OM SHARAN Vs. BANSIDHAR

JUDGEMENT

(1.) THIS is a defendant's second appeal arising out of a suit for malicious prosecution filed by one Vijailal who expired during the pendency of the suit and is now represented by his legal representatives Bansidhar and others, respondents.

(2.) THE facts of the case out of which this appeal arises lie in a narrow compass. Ghishilal, father of Om Sharan. the appellant (hereinafter referred to as the defendant) and one Vijailal, since dead and now represented by his legal representatives, the respondents, were having their shops in Chomu town in which each was carrying on the business of sweets for sake of brevity Vijailal, shall be hereafter described as the plaintiff. Ghishilal was carrying on the business of sweets earlier than the plaintiff and as a result of which the plaintiff also starting the same business; it is alleged that there was business rivalry in between the plaintiff and the defendant and the relations were strained. On June 28. 1956, the defendant filed a complaint against the plaintiff and his elder brother Totaram as also against Banshidhar. Shankerlal, Ramdas and Bajranglal, all sons of the plaintiff, which report, according to the plaintiff, was false. THE re-port was filed to the Secretary for Home Affairs, Govt. of Rajasthan, to the effect that on June 19. 1956 the plaintiff and other accused persons had assaulted the defendant. That report was sent by the Secretary for Home Affairs, Government of Rajasthan to the Superintendent of Police. Jaipur, who in turn sent it to Police station, Chomu which had jurisdiction in the matter. It is alleged that the plaintiff and the other accused persons named in the report of the defendant were arrested by the S. H. O. Chomu Police Station, handcuffed and sent to Central Jail and only after some days they were released on bail. THE police station. Chomu filed a challan against the plaintiff and others named above, for offences under sections 452 and 147 I. P. C. which on trial resulted in the acquittal of the plaintiff and others on September 30, 1959 in the Court of S. D. M. Amer. According to the plaintiff earlier also a report was lodged on June 15, 1956, by Ghishilal, father of the defendant, against the plaintiff and his family members that they dismantled the wall raised by Ghishilal and thus caused a loss to him to the tune of Rs. 200/-, but when police station, Chomu did not take steps against the plaintiff and others, Ghishilal, father of the defendant, filed a complaint in a proper court which after trial, was dismissed on December 20, 1957. THE plaintiff filed a suit for malicious prosecution against the defendant on the ground that the prosecution of the plaintiff under the aforesaid report, dated, June 20,1956, to the Secretary for Home Affairs, Government of Rajasthan was with malice and without reasonable and probable cause and the plaintiff suffered a loss to the tune of Rs. 3,000/- as general and special damages. THE plaintiff claimed general and special damages for himself as well as for his brother and sons, named above, all of whom were arrayed as accused in the case and were acquitted. THE details of the amount of Rs. 3,000/- are contained in the Schedule A annexed with the plaint.

(3.) AS already observed above, the learned District Judge has made a distinction in general damages and special damages. In this view, so far as the cause of action for general damages is concerned, it does not survive to the legal representatives of the deceased plaintiff in a suit for malicious prosecution, but so far as cause of action for special damages is concerned, it survives to the legal representatives of the deceased plaintiff. The question is whether this distinction is warranted under law?