ERAPPA Vs. SHANKARAPPA ADIVEPPA HANGAL

JUDGEMENT

(1.) This second appeal by the plaintiffs arises out of a suit brought for damages for malicious prosecution. The events leading to the suit are these: The plaintiffs were charged by defendant-1 with an offence under Sec.35(1) of the Bombay Police Act punishable under Sec.133 of the said Act and that prosecution ended in an acquittal with castigation of the complainant that the prosecution was motivated by reason other than just and legal and the criminal proceedings initiated by him were vexatious and malicious.

(2.) So, the accused therein, brought the suit for. special and general damages. Plaintiff-1 is the father of plaintiffs 3 to 7 and plaintiff-2 is his wife. Plaintiffs 8 to 12 are not related either to plaintiff-1 or to each other. Dtfendant-1 is the uncle of defendarit-2, and defendant-2 is the widow of Basappa, deceased brother of plaintiff-1. Basappa was a T.B. patient. He died on 18th August, 1957 in the house of plaintiff-1. It is said that he had ]eit behind a will bequeathing all his properties to plaintiff-1 in connection with which there was some litigation as between plaintiff-1 and defendent-2. On 20th August, 1957, defendant-1 filed a complaint before the police alleging that Basappa was poisoned by the plaintiffs and to eliminate a any such evidence they have cremated the dead body of Basappa contrary to the custom of burial prevalent in their community. The police apparently found no evidence of the offence alleged against the plaintiffs. Therefore, they did not take any action. On 25th November, 1957, defendant-1 filed a private complaint before the judicial Magistrate, First Class, Laxmeshwar complaining that the plaintiffs had cremated the dead body of Basappa in land Sy.154 which is different from the one reserved in the village for the purpose of burial and cremation, arid thereby they had committed a breach of the Rule filmed under Sec.35 of the Bombay Police Act, punishable under Sec.133 of the said Act. The proceedings before the criminal Court continued for more than four years, since the complainant challenged almost, every order of the Magistrate in revision petitions and finally the Magistrate on 28% November, 1961, acquitted all the accused who later instituted the suit for damages on the ground that there was no reasonable and probable cause for the criminal complaint and it was actuated with malice.

(3.) The trial Court accepted the case of the plaintiffs. It awarded damages only against defendant-1; Rs.400 special damages to the 1st plaintiff, since he alone defended the prosecution, and the appearance of the other accused was dispensed with by the criminal Court. It also awarded general damages, Rs.100 to each of 'the plaintiffs 1 to 8 and 10 to 12. At the same time, the trial Court directed the plaintiffs to pay exemplary costs to defendant-2 since she was not in any way responsible for the criminal case. In the appeal preferred by defendant-1, the decree of the trial Court has been reversed holding that defendant-1 had instituted the criminal case under the expert advice of three Advocates of Dharwar and although that advice was proved to be wrong the proceedings couid not be said to Lave been initiated without reasonable and probable cause. On the question of special damages to plaintiff-1, the appellate Court has also held that there was no evidence adduced by the plaintiffs in proof of any special damages.