C DAKSHINAMURTHY Vs. K K VENKATASWAMY CHETTIAR

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the respondents herein for damages for malicious prosecution. The appellant had filed a complaint Ex. B-4 dated 17-41965 to the police alleging that the respondents had cut an Odiya tree belonging to him, and that it amounted to criminal trespass and mischief punishable under the provisions of the Indian Penal Code, and requesting them to prosecute the respondents. As the police did not take any action on his complaint, the appellant filed a private complaint against the respondents before the Sub-Magistrate, cuddalore. In the private complaint, the appellant-defendant alleged that the 1st respondent/1st plaintiff began cutting his Odiya tree, and that when he obstructed such cutting the 2nd respondent/2nd plaintiff attempted to assault him with a broom stick. The said complaint was taken on file in C. C. 1753 of 1965 and ultimately the plaintiffs were discharged holding that the complaint had not established at least a prima facie case of criminal trespass and mischief against the plaintiffs. The order of discharge was taken in revision to the District magistrate, Cuddalore, but without success. The revisional authority took the view that the matter related to a civil dispute and if the defendant is aggrieved, he can move civil court for redressing his grievance and for damages for the alleged cutting of his tree. Thereafter the plaintiffs filed O. S. No. 810 of 1965 out of which this second appeal arises claiming a sum of Rs. 1000/- from the defendant for malicious prosecution.

(2.) ON a consideration of the evidence, the trial court held that the defendant's case that the tree was cut by the plaintiffs was probable, that there was a reasonable and probable cause for initiating the prosecution and that no malice has been established in this case as to form a basis for a claim for damages for malicious prosecution. On appeal by the plaintiffs' the lower appellate court has considered the evidence in detail and came to the positive conclusion that the defendant has not established his case that the plaintiffs had cut his tree, and that the complaint filed by the defendant against the plaintiffs in the criminal court was false to his knowledge. On that basis, applying the principle laid down by his court in Boralingiah v. Narayana Gounder, 1949-2 Mad LJ (SN) 39, the lower appellate court held the defendant to be liable for damages for malicious prosecution.

(3.) IN this second appeal, the learned counsel for the appellant firstly questions the findings of fact arrived at by the lower appellate court that the tree was not cut by the plaintiffs, and that the complaint filed by the defendant against the plaintiffs was false. The learned counsel requests me to reappraise the evidence afresh and to come to my own conclusion on the question whether the complaint filed by the defendant against the plaintiffs was false to his knowledge. I am not inclined to do so. The trial Court has not given a categorical finding. It merely stated that the defendant's allegation that the plaintiffs had cut his tree is probable, while the lower appellate court, on an analysis of the oral and documentary evidence, came to the conclusion that the defendant's complaint was false to his knowledge. Being a finding on a question of fact, it is not possible for this Court sitting in second appeal to interfere with that finding, unless it is based on no evidence. I am not in a position to say that the finding of the lower appellate court in this regard is without any basis. As a matter of fact, a perusal of the complaint Ex. B-4 shows that the defendant was specific that he was present at the time of cutting of the tree by the plaintiffs, that in spite of his obstruction they went on with cutting of the tree, and that the 2nd plaintiff came to assault him with a broom stick. The lower appellate court finds that the allegation made in the complaint is false. In the circumstances of the case, once the complaint is found to be false, it should be held to be false to the knowledge of the defendant, for it is not as if he filed the complaint on the basis of information given by a third party. Having come forward with a specific case that he having established the same, the complaint should be taken to be false to his knowledge. I have, therefore, to uphold the finding of the lower appellate court that the complaint filed by the defendant against the plaintiffs was false to his knowledge. Once it is found that the complaint filed by the defendant was false to his knowledge, then it attracts the principle laid down in 1949-2 Mad LJ (SN) 39. In that case a Division Bench of this Court consisting of rajamannar, C. J. , and Krishnaswami Nayudu, J. , laid down the principle as follows: