1. This is an appeal against the judgment and the decree of the District Judge of Comilla, dated 23rd January 1939 reversing the decision of the Subordinate Judge of Comilla, dated 23rd June 1938. The suit out of which this appeal arises was instituted by the appellant against the respondents for recovery of Rs. 2100 as damages. The facts about which there is no dispute in this appeal, are these:
(1) Defendant 2 was appointed Sub-Divisional Magistrate of Brahmanberia Sub-Division in the district of Tippera, in April 1934. At that time there was a fund known as Momin Fund which was being run by an unregistered society of which the successive Sub-Divisional Officers of Brahmanberia were Presidents. After defendant 2 came to Brahmanberia as Sub-Divisional Officer, this unregistered society was registered under the name and style of Co-operative Muslim Education Society Ltd., (hereinafter referred to as the Society). Defendant 2 was elected president of this Society. Defendant 3, a Deputy Magistrate, was the second officer of Brahmanberia at that time. He became a member of this Society.
(2) There was a meeting of this society on 25th May 1936. Defendant 2 presided over this meeting. At this meeting, a resolution (Ex. P 1) was passed for approaching the Brahmanberia Municipality for a suitable site for the construction of a Muslim Hall. In this resolution, no mention was made about any particular site. A copy of this resolution was forwarded to the Chairman of the Municipality. On 30th May 1936, the Municipality passed a resolution (Ex. C) requesting the Secretary of the Society to supply necessary details as to specification etc., of the proposed building. On 2nd June 1936, the Secretary of the Society wrote a letter (Ex. I) to the Municipality. In this letter two alter-native sites (50 x 25 cubits of land on the western bank of the Cutchery tank and 100 x 50 cubits of land in the southern bank of the Lokenath tank known as Silver Jubilee Park) were suggested. On 4th June 1936, two petitions (Exs. 20 and 20A), signed by a large number of rate payers of the Municipality protesting against the free gift of the land on the southern bank of the Lokenath tank were filed in the municipal office. On the next day, the letter of the Secretary of the Society was considered by the Municipality at a special meeting. The Municipality refused the proposal for a free gift of any land to the Society on the ground that there was no provision in the Municipal Act for making a free gift. On the same date, six Commissioners sent a requisition (Ex. E) to the Chairman of the Municipality to convene a special meeting immediately for considering the desirability of granting a piece of land measuring 100 x 50 cubits on the western portion of the southern bank of the Lokenath tank under a mokarari permanent lease at a nominal rent and without any selami for the purpose of erecting a Muslim institute by the Society. On 2 11th June 1936, the Municipality by a resolution (Ex. 14A) agreed to grant a permanent mokarari lease to the Society at an annual rent of 4 annas without payment of any selami.
(3) On the same day (11th June 1936) a suit was filed in the first Court of the Munsif at Brahmanberia, viz., Title Suit No. 153 of 1936 on behalf of the rate-payers of the Municipality against the Municipality and the Society for a declaration that the resolution granting lease to the Society was null and void and for an injunction restraining the Society from raising any permanent structure on the land. On the next day, the Munsif issued interim injunction. This injunction was served on the Secretary of the Society on the morning of 13th June.
(4) On 17th June 1936, a criminal case was filed in the Court of the Sub-Divisional Magistrate of Brahmanberia by defendant 5 against the plaintiff and his younger brother on the allegation that defendant 5 paid Rs. 600 to the plaintiff on con- tract for sale of certain lands but the plaintiff and his brother denied receipt of the money and refused to execute the kobala. On that day defendant 2 being out on tour defendant 3 heard the petition of complaint and summoned the plaintiff under Section 406, Penal Code, and fixed 24th June 1936 for appearance of the plaintiff in Court. On 21st June 1936 the plaintiff was served with summons. On 24th June 1936 plaintiff appeared before defendant 2. On that day defeadant 2 recorded the following order : 'Accused appears. To furnish bail for Rs. 1000. In default to hajat till 9th July 1936. To 9th July 1936 for evidence.' After the said order was passed, 26 pleaders of the Brahmanberia Bar filed a bail bond on behalf of the plaintiff. This bail bond was sent to defendant 4 (the Court Sub-Inspector of Police) for enquiry and report about the fitness of the sureties. Defendant 4 thereupon asked for time for enquiry. This prayer of defendant 4 was allowed by defendant 2. A pleader then moved defendant 2 for the release of the plaintiff on bail. Defendant 2 thereupon verbally ordered that he would releaser the plaintiff if the money be put in cash. Thereafter an application (Ex. 11) was filed before defendant 2 on behalf of the plaintiff for permission to deposit Rs. 1000 in cash. Defendant 2 thereupon passed the following order : 'Let the money be deposited in the treasury during the usual hours of its transaction.' The money however was not deposited in the treasury on that date. Plaintiff was then put under handcuff and was sent to the local sub-jail. On the next day i. e. 25th June 1936 two petitions were filed on behalf of the plaintiff (Exs. 12 and 13). There were two prayers in Ex. 12. The first prayer was for acceptance of the money in the treasury on that day and the second prayer was for permission to deposit the money in the nezarat and for acceptance of the same by the Nazir. No order was passed on the first prayer and the second prayer was refused. The prayer in Ex. 13 was for a direction on the Court Sub-Inspector for expediting the enquiry and-for early submission of report by him. The order passed by defendant 2 on that petition was 'Court Sub-Inspector to report.' On 26th June 1936 the money was deposited and the plaintiff was released. The Court Sub-Inspector defendant 4 also submitted his report (Ex. 32) on that date.
