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Har Kumar De Vs. Jagat Bandhu De - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal247
AppellantHar Kumar De
RespondentJagat Bandhu De
Cases ReferredBishun Singh v. A.W.N. Wyatt
Excerpt:
- .....the case of mohini mohan misser v. surendra narayan singh [1914] 42 cal. 550 for holding that the present action for damages is not maintainable.5. the plaintiff appeals against that decision and the point that has been argued before us is that, according to the authorities of this court, such a suit is maintainable. we have now to consider the question with reference to the cases that have been decided in this court. there cannot be any doubt whatever that as a general rule an action does not lie for damages against a person for bringing a civil action, however malicious and unfounded it may be. the reason is this that the defendant is amply compensated in the costs awarded by the court and the court has the authority to mould its decree for costs according to the circumstances of the.....
Judgment:

B.B. Ghose, J.

1. This appeal raises a short question, but with regard to which there seems to be a good deal of controversy.

2. The plaintiff brought the suit for damages against the defendant for obtaining an order of temporary injunction wrongfully on insufficient grounds, by reason of which the plaintiff had suffered damages, inasmuch as he had to pay compensation to a third person on account of breach of a contract for erecting a hut. The defendant had brought a suit for possession of a certain property and, in the course of the suit, he had obtained a temporary injunction restraining the present plaintiff from going on with the building operation on the disputed land. The suit was decided in favour of the present plaintiff and thereupon the injunction was dissolved.

3. It is unnecessary for me to state in detail all the facts alleged, having regard to the order that we propose to make in this case.

4. The trial Court passed a decree in favour of the plaintiff. On appeal by the defendant, the suit has been dismissed by the Subordinate Judge on the ground that such a suit as this is not maintainable. He relied on the authority of the case of Mohini Mohan Misser v. Surendra Narayan Singh [1914] 42 Cal. 550 for holding that the present action for damages is not maintainable.

5. The plaintiff appeals against that decision and the point that has been argued before us is that, according to the authorities of this Court, such a suit is maintainable. We have now to consider the question with reference to the cases that have been decided in this Court. There cannot be any doubt whatever that as a general rule an action does not lie for damages against a person for bringing a civil action, however malicious and unfounded it may be. The reason is this that the defendant is amply compensated in the costs awarded by the Court and the Court has the authority to mould its decree for costs according to the circumstances of the case.

6. The question is whether under the present circumstances a separate suit for damages lies or not. At the outset I must refer to the case of Norendra Nath Koer v. Bhusan Chandra Pal [1920] 31 C.L.J. 495 which came for consideration before a Full Bench of this Court. But it was held that the question referred to the Full Bench did not arise for decision in that case. In delivering the judgment of the Court, Mookerjee, Acting Chief Justice, made the following observation:

There are two sets of decisions in the reports. In out 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. As an illustration of the former class reference may be made to the case of Bhut Nath Pal Mistry v. Chandra Binode Pal Chowdhury [1912] 16 C.L.J. 34. As an illustration, of the latter class reference may be made to the case of Bishun Singh v. A.W.N. Wyatt [1911] 16 C.W.N. 540 and Mohini Mohan Missir v. Surendra Narayan Singh [1914] 42 Cal. 550.

7. The learned vakil for the appellant relies upon the case of Bhut Nath Pal Mistry v. Chandra Binode Pal Chowdhury [1912] 16 C.L.J. 34 cited above, as directly in his favour. I do not find anything distinguishing the present case from that case. In that case it was held that because the defendant had obtained a temporary injunction in a previous suit for possession, of property restraining the plaintiff from carrying on a building operation, the plaintiff was entitled to damages, as the act was in the nature of trespass to property. The case of Bishun Singh v. A.W.N. Wyatt [1911] 16 C.W.N. 540, referred to above also supports the contention of the appellant. In that case Mookerjee, J., in delivering the judgment of the Court, is reported to have observed ( at page 520 ):

The broad proportion formulated by the learned vakil for the appellant that the suit as framed is not maintainable cannot consequently be supported, and the statement that the institution of an ordinary civil action, however unfounded, vexatious and malicious it may be is not a good cause of action must be qualified when there has been arrest of person or seizure of property.

