IRULAPPA KONAR Vs. MADHAVA KONAR

JUDGEMENT

(1.) In this second appeal the few facts which I have to state for the purpose of the decision are as follows: The suit was for damages for malicious prosecution which the trial Ct decreed with costs. On appeal taken by the defts the decree of the trial Ct was revsd & the suit dismissed with costs. The pltf having thereafter died his legal representatives preferred this second appeal to this Ct. After the institution of the second appeal, the deft having died, the applts herein have brought the resps before me as legal representatives.

(2.) To the Rearing of this second appeal an objection 'in limine' has been taken by the resps founded on the rule 'actio personalis moritur cum persona'. I have heard arguments not only on the objection but also on the merits of the second appeal. As regards the latter I may at once say that there is very little, if any, of substance in the argument for the applts. The report of the Comr appointed by the lower appellate Ct is said to be additional evidence taken in contravention of Order 41, Rule 27, C. P. C. by which the appellate judgment is vitiated. There is however other evidence in support of the findings of the lower appellate Ct on the question of the existence of malice & the absence of reasonable & probable cause which I am not therefore prepared to disturb.

(3.) Concerning the preliminary objection raised by him learned counsel for the resps has relied on 'Maniramlala v. Mt. Chatti Bai', I L R 1938 Nag 280: (AIR (24) 1937 Nag 216), While learned counsel for the applts has relied as against it on 'Nga Kyet Sein v. Mi Kyin Mya', 34 I C 249 : (AIR (4) 1917 UB 14), a decision of the J. C. of the Upper Burma J. C's. Ct not as a decision citable to this Ct but for its reasoning which counsel seeks to adopt as his own. It is not disputed by counsel on both sides that the present case is sufficiently indistinguishable on facts from each of those cases, although there unlike here the original resp in the first appeal preferred a second appeal & died afterwards & the resp in the second appeal did not die during the pendency of the second appeal but remained alive & on record down to the decree of the second appellate Ct. It is not disputed therefore that the decision of the point must go in favour of the resps or the applts according as the one decision or the other is accepted by me as correct.