(5) On 30th June 1936 the plaintiff filed an application (Ex. 22) before the District Magistrate of Tipperah for transfer of his case from the file of defendant 2. The District Magistrate thereupon called for a report from the trying Magistrate (defendant 3). Defendant 3 thereupon submitted his report (Ex. 23). The petition for transfer was heard on 14th July 1936. On 11th September 1936 the Public Prosecutor of Comilla filed an application (Ex. 24) for withdrawal of the criminal case. The plaintiff was thereupon discharged under Section 494, Criminal P.C.
(6) The plaintiff thereafter served notices on defendants 1 to 4 under Section 80, Civil P.C., and filed the present suit on 25th November 1936.
2. Plaintiff's case briefly stated is as follows : Defendant 2 as President of Muslim Co-operative Education Society and defendant 3 as a member thereof were anxious to utilise a portion of the Silver Jubilee Park for the purpose of constructing a Muslim Institute Hall. In pursuance of this desire, they caused the Society to move the Municipality to make a free gift of a portion of this Park for the purpose of constructing the Muslim Institute Hall. After the Municipality refused the request of the Society, defendants 2 and 3 threatened, coerced and brought undue pressure upon certain Hindu Commissioners of the Municipality who signed the requisition (Ex. E) with the result that the Municipality passed a resolution on 11th June 1936 granting a permanent mokarari lease of a site situated on the park. The plaintiff took a leading part both in respect of the petitions of protest and in the institution of Title Suit No. 153 of 1936 in the first Court of the Munsif at Brahmanberia. Defendants 2 and 3 suspected that the plaintiff was responsible for the institution of the suit and were greatly displeased with the plaintiff. They therefore determined to harass the plaintiff and put him into trouble. In pursuance of this determination, they caused defendant 2 to file a false criminal case against the plaintiff on 17th June 1936. Defendant 3 without due consideration of the allegations made in the petition of complaint summoned the plaintiff under Section 406, Penal Code. The allegations in the petition of complaint were entirely false and baseless. Defendant 3 issued the process in consultation with and at the instance of defendant 2. It was not a bona fide order made in the exercise of defendant 3's powers as a Magistrate and in exercise of his jurisdiction as such. The criminal proceedings against the plaintiff were conducted in camera and the plaintiff had no notice of them until 21st June when he was served with summons. Plaintiff appeared in Court of defendant 2 at 11 A. M. on 24th June 1936 with cash money ready. But his case was not called till 12 A.M. on that date. The amount of bail demanded from the plaintiff was in excess of the amount which was the subject-matter of the criminal charge. The position of the plaintiff in life was well-known to defendant 2 and in spite of that he passed the order that in default of bail the plaintiff would remain in Hazat till 9th July 1936. The pleaders who executed the bail bond are all respectable and leading members of the Brahmanberia Bar. Their position in life and solvency were known to defendant 2. In spite of that, defendant 2 directed the Court Sub-Inspector (defendant 4) to report as to the fitness of the sureties. Defendant 4 wanted time to hold local enquiries as to the fitness of the sureties, in consequence of a previous arrangement with defendant 2. As soon as defendant 2 passed a verbal order that if the money be put in cash plaintiff would be released immediately the cash money was tendered. This tender was made half an hour before 3 P. M. that is within the hours of transaction at the treasury. Defendant 2 deliberately deferred passing orders regarding the acceptance of the money tendered. He passed orders for deposit of the money in the treasury after 3 P. M. which was too late for deposit of money in the treasury. As a result of this delay in passing the order the money could not be deposited in the treasury on 24th June. According to a pre-arranged plan plaintiff was handcuffed and made to walk to the local sub-jail through crowded streets. He was confined in the sub-jail that night.
