CHELLU Vs. MUNICIPAL COUNCIL PALGHAT

JUDGEMENT

(1.) This second appeal arises out of a suit for damages for malicious prosecution by the defeated plaintiff in both the lower courts.

(2.) The respondents defendants, are respectively the Municipal Council, Palghat, the Commissioner of that municipality during the years 1943 to 1946 and a neighbour of the plaintiff. The learned District Minis if as well as the learned Subordinate Judge held that though the plaintiff was acquitted in the criminal proceedings the prosecution was not without reasonable and probable cause and was not actuated by any malice and also that the suit against the Commissioner was bad for want of notice under Section 80, C. P. C. The plaintiff has come up in second appeal against the decision of the lower, appellate court.

(3.) Both the plaintiff and the third defendant were owners of neighbouring compounds in each of which is situated a house with appurtenant gardens containing fruit trees and other trees. The plaintiff became the owner of one pf the properties in 1937 whereas the third defendant purchased the other property in 1944. After his purchase the third defendant made certain improvements and extended the compound wall whereupon the plaintiff objected to the extension of the compound wall on the ground that such extension was an encroachment on her property. This has resulted in the plaintiff filing O. S. No. 334 of 1944 on the file of the District Munsif's Court, Paighat on 28-7-1944 for an injunction restraining the third defendant from further building up the compound wall and for a mandatory injunction compelling the third defendant to pull down the wall already constructed. Then within a few days of the filing pf the suit, the third defendant addressed a letter, Ex. A. 4, dated 20-11-1944 to the Commissioner of the Paighat Municipality, the second defendant in the suit now under appeal, staling that in the backyard of the plaintiffs house on the eastern side there are two trees, one a jack tree and another a mango which are a source of nuisance especially in the season when the winds are blowing heavily. It was further stated that there are two cocoanut trees in the plaintiff's compound slanting towards the third defendant's house and that there are also one or two margosa and other trees by the side of the compound of the third defendant. On account of the slanting position of the cocoanut trees and the branches, cocoanuts fall and invariably cause damages to the third defendant's building. For these reasons it was requested that the Commissioner should direct the house-owner (plaintiff) to abate the nuisance. It is the plaintiff's case that this complaint was without reasonable and probable cause and was actuated by malice with the intention of stifling the suit, O. S. No. 334 of 1944. On getting this complaint, the Commissioner inspected the locality on 14-3-1945 and made an endorsement on the application that the overhanging leaves may be ordered to be removed. The plaintiff says that at the time of the inspection by the Commissioner she was not given any notice. In the intervening period there were several letters passing between the plaintiff and the municipality. On 22-3-1945 by Ex. A. 5 the plaintiff was asked by the 2nd defendant that since the two coconut trees and the overhanging branches of the other trees standing in her compound are a source of danger to the structure and the wall of her neighbour, the third defendant, the plaintiff was directed under Sections 219(1) and 313(c) of the Madras District Municipalities Act to tie up the two cocoanut trees with ropes and also to cut away the overhanging branches of the margosa trees and other trees near the wall of the third defendant within 7 days from the date of the receipt of that memo. To this memo a reply was sent Ex. A. 6 dated 29-3-1945 wherein the plaintiff remonstrated with the Commissioner and stated that the Commissioner did not give any opportunity to explain the real position and gave details of O. S. No. 334 of 1944 wherein a Commissioner had been appointed who had found that there was encroachment of three to five feet in the side where the trees stand. In these circumstances, the plaintiff protested that to issue a notice under Section 219(1) of the Madras District Municipalities Act on the assumption that the wall belongs to the third defendant is prejudicial to her interests and therefore she earnestly prayed the commissioner to delete the words "wall of your neighbour" and "wall of the petitioner" in the memo issued in Ex. A. 5. To this the Commissioner sent a reply Ex. A. 7 dated 19-4-1945, wherein it was stated that the Commissioner had inspected the place and that he saw 110 reason to reconsider the memo dated 21-3-1945. The plaintiff was, therefore, directed to tie up the cocoanut trees with a rope and lop off the overhaning branches of the trees standing near the wall of the third defendant immediately. Failing to comply with the terms of the memo already served on her within one week, she would be prosecuted without further notice. The plaintiff did nothing to comply with the directions contained in Ex. A. 5. On the failure of the plaintiff to act up to the terms of the notice, Ex. A. 5, a complaint Ex. A. 9 dated 23-5-1945 was filed by the Commissioner before the first class Bench of Magistrates, Palghat, under Sections 219 (1), and 313 (c) of the Madras District Municipalities Act for failure to cut and remove the overhanging branches of the trees which were a source of danger to the building in the neighbouring compound.