Jagnarayan Dubey vs Bidapat Dubey

Das, J.—This appeal arises out of a suit instituted by the appellant for recovery of Rs. 10,900 as damages for false and malicious prosecution of himself by the defendant.

It appears that the plaintiff was in possession of a certain land by virtue of a yearly settlement from the Canal Authorities. The settlement for 1916 to 1917 expired on the 31st March 1917, and it also appears that the plaintiff made no fresh application for settlement to the Canal Authorities. On the 5th of May 1917, the defendant applied for settlement, and on the 7th of May the land K was settled with the defendant. The defendant entered upon possession of the land on the 7th August, and it is the case of the defendant that on the 8th of August the plaintiff came upon the land and ordered the defendant to leave the land and called upon his men to beat him. Thereupon the defendant went and told the Canal Authorities of all that had happened and the Canal Authorities informed the Police of the occurrence of the 8th of August. The Police ultimately recorded the first information of the defendant in which he clearly asserts that he was making a complaint against the plaintiff. The plaintiff was tried under Sections 143 and 447 of the Indian Penal Code. He was acquitted of the charge u/s 143 but was convicted u/s 447, Indian Penal Code, by the Court of first instance. That conviction was upheld on appeal but was set aside in revision by this Court. The plaintiff thereafter commenced the proceedings out of which this appeal arises for recovery of the sum of Rs. 10,900 as damages for false and malicious prosecution of himself.

The learned Subordinate Judge framed four issues, of which the first and second issues were as follows:

(1) Has the plaintiff any cause of action against the defendant?

(2) Is the suit as framed tenable?

On the date of the hearing, however, that is to say, on the 21st of April 1920, the learned Subordinate Judge made an addition to the second issue and the added portion runs as follows:--"Was the complaint, if any, made by the defendant malicious and without any reasonable and probable cause?"

He tried the first and second issues as preliminary issues, and he says in the order-sheet that the parties did not adduce any oral evidence on the preliminary points. He decided these issues without any oral evidence against the plaintiff and dismissed the plaintiff''s suit with costs. In my opinion, it was quite impossible for the learned Subordinate Judge to decide this case without any oral evidence. It is quite true, as has been observed more than once, that the very fact that a Court of competent jurisdiction convicted the plaintiff shows that the defendant had a foundation for the prosecution but as was laid down by Mookerjee, J, in the case of Shxma. Bibi v. Chairman of Baranagore Municipality 6 Ind. Cas. 675 : 12 C.L.J. 410, the true rule is that if the plaintiff has been convicted in the first instance and ultimately acquitted on appeal, the presumption is against the absence of reasonable and probable cause unless the original conviction is proved to have proceeded on evidence known by the defendant to be faise or on the wilful suppression by him of material information. It was, therefore, open to the plaintiff to adduce evidence to establish that the original conviction was based on evidence known by the defendant to be false or on the wilful suppression by him of material information. The learned Subordinate Judge having decided the case on arguments and without any oral evidence, it was plainly impossible for the plaintiff to adduce any oral evidence to establish that there was want of reasonable and probable cause in lodging the information against him.

It has been strenuously contended be fore us that the plaintiff declined to give any evidence in the case and that it was open to the Subordinate Judge to decide the casa in the way in which he has done. The argument does not impress me. The order-sheet is quite clear that the learned Subordinate Judge tried the first and second issues as preliminary issues; but, in my opinion, the second issue, as amended by him, could not be regarded as a piclimma1 y issue. No doubt, issues Nos. 1 and 2 as they stood, before the learned Subordinate Judge made the addition to the second issue, could be regarded as preliminary issues, but the second issue, after the addition made to it by the learned Subordinate Judge, could not, in my opinion, be regarded preliminary issue. The plaintiff was obviously misled by the circumstances that the learned Subordinate Judge insisted on dealing with the most important issue on facts as a preliminary issue. I cannot agree that the case has at all been properly tried by the learned Subordinate Judge in the Court below. On the second point, namely, whether there was any cause of action against the defendant, the learned Subordinate Judge has come to the conclusion that the plaintiff has no cause of action as a pair of the defendant. According to him, the Canal Authorities were the real prosecutors in the case, and that the plaintiff should have proceeded against the Canal Authorities. In discussing this point, the learned Subordinate Judge refers to the decision of the Judicial Committee in the case of Gaya Prasad v. Bhagat Singh 30 A. 525 : 10 Bom. L.R. 1080 : 4 M.L.T. 204 : 18 M.L.J. 394 : 5 A.L.J. 665 : 14 Bur. L.R. 318 : 11 O.C. 371 : 8 C.L.J. 337 : 35 I.A. 189 : 12 C.W.N. 1017 (P.C.). But in that case the Judicial Commit tee laid down that the question in all cases must be, who was the prosecutor, and that the answer must depend upon the whole circumstances of the case. It is quite impossible for a Court to say who the real prosecutor is unless there is evidence before the Court to assist it in the investigation of this important question. As I have said, the case has not been property tried, and I must allow the appeal, set aside the judgment and decree passed by the Court below and remand the case to that Court for a decision according to law.

The costs will abide the result and will be disposed of by the learned Subordinate Judge.

We grant the appellant a certificate u/s 13 of the Court-Fees Act, entitling him to a refund of the Court-fees paid by him on the memorandum of appeal.

Kulwant Sahay, J.

I agree.