BHUPENDRA NATH CHATTERJEE Vs. SMTRINAYANI DEVI

JUDGEMENT

(1.) This appeal is on behalf of the defendants and it arises out of a suit commenced by the plaintiff for recovery of damages on the allegation that the defendants brought a false and malicious suit against the plaintiff and obtained an improper Order of injunction in the same, which resulted in loss to her. The plaintiff is admittedly a tenant under the defendants in respect of a small plot of land measuring about one and a half cottas and situated at Bally in the district of Howrah. She purchased this tenancy right from one Elokeshi Dasi who held this one and a half cotta plot along with other lands as a tenant under the defendants. There were litigations between the defendants on the one hand and Elokeshi Dasi and a sub tenant of hers named Nagendra Ganguly, on the other, ever since 1913. The plaintiff's purchase is dated 20 February 1334, after her purchase she applied to the Chairman, Bally Municipality, for sanction to construct a masonry building on the purchased plot. This sanction was granted and thereupon, it is said, the plaintiff, with a view to construct the building collected the necessary materials on the plot. In the meantime, the defendants instituted a suit being T.S. NO. 749 of 1934, against the plaintiff in the Court of the third Munsif at Howrah for a declaration that she had no right to erect any permanent structure on the land and for a perpetual injunction restraining her from proceeding with the work of construction. Pending the hearing of the suit they obtained a temporary injunction against her on 7 September 1934, by which she was restrained from raising any structure on the disputed property. On 30 August 1935 the suit was dismissed. Against this decree of dismissal the defendants took an appeal to the Court of the District Judge at Howrah and soon after the filing of the appeal got an ad interim injunction against the plaintiff which was made absolute on 11 November 1935, subject to this modification that the plaintiff was allowed to raise only a tin structure on bamboo posts. The appeal was eventually dismissed on 28 February 1936, and a second appeal preferred to this Court was also dismissed on 17 December 1937.

(2.) The plaintiff brought this present suit on 4 August 1988, claiming damages against the defendants for the loss occasioned to her by the temporary injunction granted in the suit and also in the appeal. The suit was valued at Rs. 710 out of which Rs. 350 was claimed as rent for 14 months, from September 1934 to October 1935, and Rs. 260 was the rent claimed for the subsequent period during which the modified Order of injunction was in force. The defendants in resisting the plaintiff's claim for damages, contended inter alia that the suit was barred by limitation, that in instituting T.S. No. 749 of 1934, they were not actuated by malice and that there were reasonable and proper grounds upon which the Order of injunction was made by the Court after hearing both sides. They also averred that the claim for damages was excessive.

(3.) The trial Court decided the suit in favour of the plaintiff and gave her a part decree allowing RS. 220 as damages with proportionate costs. This judgment was affirmed on appeal by the District Judge of Howrah. It is against this decision that this present second appeal has been preferred. Both the Courts below have taken the view that in Order to enable the plaintiff to succeed in this suit it was not necessary for her to show malice or want of reasonable or probable cause on the part of the defendants, and as the plaintiff was deprived of the enjoyment of her property by reason of the temporary injunction which, as the result of the suit showed, was obtained improperly, she was entitled to compensation from the defendants. Mr. Ghose appearing in support of the appeal has challenged this view as erroneous and unsound and he has contended before us that as the Courts below did not find on evidence that the appellants were actuated by malice and had no reasonable or probable cause for instituting the proceedings, no decree could have been given in favour of the plaintiff. Mr. Das appearing on behalf of the plaintiff-respondent has argued on the other hand, that the act of the defendants in wrongfully interfering with the property rights of the plaintiff amounted to trespass in law and they were answerable in damages to the plaintiff for any loss sustained by her, irrespective of the fact as to whether they had any improper motive or aftted without reasonable or probable cause. A large number of decisions have been cited to us by the learned advocates in support of their respective contentions. The question is one of importance and requires careful consideration.