3. An attempt was made on 24th June by a pleader on behalf of the plaintiff to obtain the signature of the plaintiff on a properly stamped vakalatnama. But this was not permitted by defendant 4. Another attempt was made at the sub-jail but this was also not successful. On 25th June plaintiff's prayer for depositing the money with the Nazir of the Court or for accepting the bail bond filed on 24th June was refused without any reason. Defendants 2, 3 and 4 caused illegal, wrongful and malicious detention of the plaintiff from 24th June 1936 to 26th June 1936. This detention was responsible for immense mental sufferings, agony, bodily pain, humiliation before the public, irreparable loss and injury to the good name and reputation of the plaintiff who is a pleader of 12 years standing practising at Brahmanberia, a landlord and is connected with several public institutions. After the plaintiff was discharged under Section 494, Criminal P.C., in spite of an order for refund of the cash deposit of Rs. 1000 made by the Additional Magistrate on 11th September 1936, the money was not refunded until 21st September 1936. The acts and orders of defendants 2, 3 and 4 in setting up defendant 5 to file a false petition of complaint were illegal and mala fide and were done with the sole object of unnecessarily and unjustly harassing the plaintiff and lowering him in the eyes of the public. Defendants 2 and 3 acted beyond their judicial powers and in excess of their jurisdiction. Their acts were a trespass upon the person and property of the plaintiff. Plaintiff was accordingly entitled to get Rs. 2100 as damages from the defendants. (Rs. 500 as compensation for wilful, wrongful and malicious prosecution, etc., and detention, Rs. 300 as compensation for physical injury due to illegal handcuffing, Rs. 500 as compensation for loss of good name and reputation, Rs. 600 as compensation for mental agony, Rs. 200 as costs incurred by the plaintiff in defending the criminal case instituted against the plaintiff.) Written statements were filed by all the defendants.
4. Defendant 1 the Secretary of State for India challenged the sufficiency and validity of the notice under Section 80, Civil P.C., pleaded the bar of limitation and denied liability for actions of defendants 2 to 4 in the discharge of their duties. Defendant 5 in his written statement said that the allegations in the petition of complaint filed by him against the plaintiff were all true and that he had reasonable and probable cause for filing the said criminal case. Defendants 2 and 3 pleaded that they did not set up defendant 5 to file the criminal case against the plaintiff that the suit was bad for multifariousness, that the claim against them was barred by limitation and that the Judicial Officers' Protection Act was a bar to the maintainability of the suit against them. They also pleaded that the claim for damages was excessive. The defence of defendant 4 was that he had nothing to do with the starting of the criminal case and that everything he did was done by him bona fide in the discharge of his duties. The following issues were settled between the parties:
1. Has the plaintiff cause of action for this suit?
2. Is the suit bad for misjoinder of parties and causes of action?
3. Is the suit barred by limitation?
4. Is the notice under Section 80, Civil P.C., a valid and sufficient notice?
5. Is the Judicial Officers' Protection Act a bar to the maintainability of the suit as against defendants 2, 3 and 4?
6. Was the complaint against the plaintiff instituted by the combined efforts of defendants 2, 3 and 4? Was defendant 5 a mere tool in the hands of defendants 2, 3 and 4? Was the complaint false and malicious?
7. Were the acts done and orders passed by defendants 2, 3 and 4 in connection with the prosecution and detention of the plaintiff in Hajat collusive, mala fide, illegal or in excess of their jurisdiction ?
8. Were the acts done or orders passed by defendants 2, 3 and 4 done or passed with the object of harassing the plaintiff or lowering him in the estimation of the public or to cow him down or to cause him mental and physical pain Has the plaintiff been lowered in the estimation of the public or has he suffered mental and physical pain by reason of these acts and orders?
9. Did defendants 2, 3 and 4 act as the agents of defendant 1 If not, is defendant 1 liable?
10. What damages, if any, is the plaintiff entitled to recover and from which of the defendants?
11. To what relief, if any, is the plaintiff entitled?
5. At the time of the hearing of the suit, issue 2 and issue 9 (the claim against the Secretary of State for India) were not pressed. The Subordinate Judge answered issues 1 and 3 to 5 against the defendants. As regards issues 6, 7 and 8 the Subordinate Judge arrived at the following findings: (1) That there was a conspiracy among defendant 2 and the prominent members of the Co-operative Muslim Education Society Ltd., including defendants 3 and 5 to put the plaintiff into trouble and that the criminal case brought by defendant 5 against the plaintiff was the result of that conspiracy. (2) That defendant 2 was the real complainant in the criminal case and that defendant 5 was the name lender. (3) That the criminal case was false to the knowledge of defendant 5 and that he had no reasonable and probable cause for filing the criminal case. (4) That defendant 4 was not in the conspiracy from the very beginning, that he was at best guilty of irregularities in the discharge of his duties and that he abused his powers only to please defendant 2.
