ABAS Vs. SHEOLAL

JUDGEMENT

(1.) This is a plaintiffs' first appeal from the judgment of the learned District Judge dismissing the suit as premature and, therefore, not maintainable. The point involved in this appeal lies within a narrow compass but before Betting it out and dealing with it, a few facts may be stated in order to show how it emerges.

(2.) There is a firm of Motilal Nemichand consisting of Motilal, Nemichand and Ramanlal partners which was carrying on business of commission agents at Ahmedabad. Barkat, Abas, Wali and Jan Mohammad, sons of Akbar, carried on business of cloth and colours and used to purchase their goods through the firm Motilal Nemichand. During the course of their dealings, it appears from the allegations made by the plaintiffs, Barkat and his brothers incurred certain liabilities and not having discharged them, the plaintiffs instituted two suits against them for the recovery of RS. 7,870-7-9 and RS. 24,433.0-9 respectively on 20-7-1948, in the Court of Distriot Judge, Jodhpur. On 21-7-1948, an application was made on behalf of the plaintiffs in both these suits for a warrant of attachment before judgment being issued on the ground that the defendants were about to dispose of their property and leave Marwar and thereby make it difficult for them to satisfy the decree that may subsequently be obtained by them. The Court passed an ex parte order for conditional attachment and on 27-7-1948, three houses and one shop were attached. On 13 9-1948, Barkat and his brothers, defendants, applied for the order being vacated on various grounds. The plaintiffs' application, which culminated in the attachment and was subsequently opposed by the defendants, we understand, is still pending and has not been disposed of so far. In the meanwhile, on 2-5-1949, Barkat and his brother an instituted the suit, out of which this appeal arises, against Motilal, Nemichand and Ramanlal and also against Sheolal, Ghamandiram, Kesarmal and Multanmal for recovery of Rs. 50,000 on account of damages on the ground that the application for attachment had been made out of malice, without reasonable and probable cause and with a view to compel the plaintiffs to compromise the suits by bringing undue pressure to bear upon them. Defendants pleaded inter alia that as the proceedings in connection with the application for attachment had not been disposed of and had not terminated in the plaintiffs' favour, the suit instituted by them was premature, as a cause of action could not be said to have accrued to them. The learned District Judge framed only one preliminary issue to the effect whether the suit by the plaintiffs was premature and, therefore, not maintainable. After hearing arguments, be came to the conclusion that termination of the proceedings in favour of the plaintiffs was an essential condition in order to furnish them with a cause of action and that since the proceedings had neither been confirmed nor the order of attachment vacated in the suit in which they were pending, the Suit was premature and, therefore, not maintainable. In the result, he dismissed the suit with costs.

(3.) It is urged by Mr. Chandmal, the learned counsel for the plaintiffs-appellants that all that was necessary for the plaintiffs to show was that the warrant of attachment had been got issued on insufficient grounds and that it was open to him in law to establish this in the suit instituted by him. He argued in effect that principles relating to suit for malicious prosecution did not govern the present suit and that accordingly, it was not necessary that the proceedings in the previous suit should have terminated in the plaintiffs' favour. It is urged that according to Section 95, Civil P. C., the plaintiffs were competent to apply and pray for a compensation limited to Rs. 1000 but that if they wanted a decree for a larger amount, the institution of a suit was imperative. But so far as the principles of law governing the application under Section 95, Civil P. C, and the suit for compensation are concerned, they are absolutely the same and are in effect different from the principles governing a suit for malicious prosecution. In support of this proposition, he cited Manohar Lal v. Gobardhan Prasad, 9 I.C. 60 : (13 O. C. 857), a Division Bench judgment of the Court of Oudh Judicial Commissioners. In this case, the appellants had brought a suit for possession and obtained an order under Section 492, Civil P. C. of 1882 which is the same as Order 39, Rule 1 of the present Civil P.C., that the Shop and its contents should remain in possession of the Court Officer pending the disposal of the suit. On the dismissal of the suit, the property was made over to the respondent who then brought the suit, out of which this case arose, for damages. In the course of arguments in the appeal, it appears to have been urged that the principles governing application under Section 96, Civil P. C., and suits foe compensation were identical and Edward Wilson v. Kanhya Sahoo, 11 W.R. 143 and Gautiere v. Robert, 2 N. W.P. H. C. 353 were cited in support of this proposition. In Edward Wilson v. Kanhya Sahoo, 11 W. R. 143, the Court found, a distinction had not been drawn between the grounds on which compensation could be awarded under Section 95, Civil P. C, for injuries resulting from an injunction and the grounds on which a separate suit for damages could be maintained. In the other case, however, it was found that the view which prevailed was different. It was held that compensation could be awarded under Section 95 on the ground of injury resulting from careless-or mistaken action of a plaintiff in suing out mesne process whereas damages could not be awarded in a separate suit except on proof of malice and want of reasonable and probable cause. Chamier and Lindsay JJ. found that apart from authority, it would seem that to institute a suit without reasonable or probable cause and to apply for and obtain in that suit an injunction whereby a. man's shop is stopped or other loss caused to him is wrongful and should give rise to a cause of action. They ultimately came to the conclusion that if the Civil Procedure Code laid down that a wrong may have bean committed for which compensation may be granted in special proceeding when an injunction is applied for and obtained without reasonable or probable cause, it is difficult to see why the person who has been wronged should be required to prove anything more if he elects to proceed by way of regular suit, It appears from the above conclusion that the phrase "on insufficient grounds" occurring in Section 95 (i) (a) Was interpreted to mean without reasonable or probable cause. This meaning was attached to this phrase in another authority reported as Boulet v. Fetterle, 18 Bom. 717, where Starling J. held that he must interpret the words "on sufficient grounds" as being equivalent to "without reasonable and probable cause." The question which now arises is whether apart from proving this, it is necessary for the plaintiffs also to establish in the regular suit instituted by them that the proceedings in the previous suit had terminated in their favour. After enunciating the proposition that this was not necessary, the learned counsel for the plaintiff-appellants had to concede that so far as the authorities were concerned, a view had consistently prevailed which was against his contention. These authorities are Joseph Nicholas v. Sivarama Iyer, A. I. R. (9) 1922 Mad. 206: (45 Mad 527); Nasiruddin v. Umerji Adam & Go., A. I. R. (28) 1941 Bom. 286 : (I. L. R.. (1941) Bom. 521) and Satish Chandra v. Munilal, A. I. R. (19) 1932 cal. 821 : (59 Cal 1073). Before discussing these authorities, it may be pointed out that an action for damages for abuse of legal process is based on tort and, therefore, on the allegation that the process of law, having been put into force maliciously or without any reasonable or probable cause. was wrongful and had accordingly prejudiced the plaintiffs in property or person. For an action of this character, it has been consistently held that the same principles will apply which govern cases relating to malicious prosecution, one of these important principles being that the proceedings complained of had terminated in favour of the plaintiff if from their nature they were capable of so terminating. This principle of law is enunciated in Halsbury's Laws of England (Hailsham Bdn.) vol. 22, p. 27 para. 42 in the following language: