S. RANGARAJU Vs. S. DEVARAJAN

JUDGEMENT

(1.) The above Second Appeal has been filed by the defendant in O.S.No.135 of 1977 on the file of the Subordinate Judge, Coimbatore, against the judgment and decree of the learned Additional District Judge, Coimbatore dated 15.4.1982 in A.S.No.10 of 1981, whereunder the learned judge has chosen to partly allow the appeal, thereby granting relief only in respect of the quantum of damages by reducing the damages awarded by the learned trial judge at Rs. 10,000/ - to Rs.3,000/ - with proportionate costs and in other respects confirming the judgment and decree of the learned trial judge dated 19.7.1980 in O.S.No.135 of 1977. The case of the plaintiff -respondent is that the plaintiff and the defendant are brothers and are also the common owners of a tannery property situated at Kurichi village of Coimbatore, comprising of land, buildings, machinery and other movable allotted to them in the family partition deed dated 31.1.1964. Both parties had equal rights and the properties have not been divided between them. While matter stood thus, it appears misunderstandings arose between parties as early as in 1970. Thereafter in the first week of April 1975, the defendant instituted a suit O.S. 238 of 1975, on the file of the Sub Court, Coimbatore for partition and the suit was said to be pending at that time. The defendant also appears to have instituted a criminal complaint against the plaintiff under Sec. 380, I.P.C. in C.C. 1922 of 1975 on the file of the Court of the Judicial Second Class Magistrate No.III of Coimbatore on the allegation that the plaintiff had committed theft of certain articles belonging to the said tannery. The defendant also appears to have obtained orders from the Court on 3.4.1975 for search of the residential house of the plaintiff and arrived at the residential house of the plaintiff in the evening of 4.4.1975 with Police party and initiated a search, which went on for more than two hours. A huge crowd was alleged to have been collected by the defendant at the entrance of the house and some articles were removed after the search from the residential house of the plaintiff. The plaintiff was obliged, it was said, to attend the several hearings in Court as an accused, charged with an offence of theft, that the case was subsequently transferred to Judicial Second Class Magistrate No.III and the said complain was absolutely baseless, reckless, hasty and bereft of any reasonable or probable cause and merely actuated by malice, spits and ill -will against the plaintiff. Articles were said to have been removed by the plaintiff in the broad day light from the tannery only for the better protection of the articles and even without proper verification of the facts how and why the articles were removed, the complaint appeared to have been laid and the articles seized under an order of search. The plaintiff also filed Crl.M.P.No. 1795 of 1975 on the file of this Court to quash the complaint preferred by the defendant and the same was allowed and the complaint was quashed by order of this Court dated 12.2.1976. In such circumstances, by making false charges and complaint with consequent orders obtained for search and seizure of the articles, the plaintiff was put to serious and irreparable damage, considerably affecting his reputation in the neighbourhood as a consequence of which, he suffered mental agony and apprehension about personal safely and liberty. He claimed that he suffered special damages as also general damages and after exchange of notices between parties, the suit came to be filed for which he restricted the claim of damages in a sum of Rs. 10,000/ -.

(2.) The defendant contended that the complaint given by him was neither actuated by malice nor was without any reasonable and probable cause, that he initiated the proceedings bona fide for preserving and protecting his interest and rights in the common property, that the defendant acted honestly believing that the articles were removed with the dishonest motive of depriving the defendant of his legitimate share in them and the only way of tracing articles removed was by having a search, as a result of which the articles removed could be identified and seized also. The allegation by the plaintiff that the defendant collected a huge crowd in front of his house was denied and the claim that the complaint was baseless and reckless or hasty or without probable cause or actuated by malice and spite or ill -will was also seriously denied. The defendant also disputed the claim of the plaintiff that the articles were removed from the tannery in broad day light for better protection of these articles, suggesting that if that was the motive, nothing prevented the plaintiff to have informed the defendant of his intention to do so before actually removing them and the complaint lodged was on reasonable grounds of the existence of a state or circumstances, which reasonably led the defendant to believe that the plaintiff was actuated by improper motives. The defendant also contended that after the tenant surrendered possession, both the plaintiff and the defendant put their respective locks as they have no confidence in each other and they have double locks and the plaintiff had opened the locks of the defendant without his knowledge and consent and the orders passed by this Court in the Criminal Miscellaneous Petition are not really relevant for the suit for proving that the complaint was malicious. While considering the fact that the articles have been seized and his attempts to separate the articles were thwarted, the defendant stated that the plaintiff also came to the defendant with some persons, assaulted and manhandled the defendant and I he plaintiff neither suffered damages as claimed nor the so called damages could be said to be either reasonable or just. The suit it was stated was only to harass the defendant on account of ill -feeling and enmity.

(3.) On the above claims and counter claims, the suit came to be tried and both parties adduced oral and documentary evidence.