8. The learned Judge then referred to the provisions of the Civil P.C. of 1882 which are now embodied in Section 95 of the present Code, and lower down ho referred to a number of cases in this Court which I have examined and found as supporting the proposition that a suit like the present one is maintainable. It is unnecessary for me to enumerate the cases over again. But I may observe that there is the high authority of Sir Barnes Peacock, C.J., in the case of Joykalee Dassee v. Chandmalla [1868] 9 W.R. 133 in favour of this proposition. The learned Chief Justice observed at page 135 that:

If a plaintiff brings a suit or makes an application, maliciously or without probable or 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 to damages for any injury which may be occasioned by reason of the order of the Court. Upon the same principle, a parson may be liable to damages for applying for an injunction upon grounds which he knows to be insufficient.

9. In the case of Raj Chunder Roy v. Shama Soondari Debi [1879] 4 Cal. 583, where a suit was brought to recover damages for injuries caused by an arrest in accordance with a decree of a competent Court, 'White, J., in giving the judgment of the Court, states the special circumstances under which such a suit is maintainable. One of the grounds is that the injury sustained H something other than an injury which has been or might have been compensated by an award of costs of the suit, e.g., that he has suffered from collateral wrong. It is unnecessary form to cite other cases on the question. I may only refer to the last case of Bhusan Chandra Pal v. Norendra Nath Koer [1920] 32 C.L.J. 236 the same case which was referred to the Full Bench Norendra Nath v. Bhusan Chandra Pal [1920] 31 C.L.J. 495. This case came up for decision before a Division Bench consisting of Mookerjee, Acting Chief Justice, and Fletcher, J., and the learned Judges held that a suit for damages was maintainable for wrongful attachment of property, which was pointed out by the defendant as the property of his judgment-debtor. That such a suit is contemplated by the Legislature as capable of being brought would appear by a reference to Sub-section 2 of Section 95, Civil P.C. In that section arrest, attachment and temporary injunction ate placed under the same category. It would also appear to be absolutely wrong to deprive the plaintiff of a right of suit and to say that his only remedy is by an application under Section 95, Civil P.C. if he suffers damages to the extent of more than Rs. 1,000. I may also refer to Article 35, Clause (k) of the Second Schedule of the Provincial Small Cause Courts Act which contemplates that such a suit is maintainable and under which the cognizance of a suit like this is taken out of the jurisdiction of a Small Cause Court. It can, therefore, hardly be said that a suit like the present one is not maintainable.

10. It is quite true that certain observations made in the judgment of Mr. Justice Fletcher in the case of Mohini Mohan Misser v. Surendra Narayan Singh [1914] 42 Cal. 550, may be considered as supporting the decision of the learned Subordinate Judge. But the general observations made with regard to the maintainability of a suit for damages for wrongfully obtaining a temporary injunction may be considered as obiter, because it was held in that case that even assuming that the suit was maintainable it was barred by limitation. Mr. Justice Richardson expressed his doubt whether such a Suit was maintainable or not. But having regard to the long line of cases which have been enumerated in the judgment in the case of Bishun Singh v. A.W.N. Wyatt [1911] 16 C.W.N. 540 to some of which I have referred, it can hardly be doubted that such a suit has always been regarded in this Court to be maintainable.

11. It is unnecessary for me to state at this stage what the plaintiff must prove in order to succeed in such a suit. The only thing that we have to decide now, and about which we need express an opinion, is that, having regard to the observations made above, it cannot be held that the suit should be thrown out on the ground that it is not maintainable. The judgment and decree of the Subordinate Judge must therefore be reversed and the case sent back to the lower appellate Court for decision on the other questions involved in the case.

12. Costs of this appeal will abide the final result.

Cammiade J.

13. I agree.


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