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Bhupendra Nath Chatterjee and ors. Vs. Sm. Trinayani Devi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1944Cal289
AppellantBhupendra Nath Chatterjee and ors.
RespondentSm. Trinayani Devi
Excerpt:
- b.k. mukherjea, j.1. this appeal is on behalf of the defendants and it arises out of a suit commenced by the plaintiff for recovery of damages on the allegation that the defendants brought a false and malicious suit against the plaintiff and obtained an improper order of injunction in the same, which resulted in loss to her. the plaintiff is admittedly a tenant under the defendants in respect of a small plot of land measuring about one and a half cottas and situated at bally in the district of howrah. she purchased this tenancy right from one elokeshi dasi who held this one and a half cotta plot along with other lands as a tenant under the defendants. there were litigations between the defendants on the one hand and elokeshi dasi and a sub tenant of hers named nagendra ganguly, on the.....
Judgment:

B.K. Mukherjea, J.

1. This appeal is on behalf of the defendants and it arises out of a suit commenced by the plaintiff for recovery of damages on the allegation that the defendants brought a false and malicious suit against the plaintiff and obtained an improper Order of injunction in the same, which resulted in loss to her. The plaintiff is admittedly a tenant under the defendants in respect of a small plot of land measuring about one and a half cottas and situated at Bally in the district of Howrah. She purchased this tenancy right from one Elokeshi Dasi who held this one and a half cotta plot along with other lands as a tenant under the defendants. There were litigations between the defendants on the one hand and Elokeshi Dasi and a sub tenant of hers named Nagendra Ganguly, on the other, ever since 1913. The plaintiff's purchase is dated 20th February 1334, after her purchase she applied to the Chairman, Bally Municipality, for sanction to construct a masonry building on the purchased plot. This sanction was granted and thereupon, it is said, the plaintiff, with a view to construct the building collected the necessary materials on the plot. In the meantime, the defendants instituted a suit being T.S. NO. 749 of 1934, against the plaintiff in the Court of the third Munsif at Howrah for a declaration that she had no right to erect any permanent structure on the land and for a perpetual injunction restraining her from proceeding with the work of construction. Pending the hearing of the suit they obtained a temporary injunction against her on 7th September 1934, by which she was restrained from raising any structure on the disputed property. On 30th August 1935 the suit was dismissed. Against this decree of dismissal the defendants took an appeal to the Court of the District Judge at Howrah and soon after the filing of the appeal got an ad interim injunction against the plaintiff which was made absolute on 11th November 1935, subject to this modification that the plaintiff was allowed to raise only a tin structure on bamboo posts. The appeal was eventually dismissed on 28th February 1936, and a second appeal preferred to this Court was also dismissed on 17th December 1937.

2. The plaintiff brought this present suit on 4th August 1988, claiming damages against the defendants for the loss occasioned to her by the temporary injunction granted in the suit and also in the appeal. The suit was valued at Rs. 710 out of which Rs. 350 was claimed as rent for 14 months, from September 1934 to October 1935, and Rs. 260 was the rent claimed for the subsequent period during which the modified Order of injunction was in force. The defendants in resisting the plaintiff's claim for damages, contended inter alia that the suit was barred by limitation, that in instituting T.S. No. 749 of 1934, they were not actuated by malice and that there were reasonable and proper grounds upon which the Order of injunction was made by the Court after hearing both sides. They also averred that the claim for damages was excessive.

3. The trial Court decided the suit in favour of the plaintiff and gave her a part decree allowing RS. 220 as damages with proportionate costs. This judgment was affirmed on appeal by the District Judge of Howrah. It is against this decision that this present second appeal has been preferred. Both the Courts below have taken the view that in Order to enable the plaintiff to succeed in this suit it was not necessary for her to show malice or want of reasonable or probable cause on the part of the defendants, and as the plaintiff was deprived of the enjoyment of her property by reason of the temporary injunction which, as the result of the suit showed, was obtained improperly, she was entitled to compensation from the defendants. Mr. Ghose appearing in support of the appeal has challenged this view as erroneous and unsound and he has contended before us that as the Courts below did not find on evidence that the appellants were actuated by malice and had no reasonable or probable cause for instituting the proceedings, no decree could have been given in favour of the plaintiff. Mr. Das appearing on behalf of the plaintiff-respondent has argued on the other hand, that the act of the defendants in wrongfully interfering with the property rights of the plaintiff amounted to trespass in law and they were answerable in damages to the plaintiff for any loss sustained by her, irrespective of the fact as to whether they had any improper motive or aftted without reasonable or probable cause. A large number of decisions have been cited to us by the learned advocates in support of their respective contentions. The question is one of importance and requires careful consideration.

