SHEO SINGH Vs. RANJIT SINGH

JUDGEMENT

(1.) THIS is a defendant's Second Appeal from the appellate decree of the court of the Additional District Judge decreeing a suit for damages for malicious prosecution in the sum of Rupees 1. 369 in favour of the plaintiff-respondents Nos. 2 to 5 who were plaintiffs Nos. 1 to 4 and in the sum of Rupees 369/- in favour of the respondent No. 1 who was plaintiff No. 5 in the suit. The trial court had decreed the suit for recovery of Rs. 630/- in favour of the fifth plaintiff alone and had dismissed the claim of the plaintiffs Nos. 1 to 4. Thus, the lower appellate court reduced the amount of the decree in favour of the fifth plaintiff from Rs. 630/- to Rs. 365/- but gave the plaintiffs Nos. 1 to 4 a decree for Rs. 1,369/- in place of the dismissal of their claim by the trial court.

(2.) ACCORDING to the plaintiff's case, the first four plaintiffs are agriculturists, while the fifth plaintiff is a Government servant and all of them are respectable citizens and own property. On 13th April, 1960, the defendant lodged a false report against the plaintiffs and then filed a criminal complaint against them under S. 323/147/149/447 I. P. C. The complaint was false and malicious and without any reasonable or probable cause. The plaintiffs were committed to sessions for trial under S. 147/323/149, I. P. C. but were acquitted, they had to spend a large sum of money on their defence and also suffered in mind, body and reputation. The total amount of damages claimed was Rs. 4,000/ -.

(3.) TO what relief, if any, are the plaintiffs entitled?" 5. In the course of its discussion on the first issue, the trial court found that the final judgment in the earlier suit, which was filed by the plaintiffs against the defendant for damages for assault and battery, operated as res judicata and it must, therefore, be held that the land in dispute was in possession of the first plaintiff whom Smt. Charto had married after the death of her previous husband, and that the defendant was the aggressor in the marpit. The trial court then proceeded to inquire and find, on the basis that the land was in the actual physical possession of the plaintiffs and the defendant was the aggressor, whether the prosecution of the plaintiffs by the defendant was malicious and without any reasonable or probable cause. The basic facts found by the trial court were that, on the date of the incident, the defendant had entered upon the land and started ploughing it, whereupon the plaintiffs questioned his right to do so and there was a marpit. According to the trial court, the plaintiff's being in possession, they had the right to use reasonable force to throw out the defendant from the land. But that was not enough to make the defendant liable in damages for malicious prosecution. The evidence produced by the defendant showed that he had also received injuries. According to the trial court, it was a case of mutual assault in which it could not be said as to who gave the first blow, and that was the finding recorded by the High Court also on the defendants appeal against his conviction. I may here add that the defendant was also prosecuted in respect of the same incident, and while the plaintiffs were acquitted, the defendant was convicted. According to the trial court, the defendant could have reasonable thought, when he entered upon the land, that the plaintiffs Nos. 1 to 4 had no right to turn him out by force or even if they did so they certainly had no right to cause him injuries and the defendant could have reasonably and probably thought that the force used by the plaintiffs Nos. 1 to 4 to throw him out was excessive, or more than what was actually necessary. According to the trial court, it could not, therefore, be said that the defendant had no reasonable or probable cause for prosecuting the plaintiffs Nos. 1 to 4, and it could also not be said that the defendant was actuated by malice in so far as the plaintiffs Nos. 1 to 4 were concerned. But the trial court also found that the plaintiff No. 5 was not present at the incident and did not participate in the marpit and that his prosecution was actuated by malice and was without reasonable and probable cause, as the defendant knew that the plaintiff No. 5 had not taken part in the marpit. On issue No. 2, the trial court found that the plaintiff No. 5 alone was entitled to recover damages and assessed the same at Rs. 630/ -. The finding on issue No. 3 shows that the trial of the suit was stayed pending final decision of the earlier suit for damages for assault and battery. Issue No. 4 was not pressed before the trial court, and finding on issue No. 5 that the plaintiff No. 5 alone was entitled to recover Rupees 630/- as damages against the defendant, it decreed the suit accordingly with proportionate costs.