Harcharan Singh vs Gurdev Singh and and others

G.S. Sandhawalia, J.

CM No. 14230-C of 2011

Application u/s 149 read with Section 151 of the CPC to condone the deficiency in Court fees which has not been made good is allowed in view of the averments made in the application which are duly supported by an affidavit.

CM No. 14231-C of 2011

Application u/s 151 of CPC for condonation of delay of 205 days in refiling the appeal is allowed in view of the averments made in the application which are duly supported by an affidavit.

RSA No. 4883 of 2011

This judgment shall dispose of two regular second appeals bearing RSA No.4883 of 2011 & RSA No. 4885 of 2011 filed by the plaintiff against the common judgment and decree of the District Court, Rupnagar whereby the appeal filed by the plaintiff seeking enhanced compensation has been dismissed and the appeal filed by the defendants has been allowed and the damages of Rs. 4000/- granted by the trial Court have been set aside. The facts are taken from RSA No.4883 of 2011. The suit for recovery of Rs. 1,00,000/- as damages for harassment and injury of reputation due to the illegal acts of the defendants was filed by the plaintiff-appellant on the ground that he was owner of property situated khewat/khatauni No. 190/230 khasra No. 27//11(8-0), 12(8-0), 10/2(4-12), 28//15(2-0) total land measuring 22 kanals 12 marlas situated in Village Beli Tehsil and District Ropar. It is contended that the defendants were inimical towards the plaintiff and had given an application before the SSP Ropar with the allegations that the plaintiff had encroached upon the shamlat deh and due to the fact that the defendants had good relations with the police, the plaintiff was called for three consecutive days from 04.05.2005 to 07.05.2005 at Police Station Bhratgarh and were forced to sit in the police station from morning till night and again, on 16.05.2005, he was called by the police of Police Station Sadar, Ropar. Police had made enquiries on the application given by the defendants and a report was sent to the office of SSP, Ropar but no action was taken against the plaintiff. It was contended that the plaintiff was in peaceful possession of the property described above where he had planted 400 popular trees in 2 acres of land which were 6/7 years of age and contracted to sell them at Rs. 3,00,000/- but due to the application moved by the defendants, the sale of those trees was delayed and the plaintiff had to sell the same at the cost of Rs. 2,00,000/- to another contractor and thus suffered a loss of Rs. 1,00,000/-. The calling of the plaintiff to the police was injurious in the eyes of general public and thus, the claim for damages.

On notice of the suit, the defendants filed their written statement and pleaded that the plaintiff was not owner of the land and tampered with the record and FIR No. 154 had been lodged at the Police Station Sadar Ropar on 17.08.2001 and the police had submitted the challan in the Court and the trial of the case was going on. It was, accordingly, contended that the record had been tampered by the plaintiff and he illegally got transferred the land by fabricating the record in connivance with the office Kanungo and thus, cheated the Gram Panchayat and the police had made enquiries and the record of the land had been sealed by the DC, Ropar and the department was holding the enquiry. The answering defendants had made application to the SSP, Ropar rightly as the plaintiff had illegally got the trees cut and removed from the shamlat land. It was, however, denied that they had any relations with the police and that the plaintiff was called upon by the police or that his reputation was lowered due to any act of the defendants rather it is submitted that his reputation was already lowered on account of the lodging of the FIR against him and the trial Court framed the following issues:

Whether the plaintiff is entitled to the recovery, as prayed for? OPP

Whether the suit is not maintainable in the present form? OPD

Relief.

The plaintiff produced 4 witnesses whereas the defendants examined 2 witnesses including himself and Inderjit Singh, Halka Patwari.

The trial Court came to the conclusion that the suit was maintainable and that defendants had filed an application against the plaintiff by which he had been called to the police station 4/5 times. However, it was held that the value of the trees having diminished had not been proved since the Contractor had also not been examined and in such a short period of time, the value of the trees could not diminish to such an extent, and accordingly, held that the plaintiff was entitled to damages to the tune of Rs. 1,000/-each against all the defendants, and therefore, awarded a sum of Rs. 4,000/- along with interest @ 9% per annum from the date of filing of the suit and future interest @ 6% per annum till realization vide judgment and decree dated 28.04.2010.

