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Sudhangshu Sekhar Dey Vs. Haricharan Ghose - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1932Cal847
AppellantSudhangshu Sekhar Dey
RespondentHaricharan Ghose
Cases ReferredJoseph Nicholas v. Sivarama Aiyar A.I.R.
Excerpt:
- .....notice to show cause contemplated by order 21, rule 37, civil p. c., and that it does not issue a warrant immediately except where special grounds are shown to exist. the plaintiff's case is that the small cause court bailiff accompanied by santi pado bhattacharjee came to the office of his employers on 27th june and forcibly arrested him in the circumstances which have lowered him in the eyes of his fellow clerks in the office and also in the eyes of the european officers of the company by which he was employed. in order to obtain his release he was compelled to draw money there and then from the cashier of the company and make over the sum of: rs. 188-6-0 being the total amount for which the consent decree was originally made. the plaint states that the following statements in.....
Judgment:

Panckridge, J.

1. In this suit the plaintiff Sudhangshu Sekhar Dey seeks to recover damages from the defendant Haricharan Ghose for his arrest on civil process on 27th July 1929 at 6 Lyon's Range in the office of the Burma Shell Oil Storage and Distributing Co. of India Ltd., where the plaintiff has for some years been employed as a clerk. A large part of the case is not disputed. In 1925 the plaintiff and his brother-in-law became tenants of a portion of premises No. 7 Jugipara by-lane in the suburbs of Calcutta of which the defendant is the owner. These tenants remained in that portion of the premises until January or February 1927 at a rent of Rs. 50 a month. It is admitted by the leading counsel for the plaintiff that he proved an extremely unsatisfactory, not to say dishonest, tenant, and never attempted to pay an anna on account of his rent unless compelled to do so by legal process. Indeed in January 1927 there were no less than three rent suits pending in the Court of Small Causes, Sealdah, against the plain tiff in respect of rent due for various-periods of his tenancy. On 13th January 1927, a comprehensive settlement was arrived at. The only terms of the settlement with which I am concerned are those with regard to two of the rent suits, namely Suits Nos. 1576 of 1926 and 2888 of the same year. Under the settlement the plaintiff consented to a decree in the defendant's favour for a sum of Rs. 174 payable in monthly in. stalment of Rs. 20 in Suit No. 1576 and another decree in the defendant's favour for Rs. 188-6 0 payable by monthly instalments of Rs. 16 in Suit No. 2888.

2. The plaintiff's case is that he has paid: one instalment of Rs. 20 and one instalment of Rs. 16 on account of sums due in respect of the decrees. The defendant does not admit that the payment of Rs. 16 was on account of the decree in respect of the decree in Suit No. 2888,, and alleges an oral arrangement whereby the sum was appropriated of the liabilities of the plaintiff on other accounts. The receipt granted by the defendant-however bears out the plaintiff's version in this respect although no satisfaction has been recorded in respect of the payment. It is common ground however that, except for this payment, the decree-in Suit No. 2888 had not been satisfied by payment on the date of arrest of which he complains. Both the decrees were transferred from the Small Cause-Court of Sealdah to the Small Cause Court of Calcutta for execution some time in the first half of the year 1929. The first important date in the case is 26th July 1929. On that date the defendant's pleader applied to the Calcutta. Small Cause Court for an order that a body warrant without notice should issue against the plaintiff and that he should be committed to jail. The grounds of the application are that the decree in Suit No. 2888 of 1926 is still unsatisfied, that the plaintiff is about to leave the jurisdiction of the Court and will leave the jurisdiction as soon as notice is served, and that the decree has been passed long ago and the defendant has paid nothing, and that the plaintiff will not be able to realize anything if the application be not granted. These grounds are not verified' by the defendant, but by a man named Santi Pado Bhattacharjeo who describes himself as the defendant's gomasta and was undoubtedly acting with the defendant's full authority in the matter.