4. Now, according to the law of England, it is an actionable wrong to set in motion the machinery of a criminal Court against a person maliciously and without reasonable and probable cause. No action, however, lies for instituting civil proceedings falsely and maliciously, as the ordinary presumption is that a successful defendant, who is unsuccessfully sued, is amply compensated by the Order for costs in his favour. Exceptions are, however, made in certain specific cases where, as a consequence of the legal proceedings, some damage results, of which the law will take notice; e. g., when a man's liberty is taken away or his fair name and credit are injured: Quartz hill Gold Mining Companyv Eyre (1883) 11 Q.B.D. 674. Thus it is actionable wrong to present a bankruptcy petition against a person or start liquidation proceedings against a company maliciously and without reasonable or probable cause. So also it is an actionable injury to procure the arrest and imprisonment of the plaintiff, or to cause an execution to be levied in respect of his property, by means of any legal process which is inspired by malice and destitute of any reasonable and probable cause: vide Salmond on Tort, 9th Edn., page 655. A distinction has all along been made between malicious arrest or abuse of execution proceedings on the one hand and false imprisonment or unlawful seizure or attachment of the plaintiff's property on the other. In the first case the defendant acts under Order or authority of the Court, and the foundation of the action is the malicious procuring of the Order of the Court by representation of facts, which the defendant knew to be false or of which there was no reasonable and proper basis. In the other class of case, the act is an act of the defendant himself or of a ministerial officer of the Court and even if there is an Order of the Court behind it, it is void for want of jurisdiction. In such a case if there is a restraint imposed on the liberty of the plaintiff, or if there is wrongful entry upon his property, the defendant is liable on an action of trespass and neither malice nor want of reasonable and probable cause need be established.

5. Reference may be made in this connexion to the pronouncement of the Court of Appeal in England in Clissoldv Cratchley (1910) 2 K.B. 244. In this ease a solicitor had taken out a writ of fi. fa. upon an Order for costs made in favour of his client, against the plaintiff, in the High Court. The debt was in fact paid at the county office of the solicitor on the very same day and about three hours before the writ of execution was sued out. The money was received by the clerk and the solicitor himself was not aware of it. Execution being levied on the plaintiff's goods, the solicitor was informed that the debt had been already paid and he withdrew the execution. The plaintiff there upon brought an action against the solicitor and his client for improperly levying execution and, in the alternative, for trespass. The County Court gave the plaintiff 15 as damages. On appeal the Divisional Court dismissed the action being of opinion that the defendants were not liable for trespass nor in the absence of malice, they could be made liable in an action on the case. The matter then came up before the Appeal Court at the instance of the plaintiff, and the Appeal Court decided in favour of the plaintiff and held that the defendants were liable for trespass. Vaughan Williams L. J. in course of his judgment pointed out the distinction between an action on the case based on an abuse of the process of the Court, and an action of trespass. In the former it was essential to prove malice and without it the action could not be supported. In the latter case it was not necessary to establish malice. There could not be any trespass if the seizure of plaintiff's goods was made under a writ of execution, which was valid and binding at the date when the processes were taken out. But if the judgment was already satisfied there could be no basis for the writ and an entry upon plaintiffs premises upon a writ which was void ab initio would amount to trespass and be actionable per se without proof of malice or want of reasonable and probable cause.

