A AKKULIYA NAIDU Vs. MATTIBA VENKATASWAMY NAIDU

JUDGEMENT

(1.) This Letters Patent Appeal is against the judgment of Rajamannar J (as he then was) in C. M. A. No. 378 of 1948. The action out of which the appeal arises was one for damages for malicious prosecution in which the pltf claimed a sum of Rs. 500 as damages on the ground that at the instigation of his (sic) defts 2 & 3 deft 1 made a report to the Village Munsif, deft 3 which ultimately resulted in proceedings under Section 145, Cr. P. C. regarding the possession of a house. The case was eventually dismissed after enquiry. The defence to the action which was disposed of on two preliminary issues was (1) that a proceeding under Section 145, Cr. P. C. was not a "prosecution" in respect of which a suit for damages for malicious prosecution would lie, & (2) that in any event the suit was not maintainable as there was provision in the Code for awarding costs to the successful party & if the costs were refused it must be taken that they were refused on the ground that he did not deserve them. The learned Judge, on a consideration of the authorities, both English & Indian, was of the opinion that an action for malicious prosecution was not necessarily confined to criminal proceedings in respect of an offence, but that it is maintainable even in respect of civil proceedings and also in respect of other criminal proceedings such as proceedings under Section 144 or Section 145 Cr. P. C. The learned Judge, in the course of his judgment, pointed out that the gist of the action is "damage" & that the damage may be of three kinds as laid down by Holt C. J. in the case of 'Savile v. Roberts', (1698) 1 Ld. Raym, 374. In a proceeding under Section 145 of the Cr. P. C., damages under the first & second of the heads would not arise for consideration. The damages, however, may be of the third sort as where a man is forced to expend money in necessary charges to prosecute the proceedings or to defend it. In respect of proceedings under Section 145, Cr. P, C. however, as in other civil actions, provision is made in the Code in Section 148 (3) for awarding costs on the basis of expenses incurred by the successful party, If the Judge however refused to award costs it is because the successful party did not deserve them & therefore was not entitled to get the costs; & that is the only mode by which the successful party can identify, himself in respect of costs incurred in a proceeding of that description. He, therefore, came to the conclusion that a proceeding under Section 145, Cr. P. C. constituted a prosecution in respect of which a suit for damages for malicious prosecution would lie. He, however, held that the suit was not maintainable, as costs are provided for in respect of proceedings under Section 145, Cr. P. C. Si as costs were not awarded by the Cr. Ct in favour of the pltf.

(2.) On the authorities referred to by the learned Judge in the course of his judgment, we think that the view taken by the learned Judge on both the points is correct. The dictum in 'Kandaswami Asari v. Subramania Pillai', 13 MLJ 370, that "to sustain such an action there must have been a prosecution by the defts against the pltfs for an offence" is, in our opinion, opposed to decisions, English & Indian. In that case, which arose out of proceedings under Sections 107 & 110, Cr. p. C. the proceedings were dropped at the initial stage after a report from the Sub Mag was received. In view of that fact the observations of the learned Judges in that case is undoubtedly 'obiter'.

(3.) In the decision in 'Appalanarasimhulu v. Har Narayan', 11 MLJ 122 which arose out of a proceeding under Section 144, Cr. P. C. it was assumed that an action for damages for malicious prosecution was sustainable even though the proceedings did not involve an "offence" under the Criminal law.