3. The application was dealt with by the Registrar of the Small Cause Court who admittedly had jurisdiction in the matter and who issued the body warrant asked for. The former Deputy Registrar, Mr. Kanai Lal Chatterjee, has given evidence as to the practice of the Small Cause Court in these matters and learned Counsel for the defendant has not sought to challenge his statement that the Small Cause Court like, most other Courts, is in the practice, when a warrant of arrest is applied for, of issuing the preliminary notice to show cause contemplated by Order 21, Rule 37, Civil P. C., and that it does not issue a warrant immediately except where special grounds are shown to exist. The plaintiff's case is that the Small Cause Court bailiff accompanied by Santi Pado Bhattacharjee came to the office of his employers on 27th June and forcibly arrested him in the circumstances which have lowered him in the eyes of his fellow clerks in the office and also in the eyes of the European officers of the company by which he was employed. In order to obtain his release he was compelled to draw money there and then from the cashier of the company and make over the sum of: Rs. 188-6-0 being the total amount for which the consent decree was originally made. The plaint states that the following statements in the application for the warrant were made maliciously and without reasonable and probable cause, namely, the statement that the plaintiff was about to leave the jurisdiction of the Court and would leave the jurisdiction as soon as notice was served and also the statement that the plaintiff had paid nothing and that the defendant would not be able to realize anything if the application was not granted.

4. Three issues were raised by the defendant and they wore as follows: (1) Is the suit maintainable? (2) Were the statements complained of made maliciously and without reasonable and probable cause? (3) To what damages, if any, is the plaintiff entitled? I will deal first with issue 2 as that raises questions of fact. The plaintiff has given evidence and he says that since he left 7 Jugipara by-lane he has been living continuously in Calcutta at No, 4-A Romdone Mitter Lane, with other members of his family, and he also states that he has been throughout and is still employed in the office of the Burma Shell and Oil Storage and Distributing Co. of India Ltd., at 6 Lyon's Range. He further states that in July 1929, he had no intention of leaving the jurisdiction and that he never made any statement which would give anybody reason to think that he in fact entertained such intention. I accept the plaintiff's evidence on these points. The defendant has given evidence and he says that within the year following the compromise decrees in January 1927 he met the plaintiff in Calcutta and that the plaintiff then informed him that he had gone to Shibpur.

5. This incident was never suggested to the plaintiff in cross-examination, but it is a matter of no importance, because if the defendant had not known in 1927 or 1928, it is quite clear that in July 1929 he was aware that the plaintiff was in the jurisdiction. The terms of his application, namely, that the plaintiff should be arrested because he was about to leave the jurisdiction presuppose that at the time of the application the plaintiff was within the jurisdiction. The defendants however has deposed to the effect that somewhere prior to 26th July 1929, there were negotiations for a comprehensive-settlement, and that in the course of these negotiations the plaintiff and defendant met in the Small Cause Court. Various proposals and counter-proposals were made, and at every stage the plaintiff became more and more unreasonable in his demands for concessions, His final proposal was such that the defendant was compelled unequivocally to refuse it, whereupon the plaintiff used language from which it might be reasonably inferred that he intended to obstruct the execution of the consent decrees by removing himself from the local limits of the Small Cause Court's jurisdiction. The defendant's evidence on this point was wholly lacking in precision, but the considerations which weigh more with me in rejecting the defendant's story are that it was not put to the plaintiff in cross-examination and that it was not put forward in the defendant's examination-in-chief, but was only elaborated when the defendant was under cross-examination.

6. The conclusion which I have come to is that there was no probable and reasonable cause for the statement put forward by the defendant in his application to the Registrar of the Small Cause Court that the plaintiff was about to leave the jurisdiction of the Court. I further hold that the defendant's motive in making this statement was that he knew that if he did not say something of. the sort, the Registrar would direct a notice to show cause to issue under Order 21, Rule 37, but that if something of the sort was said that the effect would be that he would probably obtain an order for the immediate issue of a body warrant. In my opinion, when one party to a suit makes a statement to the Court 'without reasonable and probable cause for the purpose of obtaining a more drastic order against his opponent that would otherwise be passed, his conduct amounts in law to malice. I therefore find in the plaintiff's favour on issue 2, namely, that the allegations as to the plaintiff's intention of leaving the jurisdiction were made maliciously and without reasonable and probable cause.