6. The position, therefore, is that if a litigant takes out any form of legal process which is void for want of jurisdiction and in so doing commits an act in the nature of trespass he will be liable in an action of trespass and no question of malice or want of reasonable and probable cause would arise; but if there was a valid or subsisting Order of the Court at the time when the processes are taken out, the action would be one on the case and it would be necessary to prove malice before the plaintiff could recover damages. In England a suit for damages on the ground that the defendant got an injunction wrongfully against the plaintiff is very rare; it being the normal practice for Courts to insist on an undertaking in damages by the party in whose favour the injunction is granted. It is clear however from the principles indicated above that to sustain an action for damages on the ground of an improper injunction being taken out against the plaintiffs it would be necessary to prove the usual ingredients of malicious abuse of judicial processes; and no action for trespass could lie unless the Order was void for want of jurisdiction and there was actual entry upon, or wrongful interference with, the plaintiff's property.

7. In India the Courts in the mufassil are not generally in the habit of taking an undertaking in damages at the time of granting an injunction and proceedings on such undertaking are extremely rare except in the Presidency towns. The Indian law gives a summary remedy to a party who has sustained loss by reason of an improper Order of injunction being issued against him, and Section 93, Civil P.C. provides inter alia that the defendant against whom an injunction was granted may apply to the Court which passed the order, and if the Court is satisfied that the injunction was applied for on insufficient grounds or that there was no reasonable and probable cause for instituting the suit which was decided in his favour, it may award against the plaintiff such amount not exceeding one thousand rupees as it deems proper as reasonable compensation to the defendant for the expense or injury caused to him. This remedy is entirely discretionary, and the defendant, if he so chooses, may not avail of it and may file a regular suit for compensation. The question is, whether in a case like the one before us, when a party aggrieved by an injunction obtained against him by another, brings a suit for damages against the latter is it enough for him to show that the injunction was obtained on insufficient grounds as is demonstrated by the subsequent result of the Suit; or is it necessary, as Mr. Ghose contends, that he should go further and prove that there was no reasonable and probable cause upon which the application for injunction could be founded and that the defendant was actuated by malice

8. In our opinion, the contention of Mr. Ghose is correct and as the essence of such action is the malicious abuse of the processes of the Court it is not sufficient to show that the injunction was obtained on insufficient grounds; it must be proved also that the defendant knew them to be insufficient and acted from an improper motive. The position would, be different indeed if the Order of the Court was void for want of jurisdiction or the act could he regarded as the act of the defendant himself or of a ministerial officer of the Court. In such circumstances if there was actual interference with the property of the plaintiff an action of trespass would undoubtedly lie. But as none of the circumstances mentioned above exists in the present case it was incumbent in our opinion upon the plaintiff to prove malice and want of reasonable or probable cause before she could be given damages against the defendants. This view which is based upon the principles of English law referred to above is fully borne out by a large number of decisions of this as well as of other High Courts in India. There are one or two decisions, however, which have been referred to in the judgment of the Court of appeal below where a different opinion has been expressed by certain eminent Judges of this Court. It is necessary therefore that we should examine the relevant decisions on this point closely and carefully.

9. One of the earliest pronouncements of this Court on the subject is to be found in (68) 9 W.R. 133, Joykali Dassiv Representative of Chandmalla. In this case the defendant got a decree against one Ameer Biswas and in execution of the same prayed for attachment of a decree which Biswas got against one Mr. White. The Sadar Amin, purporting to act under Section 92 of Act 8 of 1859, granted an injunction restraining Biswas from selling his decree and also ordered White not to make any payment to Biswas. This Order was made on 7th July 1865. About ten days before that, Biswas had sold his decree to the plaintiff. On 18th August 1865 the Principal Sadar Amin held that the defendant was barred by limitation from executing the decree against Ameer Biswas and released the decree from attachment. Against this decision there was an appeal to the District Judge and pending the hearing of the appeal the decree was re-attached under orders of the appellate Court dated 21st September 1865. The plaintiff in the meantime prayed for execution of the decree as an assignee of Ameer Biswas. This application was refused on the ground that the decree was already under attachment under orders of the District Judge. The appeal was eventually dismissed and the Order was affirmed on second appeal to this Court in February 1867. All this time, however, the decree remained under attachment at the instance of the defendant and the plaintiff could not execute it. At the time when the second appeal was dismissed White had become insolvent and the plaintiff lost all the benefits of the decree. The plaintiff thereupon brought a suit for damages against the defendant, for loss sustained by him, in the Small Cause Court and on a reference being made to this Court by the Small Cause Court Judge it was held by Peacock C. J. and Hob house J. that the plaintiff's suit should fail as the defendants had not acted maliciously and without reasonable and probable cause and what was done was done under orders of a competent Court. 'If a plaintiff brings a suit,' so runs the judgment,

