Probhat Kumar Sett vs Corporation of Calcutta

K.L. Roy, J.—This is an action for malicious prosecution. The Plaintiff is one Probhat Kumar Sett who is a graduate of both the Calcutta and the Oxford Universities, a Barrister-at-Law and until 1957 a Senior Professor of English at Ramakrishna Mission College. The Defendants are (i) Corporation of Calcutta, (ii) B.K. Sen, who was at the relevant time the Commissioner of the said Corporation and (iii) Priya Guha, who was at the relevant time its City Architect and is the present Commissioner of the Corporation. The facts alleged, which are more or less admitted, are as follows:

Some time in 1943, on a partition between his co-sharers, the Plaintiff was allotted, inter alia, the eastern portion of the premises No. 3 Jagamohan Mallick Lane in the town of Calcutta. On August 21, 1950, the Plaintiff''s lawyer addressed a letter to the City Architect informing him that a portion of the property had collapsed in the previous year and had been repaired. The Plaintiff had been advised to demolish the building immediately as the building was in a very dangerous condition. By the said letter the Plaintiff purported to bring to the notice of the City Architect the dangerous condition of the building and requested him to arrange for an immediate survey or inspection of the same and if he was satisfied that the building was in a very dangerous condition, to take immediate steps for having the building vacated by the occupiers. A notice dated October 3, 1950, under Rule 4(1) of Schedule XVIII of the Calcutta Municipal Act, 1923, was served on the Plaintiff requiring him to demolish the small room in the third storey on the south of the stair-case and to secure the rest of the building by cutting down the trees and by adequately repairing all the cracks in the walls, the worn out brickworks in the walls and pillars and by changing the worn out and defective wooden beams, bargas and architraves with new ones. The Plaintiff and the occupiers of the said premises were heard on their objections against the notice under Rule 4(1) and by his order dated November 18, 1950, the then Administrative Officer of the Corporation recorded that he had inspected the building, that the whole of the main structure was worn out and would still be dangerous if repaired. The Plaintiff was allowed three weeks to submit plans for reconstruction. Accordingly, the Plaintiff submitted a plan for construction of a three-storeyed new building which was sanctioned and the Plaintiff was allowed six months time to reconstruct the building in accordance with the sanctioned plan failing which the case was to go to the Municipal Magistrate for enforcement of the demolition order. On March 19, 1951, the Plaintiff through his lawyer informed the Chief Executive Officer of the Corporation that he was unable to comply with the directions contained in the aforesaid order of the Administrative Officer until and unless he could get vacant possession, of the building which had to be demolished. In spite of his efforts the occupiers had refused to vacate the same. The Plaintiff, accordingly, requested the Corporation to take proper action so that the dangerous building could be demolished and a new building erected at the site according, to the sanctioned plan. On October 22, 1951, a complaint was filed against the Plaintiff and certain occupiers of the said premises before the Municipal Magistrate for failing to comply with the aforesaid notice and the order of the Administrative Officer to reconstruct the building in accordance with the sanctioned plan within six months. On the complaint, summons were issued by the Municipal Magistrate and after several adjournments, by his order dated April 28, 1954, the Magistrate found the accused not guilty and acquitted them as no evidence was adduced on behalf of the Corporation in spite of numerous opportunities being given to it and as nobody was present on behalf of the Corporation before the Magistrate on that date. In the meantime, on May 8, 1953, a statement from the Chief Architect of the Corporation was published in the Press wherein it was pointed out that in cases of insecure buildings, if the demolition order served on the owners were not complied with, the Corporation would usually refer such cases to the Municipal Magistrate, but in an urgent case where a portion of the building had collapsed, the Corporation could demolish the rest of it without waiting for the order of the Municipal Magistrate. The Plaintiff through his lawyer wrote a letter to the City Architect on the same day, namely, May 8, 1953, drawing his attention to the fact that in spite of his best efforts he could not get vacant possession in order to demolish the insecure building and comply with the notice served on him under Rule 4(1), Municipal Act, 1923. He drew the attention of the City Architect to the publication in the Press and requested him to attend to the Plaintiff''s case without delay in the interest of public safety. A similar letter, written by the Plaintiff, stating the facts and urging the Corporation to'' take immediate steps to demolish the rest of the building without waiting for the order of the Municipal Magistrate, was addressed to the City Architect on May 12, 1953, a copy of which was also forwarded to the Commissioner of the Corporation. These letters were replied to by the City Architect on May 25, 1953, who pointed out that, as the above case was pending before the Municipal Magistrate for non-compliance of the notice under Rule 4(1), the Plaintiff would be well advised to comply with the aforesaid notice at an early date. The next letter from the Plaintiff to the Commissioner of the Corporation is dated May 10, 1954, wherein after reiterating that the premises had been inspected and reported upon by the Special Officer and that the reason for the non-compliance of the Plaintiff with the notice under Rule 4(1) was his inability to vacate the occupants and that the complaint before the Magistrate against the Plaintiff had already, been dismissed, the Commissioner was asked to satisfy himself by an examination of the building and to take such steps as he thought fit in the interest of public safety. On November 19, 1954, a notice under Rule 5(1) of Schedule XVII to the Calcutta Municipal Act, 1951, was served on the Plaintiff, as the owner of premises No. 3 Jagamohan Mallick Lane, requiring him within a fortnight from the service of the notice to demolish the room in the second storey on the extreme south and a portion of the verandah at the first floor in front of it and the room on the third storey on the north-east corner on the road side and to secure the rest of the building adequately by replacing the worn-out and defective wooden beams and bargas and wooden architraves with new ones and by repairing the cracks and the worn-out brick-works in the walls as the same were lying in a dangerous condition. That failing compliance with the aforesaid requisition steps would be taken by the Commissioner u/s 560 to execute the work required subject to the provisions of Rule 6 of Schedule XVII of the Act without prejudice to the right of the Corporation to take proceedings u/s 537 read with Rule 5(1) of Schedule XVII. The Plaintiff was further required to prefer any objection that he might have to the notice in writing within three days from the service thereof. On November 28, 1954, the lawyer for the Plaintiff replied to the aforesaid notice and raised the following objections : (i) that a similar notice was served on October 6, 1950 and in terms of that notice the Plaintiff had obtained sanction for a new building after demolishing the existing building but was unable to comply as he could not get the occupiers to vacate, (ii) that since 1949 he had been trying to get the occupiers to vacate the premises for their own safety but had failed in his attempts; (iii) that these facts had been repeatedly brought to the notice of the Corporation authorities requiring them to take steps for evicting the occupiers in the interest of public safety; (iv) that a prosecution was launched by the Corporation in 1952 for non-compliance of the aforesaid notice, hut the same was dismissed and the Plaintiff was acquitted on April 20, 1954; (v) that the building in question was past the stage of repairs as another portion of the building had already collapsed and that, in the circumstances, it was not possible for the Plaintiff to comply with the requisition to secure and repair the building. The only alternative was to demolish the existing structure after eviction of the occupiers. The letter concludes by asking for a hearing of his objections. Apparently no action was taken on this notice. Therefore, an exactly similar notice under Rule 5(1) of Schedule XVII of the Calcutta Municipal Act, 1951, dated July 27, 1955, was served on the Plaintiff on August 3, 1955. A notice under Rule 5(2) was also served on the occupiers to vacate the insecure portion of the building. The Plaintiff''s objections in writing to the aforesaid notice dated August 4, 1955, as also those of the occupiers of the premises were heard by the Standing Building Committee on September 8, 1955 and were disallowed. The disallowance of his objections by the Standing Building Committee was communicated to the Plaintiff on October 7, 1955 and he was required to comply with the requisition contained in the notice without delay. An application for a summon u/s 537 Rule 5(1) of Schedule XVII of the Act in which Sri B. Bose, the acting Chief Building Surveyor, was described as the complainant, was filed on November 7, 1955, before the Municipal Magistrate. The -said application was signed by the said B. Bose and S.P. Laha, the Building Inspector. It was also approved by the Commissioner B.K. Sen who put his signature as a token of such approval. On this application a summon was issued by the Municipal Magistrate on January 11, 1956. The Plaintiff appeared through his lawyer in the proceedings before the Municipal Magistrate which was adjourned from time to time at the request of either the lawyer for the Corporation or that of the Plaintiff and on January 29, 1957, after considering the report of the Insecure Building Surveyor and on hearing the Advocates of the parties, the Magistrate adjourned the hearing to March 27, 1957. Thereafter, no steps were taken by the Corporation. The Magistrate himself inspected the premises and recorded in his judgment dated January 18, 1958, that he had inspected the premises, that the accused had demolished 1/3rd of the house being the southern portion thereof, that the entire building was really in a very dangerous condition and should be demolished and that in the circumstances the accused should not be held guilty. He also directed that the Calcutta Corporation might take necessary steps for the demolition of the house at the cost of the accused if so desired. The Magistrate further recorded that the accused tried to remove the tenants occupying the house in order to demolish it and after a long time got decrees for ejectment, but the occupiers-tenants had been preventing him by resorting to various proceedings in Court and as such, the accused could not demolish the house though he was agreeable to secure and repair the same. Finally, he held the accused''s conduct to be bona fide and acquitted him.

