BRIJLAL Vs. PREMCHAND

JUDGEMENT

(1.) THIS is a second appeal by the plaintiffs in a suit for malicious prosecution.

(2.) BRIEFLY stated, the plaintiffs' case as narrated in the plaint is like this : On 26-12-56 the defendant-respondent filed a complaint under sec. 41/44 of the Delhi and Ajmer Rent Control Act, 1952, hereinafter referred to as the Act, against the plaintiffs in the Court of the City Magistrate, Ajmer, alleging therein that plaintiff No. 1 Brijlal was the landlord of the defendant, that plaintiff No. 2 Jagmohan was the rent collecting agent of plaintiff No. 1 and that on 29-11-56 the plaintiffs had cut off electric connection of the premises occupied by the defendant and were therefore liable to prosecution. The complaint was tried by the First Class Magistrate, Ajmer, who acquitted plaintiff No. 2 but convicted plaintiff No. 1 under sec. 41/44 of the Act and sentenced him to a fine of Rs. 1000/ -. On appeal, the learned Additional Sessions Judge, Ajmer, acquitted plaintiff No. 1 also. The plaintiffs' case further is that the complaint filed by the defendant was without reasonable and probable cause, false to his knowledge and actuated by malice. The plaintiffs further pleaded that there was never the relationship of the landlord and the tenant between plaintiff No. 1 and defendant, that the plaintiff No. 2 was not the rent collecting agent of plaintiff No. 1 and that the electric connection was never cut off by or at the instance of the plaintiffs. On the above facts, plaintiffs No. 1 and 2 claimed separate damages for malicious prosecution in the sum of Rs. 1799/14/- and Rs. 1000/2/- respectively. The defendant in his written statement admitted having filed the complaint against the plaintiffs as also the fact that the plaintiff No. 2 was acquitted by the trial court and the plaintiff No. 1 was acquitted by the appellate court. He denied the allegation that the complaint was filed with malice and without reasonable and probable cause. He also denied the allegation that the electric connection was not cut off by or at the instance of the plaintiffs. The defendant alleged that the plaintiff No. 1 was the owner of the house No. AMG/13/472 situated in Ajmer, that in January 1954 the plaintiff No. 1 kept him as a tenant in respect of a portion of the said house and that the plaintiff No. 2 who was student in those days, was in occupation of a room in the said house and he used to collect rent from him and other tenants and pay the same to the plaintiff No. 1.

(3.) WITH great respect to the learned Judges, the grounds on which Pestonji's case (9) was distinguished are, in my opinion, neither sound nor convincing. Their lordships of the Privy Council in Pestonji's case laid down in very clear terms that the question as to the existence of reasonable and probable cause and malice is a question of fact. In my opinion, it is immaterial whether the said dictum was laid down in connection with the propriety of the certificate or otherwise. Their lordships no doubt observed that according to the English law the inference as to reasonable and probable cause is drawn by the judge and not by the jury but they made a distinction with the trial by jury and that by a judge and held that where the case is tried without a jury, inference of reasonable and probable cause is really nothing but a question of fact. It is true that in England where a trial is by a jury the question of absence of reasonable and probable cause would be considered a question of law in a limited sense that it has to be decided by a judge but the same consideration cannot prevail in India where the trial is by a judge.