PADMA CHARAN MAHARATHA Vs. NARENDRA JAYASINGH AND ORS.

JUDGEMENT

(1.) THE Defendant No. 1 in O. S. No. 7/146 of 1978/75 -III of the Court of the Addl. Munsif. Puri has filed this second appeal challenging the judgment of the lower appellate Court decreeing the suit against him reversing the decision of the trial Court.

(2.) THE Respondent No. 1 Narendra Jayasingh, filed the suit against the Appellant and Respondents 2 to 4 claiming a sum of Rs. 460/ - towards damages for malicious prosecution and for unauthorisedly removing 2000 bricks from the disputed kiln. The gist of the Plaintiff 's case was that he had prepared 45.000 bricks on a piece of Anabadi land lying adjacent to his land, for the purpose of remodelling his house. The Defendant No. 1 alleging that the bricks had been prepared by the Plaintiff and himself in partnership and in the former was trying to appropriate them exclusively for himself filed a petition before the Sadar S. D. M., Puri on the basis of which a proceeding under Section 145, Cr. P.C. (Misc. Case No. 60 of 1974) was initiated against the Plaintiff. Subsequently the proceeding was dropped by the learned Magistrate on 10 -1 -1975 as not maintainable. - The further case of the Plaintiff was that on 10 -1.1975 when he was in Puri to attend the Court, the Defendant No. 1 with the assistance of the other Defendants removed 2000 pieces of bricks from the brick kiln valued at Rs. 160/ -. On these allegations the Plaintiff claimed damages from the Defendants for malicious prosecution and for loss caused due to unauthorised removal of bricks Rs. 300/ - on the former count and Rs. 160/ - on the latter.

(3.) THE trial Court framed several issues, the important issues being whether the bricks were the exclusive property of the Plaintiff and whether the Defendants carried them away? And whether the Defendants are liable for damages for malicious prosecution, for initiating the proceeding under Section 145, Cr.P.C.? On both these issues the findings of the trial Court were against the Plaintiffs, that is, the Plaintiff was not the exclusive owner of the bricks, the Defendants had not removed the bricks as alleged by the Plaintiff and the proceeding under Section 145. Code of Criminal Procedure could not be said to have been initiated by the Defendant No. 1 out of malice and without any reasonable and probable cause.