RAM PRASAD Vs. NATHAN SINGH AND

JUDGEMENT

(1.) THIS is a defendant second appeal in a suit for recovery of Rs. 975/- as damages for malicious prosecution. Originally there were four plaintiffs. Hira Lal, the third plaintiff died during the pendency of the appeal before the lower appellate court. It was held by the appellate court that the right of the other plaintiffs to prosecute the suit was not affected by Hira Lal's death and although the suit was dismissed by the trial court, the lower appellate decreed the suit for recovery of Rs. 735.25 with proportionate costs in favour of the remaining three plaintiffs but against the first defendant Ram Prasad only, and dismissed the suit against the other defendant nos. 2 to 4. The first defendant Ram Prasad is the appellant. Respondent nos. 1 to 4 were the original plaintiffs. Hira Lal, the third plaintiff was impleaded as respondent no. 3 although, as already noticed above, he died during the pendency of the appeal in the lower appellate court. The appeal was dismissed as against Hira Lal by an order of this Court dated September 24, 1974, on account of the appellants not taking steps to serve him, but when this order was brought to my notice at the hearing of the appeal on 25th April, 1978, I rectified it by ordering that the name of Hira Lal be struck off from the memorandum of appeal, as a person who was already dead and could not have been made a party to the appeal. The other respondents, namely, respondents nos. 5, 6 and 7 were the defendants against whom the suit was not decreed by the lower appellate court. The trial court found that the plaintiffs had failed to prove that the defendant had prosecuted them maliciously and without any reasonable and probable cause, and further that the suit against the defendants nos. 2 and 3 was not maintainable at all. The lower appellate court has, on the other hand, held on point no. 3 that the complaint filed by the first defendant was false and without any reasonable or probable cause and from the fact that the defendants had no reasonable or probable cause for filing the complaint which was false the learned Judge has inferred that the complaint was malicious. The learned Judge has also observed that the fact that there was Ranjish between the parties, was admitted by Ram Prasad, defendant, who appeared as D.W. 1, and although he was conscious that malice and enmity are not synonimous but are indicative of two different states of mind and fact, he went to hold that, "In view of the defendant's own admission that he had 'ranjish1 (malice) with the plaintiff due to the trees it cannot be denied that the complaint filed by the defendant no. 1 against the plaintiffs which have (sic) been held to be false and without any reasonable or probable cause were (sic) malicious." I did not have the advantage of the presence of the learned counsel for the appellant, but the law is well settled that a plaintiff who claims damages for malicious prosecution must prove that the defendant prosecuted him without reasonable or probable cause and also that he was actuated by malice, and that the two namely, malice and the absence of reasonable and probable cause, are distinct and separate facts, and that absence of reasonable and probable cause does not lead to any presumption that the complaint was actuated by malice. Total absence of reasonable and probable cause may be relied upon as evidence for infering malice but it is not the law that the absence of reasonable and probable cause must necessarily lead to the raising of a presumption that the defendant was actuated by malice. Further, malice is not the same thing as enmity. In Raja Braja Sunder Singh Deb v. Ramdeb Das alias Pattanaik(A.I.R, 1944 P.C. 1), the Privy Council observed that: "In order to succeed in an action for malicious prosecution the plaintiff must in the first instance prove two things: (1) that defendant was malicious and (ii) that he acted without reasonable and probable cause. Malice has been said to mean any wrong or indirect motive, but a prosecution is not malicious merely because it is inspired by anger. However, wrong-headed a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be the initiator of a malicious prosecution. But malice alone is not enough; there must also be shown to be absence of reasonable and probable cause". In Babu Sumat Prasad v. Ram Sarup Sastry(A.I.R. 1946 Alld. 204), a Division Bench of this Court observed: "Malice means the presence of some improper and wrongful motive, that is to say some motive other than desire to bring to justice a person whom the prosecutor honestly believes to be guilty. THIS position of law was followed by a learned single Judge of this Court in Devi Atma Nand Cheti Krishna Nand v. Shambhu Lal Master(1965 A.L J. 317). Mr. Swami Dayal, learned counsel for the plaintiff-respondents urged that the complaint was false to the own knowledge of the defendant-appellants and was wholly without reasonable and probable cause, and in this situation malice has to be presumed In the light of the land laid down by a bench of this Court in Puttu Lal v. Ram Swaroop (1918 Vol. 46 I.C. 190), wherein it was held that the complaint being false to the knowledge of the defendants, the court was bound to infer malice from his conduct. Reliance was also placed on a decision of a Division Bench of the Madras High Court in Musammat Khader Unnissa Begam v. Muhammad Nustan Ali Badsha Sahib(1915 Vol. 29 I.C. 12), wherein also it was held that when a complaint is false to the knowledge of the complainant, not only is want of reasonable and probable cause proved but malice also is proved. ''These decisions were rendered before the decision of the Privy Council in Raja Braja Sunder Deb v. Ramdeb Das alias Pattanaik (supra) and if they mean to lay anything contrary to the rule laid down by the Privy Council, they cannot be regarded |o have laid down rule good law. Moreover, I am bound by the subsequent decisions of this Court in the cases of Babu Sumat Prasad and Devi Atma Nand Cheli Krishna Nand. At any rate the learned Additional Civil Judge has not found that the complaint was false to the own knowledge of the defendant-appellant. What he has found is that Ram Prasad, the first defendant stated in the cross-examination in his statement on oath that the trees were not cut in his presence and that he was told about the cutting of the trees by his son and dis-believing one of the alleged eye-witnesses of the cutting of the trees, on the ground that he had very poor eye-sight and other eye-witnesses on other grounds he went on to hold that there Was no evidence to show that the plaintiffs had cut the trees and that, therefore, the complaint filed by the first defendant was false and without any reasonable and probable cause. The learned Additional Civil Judge has not gone into the question whether the defendant-appellant did not honestly believe in the truth of the criminal complaint which he filed against the plaintiffs, nor has he held any where that the complaint was false to the own knowledge of the defendant-appellant. THIS being so, the two ruling relied upon by the learned counsel for the plaintiff-respondents do not help their case. The finding of the learned Additional Civil Judge on the existence of malice cannot be sustained in view of the law laid down by the Privy Council in Raja Braja Sunder Deb's case, and by this Court in the cases of Babu Sumat Prasad and Devi Atma Nand Cheli Krishna Nand (supra). The finding of the learned Additional Civil Judge on the question of absence of reasonable and probable cause is also not satisfactory. It is not a finding on a pure question of fact but on a mixed question of law and fact. The result is that this appeal must succeed and is allowed. The judgment and decree of the court of First Additional Civil Judge Agra dated December 13, 1967 in Civil Appeal No. 132 of 1967 are set aside, and the decree of the trial court dated 24-4-1965 dismissing the suit is restored. There shall, however, be no order as to costs in this Court as no one appeared for the defendant-appellant at the hearing.