RAGHUNATH RAO Vs. MOTIRAM

JUDGEMENT

(1.) STAPLES , A.J.C. 1. The appellant brought a suit for damages for false and malicious prosecution against both the respondents, claiming a sum of Rs. 1,100. The Sub-Judge First Class gave him a decree for Rs. 1,034 against both the respondents. An appeal was preferred to the District Judge and the Judge set aside the decree and dismissed the claim altogether as regards the respondent Mt. Gahenabai, and with regard to the respondent Motiram modified the decree and reduced the amount to Rs. 597 only. The plaintiff has now preferred this second appeal claiming a further sum of Rs. 437, which was disallowed by the lower appellate Court, and further claiming that the respondent Gahenabai should also be held liable.

(2.) THE chief argument put forward by the learned Counsel for the appellant was with regard to the liability of the respondent Gahenabai. Admittedly Gahenabai was the mistress and She respondent Motiram, who appears to be her nephew, was employed by her as a mukhtyar.

(3.) THE learned Counsel for the appellant has not contested the finding that Gahenabai did not act without reasonable or probable cause or maliciously, and it may be said that on the evidence that finding is correct and that the appellant failed to prove either malice or want of reasonable or probable cause as against Gahenabai. It is well known that in such cases the onus of proving that there was no reasonable or probable cause for the prosecution is on the plaintiff in spite of its being a negative averment. I would only refer to Abrath v. North Eastern Railway Co. (1883) 11 QBD 79. In the present case it has bean shown that Gahenabai personally consulted a pleader, Mr. Dutt, before ordering her mukhtyar Motiram to make a criminal complaint, and I would agree with the lower appellate Court that she took all reasonable precautions in the matter and that she had a bona fide belief that there was a good case against her dismissed mukhtyar, the appellant Raghunath. She clearly, then, cannot be hold to have acted either maliciously or without reasonable or probable cause.