or makes an application maliciously or without probable and reasonable cause to a Court of competent jurisdiction, to seize property of another person as the property of his judgment-debtor, he may be liable for damages for any injury which may be occasioned by reason of the Order of the Court. Upon the same principle a person may be liable to damages for applying for an injunction upon grounds which he knows to be insufficient; but in this case the defendants were not acting maliciously or without probable cause but merely applied for the attachment of the decree which had been obtained by his own judgment-debtor when there was nothing to show that the decree had been sold to the plaintiff.

10. In Wilsonv Kanhya Sahu ('69) 11 W.R. 143, E. the plaintiff sued the defendant for damages on the ground of an injunction being issued against him at the instance of the latter by which he was restrained from sowing indigo crops on his land. It was held by this Court that the suit was not barred by Section 96 of the old Civil P.C, which corresponds to Section 95 of the present Code, and as the evidence showed that the defendant acted without reasonable and probable cause the plaintiff had a good cause of action. The suit was dismissed, however, on the ground that the plaintiff failed to prove the special damage, which was the gist of his case. The case in ('79) 4 Cal 583, Raj Chandra Royv Shama Sundari next demands our attention. This ease arose out of a suit commenced by the plaintiff for recovery of damages on the ground of wrongful and malicious arrest. It was held by the Court that such a suit would lie but the plaintiff, in Order to succeed, must show, firstly, that the original civil action out of which the alleged injury arose was decided in favour of the plaintiff; secondly, that the defendant maliciously and without reasonable and probable cause procured the arrest of the plaintiff and thirdly, that the injury or damage which the plaintiff sustained was something other than that which might have been compensated for by an award of the costs of the suit and that he in fact suffered 'some collateral wrong.'

11. We would now turn to the decision in Bhutnath Palv Chandra Binode Pal('12) l6 C.L.J. 34 upon which much stress is laid by the respondent. This appeal arose out of a suit commenced by the plaintiff-appellant for recovery of damages on the ground of an injunction being obtained against him by the defendant in a previous suit which had the effect of restraining him from proceeding with the construction of a building. The suit was dismissed by the Courts below on the ground inter alia that the plaintiff had no cause of action. On appeal to this Court the decision was reversed and the suit was decreed. Sir Asutosh Mookerjee J. in delivering the judgment observed as follows:

Upon the merits the plaintiff is clearly entitled to succeed. The dismissal of the previous suit shows that the injunction was improperly obtained; in other words, the defendants have unlawfully interfered with the exercise of property rights of the plaintiff. The defendants have thus committed an act in the nature of trespass to property, Clissoldv Cratchley (1910) 2 K.B. 244 and are consequently liable in an action for trespass; it is not necessary for the plaintiff to prove any malice or want of reasonable and probable cause.

With all deference to the learned Judge, we are bound to say that the decision goes against well-established principles laid down by English and Indian Judges upon which he purported to rely. In Clissoldv Cratchley (1910) 2 K.B. 244 as we have already pointed out, the judgment upon which the writ was issued was satisfied and was of no effect on the date when execution was taken out. Moreover, in that case there was actual seizure of the plaintiff's goods which is essential in an action of trespass. In Bhutnath Palv Chandra Binode Pal ('12) l6 C.L.J. 34 the injunction Order might have been improper, as the subsequent result of the litigation showed, but it was not a void Order and there was no actual entry upon, or interference with the plaintiff's property. On no conceivable principle, therefore, the taking out of the injunction itself could amount to trespass in law. It could only come under the category of malicious abuse of the Court's process and it was incumbent upon the plaintiff to prove that the defendant acted maliciously and without reasonable and probable cause.

