1. The appellant, who was the principal defendant in the first Court, appeals against a decree of the lower Appellate Court, reversing a judgment in his favour passed by the first Court.
2. The respondent, who was the plaintiff in the first Court, and states herself to be a pardanashin woman, has sued the appellant and another defendant, who is a Court-peon, to recover compensation for causing her to be arrested in execution of an ex parte decree which the appellant had obtained against her in the Court of the Munsif of Shahazadpur.
3. The suit in which the ex parte decree had been pronounced was brought by the appellant to recover from the respondent Its. 200, alleged to be lent to her for the marriage expenses of her son, and was based upon a 'roka' alleged to be executed by her. In the plaint in the present suit she charges that the ex parte decree was obtained by the appellant secretly and collusively, and without the service of a summons upon her; that the decree was subsequently set aside at her instance; and that on a new trial the first Court dismissed the appellant's suit pronouncing the roka to be false, and that the Appellate Court confirmed the decision.
4. This suit is one of an unusual character, and I had some doubts at first whether, under any circumstances, such a suit would lie. But having examined the authorities, and amongst them Wren v. Weild (38 L.J., Q.B., 327) and the cases there cited, I think that such a suit is maintainable, but only under special circumstances. The plaintiff must, in order to succeed, show---first, that the original civil action out of which the alleged injury arose has been decided in her favour; secondly, that the appellant maliciously and without reasonable and probable cause procured the respondent to be arrested; and thirdly, that the injury or damage which she has sustained was something other than that which has or might have been compensated for by an award of the costs of suit; that in fact she has suffered what Lord Holt calls in Savile v. Roberts (1 Ld. Raymond, 874)---'some collateral wrong'.
5. In the present case the respondent has satisfied the first requisite by showing that the ex parte decree was set aside, and that a new trial was had which resulted in the dismissal of the appellant's action and which dismissal was upheld on appeal. We also think that the damage alleged and proved--viz., the arrest of the respondent--was a collateral wrong, and of such a nature as satisfies the third requisite. But as regards the remaining requisite, we are of opinion that the lower Appellate Court had no ground for holding that the appellant maliciously and without reasonable or probable cause procured the respondent to be arrested.
6. The greater part of the judgment consists of a statement of the allegations and arguments of the respective litigants. The reasons for the decision are to be found in the last paragraph, and are in these words: 'With regard to the enmities between the parties, there can be no doubt of that, and the findings of the two Courts in the roka suit go far to indicate malice on the part of the respondent (the now appellant). Though there is no clear evidence as to the extent, of the appellant's (i.e., now respondent's) means, it seems plain that she is possessed of some property. Respondent then was not justified in immediately arresting her, even after a fairly contested suit, and that he did so in this instance quite without reasonable and probable cause I am satisfied'. The judgment thus proceeds upon two grounds:First, that malice existed between the parties; and secondly, that as the respondent had some property, the appellant was not justified in arresting her. As regards the latter ground, the possession of property by the judgment-debtor does not make it wrongful in the creditor to arrest his debtor in execution of a decree. Section 201 of Act VIII of 1859, the Code in force at the time of arrest, gives an option to the creditor of enforcing the decree either against the person or the property of the debtor, and the fact that the decree is an ex parte decree makes no difference. As regards the former ground, it has been long ago, and over find over again, ruled, that in suits like the present one, where the plaintiff must show an absence of probable cause, that malice alone is not sufficient to entitle the plaintiff to a verdict. Amongst the numerous authorities on this point, I may refer to Willans v. Taytor (6 Bingham, 186): if a person has a reasonable and probable cause for asserting a legal right, he cannot be sued for setting the law in motion to enforce that right, however vindictive may be his feelings against his adversary. The Court, therefore, was not warranted in inferring the absence of probable cause from the fact that enmities or malice existed between the parties. What amounts to an absence of reasonable and probable cause is a question of law arising upon the facts found, and as the only facts found by the lower Appellate Court are, for the reasons stated, insufficient to support the conclusion at which it arrived, we must reverse the decree.
7. We have been pressed to remand the suit to the lower Appellate Court for re-trail, or to frame certain issues, and direct the Court to pass a fresh decision after finding on those issues. There is no ground for a remand in the sense in which the word is used in the Code: and as to the alternative proceeding, we do not think that this is a proper case for its application. The respondent gave no evidence that, when the appellant caused her to be arrested, he was aware that she had not been served with the summons, whilst, as regards the alleged falsity of the roka, the evidence, to say the least of it, was extremely conflicting. It does not appear from the judgments of the lower Courts that the respondent, in proof of the latter allegation, did more than produce the two judgments of the Courts in the roka suit; but whether she did or not, it is clear that she did not herself come forward and give evidence on the point; whilst, on the other hand, the appellant, and several witnesses on his behalf, deposed that the respondent had borrowed the money and given the roka. The onus of proof lay upon the respondent; it was for her to satisfy the Judge that her allegation was true. In this state of the case and of the evidence, we think that it would be wrong to send down fresh issues to the lower Court with directions to find on them, and the more so, as the judgment of the lower Court was in reversal of that of the first Court, which had the opportunity of seeing the witnesses and their demeanour, and the better means of judging of their credibility.
8. The appeal is allowed with costs. The appellant will also have his costs in the lower Appellate Court.