ANTARJYAMI PARIDA Vs. RAMAHARI JENA

JUDGEMENT

(1.) THIS second appeal is by the Plaintiff against the appellate judgment of the Subordinate Judge of Baripada, reversing the judgment of he Munsif of Baripada and dismissing the Plaintiff's suit for damages.

(2.) THE Plaintiff alleged that there were two proceedings under Section 107 Code of Criminal Procedure in the Court of the First Class Magistrate of Baripada sometime in June 1954. In one of those proceedings the Defendant's father and some other persons were made the accused persons. They appeared in Court on 2 -6 -1954 but as they were unable to furnish security they were remanded to Hajat. The Plaintiff was also one of the accused in a counter -proceeding under Section 107 Code of Criminal Procedure pending before the same Magistrate. He alleged that 011 2 -6 -1954 when he came out from the Bar Library towards the Court -room of the Magistrate, the Defendant accosted him and abused him saying "Sala" it is for you that all this has happened" and then stretched forth his left hand with a view to clutch at the threat of the Plaintiff and raised his right hand with a view to give him a slap on his left cheek. The Plaintiff however moved his head away and thus escaped being slapped by the Defendant. The incident was noticed by several people in the Court premises, including P.W. 2. The Plaintiff alleged that he suffered mental agony on account of this public insult and claimed damages. The trial court believed the entire incident as alleged by the Plaintiff especially in view of the evidence of the Plaintiff's lawyer P.W. 2. He decreed damages to the extent of Rs. 200/ -. On appeal the learned Subordinate Judge did not give a clear finding as to whether he accepted the entire evidence of the Plaintiff as regards the incident. He thought that the Defendant merely used abusive words and did not actually assault the Plaintiff. But he added that the Defendant raised his hand demonstrating a threat that he would give him a slap. On this finding he thought that the case reported in Girish Chunder Mitter v. Jatadhari, A.I.R. 6 Cal. 653, would apply and that mere abusive words were not actionable, irrespective of any special damage. Hence he dismissed the suit.

(3.) I am satisfied that the Defendant is guilty of actionable assault. As regards the quantum of damages the sum of Rs. 200/ - estimated by the trial court appears to be somewhat excessive. Moreover the incident took place in the heat of the moment, when the Defendant was feeling provoked due to the remanding of his father to Hajat. Taking these circumstances into consideration, I think it will be sufficient if a sum of Rs. 50/ - is awarded as damages.