12. The next case in point of time is that in Mohini Mohanv Surendranarain Singh ('15) 2 A.I.R. 1915 Cal. 173.There the defendant had brought a suit for a perpetual injunction against the plaintiff and succeeded in the first Court. On appeal the suit was dismissed. The plaintiff thereupon sued the defendant for damages on the ground that the suit for injunction was instituted maliciously and without reasonable and probable cause. The trial Court dismissed the suit on the ground of limitation. On appeal to this Court, the decision of the trial Court was affirmed and the learned Judges held further that a suit of this description where damages were claimed for a malicious institution of a civil action, was not maintainable in law. It may be pointed out, that as the learned Judges expressly held that the suit was barred by limitation their observations regarding the maintainability of the suit were more or less in the nature of an obiter. It may further be noted that damages were claimed in this case on account of the improper institution of the suit itself and not merely because any temporary injunction was obtained on insufficient grounds. The propriety of the decision in Bhutnath Palv Chandra Binode Pal('12) l6 C.L.J. 34 was doubted very much by Sir Lancelot Sanderson C. J. and Duval J. in Narendranath Koerv Bhusan Chandra Pal,Narendranath Koerv Bhusan Chandra Pal In this case there was a claim for damages for wrongful detention of the plaintiff's goods under an Order of injunction obtained by the defendants. The learned Chief Justice in course of his judgment observed:

The injunction obtained by the defendants was a judicial Order which was not void for want of jurisdiction and, consequently the act of the defendants could not amount to trespass in law.

As the learned Judges did not agree with the view taken in Bhutnath Palv Chandra Binode Pal('12) l6 C.L.J. 34 referred to above, the matter was referred for decision to a Full Bench. The judgment of the Full Bench is reported at p. 500 of the same volume, Narendranath Koerv Bhusan Chandra Pal (20) 7 A.I.R. 1920 Cal. 357 . It is a short judgment delivered by Sir Asutosh Mookerjee Ag. C. J., who presided over the Full Bench. All that is said in the judgment is that,

There are two sets of decisions in the reports: In one set it is laid down that a person, who unlawfully interferes with the exercise of the property rights of another commits an act in the nature of trespass to property and is liable for damages in an action for trespass. In the other series of cases it is laid down that no suit lies for damages against a defendant for maliciously and without reasonable and probable cause, instituting a civil action.

13.'Whether a particular case would come within the purview of one principle or the other would depend upon the facts of each particular case.' The result was that the Full Bench referred the case back to the Division Bench for final disposal in accordance with the two sets of decisions to which reference was made. The case was ultimately heard by Mookerjee and Fletcher JJ.: Bhusan Chandra Palv Narendranath ('20) 7 A.I.R. 1920 Cal. 846. The learned Judges held on the facts of the case that as the damage suffered by the plaintiff was attributable to the wrongful attachment of his property made at the instance of the defendant, the case was one of trespass and fell within the principle laid down in Clissoldv Cratchley (1910) 2 K.B. 244. The contention raised on behalf of the plaintiff that the detention of the property being under orders of the Court the plaintiff was protected from an action of trespass was negatived on the ground that the root of the mischief was the wrongful attachment effected at the instance of the defendant. It may be possible to justify the decision from one standpoint. As was laid down by the Judicial Committee in Kissory Mohunv Hursook Das 17 I. A. 17 where there is wrongful attachment of the plaintiff's goods at the instance of the defendant it is considered, according to the law and practice in India, the direct act of the party and not of the Court. Warrants for attachment are issued on the ex parte application of the creditor who is bound to specify the property which he desires to attach. If he points out certain property as the property of the judgment-debtor the Court or its officer has no discretion to exercise in the matter at that stage. It can, therefore, be said to be an act of the party and not an act of the Court. But the position would be undoubtedly different where the Court after hearing both parties passed an Order of injunction restraining a party from doing certain things with regard to the property in suit. Here there is not only a judicial Order imposing the restraint but there is no actual entry upon the property of the plaintiff.

