(1.) S. 95 of the Civil Procedure Code provides a remedy to a person against whom an order of temporary injunction has been obtained or who is arrested before judgment or whose property is attached before judgment. For the purpose of applying that section it is sufficient that the party who is aggrieved by the order of injunction shows that the order of injunction was obtained on insufficient grounds or where the suit fails, there was no reasonable or probable cause for the institution of the suit. The court which passed the order of injunction or arrest may itself adjudicate the question and award compensation not exceeding Rs. 1000/ -.
(2.) FOR obtaining an order under S. 95 of the Civil procedure Code it is not necessary that the party who claims compensation should show that the conduct of the plaintiff was in any manner malicious. Can a suit for damages be maintained on the same grounds is the question which calls for an answer in this case.
(3.) A distinction has necessarily to be drawn between cases where orders of injunction or arrest are obtained maliciously and cases where there is unlawful seizure or attachment of property by the party who is sought to be made liable for the damages. In the first category of cases the defendant is acting under the authority of Court while in the other there is no sanction of the authority of court as the act would be void for want of jurisdiction. In the latter case it would, in effect, be an act of the defendant himself for which the defendant would be answerable. An action for damages arising from the conduct of the defendant in securing an order which is void, as being in excess of authority and which is allowed to operate prejudicially is maintainable even without proof of malice, as it is in effect an action in trespass. But if the defendant has procured an order of court even on insufficient grounds he is not answerable for damages merely by reason of the fact that he obtained such order from the court without sufficient grounds or even falsely. It is because, damage is caused not by his own act but by an act of the court and unless it is shown that the court was caused to act in that manner by reason of the malicious conduct of the defendant and there was no reasonable or probable cause for setting in motion the machinery of the civil court, he would not be liable as on an actionable wrong. That there was some controversy in India as to this question is noticed in the decision of the privy Council reported in Albert Bonnan v. Imperial Tobacco Co. (AIR. 1929 P. C. 222 ). Subsequently this question again came up before the Privy Council and the question was considered by the Board. I am referring to the decision reported in Ramanathan v. Mira Saibo (AIR. 1931 P. C. 28 ). Speaking for the Board Lord russel of Killowen said: "a distinction must be drawn between acts done without judicial sanction and acts done under judicial sanction improperly obtained. If goods are seized under a writ or warrant which authorised the seizure, the seizure is lawful, and no action will lie in respect of the seizure unless the person complaining can establish a remedy by some such action as for malicious prosecution. If however, the writ or warrant did not authorise the seizure of the goods seized, an action would lie for damages occasioned by the wrongful seizure without proof of malice. "