SUDHIR CHANDRA PAL Vs. RAJESWAR DATTA

JUDGEMENT

(1.) THE facts giving rise to this appeal may be stated briefly. A criminal case was instituted against the plaintiff by the defendant as per his complaint (Ext. A -4). In Ext. A -4, it was alleged that the defendants (in the instant suit) had earlier instituted proceedings under Sections 107 and 145, Cr. P. C. against the plaintiff and thereafter the plaintiff, in order to harass the defendant and also to take over possession of his land, trespassed into a part of his land and forcibly erected some posts thereon, with the object of putting up a fence. In the schedule of the said complaint (Ext. A -4), where the boundaries of the land were given, it was also stated that the plaintiffs had put up a fence within the said land for about 7 cubits. Various dates for hearing were fixed by the learned Magistrate upon receipt of this complaint, but finally vide the learned Magistrate's order dated 29 -4 -68 the following order was passed -

(2.) HENCE this suit for damages for malicious prosecution against the defendant (complainant in Ext, A -4).

(3.) THERE is no dispute, in the instant case, that the proceedings were instituted by the defendant, upon his complaint as per Ext. A -4, nor is there any dispute that the proceedings, so commenced and continued, terminated in favour of the plaintiff -respondent. The questions that fall for adjudication in this second appeal are, therefore, how far the defendant can be held to have acted maliciously and how far he also acted without reasonable and probable cause.