MOHAMMED GULAM NABI KHAN Vs. MEHFOOZ ALI

JUDGEMENT

(1.) IN this appeal by the defendant against the decree for damages, the question of law for determination is whether the act complained of is actionable as a tort. The findings of the Courts below, which are now binding in this second appeal are that the appellant bore malice against the respondent as the appellant was opposed to the marriage of the respondent's sister with his cousin brother. Complaints were made by the appellant to district authorities against the respondent relating to the respondent's activities as medical practitioner. These complaints were also actuated by malice resulting from professional rivalry as both of them were medical practitioners at the same place. Ex. P/10 is one of such complaints. Inquiry was held by the district authorities into those complaints and the respondent's place of business was searched. The complaints were all found false. Consequently, those complaints including the complaint vide Ex. P/10 were dropped. The respondent/plaintiff succeeded in Courts below and has been awarded damages in a sum of Rs. 1,500/- on these findings. The argument by the appellant's learned counsel is that facts found do not invade plaintiff's any civil right and is, therefore, not an actionable wrong. It may be mentioned here only that the learned counsel for the respondent did not support the claim for damages for any malicious prosecution.

(2.) PEOPLE are expected to adhere to standards of reasonable behaviour. Rights and interests of each other must be respected. Before an act is termed as 'tort', it should be legally wrongful, i. e. , it must prejudicially affect the legal right of the party complaining of such act. It is not enough that the act complained of may do him harm in his interest. A legal right, says Austin, is a 'faculty' which resides in a determinate party or parties by virtue of a given law, and which avails against a party or parties other than the party or parties in whom it resides. Such right may be private right or public right. There is a corresponding obligation or duty when there is a legal right. The obligation consists in performing some act or refraining from performing an act. In the field of tort, one is concerned with "the duty to abstain from wilful injury, to respect the property of others, and to use due diligence to avoid causing harm to others. " A tortious act, i. e. , injuria, means any unauthorised interference with some absolute right conferred by law on a person. Such an injury with absolute right is actionable per se i. e. , even if no actual damage is proved, the Court is bound to award to the plaintiff some nominal damages. But an action would not lie when there is neither damage "nor injury. So also no action would lie when there is no injur, i. e. , without infringement of any legal right, although actual loss may be caused to the plaintiff. This is expressed by the phrase damnum sine injuria. The reason is that the loss in such cases is not caused by any wrong but by another's exercise of his undoubted right. The loss or detriment thus is not a ground for action unless it is one of the species of wrong of which the law takes cognizance. In Dhanusao v. Sitabai, 1948 NLJ 450 = ILR 1948 Nag. 698, the law stated is that in a suit for damages based on a tort the plaintiff cannot succeed merely on the ground of damage unless he can show that the damage was caused by violation of a legal right. The wrongful act must come under the category of wrongs for which the remedy is a civil action for damages. Justice G. P. Singh, the former Chief Justice of this Court, while revising 'the Law of Torts' by Ratanlal and Dhirajlal, in its 21st Edition, at page 19, has observed that "the entire history of the development of the tort law shows a continuous tendency which is naturally not uniform in all common law countries, to recognise as worthy of legal protection of interests which were previously not protected at all or were infrequently protected and it is unlikely that this tendency has ceased or is going to cease in future. " The learned author proceeded to say, "but generally, the judicial process leading to recognition of new tort situations is slow and concealed for judges are cautious in making innovations and they seldom proclaim their creative role. Normally a new principle is judicially accepted to accommodate new ideas of social welfare or public policy. . . . . . ". The learned author on the present state of English law, quoted Prof. G. Williams to say :

(3.) IT may as well be noted that an act in itself lawful will not be rendered unlawful merely because it was ill-motivated. Thus, an act which is not illegal or wrongful cannot be made the basis of an action merely because it is done with bad motive or ill will. Malice by itself may not be cause of action if there is no violation of any valid right. Malice may, however, be an element to be considered in fixing amount of compensation for the injury resulting from infringement of legal right. It is only where malice is a gist of action (as in the case of claim for damages for malicious prosecution), an innocent act is rendered wrognful by proving malice.