1. This appeal arises out of suit for damages for malicious prosecution.
2. It appears that the defendant (Gangadhar) brought a criminal case under Section 504, Indian Penal Code, against the plaintiffs, who are the mother, wife and brother's wife respectively of one Janaki Teli, against whom he had obtained a decree and taken out attachment of his homestead. The criminal case was dismissed and thereupon this suit for damages for malicious prosecution was instituted by the plaintiffs. The defendant (Gangadhar) also brought a suit for damages against the plaintiffs for having used abusive language to him (the defendant).
3. The suits were tried together upon the same evidence, but two separate judgments were pronounced. The suit instituted by the present defendant for damages against the plaintiffs for having used abusive language was dismissed and then the plaintiffs suit for damages for malicious prosecution was decreed. The defendant appealed to the lower Appellate Court in the suit for damages for malicious prosecution and did not appeal against the decree in the suit instituted by him. The learned District Judge held that the decision in the latter case operated as res judicata. He was also of opinion that if there was no abuse, there could have been no reasonable cause and upon that finding dismissed the appeal without coming to any finding upon the question of malice.
4. The defendant has appealed to this Court.
5. Two contentions have been raised before us. The first is that the decision in the first suit does not operate as res judicata.
6. There is some divergence of judicial opinion upon the question whether the decree in one of two suits tried together and governed by the same judgment, in which the same question is in controversy, operates as res judicata in the other suit if no appeal is preferred in the one suit, although an appeal is preferred in the other, [See the cases of Abdul Majid v. Jew Narain Mahto 16 C. 233 : 8 Ind. Dec. (N.S.) 154, Mariamnissa Bibi v. Joynab Bibi 33 C. 1101 : 10 C.W.N. 934 : 4 C.L.J. 149 and Panchanada Velan v. Vaithinatha Sastrial 29 M. 333 : 16 M.L.J. 63.] In all these cases it was held that the decision in one or the suits does not operate as res judicata in the other.
7. A contrary view was taken in certain decisions of the Allahabad High Court. See the cases of Chajju v. Sheo Sahdi 10 A. 123 : A.W.N. (1887) 801 : 6 Ind. Dec. (N.S.) 83 and Zaharia v. Debi 7 Ind. Cas. 156 : 7 A.L.J. 861 : 33 A. 51 (where the cases on the point are collected). Dakhni Din v. Ali Asghar 7 Ind. Cas. 909 : 33 A. 151 : 7 A.L.J. 995 and Lal Muhammad v. Shakuran 18 Ind. Cas. 867.
8. In the case of Midnapore Zamindary Co. Ltd. v. Nityakali Dasi 24 Ind. Cas. 243 (a decision of this Court) the two suits were tried separately and the evidence also appears to have been different
9. It is unnecessary to discuss the other cases on the point, because in the present case there were two separate judgments though the evidence was the same, and the decision in the suit brought by the defendant Gangadhar was the earlier one. We think that in these circumstances the earlier decision in Gangadhar's suit not having been appealed against, operates as res judicata in the other suit.
10. The question at issue, which was common to both the suits, was whether the plaintiffs did use abusive language towards Gangadhar. The onus of proving the affirmative of that issue was upon Gangadhar who was the plaintiff in the suit for damages, and the onus of proving that there was no abusive language used was upon the ladies who were the plaintiffs in the suit for malicious prosecution. But the finding is that the plaintiffs (the ladies) did not use any abusive language at all to the defendant Gangadhar and that the case that the plaintiffs used abusive language was false. That being so, we do not see how upon the face of that finding in the suit brought by Gangadhar the question is still open for decision in the other suit. So far as that issue is concerned, we must hold that the decision in the suit instituted by Gangadhar not having been appealed against, operated as res judicata.
11. The second contention is that the learned Judge was wrong in dismissing the appeal without deciding the question whether the defendant in bringing the criminal case was actuated by malice. The Court of first instance considered that question also, but the learned Judge has merely held that if there was no abuse, there could have been no reasonable cause.
12. The decree of the lower Appellate Court must accordingly be set aside and the case sent back to that Court in order that the question of malice may be considered and the case disposed of according to law.
13. Costs to abide the result.