14. In Bhusan Chandra Palv Narendranath ('20) 7 A.I.R. 1920 Cal. 846 there was originally a wrongful attachment of plaintiff's goods at the instance of the defendant. The plaintiff, however, succeeded in the claim proceeding and the defendant thereupon instituted a suit under Order 21, Rule 63, Civil P.C. and pending the hearing of the suit got an injunction by which the goods were directed to be kept in the custody of the Court so long as the suit was not decided. It may be argued that as originally the act of the defendant amounted to trespass the subsequent Order of the Court could not afford a protection to the defendant.But even if we can justify the decision in Bhusan Chandra Palv Narendranath ('20) 7 A.I.R. 1920 Cal. 846 there is no justification for the decision in Bhutnath Palv Chandra Binode Pal('12) l6 C.L.J. 34.There the act was an act of the Court and there was no seizure or detention of the plaintiff's property. The matter again came up for consideration before this Court in Imperial Tobacco Co.v A. Bonnan : AIR1928Cal1 This was a suit brought by the plaintiff-respondent to recover damages from the defendant-appellant inter alia on the ground that, the latter instituted a suit falsely and maliciously against the plaintiff on the original side of this Court and got an injunction restraining the plaintiff from disposing of a large quantity of cigarettes imported by him, which were also illegally detained by the Collector of Customs on the application of the defendant under the Sea Customs Act. The defendant had given an undertaking in damages when the injunction was granted. The injunction was subsequently dissolved and the suit was eventually dismissed. The plaintiff instead of making an application for enforcement of the undertaking brought a regular suit claiming damages for unlawful detention of his goods by the defendant. The suit was valued at Rs. 7 1/2 lacs. Pearson J. who heard the suit decided in favour of the plaintiff. The suit was decreed and a reference was made for ascertaining the amount of damages. On appeal the judgment was reversed by the Appeal Bench. Rankin C. J. in course of his judgment pointed out that so far as the plaintiff's claim rested on the ground of an interlocutory injunction being taken against him by the defendant company which resulted in loss of his goods, there was no suggestion of any false statement or suppression of facts made by the defendant company. The affidavits even were not put in evidence and the suit itself was peremptorily disposed of. Referring to the decision in Bhutnath Palv Chandra Binode Pal ('12) l6 C.L.J. 34 the learned Chief Justice observed as follows:

Apart from malice or want of probable cause, a plaintiff can recover damages in an independent suit upon mere proof that an injunction was granted to restrain him from doing what has since been held to be within his rights--this too is a proposition I dissent from. It is to be found in the case cited, but it proceeds upon a misunderstanding of such cases as Clissoldv Cratehley (1910) 2 K.B. 244 which are cases where trespass was committed and the defendant unsuccessfully set up as his justification an Order of the Court which was disregarded because it was irregularly obtained by the defendant. To speak of an injunction as on a par with such a ease as being an act in the nature of trespass to property, is merely to obscure matters by a false analogy or else to beg the question.

It was held by the Appeal Bench that the proper remedy of the plaintiff was to file an application before the Court which tried the suit to enforce the undertaking in damages given by the defendant company. The learned Judges treated the suit itself as an application of this character and directed an inquiry as to the sum to which the plaintiff ' was entitled as damages for the loss caused to him by the injunction. Not being satisfied with this Order the plaintiff toot an appeal to His Majesty in Council and the appeal was dismissed Allbert Bonnanv Imperial Tobacco Co. ('29) 16 A.I.R. 1929 P.C. 222. The material portion of the judgment of the Judicial Committee relevant for our present purpose runs as follows:

On 21st January 1925 he (the plaintiff) instituted in the Calcutta High Court the suit out of which the present appeal arises claiming from the respondent damages amounting in all to over Rs. 7 lacs on the allegation that the former proceedings were taken maliciously without reasonable and probable cause. The trial Judge (Pearson J.) held that this had been established by the appellant; the Court of appeal held that it had not and the main argument before their Lordships has turned on this difference of opinion, it being now admitted by the appellant that if the view taken by the appellate Court is right his suit as a substantial claim for damages must necessarily fail. It had been contended in India that proof of malice and want of reasonable and probable cause was not of the essence of such a suit as that brought by the appellant. But this contention was not pressed before their Lordships.

