SOWCAR LODD GOVINDOSS Vs. ARUMUGA MUDALI

JUDGEMENT

(1.) This second appeal arises from a suit for damages for malicious pro. sedition. The case for the plaintiff is that defendant 1 owned certain lands attached to Novelock Bhagayet near Thengal village, that defendant 1 authorized defendant 2 to institute a criminal complaint and defendant 2 filed the complaint, 0. C. No. 548 of 1926, on the file of the Wallajah Sub- Magistrate's Court against the plaintiff and others charging them with offences under Sections 147 and 430, I.P.C, alleging that on or about 11 November 1926 forty people, including the plaintiff (who was at that time supposed to be acting on behalf of Kalyani Ammal), ryots of Thengal village, gathered together and prevented the men of defendant 1 from taking water in the Thengal Kasam which they are entitled to do, by removing or attempting to remove a dam which was put up by the men of defendant 1, that that complaint was thrown out as false, that defendant 1 was the real prosecutor in the case, and defendant 2 filed the complaint only on behalf of defendant 1, that the complaint was a malicious one and that therefore the plaintiff is entitled to damages for malicious prosecution. The main defence on behalf of defendant 1 is that he was entitled to take water from the Thengal Kasam, that he acted on the information given by defendant 2 as his agent which he had no reason to disbelieve, that there was in fact an unlawful obstruction by the plaintiff and other ryots, and therefore he had reasonable and probable cause in instituting the complaint, that he was therefore not actuated by malice, and that there is no cause of action against him. The case for defendant 2 is that the plaintiff's men-did really cause obstruction which was unlawful. The learned District Munsif of Ranipet dismissed the plaintiff's suit on the ground that there was reasonable and probable cause in instituting the complaint, that there was an unlawful obstruction by the plaintiff and other ryots, and that, in any event, defendant 1, acted on the information of defendant 2 whom he believed. The learned Subordinate Judge-reversed this decision on the ground that defendant 1 was not entitled to take Thengal Kasam water for his lands in Novelock Bhagayet, He further found that many of the statements made by defendant 2 in his deposition regarding the plaintiff were false, and that his object in instigating defendant 1 to file the criminal complaint was to satisfy his spite towards the plaintiff, that in any event defendant 1 cannot take shelter under the action of defendant 2, that he should have-made proper enquiries before instituting, the complaint, and therefore he must be held to have had no reasonable or probable cause in launching the prosecution. Having heard the learned counsel on both sides, I am not inclined to disturb the finding against defendant 2; but it seems to me that the decision so far as defendant 1 is concerned cannot be sustained. The facts in this case which have been found to be undisputed are these: that forty people of Thengal village including the plaintiff assembled on 11 November 1926, and that obstruction was caused to the taking of water by those people, and the water was being taken to Novelock Bhagayet for a long time before the attempted obstruction. I may also observe that after the criminal complaint defendant 1 did institute a civil suit to have his right established in consequence of the objection raised by the villagers of Thengal village, and that in that civil suit there has been a final adjudication that defendant 1 is entitled to take water from the Thengal Kasam for his lands in Novelock village.

(2.) Mr. Thiagaraja Iyer has asked me to admit the judgment in the civil suit in evidence because the question of title has been raised by the plaintiff and the learned Subordinate Judge found that defendant 1 had no right to take water and therefore he could not have had any reasonable belief in his own right and therefore there can be no reasonable or probable cause in authorizing defendant 2 to launch the prosecution. Mr. A.K. Muthuswami Iyer contends that I ought not to admit the judgment in second appeal. The plaintiff had disputed, the title of defendant 1 and stated that the title was in the villagers of Thengal village and Kalaniammal whom he represented at the time of the criminal complaint. Therefore, the plaintiff, as a part of his case, has to prove that defendant 1 at no time had any right to take the water. There having been now a final adjudication in regard to title, the said judgments are admissible in evidence in proof of the title of the villagers of Thengal which the plaintiff has made as part of his case. It is not necessary to cite any authority for the position that such evidence can be admitted in a second appeal or in a civil revision petition. The main question therefore is: has defendant 1 no reasonable and probable cause in instituting this complaint? It lies upon the plaintiff to allege and prove affirmatively that defendant 1 had no reasonable and probable cause in having the complaint instituted. He must establish facts which are inconsistent with the existence of such reasonable and probable cause. And where a person acts on the information of another, the question is: did he believe in the information? Was the information credible and would a prudent man have acted on such information? And were there reasonable grounds for believing in such information? In Lister V/s. Perrymen (1871) 4 HL 521, at p. 531, Lord Chancellor Hatherly observed thus: What is now to be decided is this, how far this gentleman, having this information conveyed to him, may be said to have reasonably and discreetly trusted his informant. Because I apprehend that you are to have regard to every shade of difference between the amount of credit to be given to one person and to another, according to the character of the informant. Information, given by one person of whom the party knows nothing, would be regarded very differently from information given by one whom he knows to be a sensible and trustworthy person. And the question whether or not a reasonable man would or would not act upon the information must depend in a great degree upon the opinion to be formed of the position and circumstances of the informant, and of the amount of credit which may be due under those circumstances to the person who thus conveyed the information.

(3.) Applying this principle to this case, the person who gave the information was defendant 2, the admitted agent of defendant 1 who was managing his affairs at Novelock. It has not been proved that there were no materials on which it could be said that defendant 1 was not justified in acting on that information or that defendant 2 was not a credible informant. What was the information given by him? It was that forty people gathered together and attempted to remove a dam and thus caused obstruction. These facts have been found to be true by both the lower Courts. Under such circumstances could it be said that no credible information was given to defendant 1 on which defendant 1 could not have acted? It must therefore be taken that the plaintiff had failed to prove want of reasonable and probable cause. I therefore set aside the findings against defendant 1 and dismiss the suit as against him, but in the circumstances, I direct that so far as defendant 1 is concerned each party will bear his own costs throughout. So far as defendant 2 is concerned the second appeal is dismissed with costs.