AI Structured Summary
Not yet generated for this judgment
Judgment
S. Samvatsar, J.
This appeal is filed by the defendant challenging the judgment and decree dated 24.3.1988 passed by the Additional District Judge, Kukshi District Dhar in Regular Civil Appeal 9-B/87 whereby the First Appellate Court has confirmed the judgment and decree dated 30.1.1986 passed by Civil Judge Class I, Kukshi in Civil Suit No. 197-B/84.
The brief facts of the case are that respondents-plaintiff have filed a suit for recovery of damages to the tune of Rs. 10,000/- on the allegation that defendant had filed a Civil Suit No. 1-A/78 against the plaintiff along with an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. He has also obtained injunction in the said order by filing a miscellaneous application. The application was filed mala fide and due to the injunction passed in favour of the defendant, plaintiffs were prevented from using the plots w.e.f. 2.1.78 to 10.11.1982. The injunction order was vacated after bi parte hearing and the said order was maintained in Civil Appeal No. 3-A/82 by the District Judge. The Second Appeal filed by the defendant No. SA 458/ 82 was also dismissed by the High Court. According to the plaintiffs the entire proceedings were initiated by the defendant in that case with mala fide intention and on baseless allegations. Hence plaintiffs have filed the present suit for damages.
The defendant filed written-statement denying the allegations made in the plaint. The Trial Court in paragraphs 8 and 9 of its judgment, has found that the entire action on behalf of defendant was mala fide. Plaintiffs obtained the stay order on base-less ground and were awarded damages to the tune of Rs. 4000/-. This order was confirmed in appeal. Hence this appeal.
This Second Appeal is admitted by this Court on the following substantial question of law:
Whether the suit for damages for malicious civil action was not maintainable in view of S. 95 (2) of the C.P.C. as the appellate court in R.C.F.A. No. 3-A/82 has granted a sum of Rs. 400/- as damages in favour of respondents ?
The question on which this appeal is admitted that whether the suit for damages is maintainable in view of Sec. 95(2) of the C.P.C. as the suit filed by defendant was dismissed by the Court on the cost of Rs. 400/-. Counsel for appellant Shri S.K. Pavnekar urged that in view of Sec. 95 of the Code of Civil Procedure, the regular suit is barred. For appreciating his arguments, Shri Pavnekar submits that it is necessary to refer Sec. 95 of the C.P.C. which reads as under:
Compensation for obtaining arrest, attachment or injunction or insufficient grounds - (1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section, -
(a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or
(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable ground for instituting the same, the defendant may apply to the court, and the court may, upon such application, award against the plaintiff by its order such amount, [not exceeding fifty thousand rupees], as it deems a reasonable compensation to the defendant for the expense or injury (including injury to reputation) caused to him:
Provided that a Court shall not award, under this section, an amount exceeding the limits of its pecuniary jurisdiction.
From the perusal of the language of Sec. 95 it is clear that if an injunction of Order is passed in favour of the person applied for and ultimately it is found that the stay order was obtained mala fide then the defendant in that case may file an application for compensation and in case such an application is filed then regular suit is barred.
In the present case, there is nothing on record to show that any application as filed by the plaintiffs under Sec. 95 C.P.C. High Court of Karnataka in the case of Basamma & Ors. vs. Peerappa [AIR 1982 Kar 9] has laid down that the remedy provided by Sec. 95 is a special remedy. In an application under the section the defendant has only to establish the ingredients referred to in that section and no more. Sub-section (2) of Section 95 bars a person who makes an application from instituting a suit for the same purpose. But a person who does not make an application u/s 95(1) can also institute a suit for damages for the same purpose. In such a suit, the action is founded on what is called an abuse of the process of the Court or malicious prosecution, in which the plaintiff has to allege and prove that the abuse of the process of the Court was also malicious. But, in an action for trespass, the plaintiff is neither required to allege malice nor prove the same and he has only to allege and prove that he was in possession of the immovable property and the defendant has disturbed his possession.
In the present case the two courts below have concurrently given a finding that action of the defendant in the present case was malicious and with mala fide intention. The application filed by the plaintiffs for temporary injunction was without any basis. Thus, in the present case, the suit for compensation without filing an application for compensation under Sec. 95 (2) C.P.C. is maintainable.
In the result this appeal fails and is hereby dismissed with cost.