This suit was filed by the Plaintiff on June 4, 1958, claiming Rs. 25,000 as general damages, Rs. 1,538-50 as special damages and costs against the Defendants for maliciously and without reasonable and probable cause and/or illegally and/or in bad faith and/or without due care and attention prosecuting and/or securing or sanctioning or ratifing the prosecution of the Plaintiff before the Court of the Second Municipal Magistrate for failure to comply with the terms of a notice under Rule 5(1) of Schedule XVII of the Calcutta Municipal Act served on the Plaintiff on or about August 3, 1955. By his judgment and order dated January 18, 1958, the said Municipal Magistrate had acquitted the Plaintiff. In the plaint, the history of the facts leading to the prosecution has been set but including the fact that an earlier prosecution in the Court of the Municipal Magistrate for failure to comply with a notice under Rule 4(1) of Schedule XVIII of the Municipal Act, 1923, had also resulted in an order of acquittal on or about April 28, 1954. The particulars given in the plaint for special damages include fees paid to the lawyers and Advocates in connection with the proceeding before the Municipal Magistrate, fees paid to the Plaintiff''s engineer for attending the Magistrate''s Court for giving evidence and for attending at the time of :the local inspection by the Magistrate and cost of stamps for obtaining certified copies of the Court proceedings. It is further pleaded in the plaint that due notice in writing in terms of Section 586 of the Calcutta Municipal Act, 1951, was served on the Defendants on or about March 31, 1958 and the present suit had been instituted after the expiry of one month from the delivery of the said notice.

A single written statement has been filed on behalf of the three Defendants. The earlier correspondence and the proceedings between the Plaintiff and the Corporation, as alleged, arc not denied in the written statement. The Defendants admit that on August 3, 1955, a notice under Rule 5(1) of Schedule XVII of the Calcutta Municipal Act, 1951, requiring the Plaintiff to take down certain portions of the premises and to secure the rest of the building adequately was served on the Plaintiff as alleged. On the failure of the Plaintiff to comply with the aforesaid notice the Corporation applied for summons u/s 577 Rule 5(1) of the Act on or about November 7, 1955 and thereafter, the Plaintiff was tried in the Court of the Second Municipal Magistrate. It is pleaded that the Defendant Corporation made the said application for summons bona fide and in pursuance and performance of its obligations under the said Act and Rules or Bye-laws made thereunder. The Defendants deny that the Defendants or any of them acted maliciously or without reasonable or probable cause or illegally or in bad faith or without due care and attention. It is further admitted that on January 18, 1955, the Plaintiff was acquitted by the Municipal Magistrate who had inspected the said premises in the course of the trial and had recorded in his order that the said building was in a dangerous condition and that the Corporation might take necessary steps for the demolition of the same at the cost of the Plaintiff. It is pointed out that the notice under Rule 4(1) of Schedule XVIII of the Municipal Act, 1923, dated October 6, 1950, was substantially different from the notice of August 3, 1955, as the Plaintiff was required to demolish a different part of the said building. While admitting that the prosecution of the Plaintiff for non-compliance of the notice under Rule 4(1) of the 1923 Act ultimately ended in his acquittal on April 28, 1954, the Defendants pleaded that the said prosecution was started bona fide in performance of the Corporation''s obligations under the said Act and the Rules and Bye-laws made thereunder and for reasonable and probable cause and that the Corporation acted without malice. The Defendants deny that any damage has been caused or that the Plaintiff suffered any injury to his reputation or has suffered pain of body or of mind or that such damages could amount to the sum of Rs. 25,000 or any other sum or any sum at all. The particulars of the special damages given in the plaint are not admitted. The validity and/or sufficiency of the alleged notice u/s 586 of the Calcutta Municipal Act, 1951, is challenged. It is further pleaded that the Plaintiff''s claim is barred by limitation and/or that the Plaintiff has no Cause of action against the Defendants or any of them and that the suit should be dismissed with costs. On these pleadings the following issues were raised and settled:

Issues

(1) Did the Defendants or any of them prosecute the Plaintiff as alleged in para. 4 of the plaint?

(2) If so, was the said prosecution instituted maliciously?

(3) If so, was the said prosecution motivated without any reasonable and probable cause?

(4) Did the said prosecution terminate in favour of the Plaintiff?

(5) Did the Plaintiff suffer any damages due to the said prosecution?

(6) Was the alleged notice u/s 586, Calcutta Municipal Act, valid and sufficient in law and was served in time?

(7) What relief, if any, is the Plaintiff entitled to?

Before dealing with the oral evidence tendered, it would be useful to notice some of the relevant provisions of the Calcutta Municipal Act; 1951, as in force at the time the suit was filed. Sections 5(15), 28, 33 and 36 define the powers and functions of the Commissioner and it is provided that the entire executive power for the purpose of carrying out the provisions of the Act shall be vested in him and the Commissioner may in case of emergency direct the execution of any work or the doing of any act which would ordinarily require the approval or sanction of the Corporation or the Standing Committee, if in his opinion it is necessary for the service or safety of the public or for the prevention of any damage to any property of the Corporation, Section 537(1) enumerates the offences which are punishable with fine or imprisonment and Sub-section (2) provides for penalties for second or successive commission of an offence while the table to that section prescribes the rules under which the penalty is imposed, the subject-matter of the offence, the amount of fine or the period of imprisonment which may be imposed and in case of continued or subsequent conviction, the amount of daily fine which may further be imposed. The penalty for not complying with a requisition OB the owner or occupier to take down, repair or secure wall, building or fixtures in a ruinous stage etc. under Schedule XVII, Rule 5(1) is a fine of Rs. 500 and in case of continuation of the offence Rs. 15 per day. For similar violation of a requisition under Schedule XVII, Rule 5(2) on the inmates to vacate a building in a ruinous stage the penalties are fines of Rs. 100 and Rs. 10 per day respectively. Section 547A empowers the Court in every case of an offence punishable with imprisonment or fine or with fine only to direct that, in default of payment of fine, the offender shall suffer imprisonment for a term or a further term not exceeding six months. Section 560 requires that, if any requisition or order is made by written notice issued by the municipal authorities or by any municipal officer empowered in that behalf under any provisions of the Act or under any Rule or Bye-law made thereunder, a reasonable period shall be prescribed of the notice for carrying out such requisition or order and also that a reasonable period shall be prescribed in the notice within which any written objection shall be received by the municipal authorities or by the municipal officers issuing the notice. Sub-sections (2) and (3) of that section further provide that in a case where such requisition or order is not complied with within the time prescribed the Commissioner may, subject to provisions of Section 561, take such measure or cause such work to be executed or such things to be done as may, in his opinion, be necessary for giving due effect to the requisition or order and the costs thereof shall he paid by the person to whom the requisition or order is addressed. The Commissioner may further take any measures, execute any work or cause anything to be done under this section, whether or not the person who has failed to comply with the requisition is liable to punishment or has been prosecuted or sentenced to any punishment. Section 561 provides that any person who is served with a notice in writing in which, a period for receiving objections has been prescribed may within such period submit written objections against compliance with the notice and every such objection shall be placed before the Standing Committee; for determination and pending such determination, carrying out of the requisition or the order shall be stayed. The Standing Committee shall after hearing the objector or any person authorised by him in writing in his behalf and after considering the circumstances of the case, pass such order as it thinks fit confirming, modifying or cancelling the notice. It is further provided that where the notice, as confirmed or modified by the Standing Committee, fixed a time for compliance but is not complied with within such time, the Commissioner shall cause measures to be taken or work to be executed or things to be done in accordance with the notice as confirmed or modified. Section 575 gives the owner of any land or building who is prevented by the occupier thereof from complying with any provision of the Act or any Rule or Bye-law made thereunder or with any requisition made under such provision in respect of such land or building, the option to apply to the Court of Small Causes having local jurisdiction and where such an application is made within the time fixed for the compliance with the requisition, the owner shall not be liable for his failure to comply with such requisition within the time so fixed. Section 580 makes all offences against the Act Or against any Rule or Bye-law made thereunder cognizable by any Magistrate having jurisdiction in Calcutta while Section 582 provides that no person shall be liable to punishment for any offence against the Act or against any Rule or Bye-law made thereunder unless complaint of such offence is made before a Magistrate within three weeks...next after (a) the date of the commission of such offence, or (b) the date on which the commission or existence of such offence was first brought to the notice of the Corporation or the Commissioner. Section 586 prohibits the institution of any suit against any municipal authority or against a municipal officer or servant or any person acting under the direction of any municipal authority or any municipal officer or servant in respect of any act purporting to be done under the Act or under any Rule, of Bye-law made thereunder until the expiration o� one month next after a written notice has been delivered or left at the municipal office or the residence of such officer or servant, stating

