KANDHA RAIGURU Vs. SADI RAMAMURTY

JUDGEMENT

(1.) THE Defendant being unsuccessful in both the Courts below bag brought this second appeal against the judgment and decree dated 27 -2 -50 of Sri B.C. Das, Additional District Judge of Ganjam, arising out of a suit for damages on malicious prosecution. The Defendant being the Karji of the village Surada submitted a report on 28 -8 -45 (Ext. 5 ) to the Sub -Magistrate, Sarada, through the Revenue Inspector, alleging that the Plaintiff along with 12 others were letting out filthy water from their house to the public road on 24 -8 -45 thereby rendering it unsanitary. The Plaintiff was tried under Section 3(9) of the Madras Town Nuisance Act which was in force in the town of Surada and was acquitted in the Court of the Stationary Sub -Magistrate, Ghumsur. Eleven others against whom the report was submitted were convicted. The Plaintiff's allegation is that the prosecution was malicious and without any reasonable and probable cause.

(2.) THE defence was that the Defendant and also the Revenue Inspector had been the letting out of the filthy water and the allegations in the report (Ext. 5) were substantially true; there was no malice. A further point also was taken that the Defendant was not the real prosecutor, and, as such, no action for damages for malicious prosecution would lie against him.

(3.) LET us examine the conduct of the Defendant before and after submitting this report (Ext. 5). While discussing the question of malice and ill -feeling between the parties, as set up by the Plaintiff, the learned lower appellate Court is of opinion that the parties were perfectly friendly and cordial before and after the report was filed by the Defendant. Ext. G is a letter dated 19 -5 -45 written by the Plaintiff to the Defendant (the Karji) asking him for a solvency certificate which would help the Plaintiff in getting his name registered as one of the contractors and the lower appellate Court finds that it was on the recommendation of the Karji that the Plaintiff obtained such a certificate. There is another letter between the parties dated 20 -6 -46 (Ext. F) wherein the Plaintiff also sought the help of the Defendant for getting concession in the matter of school fees of his child. Apart from this relationship between the parties before and after the institution of the case, the finding of the lower appellate Court that the Defendant had not taken any active part in the prosecution is much more important in the matter of the conduct of the Defendant as to the prosecution of the Plaintiff.