas 73 (G) while a contrary view has been held by the Madras High Court. In --'Palanisami Goundar v. Kaliappa Goundar AIR 1940 Mad 77 (H) it has been held that special damage is not necessary and that general damage is enough.
In -- 'Subraya Davay v. Venkatarama Aiyar', AIR 1917 Mad 885 (I) the words 'expense and injury' were construed as not being confined only to some tangible injury that can he measured directly in money but that they include also general damages for injury to reputation or humiliation caused. In -- 'Arumugam Pillai v. A. Kadir Mohi-deen,' AIR 1926 Bom 962 (J) it was held that where in an action for damages for arrest before judgment on insufficient grounds no evidence as to damages suffered is given, the Court should award general damages. The decision in 'Subraya Davay v. Venkatarama Aiyar (I)' was relied on. In -- 'Kumarasami Pillai v. Udayar Nadan', 32 Mad 170. (K) which was a suit for damages, it was held that general damages for loss of credit and reputation can be awarded.
14. Applying these principles we find that the applicant has affirmatively proved as he is hound to do that the order of interim injunction was obtained on insufficient grounds i.e., want of reasonable and probable cause: -- 'Nanjappa Chet-tiar v. Ganapathi Gounden', 21 Mad LJ 1052 (L). The share ia the Co-operative Society admittedly stand registered in the books of the society in the name of Srinivasa Raghavan and he has never applied for withdrawal of the value of the shares. On the other hand it was the defendant who had attempted to do so and failed.
In addition, this Sundararajan as an advocate must have been aware that the society would not allow a shareholder to withdraw the value of the shares without sufficient notice being given to them as provided for by the byelaws of the society. It also stands to commonsense that Srinivasa Raghavan would not think of cashing the shares of the value of Rs. 800/- when they were paying a handsome dividend of Rs. 193/- per annum. Nor could Sundararajan legitimately feel apprehension that by cashing of these shares worth Rs. 50,000 his brother would render the decree that might be obtained by him fruitless.
Therefore the allegation in the first instance on the foot of which the temporary injunction was obtained, that Srinivasa Raghavan was attempting to withdraw the value of the shares, was an unmitigated piece of incorrectness and that was the reason why a conditional order was passed by Panchapakesa Ayyar J. This Sundararajan did not avail himself of the alternative remedy given to him by the learned Judge.
After this he has again without service of notice on Srinivasa Raghavan and on incorrect representation regarding the refusal of notice by his advocate obtained an interim order of injunction from Ramaswami Goundar J. and when this came up for being made absolute it was dismissed. Therefore there cannot be the slightest doubt that in both the instances temporary injunctions were obtained in insufficient grounds.
15. Turning to the injury caused on account of getting such interim injunctions the line of decisions shows that general damages may he awarded in cases where an order of injunction is obtained on insufficient grounds and there is damage to the credit and reputation of the party against whom the order had been obtained. In such cases it is not necessary to prove special damages. It is enough if general damage is proved such as mental pain, general loss of reputation, etc. Damage to prestige and humiliation suffered do amount to injury.
Malice even can he properly inferred on proof that there were no sufficient grounds for an application for temporary injunction and it can be held that plaintiff lifts sustained substantial injury. The only requirement is that these must be the proximate result of the order of temporary injunction. See also -- 'Manohar Lal v. Gobardhan Prasad', 9 Ind Cas 60 (M); -- 'Kedarnalh Tulsidas v. Beharilal Jagmal : AIR1926Mad962 ; -- 'L. Evans v. Arthur Minck', AIR 1922 Lah 303 (O); -- 'Gyan Prakash v. Kishori Lal AIR 1942 All 261 (P); 164 Ind Cas 73 (G).
16. It cannot be doubted that in the present case the order was obtained on insufficient grounds and it was humiliating to a man in the position of Srinivasa Raghavan and this must have caused damage to his prestige in the corridors of the High Court and around where his prestige has to be maintained unimpaired if he is to get along as an auctioneer. Can it be doubted that on the principle 'Physician heal thyself' this auctioneer will not be employed by other persons if his own affairs are found to be in such a perilous condition as disclosed by the order of interim injunction against him.
Obviously these petitions have been filed by Sundararajan on account of malice which is patent on the face of every proceeding in this litigation. The two brothers undoubtedly hate each other like poison and would like to leave no stone unturned to ruin each other.
17. The two points urged against granting compensation are that as the preliminary decree has been passed directing the Official Referee to enquire into the ownership of the shares this application is not tenable and secondly that as the plaintiff himself has admitted that he was not entitled to immediate payment of the value of the shares the defendant has not suffered any loss or damage on account of the passing of the interim order of injunction and that no material loss has been proved or alleged.
The point to be considered is not about the ultimate ownership pf the shares but whether on sufficient or insufficient grounds the plaintiff had obtained an order of interim injunction and whether the definite allegation made by him that Srinivasa Raghavan is trying to withdraw the value of 80 shares in order to defraud and make it an unavailable asset to the defendant is true or not. It has been shown that the allegation on the foot of which the interim order of injunction was obtained is demonstrably false.
Coming to the award of damages I have already discussed and shown how general damages can be awarded on account of injury to prestige and humiliation and how special damage need not be proved and that in the instant case mental pain, general loss of reputation, etc., had been proved. Therefore the two contentions raised on behalf of the respondent must stand rejected.
18. In the result I hold that the applicant, Srinivasa Raghavan has made out his case that he is entitled to compensation for the injury caused to him by Sundararajan obtaining an order of interim injunction against him on insufficient grounds. The amount of compensation to be awarded is fixed by me at Rs. 250/- taking into consideration all the circumstances of the case. This application is allowed to the extent indicated with costs.