PARKASH CHAND SETH Vs. SANT SINGH

JUDGEMENT

(1.) PARKASH Chand Seth Appellant filed an application against Sant Singh under Section 13 of the, East Punjab Rent Restriction Act claiming eviction of the Respondent from the house which the Respondent had taken on rent from one Nihal Chand as Parkash Chand Seth had subsequently purchased this house from Nihal Chand. The eviction was claimed on the ground that the Respondent had failed to pay the rent and had also caused damage to the property. During the hearing of the application it was agreed that the case be decided on a special oath being taken by the Respondent and as the Respondent took the oath the application for eviction was dismissed. Respondent Sant Singh then filed a suit against Parkash Chand Seth for a declaration that the property in dispute was owned by him and that he was not the tenant of Parkash Chand Seth. It was further alleged in the suit that Parkash Chand Seth was only a benamidar and was not the owner of the property. Sant Singh did not appear on the date when the evidence was to be recorded with the result that his suit was dismissed for default with costs. Parkash Chand Seth then brought the present suit for the recovery of Rs. 500. as damages for malicious civil prosecution and damage to the property. The suit was contested by Respondent Sant Singh and on the pleadings of the parties the following issues were framed:

(2.) IN appeal before me the decision on issues Nos. 2, 6 and 8 has been challenged. The first appellate Court had found that the earlier suit filed by the Defendant was malicious. This finding was based on the consideration that in the earlier eviction proceedings before the Rent Controller the Defendant had not taken the plea that the Plaintiff was not the owner of the property in dispute or that he was benamidar for him. It was further found that the suit filed by the Defendant claiming the Plaintiff to be benamidar was filed merely to harass the Plaintiff. In spite of these findings, it was held that it was not actionable wrong to institute civil proceedings without reasonable and probable cause even if malice was proved. Support for this view was sought from the decision of Punjab Court in Abdul Samad Khan v. Rahmatullah Khan, 1889 P.R. 568, etc., wherein it was held that a suit for damages arising out of a civil action, brought maliciously and without reasonable or probable cause does not lie. The argument on behalf of the Appellant before the first appellate Court and again before me is that the rule laid down in the above case was no longer good law because of the introduction of Section 35 -A in the Code of Civil Procedure after the above judgment. By referring to Sub -section (4) of Section 35 -A it was contended that suit for damages in case of civil malicious prosecution was envisaged in this provision.

(3.) SECTION 35 -A relates to the award of compensatory Costs in respect of false and vexatious claim or defence. Sub -section (4) provides as under: (4) The amount of any compensation awarded under this. section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim on defence.