6. As regards issue 10, the finding of the Subordinate Judge was that plaintiff was entitled to recover Rs. 2100 as damages against defendants 2, 3 and 5. The subordinate Judge accordingly dismissed the suit against defendants 1 and 4 without any costs and passed a decree for Rs. 2100 as damages against defendants 2, 3 and 5 with costs.
7. Only defendants 2 and 3 appealed to the District Judge. The learned District Judge has arrived at the following findings : (1) That the plaintiff in his plaint did not plead expressly and specifically conspiracy among defendants 2 to 5. (2) That the suit was bad for multifariousness, misjoinder of parties and causes of action. (3) That the notice under Section 80, Civil P.C., was inadequate and invalid in so far as the tort of malicious prosecution is concerned. (4) That defendants 2 and 3 had nothing to do with the filing of the criminal case by defendant 5 against the plaintiff. (5) That the acts done and orders passed by defendants 2 and 3 in the criminal case were lawful and were done and made without malice and in good faith within the limits of the jurisdiction of these defendants as Magistrates and consequently these defendants were protected by the Judicial Officers' Protection Act and Section 270, Government of India Act, 1935. (6) That defendant 4 did nothing to please defendant 2 and that he was not guilty of procrastination and delay in conducting his enquiry about the fitness of the sureties who executed the bail bond in the criminal ease. (7) That the plaintiff has failed to prove that defendant 5 instituted the criminal case without reasonable and probable cause.
8. On these findings, the learned District Judge allowed the appeal of defendants 2 and 3 and dismissed the suit against them with costs in both Courts. The learned District Judge dismissed the suit against defendant 5 with costs in the trial Court and awarded in favour of defendants 1 and 4 their full costs in the trial Court under Order 41, Rule 4 and Rule 33, Civil P.C.. The learned Judge further directed that each of the defendants would get a separate set of costs with a separate pleader's fee. Hence this appeal by the plaintiff. The learned Counsel on behalf of the appellant urged only the three grounds in support of this appeal, viz : (1) That the District Judge was in error in awarding costs incurred by defendants 1 and 4 in the trial Court. (2) That the District Judge was wrong in awarding two sets of pleaders' fees to defendants 2 and 3 for hearing of the appeal, and (3) that the District Judge should not have awarded costs to defendant 5 incurred by him in the trial Court.
9. As regards the first point the contention of the learned Counsel is that the District Judge had no jurisdiction to award costs incurred by defendants 1 and 4 in the trial Court as they were not parties to the appeal. The District Judge apparently has passed the decree for costs in favour of defendants 1 and 4 under Order 41, Rules 4 and 33, Civil P.C. Order 41, Rule 4 however contemplates where the decree appealed from proceeds on any ground common to all the defendants. The suit was decreed against defendants 2, 3 and 5, but it was dismissed against defendants 1 and 4. The decree against defendants 2, 3 and 5 proceeded on a common ground. There was no decree against defendants 1 and 4. The provisions of Order 41, Rule 4 are therefore not applicable. Order 41, Rule 33 of the Code however is in very wide terms. It lays down thus:
The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection.
10. This rule authorises appellate Court to pass any decree which ought to have been passed by the trial Court. On the findings of the trial Judge there cannot be any doubt that defendants 1 and 4 were entitled to get their costs in the trial Court. The trial Judge has given no reasons as to why he did not award any costs in their favour. There cannot be any doubt therefore that the District Judge had power to decree costs incurred by defendants 1 and 4 in the trial Court. It is true that these defendants did not file any appeal or cross-objection and they were not parties to the appeal before the District Judge. Rule 33 however lays down that the appellate Court can exercise its power in favour of any of the respondents or parties. The word 'parties' is wide enough to include persons who were parties to the suit in the trial Court but were not parties to the appeal. The District Judge was therefore right in awarding costs incurred by defendants 1 and 4 in the trial Court. As regards the second point it appears that defendants 2 and 3 jointly filed one memorandum of appeal. The learned Judge should not therefore have directed the plaintiff to pay to defendants 2 and 3 two sets of pleaders' fee for the appeal before him.
11. As regards the third point it appears that the decree of the trial Judge against defendants 2, 3 and 5 proceeded on a common ground. The District Judge in view of his findings was within his power in dismissing the suit against defendant 5 with costs. The decree for costs in favour of defendant 5 although he was not a party to the appeal finds support from Order 41, Rule 4 as well as from Order 41, Rule 33, Civil P.C. The result therefore is that this appeal is allowed in part. The decree of the District Judge is modified in the manner indicated above. In the memorandum of appeal to this Court about 34 grounds were taken but only three were pressed. The appeal 'has substantially failed. Respondents 1, 2 and 3 will get one set of costs while respondent 5 will get another set of costs from the appellant in this Court.