GOPA Vs. AMARNATH

JUDGEMENT

(1.) THIS is a civil second appeal and arises out of a suit instituted by plaintiff claiming damages against the defendant for malicious prosecution.

(2.) THE facts which gave rise to this appeal briefly stated are these. The Military authorities wanted to construct aerodrome in Mauza Kawa near Udhampur and they cut down a number of trees including mulbery trees standing on the land belonging to different persons. Rani Katoch and one person named Mal sold the timber lying on the ground to the defendant for Rs. 175/ -. The Mulberry Assistant, finding some mulberry timber in the lot sold, attached the whole timber and auctioned it to the plaintiff. The defendant remonstrated that he had purchased the timber and it should not be attached and auctioned but the Mulberry Assistant directed him to obtain the sanction from the Department for purchasing the timber. On 29th of Magh 2005 the Mulberry Assistant through his own men, loaded the timber in the trucks and allowed the plaintiff to remove the timber in pursuance of the auction sale. The defendant filed a complaint in the Court of Sub -Judge Magistrate Udhampur against the plaintiff. The accused were discharged and the order of discharge was upheld in appeal by the Sessions Judge and as well as by this Court in revision. The plaintiff against whom the complaint was filed by the defendant filed a suit claiming damages from the defendant for malicious prosecution. It was alleged by the plaintiff that the defendant who was actuated by malice had filed a cirminal complaint without any reasonable and probable cause. The defendant resisted the suit on the ground that he honestly believed that the plaintiff had committed the offence and therefore a complaint was filed. He denied having been actuated by any malice against the plaintiff. The trial Court found that the complaint was malicious and awarded the plaintiff Rs. 500/ - as damages against the defendant. The defendant went up in appeal but was unsuccessful. He has come up in further appeal to this Court.

(3.) THE sole question for determination in this appeal is whether the complaint lodged by the defendant against the plaintiff was without reasonable and probable cause and actuated by malice. The defendant had bought the timber from the proprietors for a sum of Rs. 175/ - he had stacked the timber at a place belonging to one Massu. The timber was auctioned by the Mulberry Assistant and the plaintiff was the auction purchaser. When the defendant found that the timber was removed by the plaintiff he lodged the complaint against him. The complaint was dismissed on the ground that there was no dishonest intention on the part of the plaintiff in removing the timber from the place where it was stacked. There is no finding of the criminal courts that the complaint was frivolous or vexatious.