(a) the cause of action,

(b) the name and residence of the intending Plaintiff, and

(c) the relief which he claims.

Section 586(2) prescribes a limitation of four months next after the accrual of the cause of action for filing such suit and provides that the plaint shall contain a statement that the notice has been delivered as required by that section. Section 587 provides indemnity to the municipal authority or any municipal officer or servant or any person acting under the direction of any such officer or servant or of a Magistrate in respect of anything done lawfully and in good faith and with due care and attention under the Act or under any Rule or Bye-law made thereunder.

The Judge''s Brief of correspondence and the further Brief of correspondence were by, consent admitted in evidence without formal proof thereof and marked Exs. G and H respectively.

The Plaintiff himself gave evidence in support of his case. He stated that he was a graduate of the University of Calcutta and also had graduated from the Oxford University in 1926 in English language and literature and was called to the Bar from the Inner Temple in 1927 and that, at all material times, he was employed as the Senior Professor of English at the Ramakrishna Mission College from which post he retired in 1958. He also stated that on partition between his co-sharers he was allotted theeastern portion of No. 3 Jagamohan Mallick Lane, an ancestral property, in 1943 under a deed of partition and apart from this property he also owned several other properties in the town of Calcutta. These properties are all let out to tenants. He stated further that in or about 1955 the aggregate annual municipal rates and taxes, including both the owner''s and the occupier''s share, paid by him was about Rs. 9,000 while the income tax on the amount of income from these properties came to Rs. 4,000 to Rs. 5,000 a year. The said premises was a very old building and part of it had collapsed in 1949. The witness brought the condition of the building to the notice-of the Corporation in 1950 by a letter dated August 21, 1950, by his lawyer K.P. Chatterjee. After the aforesaid collapse the witness had the portion that had given way renovated and the premises examined by an engineer who was of the opinion that the property had passed the stage of repairs and ought to be pulled down. The engineer was Mr. B. N. Basak, a partner of Rule B.B. and Co. The witness proved certain receipts of payments given by the engineer Basak for, inter alia, inspection of the premises and for attending the Court of the Municipal Magistrate to give evidence (Exs. A to F). He stated further that a notice under Rule 4(1) of Schedule XVIII of the Calcutta Municipal Act, 1923, was served on him sometime in October 1950 and he showed cause in terms of the said notice. His lawyer was heard by the Administrative Officer who by his order dated March 6, 1951, recorded that he had inspected the building, that the wall of the main structure was worn-out and would still be dangerous if repaired and allowed three weeks time to the witness to submit plans for reconstruction. By a subsequent order the Plaintiff was allowed time for six months to reconstruct in accordance with the sanctioned plan failing which the case was to go to the Municipal Magistrate for enforcement of the demolition order. This order was passed by the Administrative Officer after hearing the representatives of both the owner and the occupiers. Though the Corporation sanctioned the plans submitted by the witness, in spite of his best efforts, he could not execute the same as the tenants refused to vacate and unless the tenants vacated, the contractors would not agree to do any demolition or any repairs. Though the Corporation had statutory powers to help the Plaintiff by having the premises vacated, as it was not willing to do so, the witness served ejectment notices on all his tenants and got ejectment decrees against some of them. The witness proved various letters written by his lawyer to the Corporation asking it to have the premises vacated by the occupiers so that he could demolish the existing building and construct a new building according to the sanctioned plan. As he was unable to comply with the notice under Rule 4(1) to construct in accordance with the sanctioned plan within six months, the Corporation prosecuted him before the Municipal Magistrate, Calcutta. The witness further stated that during pendency of this prosecution he drew the attention of the City Architect to a publication in a local newspaper in which he had stated that, if a portion of an insecured building had collapsed, the Corporation would have the power to demolish the rest or the building without reference to the Municipal Magistrate. But Mr. Priya Guha, the Defendant No. 3, who was the City Architect at that time, only advised him to comply with the notice. The prosecution which was against both the owner and the occupiers dragged on for more than three years and on April 24, 1954, the Municipal Magistrate passed an order recording that though the case had been pending since 1951 and the Corporation, the complainant, had been granted time again and again, not a single person on its behalf was present in Court nor any steps taken by it. As there was no evidence or material, on record to prove the allegation against the accused person, the Magistrate found accused not guilty and acquitted him. After his acquittal the witness wrote to the Commissioner requesting him to inspect the premises once again and issue proper orders for the safety of the people and the public. But there was no response to his request. Within a few months of the said acquittal another portion of the premises collapsed and the witness received a fresh notice under Rule 5(1) of Schedule XVII of the Municipal Act, 1951, dated November 19, 1954, from the Chief Building Surveyor requiring him to demolish a room on the second storey on the extreme south and a portion of the verandah at the first floor in front of it and a room in the third storey at the north-east corner on the road side and to secure the rest of the building adequately. Failing compliance with the above requisition steps would be taken by the Commissioner u/s 560 to execute the work required without prejudice to the right of the Corporation to take proceedings u/s 537 read with Rule 5(1) of Schedule XVII of the Act. Thereafter, the witness filed objections to the aforesaid notice through his lawyer. The said objections together with the objections from the occupiers were considered by the Standing Building Committee on September 8, 1955 and were rejected. A fresh notice under Rule 5(1) of Schedule XVII dated July 27, 1955, with the same requisition as in the earlier notice dated November 19, 1954, was served on the witness and the witness''s objection to the aforesaid notice was again rejected by the Building Committee. On November 1, 1955, a petition was filed before the Municipal Magistrate for issue, of summons u/s 537 Rule 5(1) of Schedule XVII of the Act by Sri B. Bose, the Chief Building Surveyor, for failing to comply with the requisition of a notice under Rule 5(1) served on August 3, 1955, on the Plaintiff and stating that the objection of the party was disallowed by the Standing Building Committee and that on inspection on October 17, 1955, it was found that the requisition had not been complied with. This petition was signed by B. Bose and also by S.P. Laha and approved and signed by B.K. Sen, the Commissioner. The Plaintiff appeared before the Magistrate through his lawyer and filed his petition on January 28, 1957, stating the facts and contending that the prosecution was not valid and proper and should be quashed and also for an order for demolition of the wall of the dilapidated eastern portion of the premises or pass such order after local inspection as the Magistrate might think proper. The second prosecution lasted nearly two years and the witness was directed to appear personally in the Court of the Magistrate. The Magistrate inspected the premises himself in December 1957 and was satisfied with facts stated in the aforesaid petition by the witness, namely, that he had demolished nearly 1/3rd being the southern portion of the premises and that the building was in a deplorable condition and that he could not evict the tenants from the house to enable him to demolish the same for the purpose of reconstruction and that the Corporation had not started any case under Rule 5(2) against the tenants. Finally, by his order dated January 18, 1958, the Magistrate acquitted the accused and directed the Corporation to take necessary steps for demolition of the house at the cost of the accused if so desired. The witness next proved certain receipts of fees paid to his lawyer (Exs. J and K). The witness''s reasons for assessing the general damages in the sum of Rs. 25,000 were that the Defendants had played with his good name as a citizen and his pride thereof in a most reckless manner and on such pride depended the structure of the civilised society. The %second prosecution was malicious in that the Corporation and its officers knew that the house was beyond repairs as was clear from the aforesaid order of the Administrative Officer and that by requiring the witness to secure, the building by vacating the same for the purpose of demolition and for compliance with such requisition within a months time, the Corporation had acted recklessly and without reasonable and probable cause. He also pointed out that though at the time of first prosecution the tenants were made parties, they were not made parties at the time of second prosecution and this amounted to discrimination on the part of the Defendant. If the Corporation really wanted to make the building secure by repairs, it should have required the tenants to vacate the premises and allowed the Plaintiff to carry out the repairs. The witness also proved the notice u/s 586 served on the Defendant Corporation.

