1. This was a suit brought by an Archaka against the Moktessors of a certain temple for damages. The allegation was that the Moktessors had failed in the first place to pay the Archaka for services which he duly performed and the second head of the damages was, to' quote the words of the learned Judge's judgment,--'Damages for loss sustained! owing to the non performance of ceremonies, the allegation being that certain ceremonies which were usual and customary' and which ought to be performed by the Moktessors, or rather, I should say, orders were not given by the Moktessors for their, carrying out and the Archaka's case is that, owing to that donations and gifts which would have come to him from the worshippers if the ceremonies had been performed, had not come to him and there was a loss to him in this respect and in respect of that the claims damages to the extent of Rs. 300.'
2. That is the description of the nature of the claim which is given by the learned Judge in his judgment and which was given to us by the plaintiff's Counsel on stating the grounds of appeal. With regard to the first part of the claim, it is not disputed. For such services as the plaintiff has actually performed he is entitled to be remunerated and that part of the judgment is not contested. With regard to the second part of the claim, the discussion in the lower Court mainly ranged over the subject: Are the Moktessors as such and thus the temple funds liable to the plaintiff or is the 3rd defendant, who was the leading spirit and was alleged to have been actuated by malice towards the plaintiff, liable in his own person for these damages? What the learned Judge did is this. He appears to have taken it for granted that if a claim of this nature were framed against the 1st and 3rd defendants, they would be liable, but he says that the claim is only framed as against the trustees or the Moktessors as such. He did not allow the amendment and decided against the plaintiff on that ground. We think that, if that had been the true state of affairs, the learned Judge wrongly exercised his discretion and that, if he had been satisfied that the plaintiff had a good claim in law against the 3rd defendant personally, he ought to have allowed that amendment of the plaint because the 3rd defendant has not in any way been prejudiced in his defence to the claim against himself, for the general evidence was bound to be exactly the same and the special issue of malice on which the claim against him in his private capacity would have been based was gone into at the trial. But the plaintiff on second appeal here can only succeed, as he could only succeed in the lower Court, by an amendment of this nature. Thereupon Mr. Lakshmana Bow for the defence takes a point that, even if the claim were amended to as to raise the issue, the plaintiff could not recover any damages, for this reason that malice by itself gives no cause of action unless there is an infringment of a legal right. However malicious your actions may be, if they are such as the law permits, yon do not, by mere reason of the malice, acquire a cause of action. This is laid down in a number of cases of which we need only refer to the case of Corporation of Bradford v. Pickles (1894) 3 Ch. 53. Therefore, the plaintiff can only succeed if he shows that the defendants were guilty of the breach of some duty which they owed to him or infringed some rights vested in him. What did the defendants do? They abstained from performing the usual services in the temple. They certainly owe a duty to perform these services. The question is, to whom did they owe this duty? They owed the duty to the worshippers as a body who are entitled to have the Moktessors perform their proper duties. It seems to us quite impossible to suppose that the Moktessors owed that duty to the Archaka. The Archaka is to get what may be offered by the generous public when these things are done. If the public do not choose to give anything, he gets nothing even if the services are performed; so that, in any case, the measure of damages would be very difficult to ascertain. But apart from that we hold that there is no duty owed to the Archaka by the Moktessors to perform these ceremonies. That being so, however maliciously and designedly to injure the plaintiff the defendants acted, he has no cause of action. Not dissimilar case arose in the case of Dhadphale v. Gurav 3 Ind. Dec. 539 where on much the same ground, namely, that the person sued owed no duty to the person suing, whatever his duties might be towards the deity or the public, the suit was dismissed. For the same reason this appeal must be dismissed with costs.