ARJUN SINGH Vs. PARBATI

JUDGEMENT

(1.) The fasts of the suit out of which this appeal arises are these. Ganga Prasad Tiwari died in Mainpari in 1911. He left a widow Musammat Parbati, Arjun Singh claimed to be his adopted son. Musammat Parbati set up that Arjun Singh was not the adopted son of Ganga Prasad. 0 i the 8 October 1911 Musammat Parbati and Arjun Singh executed an agreement in writing by which they undertook to refer their disputes to the arbitration of a certain Dambar Lal. Dambar Lal accepted the arbitration and made an award on the 8 November 1911 by which he awarded a molety of the debts doe to the deceased to Arjun Singh and the remaining moiety to Musammat Parbati. He awarded Musammat Parbati a life interest in other property. Arjun Singh instituted a suit on the 6 May 1912 against Musammat Parbati for a declaration that the award in question was of no effect as against him and that be was the adopted son of Ganga Prasad and the owner of the entire property left by the latter.

(2.) The learned Subordinate Judge of Mainpuri decreed the suit in his favour by a judgment of the 31 March 1913 and Musammat Parbati appealed to the High Court who on the 16 November 1915 found that the award was a good and binding award and dismissed Arjun Singh's suit. The present suit has been brought by Musammat Parbati against Arjun Singh for damages sustained by her in consequence of his suit. The lower Appellate Court has decreed her relief to a certain extent. It has allowed her compensation in respect of the bonds which became time barred between the 31 March 19l3 and the 16 February 1915, the period during which she was precluded from suing on the bonds owing to the existence against her of the judgment of the Subordinate Judge which was eventually set aside. Arjun Singh appeals to this Court on a prayer that the whole suit of Musammat Parbati should stand dismissed. Musammat Parbati files cross- objections requesting that she should be granted relief more than was allowed her by the lower Appellate Court.

(3.) The first plea taken by Arjun Singh is that no such suit as that brought by Musammat Parbati can lie. In support of this plea his learned Counsel relies in the main on a decision. of a Bench of the Calcutta High Court Singh 26 Ind. Cas. 296 : 42 C. 550 : 18 C.W.N. 1189 : 21 C.L.J. 68. The facts in that case were that Mohini Misser had sued Surendra Narain Singh for an injunction restraining the latter from erecting an Indigo Factory on certain land. A temporary injunction was given to the plaintiff and finally a mandatory injunction was given to him by the Trial Court, That mandatory injunction was set aside by the District Judge but restored by the High Court of Calcutta. Their Lordships of the Privy Council subsequently decided on appeal that the plaintiff was entitled to no relief and dismissed the suit. The defendant then sued the plaintiff for damages in respect of the loss that he had undergone owing to his inability to carry on the indigo business during the period that he was restrained under the orders of the Trial Court and the High Court. The Bench decided that no such suit for damages could lie. We regret we are unable to accept the view of the la v taken by the learned Judges in deciding that case. Great stress was laid by them upon the observations of Bowen, L. J., in Quarte Hill Gold Mining C V/s. Eyre(1883) 11 Q.B.D. 674 : 52 L.J.Q.B. 488 : 49 L.T. 249 : 31 W.R. 668. We have looked to the decision of the Court of Appeal in that case for authority, but we do not interpret the authority of that case as it has been interpreted in the Calcutta case to which we have referred. We find it, on the contrary, to support the conclusion that such a suit as this does lie. It was laid down therein that the mere failure of a litigant to establish his claim to a relief in a civil suit does not necessarily--in fact does not usually--give the successful party a cause of action for damages simply by reason of his success. Even if an action has been brought falsely and maliciously and without reasonable or probable cause, it does not follow that the bringing of the action will furnish a cause of action in a subsequent suit to the person who has been sued. The first step is to prove special damage, and in the absence of the proof of special damage no action for damages will ordinarily lie. The reasons are shortly that the bringing of an ordinary action does not as a natural or necessary can-illusion involve any injury to a man's property, and, further, that the only costs which the law recognizes and for which it will compensate him, are the costs properly incurred in the action itself, For this the successful defendant has already been compensated. Therefore as stated by Bower, L.J., the bringing of such an action even maliciously and without reasonable or probable cause will not ordinarily support a subsequent action for malicious prosecution. Bat the case is different where the bringing of an action does as a necessary consequence involve an injury to property which cannot be compensated by the grant of soils in the action and in that very case, Quartz Hill Gold Mining Co.v.Eyre 26 Ind. Cas. 296 : 42 C. 550 : 18 C.W.N. 1189 : 21 C.L.J. 68, it was held that an action did lie for falsely, maliciously and without reasonable or probable cause presenting a petition to wind up a trading company.