Two appeals came to be filed before the District Judge, Rupnagar, one by the plaintiff who was aggrieved against the paltry amount of Rs. 4,000/- awarded to him against the claim of Rs. 1 lakh and second by the defendants who were aggrieved against the suit being decreed against them. The lower appellate Court, after examining the evidence in better detail, came to the conclusion that Gurdev Singh was shown as Sarpanch in the application (Exhibit PW4/A) along with Dhani Ram, Jit Ram, Amarjit Singh, Sohan Singh Panch. But the claim for damages had not been preferred against all the defendants but had only been filed against the 4 defendants. The contents of the application were taken into consideration wherein the Sarpanch had agitated that the enquiry was going on regarding the change of Panchayat land in the name of the plaintiff and it was during this enquiry that the plaintiff had cut and removed the trees. Accordingly, it was held that defendant No. 1, Gurdev Singh, Sarpanch was protecting the interests of the Panchayat and 4 years earlier, an FIR No. 154 dated 17.08.2001 had been registered against the plaintiff and challan had also been presented in the Court but subsequently he had been acquitted. Accordingly, the trial Court came to the conclusion that defendant No. 1 along with other co-defendants had filed an application before the SSP, Rupnagar on 05.05.1995 not on account of any wrong thing as they intended to protect the interests of the Panchayat. The fact that the earlier dispute regarding the usurping the shamlat land which bear Khasra No.27//10/2, II, 12, 28//15 concern a common land which was claimed to be in the ownership of the plaintiff. Accordingly, it was held that there was no mala fide or malice with the defendants and this aspect had not been taken into consideration by the trial Court. This fact was not disputed by the plaintiff himself regarding the enquiry which was going on before the Deputy Commissioner, Rupnagar regarding the fabrication of the record. Accordingly, the appeal of the defendants were accepted and that of the plaintiff was dismissed. Resultantly, the present regular second appeals have been filed challenging the said findings on the ground that the lower appellate Court has misconstrued the evidence on record and the trial Court was not justified in awarding a sum of Rs. 4,000/- only plus interest from the date of decree.

The facts have already been summarized above which go on to show that there was a dispute regarding the land owned by the Gram Panchayat. There was also an FIR lodged against the plaintiff regarding fabrication of record and the defendants were only protecting the interests of the Panchayat. Therefore, in such a case, the claim for damages for malicious prosecution would not lie as merely lodging of an FIR or setting the machinery of law into motion on valid apprehension would not give cause of action to me plaintiff to prosecute the defendants on the ground of malicious prosecution. The proposition of law regarding malicious prosecution were discussed in Amar Singh v. Smt. Bhagwati, 2001(1) CCC (Rajasthan) 14 and it was held as under:

Applying the above principles of law to the instant case, I am of the opinion that the defendant can never be said to be a wrong doer, unless he does some act. No liability can be fastened on the defendant. To lodge a F.I.R. which is not wrong to the knowledge of the person who files it in the police station, can never be said to be a wrong because whether it results in conviction or acquittal is absolutely immaterial to determine the question whether the doer of such an act can be said to be wrong doer and as such the bond of necessity between the wrong doer and the remedy of wrong does not exist in the present case. Further it cannot be said by any stretch of imagination that the defendant could have perceived results of the prosecution launched on his first information report, which resulted in initiation of trial. He could not have known in advance whether the prosecution launched on his information would result in conviction or acquittal of the accused (plaintiff). The learned trial Court has dealt with the case with a deep and minute consideration and all the relevant facts and circumstances of the case and there is absolutely no reason to interfere with the decision of the trial court.

The findings arrived at by it in the impugned judgment deserve to be upheld." Similarly, this Court in Sukhwinder Singh v. Ravinder Singh, (2003-2) 134 P.L.R. 697 has held that mere lodging of a complaint to set the criminal law in motion would not furnish the cause of action to file the suit. In the said case also, there was an allegation regarding the cutting and selling of the Panchayat''s trees. Accordingly, while relying upon ''The Law of Torts'' by Salmond, 14th Edition, on the basis of the judgment of a Division Bench of this Court in Gian Singh Vs. S.P. Batra, , it was held that malicious prosecution can be sustained only if:

(1) The proceedings must have been instituted or, continued by the defendant;

(2) He must have acted without reasonable cause;

(3) He must have acted maliciously;

(4) In certain classes of cases the proceedings must have been unsuccessful-that is to say, must have terminated in favour of the plaintiff now suing.

Accordingly, keeping in view the above principles laid down by this Court, no fault can be found with the judgments and decrees of the lower appellate Court which does not suffer from any infirmity which can warrant interference in a regular second appeal since in the present case, the proceedings have been initiated by the defendants only to protect the property of the Panchayat. No substantial question of law much less any substantial question of law arises for consideration, and accordingly, the present regular second appeals are dismissed and the judgment and decree of the lower appellate Court is up-held.