Lakhanlal vs Kashinath Dube

G.P. Bhutt, C.J.—This appeal (No. 114 of 1956) and the counter Appeal No. 128 of 1956 arise out of the ame action. The present appellant Lakhanlal Mishra was the defendant and respondent Kashinath Dube, who is appellant in the counter appeal, was the plaintiff in the suit.

Kashinath Dube is a practicing lawyer in Raipur District. Lakhanlal Mishra on 11-11-1952 filed a complaint against him before the District Judge, Raipur, in which he made following the pertinent imputation:-

On 25-10-1952, this Dubey pleader called one Kartik Satnami an ex-survelee. lee, to Raipur at his residence through R. Mishra and in the presence of Namdas Satnami tutored him to depose when required that I (L.L. Mishra) was the receiver of the stolen properties of certain house-breaking and the fr cases which he (Kartik Satnami) had committed before. Besides that ne also tutored him to depose that he (Kartik) brought allegations of adultery against one Ram bagas Kurmi as he was made to say under my influence On return from Raipur, Kartik Satnami has made a report on 26-10-1952 at the Police Station Kharora as to how he was being tutored by Kashinath Dubey, pleader, in the above manner. A copy of the report made at the police Station is attached herewith.

The conduct of Shri Kashinath Dubey is not befitting a pleader and an action u/s 13 of the Legal Practitioners Act is called for.

This complaint was forwarded to the High Court by the District Judge who was directed by it to bold an enquiry and submit a report. The District Judge, after enquiry, submitted a report to the High Court on 31-7-1953, holding that the complaint made against Kashinath Dubey was false. When the matter was heard by the High Court u/s 13 of the Legal Practitioners Act, the counsel for Lakhanlal Mishra admitted that the complaint was false. Accordingly the High Court dismissed the complaint and directed Lakhanlal Mishra to pay Rs. 150 as costs to Kashinath Dubey.

The suit out of which this appeal arises was instituted by Kashinath Dubey against Lakhanlal Mishra for recovery of Rs. 6,000 as damages, which consisted of Rs 5.000 as general damages and Rs. 1000 as special damages. His case was that Lakhanlal Mishra had made a false complaint against him to the District judge. Raipur, knowing that the allegations were false or that he had no reasonable or probable cause for believing them to be true. The defence of Lakhanlal Mishra was that the complaint contained true allegations or at any rate he believed them to be true. As regards damages his case was that Kashinath Dubey had no reputation as a practicing lawyer and consequently was not entitled to any damages, or at any rate not in excess of Rs. 200--

The lower Court negative the defence and upholding the case of Kashinath Dubey awarded to him Rs 1,100 as general damages including vindictive damages, and Rs. 400 as special damages total Rs. 1,500. The present Appeal (No. 114 of 1956) has been filed by Lakhanlal Mishra against the decree. The counter Appeal No. 128 of 1956 has been filed by Kashinath Dubey for enhancement of the amount of damages to Rs. 5,500.

The contentions raised against the decree are the following:

(i) That action u/s 13 of the Legal Practitioners Act does not amount to malicious prosecution in tort.

(ii) That the complaint to the District judge, Raipur, who had full discretion not to proceed in the matter, was not actionable as it was not made to him as a Court, and

(iii) That there was not any absence of reasonable or probable cause

Point No. (i): The question whether the proceedings u/s 13 of the Legal Practitioners Act against a practicing lawyer are actionable by way of malicious prosecution, came up for consideration in Lala Babu Ram and Another Vs. B. Nityanand Mathur, In that case their Lordships referred to Quartz Hill Consolidated Gold Mining Co. vs. Eyre (1883) 11 Q B D 674, in which it was held that an action would lie for falsely and maliciously and without reasonable or probable cause presenting a petition under the Companies Acts of 1862 and 1867. to wind up a trading company. In the English case the doctrine laid down by Holt C.J. in Savile vs. Roberts 91 E R. 14 , was quoted with approval and it was held chat where there is damage to a man''s (i) fame, (it) person or (iii) property, an action for malicious prosecution would lie even if the proceedings giving rise to the action were of a civil nature. It is (rue that in Lala Babu Ram and Another Vs. B. Nityanand Mathur, their Lordships referred to the proceedings u/s 13 of the Legal Practitioners Act as not being between the legal practitioner and the person who accuses him but between the legal practitioner and the Government Advocate as representing the Crown, in which the legal practitioner cannot recover costs from the Government Advocate or from the person upon whose information the proceedings were started. That however, was not the basis for the decision.

The above case was followed by Bahori Lal and Another Vs. Sri Ram and Another, in which the presentation of a petition for insolvency was held actionable by way of malicious prosecution on the ground that a mere presentation of such a petition tended to injure the credit and the reputation of the persons proceeded against. Similarly R.M.N.N. Nagappa Chettiar Vs. Trojan and Company, was also a case of malicious prosecution on the basia of insolvency proceedings in which the decree dismissing the plaintift''s suit for damages was reversed and damages were allowed to him. By the time the decision was taken in this case, the Privy Council had dealt with the question of malicious prosecution in Mohammed Amin vs. Jogendra Kumar Banerjee and others. AIR 1947 P. C- 108, in which their Lordships made the following pronouncement:-