15. It is true that the point was conceded and not expressly decided but the appeal was dismissed and the decision of the Appeal Bench of this Court was affirmed. If the act of the defendant in taking out an injunction against the plaintiff by itself amounted to trespass in law, this question of malice and want of reasonable cause would have been perfectly irrelevant. It must be taken therefore that their Lordships expressly approved of the view taken by this Court in appeal that it was essential in such a case to prove malice and want of reasonable and probable cause. We may refer further in this connexion to the still later pronouncement of the Judicial Committee, in Ramanathan Chettyv Meera Saibo . There also the distinction between an action of trespass and a malicious abuse of the process of the Court was clearly pointed out' by their Lordships. It was said that a distinction must always be drawn between acts done without judicial sanction and acts done under judicial sanction improperly obtained If goods are seized under a writ of warrant which authorized the seizure, the seizure is lawful and no action will lie in respect of the seizure unless the person complaining can establish a remedy by some such action as for malicious prosecution. If, however, the writ of warrant did not authorize the seizure of the goods seized an action would lie for damages occasioned ( by wrongful seizure without proof of malice. In our opinion these decisions of the Judicial Committee have settled the law on this point and the decision in Bhuthnath Palv Chandra Binode Pal ('12) 16 C.L.J. 34 can no longer be looked upon as a binding authority.

16. It may be true, as Mr. Das contends, that for the purpose of getting a relief Under Section 95 Civil P.C. no malice or want of reasonable and probable cause need be proved; but we agree with the view taken by the Madras High Court in Nanjappav Ganapathe ('12) 35 Mad. 598 that there is no reason for holding that the section in any way interferes with the principles regulating suits for damages for abuse of the processes of the Court. The section allows a limited remedy without proof of malice which is open to a party to avail himself of if he chooses, but if he is not satisfied with this summary remedy and files a suit for compensation in the regular way, he must prove the essential ingredients of a malicious abuse of the Court's processes.

17. Our conclusion, therefore, is that the plaintiff is not entitled to any damages in the suit filed by her unless she succeeds in making out that the application for injunction was made by the defendant without any reasonable and probable cause and that they acted from an improper motive. As there is no such finding arrived at by either of the Courts below, we would ordinarily have had to send the ease back in Order that this question might be decided on the evidence in the record. Mr. Das has prayed before us that he might be allowed to convert this suit into an application Under Section 95, Civil P.C. It is true that the claim is below Rs. 1000 and the proceeding would have to be taken in the same Court in which the suit was filed, and as no question of jurisdiction is involved the question undoubtedly becomes one of costs and of discretion. We think that in the circumstances of this case it will meet the ends of justice if we accede to the prayer of Mr. Das and allow him to apply for treating the suit itself as an application Under Section 95, Civil P.C.

18. The result is that the appeal is allowed and the judgments and decrees of the Courts below are set aside. The matter will go back to the trial Judge and the plaintiff will be at liberty to make the necessary application for converting this suit into a proceeding Under Section 95, Civil P.C. It will be open to the defendants to file petition of objection, if necessary, in the usual way and the ease will be heard and disposed of by the Munsif in accordance with law. It is conceded by Mr. Das that his client must confine her claim to the damages suffered by her on account of the injunction granted by the original Court in the previous suit. The loss sustained by her on account of the injunction granted by the appellate Court would lie outside the purview of the application Under Section 95, Civil P.C, as that can only be determined by the Court which granted the injunction. The appeal is therefore allowed. The appellants will be entitled to the costs of this Court as well as of the lower appellate Court. We assess the hearing fee in this Court at two gold mohurs.

Sharpe, J.

19. I agree.


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