In cross-examination the witness admitted that some old patchwork repairs were done to the premises and that such repairs were last done in 1943 or 1944 as required by the tenants. He also admitted that the rooms which were declared to be in a dangerous condition and were required to be pulled down by the notice under Rule 4(1) of the earlier Act and Rule 5(1) of the present Act, did require demolishing and went on to say that the rest of the building also required demolishing. He insisted that the building could not be repaired but had to be pulled down. He also stated that after he had sold the premises in December 1958, the Corporation had the building pulled down either at the end of 1959 or beginning of 1960. He admitted that he wanted to construct a new block of flats according to modern requirements which would give him a very good return for his investment, a much better return than the rent that he was receiving from the present tenants. The witness further stated that he had caused 1/3rd of the building to be demolished before the Municipal Magistrate inspected the site after managing to eject the tenants therefrom. The witness insisted that the reasons for noncompliance with the requisition in the notice under Rule 5 served on him were the impossibility of complying with such requisition without danger to the occupiers and stated that he did his best by serving notices and filing suits against the tenants for ejectment. He also requested the Corporation to help in the matter, but the request was rejected. The witness admitted that the engineer Mr. Basak was a relation of his and that no report of Mr. Basak has been filed in this suit. He also explained that the fees charged by the engineer were for attendance in the Municipal Magistrate''s Court in order to give evidence as to the condition of the building and to support the Plaintiff''s contention that it was beyond repairs and in any event, repairs could not be undertaken with the occupants living inside. The witness further stated that though the charges made by the Corporation in the notice were more or less correct and that the building was in a dangerous condition, the Corporation was not right in demanding that he should make the building secure by repairs as that would be impossible in the circumstances of the case and as the Corporation had already admitted through its Administrative Officer that the house could not be maintained by repairs only. Though the witness said that he wanted the tenants to vacate the premises for the purpose of repairs, he admitted that he did not serve any notice on the tenants or write to them requiring them to vacate the building temporarily for that purpose. The witness further said that he understood the order of the Administrative Officer (p. 9, Ex. G) to mean the demolition of the whole building and not demolishing of a part of the building and securing the rest as the latter, according to the witness, would be impossible of performance. The witness admitted that none of the Defendants was actuated by any personal animosity against the Plaintiff (Q. 375). The reason the witness gave for impleading Sri Priya Guha as a Defendant in this suit was that though he had expressed the view in the Press that, in an urgent case where a portion had collapsed, the Corporation could demolish the rest of the building, in his case the Chief Architect had refused to do so even when a part had actually collapsed. His reason for impleading Sri B.K. Sen, the second Defendant, was that the Plaintiff''s letters to him asking for his help was not heeded and that he had sanctioned the prosecution on the last occasion. He had no grievance against either of the Defendants Nos. 2 and 3 personally but as officers of the Corporation. Finally, the witness stated that the prosecution was on the basis of the accusation that the plain, tiff had failed to make a tenanted and occupied building secure though it was in a ruinous condition and that he was realising rents from the occupants, that he was so extremely greedy, callous and anti-social, that the sanctity of human life meant nothing to him and that he was not fit to be a decent law-abiding member of the society. Apart from that he had suffered physical harassment and mental strain as the proceedings lasted for more than two years.

Sri Sudhir Chandra Saha Choudhury, the District Building Surveyor, District No. 1 of the Corporation, was the first witness examined on behalf of the defence. He said that in 1954 his post was that of the Insecure Building Surveyor in District No. I and that in the course of his duties he inspected the premises in suit and submitted a report including a sketch (pp. 57 and 58, Ex. G.). He reported to his immediate superior, the Chief Building Surveyor and his superior inspected the premises along with the witness on November 1, 1954. The report of the Chief Building Surveyor dated November 2, 1954, is at p. 58 of Ex. G. The Chief Building Surveyor reported that the part of the building which was damaged could be secured and repaired while a certain other part of the building required to be pulled down and the rest of the building was only to be repaired and reconstructed and that notices under Rule 5(1) and (2) be issued to the parties. He denied that the condition of the building was such that it would have collapsed if any attempts were made to, repair. At the direction of the Chief Building Surveyor a notice under, Rule 5(1) was served on the owner and a notice under Rule 5(2) was served on the occupiers requiring the occupier''s to vacate the portion which was required to be demolished. The objections of the parties were considered by the Standing Building Committee and were rejected. The said notice could not be enforced as at the direction of the Commissioner the file was placed before one Dr. Sett, who was related to the Plaintiff and when the witness got back the file he found that a complaint to the Magistrate was time-barred u/s 582 of the Act. Accordingly, the witness reported to the Chief Building Surveyor Sri B. Bose, who directed him to serve a fresh notice to the owner and the occupiers and accordingly, the witness served notices with the same requisitions under Rule 5(1) and (2) upon the owner and the occupiers of the premises; The witness stated that he was not informed that in spite of his best efforts the Plaintiff could not vacate the tenants so as to execute the repairs as the Plaintiff was neither residing there nor had anybody else present on his behalf. After service of the aforesaid notice the witness was transferred to District IV and had no further personal knowledge as to whether the notices were complied with or not. Looking at the records of the case, the witness said that the matter was placed before the Standing Committee for hearing objections by the parties and the objections were heard by the Committee and were disallowed. In, his objection the owner had stated that until and unless the occupiers vacated the premises the requisition could not be complied with and that tile building required to be pulled down as it was not '' capable of being repaired. The occupiers, on the other hand objected to the notice on the ground that the damaged portion could he repaired by the landlord without the tenants'' vacating the premises and if the landlord failed to effect the repairs, the tenants were prepared to do the same at their cost. He could not exactly remember when he was transferred, but it was sometime in November 1955 and he had nothing further to do with the prosecution launched in 1955. In cross-examination the witness stated that he was in District No. I as the Insecure Building Surveyor from the middle of 1954, May, June or July, until he was transferred in September 1955. Thereafter, he was again transferred to District No. I in 1959 as Insecure Building Surveyor. While he was dealing with the insecured buildings in District No. I, Sri B. Bose, the Chief Building Surveyor, was his immediate superior officer and he worked under his instructions. B. Bose was dead. The witness had nothing to do with the first prosecution launched in October 1951. S.K. Ghosh, the District Building Surveyor at that time, was the complainant in that case. One M.N. Datta was holding the post of Insecure Building Inspector in 1950. The witness''s attention was drawn to his report at p. 57 of Ex. G and he admitted that in that report he had referred to the order of the Municipal Magistrate dated April 28, 1954 and also to the order of the Administrative Officer and that he was asking the Chief Building Surveyor, B. Bose, to inspect the above premises. The witness explained that the usual practice is for the Insecure Building Surveyor to submit a report to the Chief Building Surveyor stating the condition of the building, but if the Chief Building Surveyor wants to inspect the premises he can do so. The witness admitted that he issued the notices under Rule 5(1) and (2) at the instruction of B. Bose. He also admitted that the inspection and the report on the condition of the building by the witness and by B. Bose were without notice to the owner. The witness admitted further that the proposal of the Plaintiff for the construction of a new building which was sanctioned by the Corporation meant the demolition of the existing structure and the erection of a new building. Though in 1950 the Special Officer of the Corporation reported that the whole structure was worn-out and it would be dangerous to attempt any repairs and this was confirmed by the Administrative Officer, the witness was of the opinion that the building could still be repaired and this was also the opinion of the Chief Building Surveyor. He rejected the suggestion that even in 1950 the building was beyond repairs. The witness stated that the complainant in this case was B. Bose, the Chief Building Surveyor, who signed the petition for the issue of summons and S.K. Laha, who was at that time working as Insecure Building Inspector, also signed the petition and the petition was signed by B.K. Sen, the Commissioner, as he had to approve the prosecution under the provisions of the Act. The suggestions that the witness was not competent or qualified to make a report on the condition of the building or that the report meant that the entire building was in a dangerous condition were denied by the witness, who stated that only some portions of the building were in a dangerous condition while the rest could be repaired. The witness could not explain why in the proceedings before the Magistrate the Corporation could not produce any evidence though repeatedly adjournments were given for that purpose. He denied the suggestion that the first prosecution launched in 1950 and the prosecution launched in 1955 were based on notices which were basically the same in that they required the Plaintiff to demolish and to make secure. The witness pointed out that in the two notices different portions of the building were to be demolished and the rest to be secured. The witness admitted that the third notice (p. 32, Ex. G) was issued on the witness reporting that the requisition in the second notice had not been complied with. The witness also said that in issuing a notice under Rule 5 no legal advice is taken nor are the law officers of the Corporation consulted and the practice is for the department to make an application to the Municipal Magistrate for issue of summons in cases of non-compliance with the requisition and the notice. Such an application had to be signed by the Commissioner u/s 537. The witness admitted that though in the notice (p. 32, Ex. G) it was stated that failing compliance steps would be taken u/s 560, no action was taken under that section.

