T SUBRAMANYA BHATTA Vs. A KRISHNA BHATTA

JUDGEMENT

(1.) This is a plaintiff's appeal against the dismissal of his suit for damages for malicious prosecution. The plaintiff and defendant owned adjacent properties at Aramanadka in Karadka village, Kasaragod Taluk. Some of the plaintiff's properties were in possession of the defendant's father Shankara Narayana Bhatta on arwar (usufructuary mortgage) right. In O. S. No. 300 of 1949 of the Munsiff's Court, Kasaragod, the plaintiff had obtained a decree for redemption of the arwar. Exts. A57 and A58 are certified copies of the plaint and written statement. O. S. No. 484 of 1949 was by the Defendant's brother against his father (1st defendant) and the present plaintiff (2nd defendant). Ext. A59 is the plaint and Exts. A60 & A61 are the written statements therein. Ext. B12 is the certified copy of the judgment in A. S. No 286 of 1957, Sub Court, Kasaragod, against the judgment in the said suit, O. S.484 of 1949, and the order in R. I. A. 1091 of 1963 moved by the defendant's father to file a complaint against the plaintiff herein under S.193, of the Indian Penal Code etc. The appeal and the R. I. A. were dismissed. O. P. No. 43 of 1950, Munsiff's Court, Kasaragod, was filed by Shankara Narayana Bhatta, allegedly, at the instance of the defendant and his brothers for sanction to prosecute the plaintiff. That was dismissed (Ext. A72). An application for contempt was moved by the defendant in the High Court against the plaintiff and another, which was dismissed by Ext. B9 order, C. C. No. 54 of 1961 before the I Class Magistrate's Court, Hosdrug. was filed by the plaintiff against the defendant and his brothers for threatening the plaintiff with dangerous weapons. C. C. No. 55 of 1961 was by the defendant and his brothers against the plaintiff apparently as a counter blast to C.C No 54 or 1961. C.C. No. 54 of 1961 ended in a conviction of the defendant's brother Keshava Bhatta, (vide Ext. B26). C.C No. 55 of 1961 ended in the discharge of the accused (Ext A75). On 2-8-1962 the defendant filed a complaint before the Adhur Police that at 6 p.m. the plaintiff and his tenants constructed the defendant and wrongfully restrained him and attempted to murder him This, it was alleged, was with full knowledge that the complaint implicating the plaintiff was false, was done maliciously, and without reasonable and probable cause. Alter protracted proceedings, the case was committed to the Sessions Court, and tried by the Assistant Sessions Judge, Tellicherry as Sessions Case No. 52 of 1964. The plaintiff and two others were acquitted on 27-1-1965. It is in respect of this prosecution that malice and absence of reasonable and probable cause is alleged and damages for malicious prosecution is claimed.

(2.) The defence was one of denial of malice and of absence of reasonable and probable cause and of the very foundation of the action, namely, that the defendant was the prosecutor.

(3.) The learned Sub Judge, Kasaragod, in a very unsatisfactory judgment, which hardly does justice either to the facts disclosed, or the law involved, found, that the defendant was not actively participating in the prosecution of the plaintiff (paragraph 31 of the judgment); that the plaintiff had not established either malice on the part of the defendant or absence of reasonable and probable cause (paragraph 32); that the plaintiff was not entitled to any amount as damages for loss of reputation (paragraphs 33 and 34); and that the plaintiff was not entitled to any amount as damages for malicious prosecution.