CHANDRA SEKHAR RATH Vs. LINGARAJ MOHAPATRA AND ORS.

JUDGEMENT

(1.) PLAINTIFFS four in number, filed Money Suit No. 42 of 1958 against the sole Defendant for recovery of damages for malicious prosecution. Damages were claimed separately by each of the Plaintiffs. Plaintiff No. 1 claimed Rs. 200/ -, Plaintiff No. 2 Rs. 100/ -, Plaintiff No. 3 Rs. 20/ - and Plaintiff No. 4 Rs. 20/. Thus in all Rs. 340/ - was claimed as damages. Rs. 10/ - was claimed as special damages for the expenses of witnesses for defending themselves in Complaint Case No. 34 of 1957 in the Court of Nijgarh Adalti Panchayati, Athgarh. Plaintiffs thus claimed Rs. 350/ - and costs. The plaint allegation was that the Defendant filed a criminal case before the Adalti Panchayat without reasonable and probable cause being actuated by malice. The defence was that the averments in the plaint were not true and no case had been made out for malicious prosecution. The trial Court decreed the suit in toto with costs of Rs. 92. 31 paise. Defendant filed an appeal before the District Judge, Cuttack which was ultimately heard by the 2nd Additional Subordinate Judge. He did not go into the merits of the matter and dismissed the appeal as having abated.

(2.) BEFORE proceeding further it may be clarified that though in the plaint the four Plaintiff, claimed separate amount of damages, as already indicated, in the decree drawn up the amount is stated as a consolidated amount Rs. 340/ -. Mr. Dhal accordingly argued that the decree for damages was also joint

(3.) THE correctness of this contention can be tested by examining the fortune of the litigation if the lower appellate Court decides to allow the appeal by holding that a case for malicious prosecution has not been made out. On such a finding, the suit of the Plaintiffs is bound to be dismissed with complete discretion left in the lower appellate Court to award costs to the Defendant against the Plaintiffs. This discretion of granting costs against the Plaintiffs on the contingency of the successes of their appeal would not be available to the lower appellate Court in view of the position already conceded that the appellate Court cannot, interfere with the trial Court's decree regarding costs and special damages. In case the appellate Court grants costs against the Plaintiffs, there would be two inconsistent and contradictory decrees in the same litigation which is abhorrent to law of abatement. In this view of the matter, even though the decree for damages of Rs. 340/ - is divisible and the abatement of the appeal against Plaintiffs DO, 4 would not have normally affected the appeal against the other three Plaintiffs, the appeal must abate as a whole. Mr. Misra's contentions must, therefore, be rejected on the aforesaid elementary analysis. No authority directly on the point could be cited by the learned advocates on either side though the case was adjourned from time to time and enough opportunity was given to them. The nearest case, though not directly applicable to the s, is one reported in Neechand v. Harakchand : A.I.R. 1965 Raj. 132.