In spite of repeated admissions by this witness that he had no personal knowledge of the facts relating to the prosecution in 1955 except for inspecting and reporting on the condition of the premises and serving the notice under Rule 5 the learned Counsel for the Plaintiff kept on putting questions to the witness which, in my opinion, were neither necessary nor effective.

The last witness examined oh behalf of the Defendant was Shiva Pada Laha, who said that he was posted as Insecure Building Inspector in District I in July 1954 and filed the summons application after inspection of the building in the year 1955. He took all the preliminary steps before applying for the summons, such as inspecting the building to see whether the party had complied with the notice or not. He stated further that he had filed the application for the summons on the order of the Chief Building Surveyor, B. Bose. He also stated that he attended the meeting of the Standing Building Committee on September 8, 1955, when the objections of the owner and the occupiers against the notices under Rule 5(1) and (2) were considered and disallowed. The disallowance of the objections by the. Standing Committee was communicated to both the "owner and the occupiers and they were requested to comply with the notice as early as possible. On Ex. H being the proceedings before the Municipal Magistrate being shown to him, the witness stated that he wrote the application on the instruction of B. Bose, who was the complainant. The witness had neither any recollection nor knowledge of the course of the proceedings before the Municipal Magistrate.

In cross-examination the witness stated that apart from writing the summons as ordered by B. Bose, after verifying that notice under Rule 5 had not been complied with, he did nothing else in this matter. As he was transferred shortly after filing the complaint, he had no knowledge of further proceedings. In spite of the denial by the witness of any knowledge of the proceedings before the Municipal Magistrate, again a series of fruitless questions were put to the witness including suggestions that after 1955 nobody was looking after the prosecution on behalf of the Corporation and that the prosecution was launched recklessly.

As is to be expected in matters relating to the Calcutta Corporation, the Corporation was not in a position to produce any other witness competent to depose about the proceedings before the Municipal Magistrate. At the time of the hearing even the documents disclosed on behalf of the Corporation could not be produced as apparently they could not be traced and the learned Counsel for the Defendant had to rely on copies of the documents included in the Brief of documents prepared for the Court.

Before I deal with the arguments of the learned Counsel and the cases cited, it would be useful to consider what are the essential requisites for an action for malicious prosecution and what the parties to such an action have to prove as laid down by the leading authorities. In this connection, it would also be relevant to consider the liability of a corporation in tort for the actions of its servants or employees. In Halsbury''s Laws of England (3rd ed., vol. 25, p. 353, Article 692) it is stated that to succeed in an action for damages for malicious prosecution a Plaintiff must prove (i) the prosecution by the Defendant of a criminal charge against the Plaintiff before a Tribunal into whose proceedings the civil Courts are competent to inquire; (ii) that the proceedings complained of terminated in his favour, if from their nature they were capable of so terminating; (iii) that the Defendant instituted or carried on such proceedings maliciously; (iv) that there was an absence of reasonable and probable cause for such proceedings; and (v) that the Plaintiff has suffered damage. To the same effect are the observations in Winfield on Tort (7th ed., p. 706) where it is stated that, assuming there is damage, the Plaintiff must prove (a) that the Defendant prosecuted ''him; (b) that the prosecution ended in the Plaintiff''s favour, (c) that the prosecution lacked reasonable and probable cause and (d) that the Defendant acted maliciously. According to Halsbury (Article 684, p. 349), a prosecution exists where a criminal charge is made before a judicial officer or Tribunal and any person who makes or is actively instrumental in the making or prosecuting of such a charge is deemed to prosecute it and is called the prosecutor. Where a person who lays before a Magistrate an information stating that he suspects and has good reason to suspect another or who prefers a bill of indictment, is engaged in a prosecution and he may be responsible for the prosecution even though the charge made before the Magistrate is an oral one and even though after making the charge before the Magistrate or even without making one, he is bound over to prosecute and does so. Similar observations are to be found in the above edition of Winfield (pp. 706-7). The proceedings sufficiently terminate in the Plaintiff''s favour if the Magistrate dismisses the charge, if the proceedings fail through a defect in the indictment, or because they are coram non judice, or by the acquittal of a jury even as to one part of the indictment. Where there has been a successful appeal from a conviction, this would be, for the purpose of pleading, a sufficient termination of the proceedings in a Plaintiff''s favour (Halsbury, p. 354, Article 694 and Winfield, p. 708). The malice which a Plaintiff in an action for damages for malicious prosecution or other abuse of legal proceedings has to prove is not malice in its legal sense, that is, such as may be assumed from a wrongful act done intentionally without just cause or excuse but malice in fact malus animus indicating that the Defendant was actuated either by spite or ill will against the Plaintiff, or by indirect or improper motives. (Halsbury, p. 356, Article 696 and Winfield, p. 714). The editors of Winfield further observe that want of reasonable and probable cause may be evidence of malice in cases where it is such that the jury may come to the conclusion that there was no honest belief in the accusation made. If there is such an honest belief, the Plaintiff must establish malice by independent evidence, for malicious motives may co-exist with a genuine belief in the guilt of the accused. If want of reasonable and probable cause is not proved by the Plaintiff, the defect is not supplied by evidence of malice. Similarly, in Clerke and Lindsell on Torts (12th ed., p. 1725) are the following observations:

The term ''malice'' in this form of action is not to be considered in the sense of spite or hatred against an individual, but of mains animus and as denoting that the party is actuated by improper and indirect motives (per Parke B. in Mitchell v. Jenkins (1833) 5 B. and Ad. 588). The proper motive for a prosecution is, of course, a desire to secure the ends of justice. If the Plaintiff satisfies the Court, cither negatively that this was not the true or predominant motive of the Defendant or affirmatively that something else was, he proves his case on the point. Mere absence of proper motive is generally evidenced by the absence of reasonable and probable cause. The absence of belief in the Defendant''s mind as to the merits of the case will no doubt afford strong evidence of malice, so also any lack of good faith in his proceedings and indication of a desire to concoct evidence or procure a conviction at any cost.