7. I do not attach any importance to the question of the amount of the decree. Though the defendant had no reasonable or probable cause for thinking that the decree was entirely unsatisfied, yet at the same time he may have forgotten the part payment of Rs. 16, and I am not prepared to say that the statement as-regards the amount of the decree was made maliciously. I must now deal with issue 1 as to the maintainability of the suit. Mr. Basu for the defendant points out that a Court has ample jurisdiction under Order 21, Rule 30 to issue a warrant of arrest without previously serving a notice on the judgment-debtor, and therefore ho says that the warrant in this case cannot be said to be illegal. That is undoubtedly the case, but I do not think it is necessary for a plaintiff who brings a suit in respect of an illegal process to show that the order of which he complains is in the circumstances of the case wholly wrong or without jurisdiction. I think that the plaintiff has satisfied the requirements of the law if he has shown that it is the invariable practice of the Court only to make an order of this kind when special circumstances are alleged, and that in this the defendant has alleged such circumstances maliciously and without reasonable or probable cause.

8. The next point taken by Mr. Basu is that the arrest of which the plaintiff complains was not immediately due to the action of the defendant, but that there was interposed between the defendant's application and the plaintiff's arrest a judicial decision of a competent Court, namely, the decision of the Registrar of the Small Cause Court, and he has called my attention to various cases dealing with the action for false imprisonment where the Court has distinguished between the cases in which the defendant has set a ministerial officer in motion and those in which he has merely required a judicial officer to exercise his jurisdiction, and he has referred specifically to Austin v. Dowling [1850] 5 C. P. 534 and also to the case of Brown v. Chapman [1848] 6 C. B. 365. These cases have only application to the circumstances of this case if it is treated as a suit for damages for false imprisonment. I do not think there is any justification for so regarding it. The allegations in para. 4 of the plaint are allegations appropriate to support an action for dam- ages for abuse of process, analogous to an action for malicious prosecution and I can attach but little importance to the fact that in para. 10 the damages claimed are said to be due to the consequences of the plaintiff's arrest or to the fact that in the concise statement the suit is described as one for recovery of damages for illegal arrest.

9. The only point I felt some difficulty over is the defendant's submission that there is one material fact which is necessary to aver and to prove in a suit of this nature, namely, the fact that the proceedings terminated in the plaintiff's favour which was not proved. It is suggested that there has been no such termination because the order of the Small Cause Court directing the issue of a body warrant has never been set aside. The point is in the circumstances of the case highly technical, and I have come to the conclusion that Mr. Ghosh is right in his submission that this is not a case in which the proceedings are capable of terminating in the plaintiff's favour in the sense in which an acquittal in a criminal prosecution can be regarded as a termination in favour of the accused. In my opinion the authorities on which the plaintiff's counsel relies seem to bear directly on the point. They are Daniels v. Fielding [1846] l6 M. & W. 200 and Gilding v. Eyre [1861] 10 C.B. (n.s.) 592 and one Indian decision, Joseph Nicholas v. Sivarama Aiyar A.I.R. 1922 Mad. 206. Having looked into these authorities, I have come to the conclusion that the plaintiff's action does not fail by reason of the omission on his part to take steps with regard to the proceedings in the Small Cause Court.

10. That disposes of the two main issues, and I am left with the issue of damages. It has not been urged by Mr. Ghose that his client is a person for whom any sympathy or admiration can be felt. As I have already said, he has consistently neglected to pay the rent justly due to the defendant and has obstructed him at every turn.

11. I think his account of what happened at the office in Lyons Range is considerably exaggerated. Moreover, if he has in fact suffered in the estimation of his fellow clerks and his employers, that is probably due to the fact that he has been shown to be a person who does not pay his rent, and not to his arrest in execution of the decree, and I think the plaintiff has no grievance at all if people think the worse of him on such a ground.

12. However, the conduct of the defendant cannot be said to be above reproach, though undoubtedly he has received considerable provocation from the plaintiff. Although I am not anxious to give a decree for any large amount to the plaintiff I am equally anxious to do nothing which will be construed into an expression of opinion that conduct of the sort of which the defendant has been guilty is not a serious matter. I have come to the conclusion that the proper decree to make is one for damages of Rs. 300 with costs on scale No. 2.


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