LALA PUNNALAL AND ANR. Vs. KASTURICHAND RAMAJI

JUDGEMENT

(1.) THIS second appeal has been preferred by the plaintiffs against a reduction made by the District Judge in the amount of damages awarded to them by the Subordinate Judge in an action for damages for malicious prosecution and malicious house search. The correctness of the principle applied by the learned District Judge in reducing the amount is challenged by the appellants.

(2.) THERE is a memorandum of objections preferred by the first defendant to the effect that no damages ought to have been awarded at all and that, in any event, no damages could be allowed for the house search, as there is no such tort known to law.

(3.) TAKING the memorandum of objections first, it was contended that the award of exemplary damages was not known to Indian law and that our Courts have set their faces against it. The decisions in Parvathi v. Mannar, I.L.R.(1884)Mad. 175, and Maganatha Sastri v. : AIR1918Mad700 were quoted in support of this position. Parvathi v. Mannar, (1931) 62 M.L.J. 107 is a case of vindictive damages, which is different from exemplary damages. As pointed out in -Clerk and Lindsell on Torts, 9th Edition, at page 119, exemplary damages are consolatory rather than penal, resting upon the principle that where there is malice, the mental pain caused to the plaintiff must be taken note of and a solatium awarded for it. In Naganatha Sastri v. Subramania Iyer, (1931) 62 M.L.J. 107 the plaintiff brought a suit for defamation and left the question of damages in the hands of the Court. The Subordinate Judge awarded only nominal damages under the circumstances. Sadasiva Iyer, J., expressed the opinion that the plaintiff would have been better advised if he had treated the whole matter even in the beginning with indifference and that he should not have pursued the matter in the appellate Court after he had obtained a judgment in the first Court, or filed a second appeal Alter having said all this he noticed an argument addressed by Mr. T. Rangachariar that penal and exemplary damages ought to be awarded in such cases and dismissed it with this remark: