POULOSE Vs. PAPPIPILLA AMMA

JUDGEMENT

(1.) This is an appeal by the defendant from the decree in a suit for damages for malicious prosecution. The plaintiff was awarded a sum of Rs. 401-8-3 as damages. The plaintiff has filed a memorandum of cross objections claiming an additional sum of Rs. 400/- as general damages and Rs. 125/- as special damages.

(2.) The facts necessary for the decision of the case may be briefly stated. On 10th January 1950 the defendant filed a criminal complaint on which a case was registered as C.C. No. 53 of 1950, in the Stationary Second Class Magistrates court of Perumbavoor, against the plaintiff, her husband, her manager and Mr. K. Mahadeva Iyer, a vakil practising at Perumbavoor. Mr. Mahadeva Iyer had been appointed as Receiver for 96 cents of paddy field in Survey No. 561/6A and B which was the subject matter of O.S. No. 652 of 1124 of the District Munsiffs court of Perumbavoor. The complaint was that the accused had committed theft of the standing crop in the land and that this was done on the instigation of the first accused the plaintiff in this suit. The plaintiffs case is that the land in question belonged to her and was in her possession, that she had leased the land to one Avokker Kochunni and his wife, that she had obtained a decree in O.S. No. 652 of 1124 for recovery of possession of the land with arrears of rent, that thereafter the defendant in collusion with the lessee obtained the decree in O.S. No. 7 of 1125 on the allegation that he had leased the land to him, that when the defendant applied for delivery of possession she objected and got a receiver appointed for the property, that it was the receiver who harvested the property, and that the defendant who was aware of these facts maliciously instituted criminal proceedings against her and the others. The defendant contended that he was in possession of the land, that he had leased it to Avokker Kochunni, that he had obtained possession of the same in execution of the decree obtained by him against Kochunni, and that there was reasonable and probable cause for filing the criminal complaint. The court below found that the plaintiff was all along in possession through her lessee until the receiver was appointed and that the criminal proceedings were instituted maliciously. Though the plaintiff had claimed a sum of Rs. 2025/- as damages, she was awarded only Rs. 401-8-3.

(3.) The main question which arises for decision is whether the criminal prosecution was without reasonable and probable cause.