MOHINI MOHAN MISSER Vs. SURENDRA NARAYAN SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiffs against the judgment of the learned Subordinate Judge of Purneah dated the 18th of March 1912. The suit was instituted to recover from the defendants Rs. 1,91,932-8-6, as damages for malicious prosecution Of a civil suit brought against the plaintiffs. On the 1st of December 1896, the oxecutor of the father of the defendant No. 1 instituted a suit in the Court of the Subordinate Judge of: Purneah against the present plaintiffs for the purpose of obtaining an injunction restraining the present plaintiffs from erecting an indigo factory on the land let for agricultural purposes and on the same date an application was made ex parte to the Subordinate Judge for an interlocutory injunction restraining the defendants, till the trial of the suit, from proceeding with the erection of the buildings. The learned Subordinate Judge on that application granted the interlocutory injunction prayed for. An appeal was preferred against that order to the District Judge who dismissed the appeal.

(2.) That suit came on for hearing before the Subordinate Judge on the 30th of September 1899. The learned Judge decreed the suit and granted a perpetual injunction restraining the erection of an indigo factory on the land. The present plaintiffs appealed against that decree to the District Judge who on the 10th of August 1900 reversed the decision of the Subordinate Judge and dismissed the suit. The present. defendants who were then the plaintiffs in that suit, the original plaintiff having previously died, preferred an appeal to this Court against the decision of the District Judge. On the 1st of June, a Division Bench of this Court (Banerjee and Pargiter JJ.) reversed the decision of the District Judge and restored the decree passed by the Subordinate Judge. The present plaintiffs then appealed to His Majesty in Council and, on the 1st of June 1907, the decree passed by this Court was set aside and the judgment of the District Judge restored.

(3.) The proceedings in this Court are reported in Surendra Narain Singh v. Hari Mohan Misser (1883) 11 Q. B. D. 674, 690 : (1903) I. L. R. 31 Calc. 174. and before the Judicial Committee in Hari Mohan Misser v. Surendra Narayan Singh (1907) I. L. R. 34 Calc. 718. The proceedings having terminated in favour of the present plaintiffs they have brought this present suit to recover damages for malicious prosecution of the suit for an injunction. The learned Subordinate Judge has dismissed the suit on the ground, that it is barred by limitation. The first question for our decision is-is such an action as the present maintainable? The rule in England is very clear that a suit such as the present cannot be maintained. As was observed by Bowen L. J. in the case of the Quarts Sill Mining Co. v. Eyre, "In the present day and according to oar present law the bringing of an ordinary action however maliciously and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution." This general rule is no doubt subject to certain exceptions in case where the proceedings involve "either scandal to reputation or the possible loss of liberty to the person." That the exceptions would not include a suit such as the present is clear. This general rule I think must apply to India except in so far as the same has been moditied by statute. Section 95 of the Code of Civil Procedure, 1908, provides: "(1) where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last proceeding Section,-(a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or (b) the suit of the plaintiff fails and it appears that there was no reasonable or probable ground for instituting the same, the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, not exceeding Rs. 1,000, as it deems a reasonable compensation to the defendant for the expense or injury caused to him." The Section also enacts that "an order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunction." This Section in effect takes the place of the undertaking in damages which is usually required in "England from a plaintiff as a condition of a grant of an interlocutory injunction in a pending suit in his favour, except that; under Section 95 the damages are limited to Rs. 1.000. The history of such undertaking is given by Jessel M. R. in the case of Smith v. Day (1882) 21 Ch. D. 421.