The comments of these authorities on the existence of reasonable and probable cause mostly relate to the procedure in England where such action is tried before a jury and the jury is the final authority on questions of fact while the questions of law are usually decided by the Judge. Reasonable and probable cause has been said to be an honest belief in the guilt of the accused based on a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of an accuser, to the conclusion that the person charged was probably guilty of the crime imputed : Herniman v. Smith (1938) A.C. 305 The learned editors of both Halsbury and Winfield have observed that this definition may not be quite appropriate in all cases as there may be exceptions to the rule that belief in the guilt of the accused is necessary in order to constitute reasonable and probable cause for a prosecution, for example, where the prosecution feels that the case is so black against the accused that he must prosecute, although he refuses out of fairness of mind to believe the accused guilty until the Court finds him so Or where the prosecutor acts on legal advice that the evidence justifies a prosecution : Halsbury, p. 358, Article 699-700 and Winfield, p. 710. Lastly, the Plaintiff must prove damage. Such damage may be (i) damage to a man''s fame, as where the matter of which he is accused is scandalous, or (ii) damage to the person u as where his life, limb or liberty is endangered, or (iii) damage to his property, as where he is put to the expense of acquitting himself of the crime with which he is charged : Halsbury, p. 360, Article 702 and Winfield, p. 705)

As to the liability of a Corporation to be sued for malicious prosecution or as it is called its vicarious liability, the question may depend on whether the act done was intra vires or ultra vires the terms of its incorporation as to the acts which it may lawfully do. If the tort is committed by a servant or other agent of the Corporation acting in the course of his employment, then the Corporation is liable on exactly the same principle that any employer is vicariously responsible in the like circumstances. Where, however, the servant or the agent of the Corporation has committed a tort which is beyond the authority or the course of his employment under the Corporation, the Corporation would not be liable unless it has expressly authorised the Commission of such tort : Winfield, p. 79 and Halsbury, p. 352, Article 690.

The burden of proof in an action for damages for malicious prosecution lies in the first instance on the Plaintiff. It is not sufficient for him to prove that he was innocent of the crime for which he was prosecuted by the Defendant by proving that the prosecution terminated in his favour. He must also show that the Defendant acted maliciously and without reasonable and probable cause. The burden of proof, in the sense of the burden of adducing, evidence, is not stationary; when the Plaintiff has given such evidence as, if not answered, will entitle him to a verdict, the burden of proof is shifted to the Defendant : Halsbury, pp. 361-2, Articles 704-5.

Two further observations in Halsbury as to inference of malice may be noted. The fact that the Defendant has in a previous occasion made a charge against the Plaintiff is evidence of malice : Barret v. Long (1851) 3 H.L. Cas. 395 The mere fact that the Plaintiff was acquitted for want of prosecution does not prove malice : Purcell v. Macnamara (1808) 9 Eas 361 It will also be useful here to note that the ratio laid down by the House of Lords in Bradford Corporation v. Pickles (1895) A.C. 587 and Allen v. Flood (1898) A.C. 1 that is was the act and not the motive for the act that must be regarded, if the act apart from the motive gave rise merely to damage without legal injury the motive, however reprehensible it might be, will not supply that element, does not apply, inter alias to malicious prosecution where evil motive would be relevant (Winfield, p. 56). This probably explains why Allen v. Flood has not been noticed in the Indian decisions on malicious prosecution which Mr. Manna commented on in the course of his argument.

The first submission of Mr. Manna, the learned Counsel for the Defendant, was that the suit was not maintainable as it has not been pleaded that the Corporation was liable for the actions of the other Defendants or of any of its servants or agents. Mr. Manna contended that the present action is based on the prosecution started by an application for summons filed before the Municipal Magistrate on November 7, 1955 (p. 1, Ex. H). Nothing has been alleged to show that the Corporation had sanctioned or authorised the prosecution. As the liability of the Corporation is a vicarious liability, it must be alleged and proved that the servant or agent responsible for the prosecution acted within the scope of his authority. As neither the second nor the third Defendant in this suit had anything to do with the prosecution, the suit should be dismissed. The petition before the Magistrate showed that B. Bose, the Chief Building Surveyor, was the complainant. Nowhere has it been'' alleged that the Corporation adopted, approved or ratified the prosecution of the Plaintiff. The learned Counsel persisted in his somewhat obscure argument that the case of the Corporation''s vicarious liability had not been pleaded in the plaint. According to him, the claim against the Corporation as made in the plaint was in respect of a liability directly incurred by the Corporation and not a liability for any wrongful act by a servant or agent. He referred to certain passages in Winfield which I have already mentioned above. While criticising the pleadings in the plaint Mr. Manna has overlooked the averments in paras. 4 and 5 of the written statement where it has been admitted that the Defendant Corporation made two applications for summons before the Municipal Magistrate in pursuance of and in performance of its obligations under the Act and the Rules made thereunder. The record of the proceedings before the Municipal Magistrate (Ex. H) shows that the complainant was the Corporation of Calcutta. Further, there is no dispute that in the matter of the prosecution all the relevant provisions of the Act were observed, e.g. notices were issued, objections were heard by the Standing Committee, the complaint was approved by the Commissioner after receiving a report of non-compliance with the notices etc. In my opinion, this is no case on any vicarious liability and this contention of Mr. Manna must be rejected. While the Corporation must be held to have prosecuted the Plaintiff, I am not satisfied that the Plaintiff has any cause of action against either the Defendant No. 2 or the Defendant No. 3. So far as Priya Guha, the Defendant No. 3, is concerned, Mr. Das, the learned Counsel for the Plaintiff, conceded that possibly no decree could be passed against him. As Mr. B.K. Sen, the second Defendant, was only performing his statutory duty of sanctioning the prosecution by signing his name in the petition for the summons without otherwise being responsible therefor, he could not be said to have prosecuted the Plaintiff. Mr. Manna relied on a decision of the Privy Council in Mohamed Amin v. Jogendra Kumar Banerjee (1947) A.C. 322 (331) where it has been observed:

From this consideration of the nature of an action for damages for malicious prosecution emerges the answer to the problem before the Board. To found an action for damages for malicious prosecution based on criminal proceedings the test is not whether the criminal proceedings have reached a stage at which they may be correctly described as a prosecution; the test is whether such proceedings have reached a stage at which damage to the Plaintiff results....If the Magistrate dismisses the complaint as disclosing no offence with which he can deal, it may well be that there has been nothing but an unsuccessful attempt to set the criminal law in motion and no damage to the Plaintiff results. But in this case the Magistrate took cognizance of the complaint, examined the complainant on oath, held an inquiry in open Court which the Plaintiff attended and at which, as the learned Judge has found, he incurred costs in defending himself....Their Lordships think that the action was well-founded and on the findings at the trial the Plaintiff is entitled to judgment....

I do not see how these observations help Mr. Manna. On the other hand Mr. Das''s claim that they support his case, that the Plaintiff was prosecuted by the Defendant, appears to be justified. The answer to the first issue must, therefore, be that the Defendant Corporation prosecuted the Plaintiff as alleged in para. 4 of the plaint.

The next question to be considered is whether the prosecution terminated in favour of the Plaintiff [Issue No. (4)]. Mr. Manna made a futile attempt to'' show that there was no favourable termination of the proceedings before the Magistrate as the Plaintiff was acquitted not because no offence had been committed but because it was riot possible for him to have complied with the requisitions in the notice under Rule 5. As observed by the Privy Council in Balbhaddar Singh v. Badri Sah AIR 1926 P.C. 46 the Plaintiff has to prove, inter alia, that the prosecution complained of terminated in his favour if from their nature they were capable of so terminating. After discussing the controversy in the decisions of the English Courts as to what terminated a proceeding, their Lordships further observed that at any rate it was quite settled that the prosecution came to an end when a Magistrate declined to commit. In the case before their Lordships it was held that it was sufficient for the Plaintiff to prove that the criminal proceedings ended, so far as they were concerned, when the Sessions Judge refused to commit them for trial. In the present case the Magistrate has found the Plaintiff not guilty and has acquitted him. Issue No. (4) must be answered against the Defendant.

