RAMA ROW Vs. SOMASUNDARAM ASARY

JUDGEMENT

(1.) The original suit in this case was for damages for maliciously procuring an injunction in a suit on title. In a suit by the defendants against the plaintiffs for a declaration of their title to a strip of ground and for an injunction restraining the plaintiffs from erecting any construction thereon, the defendants obtained an ad interim injunction which remained in force from 11th January, 1917, till 31 December, 1918. The title to the strip of ground was eventually found in favour of the plaintiffs. Plaintiffs on this filed the present suit, The first Court found the plaintiffs were entitled to damages. The lower appellate court dismissed the suit. The main reason given by the lower Appellate Court was that the plaintiffs had failed to prove want of reasonable and probable cause and malice. Plaintiffs here in Second Appeal do not contest that finding, which is a finding of fact, but contend that, apart from their cause of action on the abuse of the process of the court, to maintain which they admit they are bound to prove want of reasonable and probable cause and malice, they have a separate cause of action in the nature of a trespass on the ground of defendants interference with their lawful rights to build on their own property, and that the lower Appellate Court ought to have given them a decree on that alternative cause of action, it being unnecessary for such a cause of action to prove want of reasonable and probable cause or malice.

(2.) Thus the question argued before us is whether apart from the "action on the case" a separate action for trespass will lie. On first impression one would have decided that such a suit could not lie since the trespass, if there is a trespass, is not by the party but by the court, and when the court after hearing both parties passed an order which involved an interference with the legitimate rights of a party, he has no cause for damages unless the interference of the court was obtained by an abuse of its process, actuated by malice, and involving want of reasonable and probable cause in which case the action would lie "on the case" and not on the trespass. But our attention has been called to a Full Bench decision of five Judges in the Calcutta High Court, reported in Norendra V/s. Bhusan (1920) 31 CLJ 495 (FB), which appears to support a Bench ruling of that court reported in Bhut Nath V/s. Chandra Binode (1912) 16 CLJ 34. In the latter case it was held that an action lies on the footing of trespass on an injunction wrongfully issued by a court against the party who moved the High Court for the injunction, the injunction not being without jurisdiction and there being no proof of malice or want of reasonable and probable cause, the reasoning being that the obtaining of such an injunction was in the nature of a trespass by the mover on the rights of the party restrained. The case before the Full Bench was a case of wrongful attachment of the plaintiff's goods, and before the referring Bench the case in Bhut Nath V/s. Chandra Binode (1912) 16 CLJ 34 was strongly relied upon. The referring Judges in the Full Bench case both doubted the correctness of Bhut Nath V/s. Chandra Binode (1912) 16 CLJ 34, but the Full Bench in a very brief judgment appears to approve or does not disapprove that set of decisions which lay down "that a person who unlawfully interferes with the exercise of the property rights of another does an act in the nature of a trespass of property and is liable for damages in an action for trespass," and puts forward Bhut Nath V/s. Chandra Binode (1912) 16 CLJ 34 as an illustration of that class of decisions. The Full Bench referred the case back to the Division Bench. The Division Bench ruling is reported in Bhusan V/s. Norendra (1920) 32 CLJ 236, and that Bench followed Bhut Nath V/s. Chandra Binode (1912) 16 CLJ 34 and held that an action for trespass lay. A ruling of this Court which has been relied on by the respondents herein, Nanjappa Chettiar v. Ganapathi Goundan (1911) ILR 35 M 598 : 21 MLJ 1052, was referred to before the Division Bench and was put on one side as it was "not regarded as a case of trespass at all."

(3.) Now the authority of the Full Bench of Calcutta is. of course of great weight, but we are not precluded here from considering for ourselves the correctness of that decision. As we have said, it contented itself merely with refusing to say that Bhut Nath V/s. Chandra Binode (1912) 16 C.L.J. 34 was wrong, although invited to do so. We have therefore to consider the correctness of the decision in Bhut Nath V/s. Chandra Binode (1912) 16 C.L.J. 34. It relies chiefly on an English case, Clissold V/s. Cratchley (1910) L.R. 2 K.B. 244. That was a case where a writ of fi fa had been taken out by a solicitor to direct the sheriff to levy execution on the plaintiff's goods after the decree under which execution was taken out had been satisfied and therefore after the judgment had come to an end. The learned Judges there held that the judgment being at an end, the writ was without jurisdiction and therefore was null and void, and that the defendant therefore could not justify his interference by pleading any valid order of the court, and therefore he was in the position of a trespasser liable in damages as such. The principle is that where the interference is by way of a valid or regular order of the court the only action which will lie is one "on the case" but when it is by means of a void order the proper action is one of trespass. It appears to us therefore that this decision is no authority for the proposition taken in Bhut Nath V/s. Chandra Binode (1912) 16 C.L.J. 34. The exact position set out in Clissold V/s. Cratchley (1910) L.R. 2 K.B. 244 was adopted by the Calcutta High Court itself in an earlier case in Bishun Singh V/s. A.W.N. Wyatt (1911) 14 C.L.J 515. We think the principle which we have deduced from Clissold V/s. Cratchley (1910) L.R. 2 K.B. 244 is the correct one. It has been also laid down by Lush, J., in Smith V/s. Sidney (1869) LR 5 Q.B.D 203 at 206: The authorities distinguish between an act of court and an act of parties and it is only when the proceedings are set aside on the latter ground that the party is made a wrong doer. It surely would not be right to hold in effect that every interference by a court with the person or property of a party at the instance of another is prima facie a trespass by that other unless that other succeeds in proving that he had justification in law. There seems no more reasonable ground for holding this than for holding that any unsuccessful suit brought against a party is a cause of action for damages and that proposition has been repeatedly repudiated by courts of law- -see Norendra V/s. Bhusan (1920) 31 C.L.J. 495 (FB), the Calcutta Full Bench decision already quoted, Bishun Singh V/s. A. W. N. Wyatt (1911) 14 C.L.J 515, already quoted, and the remarks of Bower, L. J., quoted in Arjun Singh V/s. Mussainat Parbati (1922) ILR 44 A 687 at 689.