The action for damages for malicious prosecution is part of the common law of England, administered by the High Court at Calcutta under its letters patent. The foundation of the action lies in abuse of the process of the Court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose. The plaintiff must prove that the proceedings instituted against him were malicious, without reasonable and probable cause, that they terminated in his favour (if that be possible), and that he has suffered damage. As long ago as 1698 it was held by Holt CJ. in Saviles vs. Roberts I Ld. Raym 374 that damages might be claimed in such an action under three heads, (1) damage to the person, (2) damage to property and (3) damage to reputation, and that rule has prevailed ever since. That the word ''prosecution'' in the title of the action is not used in the technical sense which it bears in criminal law is shown by the fact that the action lies for the malicious prosecution of certain classes of civil proceedings, for instance falsely and maliciously presenting a petition in bankruptcy or a petition to wind up a company: Cuartz Hills Consolidated Gold Mining Co. vs. Evre (1883) 11 Q B D 674. The reason why the action does not He for falsely and maliciously prosecuting; an ordinary civil action is, as explained by Bowen L. J. in the last mentioned case, that such a case does not necessarily and naturally involve damage to the party sued. A civil action which is false will he dismissed at the hearing. The defendant''s reputation will he cleared of any imputations made against him, and he will be indemnified against his expenses by the award of costs against his opponent. The law does not award damages for mental anxiety, or for extra costs incurred beyond those imposed on the unsuccessful party But a criminal charge involving scandal to reputation or the possible loss of life or liberty to the party charged does necessarily and naturally involve damage and in such a case damage to reputation will be presumed.

The same view was taken by O''Sullivan J. in Premji Damodar vs. L. V. Govindji and Co. AIR 1947 PC 108, in which the position has been very lucidly dealt with.

It was contended that since in the pre -sent case Kashinath. Dubey was awarded costs by the High Court in proceedings u/s 13 of the Legal Practitioners Act, the case of damages should be excepted on the principle laid down by their Lordships of the Privy Council in Mohammed Amin vs. Jogendra Kumar Banerjee and other AIR 1947 P C 198. However, the proceedings u/s 13 of the Legal Practitioners Act are not purely of a civil nature but are quasi-criminal in nature, Bhagirath Birdichand (sic) Vishwasrao Pundalik and another AIR 1938 Nag. 52 Therefore, even if costs are awarded in proceedings under that section, the reputation of a legal practitioner cannot be said to be re-established by the award of costs. We are, therefore, of the opinion that the present suit is maintainable.

Point No. (ii): It is true that the District Judge, Raipur was not the authority to punish Kashinath Dubey u/s 13 of the Legal Practitioners Act, nor was he moved as a Court, but it is not correct to say that he had the discretion not to proceed in the matter Since the authority to take action against a legal practitioner vests "in the High Court, the District Judge, Raipur, was bound to forward the complaint to the High Court for such action as it thought proper. The complaint presented to the District Judge, Raipur, therefore, was really a complaint made to the High Court and therefore as proceedings were taken by the High Court against Kashinath Dubey, they were taken by the Court as in a quasi-criminal case, The contention, that since the complaint was not presented to the High Court but to the District Judge, Raipur, the suit is not maintainable and cannot, therefore, be accepted.

Point No. (iii): Reasonable and probable cause means a genuine belief based on reasonable grounds. The issue, therefore, is one of fact which depends upon the circumstances of each case. In Herniman vs. Smith, (1938) 1 All. E. L. R. I, Lord Atkin has put the matter thus:

No doubt circumstances may exist in which it is right, before charging a man with misconduct, to ask him for an explanation. But certainly their can be no general rule laid down and, where a man is satisfied, or has apparently sufficient evidence, that in fact he has been cheated, there is no obligation to call on the cheat and ask for an explanation, which may only have the effect of causing material evidence to disappear, or to be manufactured. It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is reasonable and probable cause for a prosecution.''

The question of the nature and the extent of enquiry, which a man should make before launching a prosecution, therefore. depends upon the facts of each case. In the present case Kartik Satnami had made a report to the police against (sic) Dubey, a copy of which was filed by Lakhanlal Mishra with his complaint before the District Judge, Rajpur. Lakhanlal Mishra deposed that he had made enquiries from Kartik Satnami as regards the truth of his report and it was only when he was satisfied from his statement that the report was true, that he filed the complaint against Kashinath Dubey before the District Judge, Raipur, In his complaint Lakhanlal Mishra had doubtless stated as a fact what Kartik Satnami had mentioned in his report to the Police. That, however, was only a bad drafting, for a reference to the report of Kartik Satnami to the Police was duly made in the complaint, and it is clearly inferable there from that when he stated the contents of the report in the form of a fact, he did so only because he believed the report to be true. in these circumstances it cannot be said that there was no reasonable or probable cause for Lakhanlal Mishra to believe in the truth of the report made by Kartik Satnami to the Police.

It would thus appear that although the contents of the complaint made by Lakhanlal Mishra against Kashinath Dubey to the District Judge, Raipur, were not true, the action must fail because of lack of proof that he had no reasonable and probable cause for making the complaint. Accordingly the suit must stand dismissed.

In view of our finding above, it is not necessary to pursue the question of damages. We may, however, observe that as held by this Court in Shrimati Manijeh vs. Sohrah Peshottan Kotwal, 1949 N. L. I. 57, where reckless allegations are made against the character of a professional lawyer, the Court is entitled to take into consideration aggravation of damages and to award vindictive damages. The lower Court has given good reasons for supporting the award of Rs. 1 100 as general-cum-vindictive damages and Rs. 400 as special damages and we do not find any sound reasons for either reducing or enhancing the award,

The result is that the present Appeal (No. 114 of 1956; is allowed. The counter Appeal No 128 of 1956 is dismissed and it is directed that the suit out of which these appeals have arisen be and is hereby dismissed. Keeping in view the circumstances of the case we direct that the parties shall bear their own costs throughout.