As the onus is on the Plaintiff to prove not only that he was prosecuted by the Defendant and that the prosecution terminated in his favour but also to prove that the Defendant acted maliciously and without reasonable and probable cause; it would be convenient to consider the arguments of Mr. Das on issues Nos. (2) and (3) before adverting to the submissions of Mr. Manna. Mr. Das contended that the order of the Administrative Officer dated March 6, 1951, (p. 6, Ex. G) confirming the findings of Mr. Parks, the Special Officer, showed that the building could not be repaired but had to be reconstructed. The fact was known to the Corporation authorities before the issue of the two notices under Rule 5 in 1955 as the said order was referred to in the report of Saha Choudhury to B. Bose dated October 20, 1954, (pp. 57-8, Ex. G) and was also admitted by Saha Choudhury in his evidence (Q. 166). The further facts that the Plaintiff''s plan for a new building was sanctioned by the Administrative Officer and that a prosecution was launched in 1951 for the failure of the Plaintiff to pull down the existing structure and erect a new building within the time granted and that the Plaintiff was ultimately acquitted in 1954, were also known to the authorities concerned, While admitting the dilapidated condition of the building Saha Choudhury, in his evidence, insisted that the building could be secured by repairs and this was confirmed by B. Bose in 1954 in spite of the opinion of an expert like Mr. Parks in 1951 that the building was beyond repairs. Mr. Das contended that the second prosecution of the Plaintiff was reckless and was, as such, without reasonable and probable cause and relied on the decision in Abubucker Ebrahim and Another Vs. Maganlal K. Javeri, where it was held that, in order to succeed in an action for malicious prosecution, the Plaintiff has to prove : (i) absence of reasonable and probable cause for the prosecution and (ii) malice on the part of the person who launched the proceedings. In deciding whether there was absence of reasonable and probable cause for the prosecution the Court could only have regard to the facts known at the time of the presentation of the complaint. While malice might be implied when there was absence of reasonable and probable cause, it did not necessarily follow from the fact that the proceedings had been launched without reasonable and probable cause that the person launching them did in fact act maliciously. Whether-malice should be implied would depend on the circumstances. It would be a proper inference if it was shown that the Defendant acted recklessly. Some of the leading English decisions on the question were considered in that case.

The learned Counsel submitted that, according to the evidence of Saha Choudhury (Qs. 263/264) the practice of the Corporation was not to seek legal advice before prosecuting for failure to comply with notices under Rule 5. The department concerned issued summons application after approval by the Commissioner. Mr. Das agrees that where a prosecutor acts on legal advice after placing all the relevant facts before his lawyer, he would not be liable in an action for malicious prosecution : Daw You v. U Min Sin AIR 1940 Ran. 230, but submitted that as in this case no legal advice was taken the Corporation could not claim any immunity. The learned Counsel further contended that the numerous letters written by the Plaintiff''s lawyer to the Corporation, which are admitted, gave full particulars of the reasons for the Plaintiff''s inability to demolish the building in spite of his best efforts, but instead of responding to his appeals and rendering him assistance in getting the premises vacated and demolished the Corporation kept on serving notices under Rule 5 rejecting his pleas and ultimately prosecuting him for not securing an insecure building. The Corporation''s action was entirely without reasonable and probable cause.

Mr. Das''s next submission was that the conduct of the complainant, both before and after the charge, must also be taken into consideration in determining the reasonableness of the prosecution. The evidence of the two defence witnesses, Saha Choudhury and Laha, makes it clear that nobody knew who was looking after the proceedings before the Magistrate on behalf of the Corporation and nobody cared. Further, even after the inspection of the premises by the Magistrate in 1957 the prosecution could have been dropped. The learned Counsel referred to the observations of Cockburn C.J. in Fitzjohn v. Mackinder 9 C.B. (N.S.) 505 : 120 E.R. 199 which have been quoted with approval by the Privy Council in Gaya Parshad Tewari v. Sardar Bhagat Singh 35 I.A. 189 (193):

A prosecution, though in the outset not malicious as having been undertaken at the dictation of a Judge or Magistrate, or if spontaneously undertaken, from having been commenced under a bona fide belief in the guilt of the accused, may nevertheless become malicious in any of the stages through which it has to pass, if the prosecutor, having, acquired positive knowledge of the innocence of the accused, perseveres malo animo in the prosecution with the intention of procuring per nefas a conviction of the accused.

A similar view has also been expressed by Lord Goddard C.J. In Tims v. John Lowis and Co. Ltd. (1951) 2 K.B. 459 (472):

It is quite easy to imagine a case in which a person was thoroughly justified in bringing proceedings and then in the course of the case something comes to light which shows the prosecution to be in fact groundless. Then, if the prosecutor insists on continuing the prosecution without at any rate informing the Court of the facts which he has since discovered, he will, I think, possibly have no reasonable or probable cause for continuing the prosecution and at any rate will be guilty of malice.

Some grievance was made by Mr. Das of no action being taken on the first notice under Rule 5 issued in November 19, 1955, (p. 13, Ex. G). But it appears that no action could be taken on the notice within the time allowed by the section as the file was placed before one Dr. Sett who was apparently taking an interest in the matter on behalf of the Plaintiff. Mr. Das''s next contention that as the prosecution was launched in November 7, 1955, more than three months from the date of the notice, it was out of time and therefore, there was no reasonable and probable cause for the prosecution, cannot be accepted, as according to the Plaintiff himself, the notice was served on him on August 3, 1955 (p. 70, Ex. G).

The learned Counsel referred to some of the speeches of the learned Law Lords in the latest decision of the House of Lords in Glinski v. Mclver (1962) 1 All E.R. 696 (700) : (1962) A.C. 726 Though in that case the matter for, decision was whether the question that the Defendant honestly believed that the accused was guilty of the offence should be put to the jury in an action for malicious prosecution, there are some important pronouncements on the questions of reasonable and probable cause and malice. Viscount Simonds says:

Since Johnstone v. Sutton and no doubt earlier, it has been a rule rigidly observed in theory if not in practice that though from want of probable cause malice may be and often is inferred, even from the most express malice, want of probable cause, of which honest belief is an ingredient, is not to be inferred.

The observations of Lord Denning in the same case, which have been relied on by Mr. Das, are illuminating. His Lordship observed:

In the first place, the word ''guilty'' was apt to be misleading. It suggests that, in order to have reasonable and probable cause, a man who brought a prosecution must at his peril believe in the guilt of the accused. Whereas in truth he has only to be satisfied that there is a proper case to lay before the Court, or, in the words of Lord Mansfield that there is a probable cause to bring the accused to a fair and impartial trial. There are many cases where the facts and information known to the prosecutor are not in doubt. In such a case, the mere fact of acquittal of the Plaintiff gets him nowhere. The Judge will have to consider the undoubted facts and information and decide on them himself. If, on considering them, he finds that there was no want of reasonable and probable cause, he should dismiss the claim. Secondly, there are some cases where the prosecutor is personally involved, so much so that his own evidence is the very basis of the case for the prosecution. In such a case, if he was speaking the truth there was good, cause for the prosecution if he was lying there was no cause for it. If he honestly believed that the facts were as he stated, then, even though it turned out to be a mistaken belief, he would have reasonable and probable cause to prosecute. Thirdly, there are cases where the prosecutor is not himself personally involved but makes a charge on information given to him by others. If the information is believed by him to be trustworthy, there was good cause for the prosecution. If it was known to him to be untrustworthy and not fit to be believed, there was no cause for it. Fourthly, there are cases where from the conduct of the Defendant himself it may reasonably be inferred that he was conscious that he had no reasonable and probable cause for the prosecution. As where a man trumps up a charge in order to bring pressure to bear on another or he may conceal facts which he knows would furnish an answer to the charge. When it comes to the trial, he may not be prepared to support it in the witness-box. Clearly, such a man has no reasonable or probable cause for the prosecution. But the only way of establishing it may be to look at his conduct and see whether it can reasonably be inferred therefrom that he was conscious he had no good cause to prosecute.

