MAKSOOD ALAM Vs. BADHU SAHU

JUDGEMENT

(1.) The brevity of my judgment in this case shows no disrespect to my learned brother Agarwala from whose decision the appeal is preferred. The claim by the plaintiff-respondents in the case was for damages against the defendants- appellants for setting the machinery of the law in motion by filing a complaint or information under Section 144, Criminal P.C. It would appear that the pro forma defendant had given a grant of land to the plaintiffs for the purpose of making bricks. It was alleged by the contesting defendants that the plaintiffs had in the course of their brick-making, encroached upon the land which was that of a Mahomedan graveyard.

(2.) It was in those circumstances that the proceedings to which I refer were brought into existence. There were a number of points which could rightly have been raised in the Courts below, for instance, whether reasonable and probable cause existed; there was also the question whether there was any evidence in the circumstances of the case that the action of the defendants was malicious. But these questions were not gone into before my learned brother Agarwala and therefore not open to the parties in this Court.

(3.) Two questions were however raised; one was that, as the plaintiffs had not proved the precise terms of the information given by the defendants, the action would necessarily fail. That has not been pressed before us, and I think rightly so, because there is no substance in the point. The other question raised, that is the remoteness of the damage, is a material point and raises a question which must be decided by this Court. I have the misfortune of disagreeing with my learned brother Agarwala with regard to this matter. Agarwala, J. has held that the argument, that the damage eaused in the circumstances of the case arose by vis- major and did not necessarily flow from the action of the defendants, could not be sustained. I say and repeat that I have the misfortune of disagreeing with the learned Judge on that point. I should have stated in order to make the matter clear that what happened was that as a result (so it is alleged) of the action of the defendants the Police stepped in, caused the plaintiffs brick-making to cease, and during the time of inactivity, there was a considerable fall of rain which damaged not only the bricks which were in the course of being made, but also the fuel which was used in burning them.