Various other decisions were cited by Mr. Das, but in view of the comments of the editors of the authoritative works on the subject where most of the decisions have been considered, it would be sufficient if I merely noticed them in passing. In Barrett v. Long 3 H.L.C. 395 : 10 E.R. 134, which has also been referred to in the passage quoted from Clerk and Lindsell earlier, it was held that in an action for libel the publication of previous libels on the Plaintiff by the Defendant was admissible evidence to show that the Defendant wrote the libel in question with actual malice against the Plaintiff. This case was relied on for the proposition that as the first prosecution had been terminated in favour of the Plaintiff, the second prosecution was evidence of want of reasonable and probable cause and malice on the part, of the Corporation. In another case, Cruise v. Burke 2 L.R. 182, the observation that the fact that the Defendant had on a previous occasion made a somewhat similar charge against him afforded an additional ingredient as to the absence of reasonable and probable cause, was also relied on by Mr. Das. But in that case the learned Judge observed that the inference arising from the subsequent prosecution was supplemented and strengthened by the other findings of the jury and by the Defendant''s previous accusations and threats. So these two cases are not the absolute authority for the proposition of Mr. Das that an earlier prosecution on the same and similar charges would be, ipso facto, evidence of malice or want of reasonable and probable cause. Passages from Halsbury (pp. 362-3, Articles 706-10) were also referred to by Mr. Das which I have already considered earlier. Mr. Das cited several Indian decisions on want of reasonable and probable cause, malice and vicarious liability. In The Municipality of Ahmedabad Vs. Panubhai Laljibhai, Rangnekar J. held that an action for malicious prosecution would lie in the case of a prosecution under a Municipal Act. He also held that the Corporation can be actuated by that kind of malice which is essential to the maintenance of any action for malicious prosecution instituted by its officers in the scope of their duty, provided the necessary ingredients of such a prosecution are made out. He also enumerated what a Plaintiff in an action for malicious prosecution has to prove and said that the question of the existence of malice was one of fact and considered a number of English cases. In Maharaja Bose Vs. The Governor-General-in-Council, Mitter J. held that the master was liable where the servant, acting in a matter which is within the scope of the authority and within the course of his employment, commits a wrong by exceeding the authority vested in him. In respect of a prosecution initiated by an agent with the authority of the Corporation, expressed or implied, the malice of the agent will be imputed to the principal. It is on this principal that a Corporation is liable for an action for malicious prosecution although it has no mind and cannot be guilty of malice. The case of Abubucker Ebrahim v. M.K. Javeri Supra, which I have already discussed, was referred to for the proposition that malice could be implied from the absence of reasonable and probable cause. Jamunadas Shivram v. Chunilal Hambirmal ILR Bom. 227, where it was observed that the prosecutor''s belief in the guilty of the accused must be based on the grounds which or some of which arc reasonable and arrived at after due enquiry, was also cited. This observation is based on a passage in Halsbury which I have already considered. In Laxmichand v. Dominion of India AIR 1955 Nag. 265 it was observed that malice could be inferred in certain circumstances from absence of reasonable and probable cause and the decision of the House of Lords in Herniman v. Smith Supra was relied on. In the Madras High Court decision in Kanu Panna Pillai v. Haughton ILR 59 Mad. 887 it had been held that where the, Chairman of the Municipality prosecuted the Plaintiff for non-payment of certain fees when he was aware that in filing the complaint he was doing something which was not authorised by the Municipal Act, the prosecution must in law be deemed to be malicious even though the motive of the Defendant for prosecuting the Plaintiff might not have been to gratify a personal spite but to promote what he thought to be in the best interest of the Municipality. I could see no application of this case to the facts of the case, before me.

Mr. Das complained that the suggestion that the Plaintiff could have secured immunity from prosecution by taking proceedings u/s 575 of the Act, was not put to him while in the box and the Defendant could not rely on that fact. The authority of this Court in A.E.G. Carapiet Vs. A.Y. Derderian, was relied on, but as was rightly pointed out by Mr. Manna in his reply the Plaintiff was asked whether he had moved any other Court for vacating the occupiers (Qs. 360-361), it could not be said that the Plaintiff had been taken unaware and the ratio of the above decision has no application to this case.

Finally, Mr. Das submitted that though the occupiers of the building were also prosecuted at the time of the first prosecution in 1950, the fact that in the prosecution launched in 1955 the summons were applied, for against the Plaintiff alone showed that there had been unfair discrimination.

Though Mr. Manna argued this point first, I am treating his argument as that in reply to Mr. Das. Mr. Manna submitted that the Plaintiff had not discharged the onus of proving the want of reasonable and probable cause and referred to Halsbury (Article. 704 at p. 362). Basing his argument oh the decision of the House of Lords in Allen v. Flood Supra the learned Counsel submitted that the motive was irrelevant in an action for torts and that the act itself must be wrongful. So, even if there is malice and want of reasonable and probable cause, the Plaintiff must fail unless the could establish that he was innocent of the charge. As the Plaintiff has himself admitted that neither the Corporation nor its servants or agents had any personal grudge or ill-will against him, he must establish that the making of the application u/s 537 of the Act is itself a wrongful or illegal Act. As I have already quoted, the commentary of the editors of Win field on Tort that the above principle was not applicable, inter alia, to an action for malicious prosecution which also seem to be borne out by the observations of Lord Davey in Alien v. Flood Supra (172), the contention of Mr. Manna must be rejected. Mr. Manna then cited the well-known case of Abrath v. The North Eastern Railway Co. 2 Q.B.D. 440 (445), a decision of a very powerful appellate Court consisting of Brett M.R., Bowcn L.J. and Fry L.J. and particularly to the following observation of Bowen L.J.:

This action is for malicious prosecution and in an action for a malicious prosecution the Plaintiff has to prove, first, that he was innocent and that his innocence was pronounced by the. Tribunal before which the accusation was made secondly, that there was want of reasonable and probable cause for the prosecution, or, as it may be otherwise stated, that the circumstances of the case were such as to be in the eyes of the Judge inconsistent with the existence of reasonable and probable cause and lastly, that the proceedings of which he complains were initiated in a malicious spirit, that is, from an indirect and improper motive and not in furtherance of justice.

Mr. Manna submitted that in this case the Plaintiff has neither proved that he was innocent and was so found by the Magistrate. As the Plaintiff does not allege that the charge against him was baseless or false and as his only plea was his inability to comply with the requisition made in the notice, it could not be said that the proceedings were initiated from an indirect and improper motive and not in furtherance of justice.

So far as the first proposition laid down by the learned Lord Justice is concerned, it appears from the present trend of decisions, both in England and in this country, that in order to succeed in an action for malicious prosecution it is no longer necessary for the Plaintiff to prove that he was innocent and his innocence was pronounced by the Tribunal before which the accusation was made. The second and third propositions enunciated above are certainly applicable to this case and in order to succeed the Plaintiff must prove that there was want of reasonable and probable cause for the prosecution and that it was initiated with an indirect and improper motive.

Mr. Manna attempted to distinguish the cases cited by Mr. Das on malice on the ground that in none of these cases except possibly in Balbhaddar Singh v. Badri Sha Supra was it found that the Defendant instigated a false prosecution. He referred to the relevant provisions of the Calcutta Municipal Act, 1951 and pointed out that while Rules 5(1) and 5(2) in Schedule XVII empowered the Corporation to issue notices to the owner and occupiers of an unsecured building requiring them to pull down a part or the whole of the premises, Section 560 of the Act only gives a discretion to the Commissioner to enforce such notices in case of emergency. Opportunity is to be given to such owner and occupiers to show cause against such a notice and such objections must be heard by the Standing Committee. It is not incumbent on the Corporation to have the premises vacated to enable the owner either to demolish or to secure the structure. Further, if the owner finds himself unable to comply with the requisitions due to the obstruction by the occupiers, he can render himself immune to prosecution u/s 537 by taking proceeding u/s 575. The judgment of the Municipal Magistrate (p. 37, Ex. G) shows that the prosecution was for non-compliance of notice under Rule 5(1) and that the accused had taken time for such compliance. Mr. Manna submitted that this would put an end to the Plaintiff''s contention that the prosecution was without reasonable and probable cause.

It was next contended by the learned Counsel that the first prosecution in 1952, being Case No. 8457B of 1952, was in respect of an entirely different offence. This would appear from a comparison of the notice under Rule 4(1) of Schedule XVIII the 1923 Act served in October 1950 (p. 54, Ex. G) with the notice under Rule 5(1) of 1955 leading to the prosecution in this case (p. 32, Ex. G) The latter notice, required demolition of an entirely different portion of the building and securing the rest. So the two prosecutions were not in respect of the same default. Further, the said judgment of the Magistrate shows that the Plaintiff was agreeable to repair and secure the building and had for that purpose demolished nearly 1/3rd of the house being the southern portion thereof.

On the evidence, I am not satisfied that the prosecution of the Plaintiff by the Corporation was without reasonable and probable cause. The controversy between the parties seems to have been over the question as to who was to undertake the unpopular task of getting the tenants to vacate the building. It is a matter of common knowledge that in Calcutta at the present time it is almost impossible to get the occupiers to vacate a building, however insecure and dilapidated it may be, as'' it is equally impossible for the tenants to find new accommodation at or near the rent previously paid and without having to pay a substantial selami. The Plaintiff admitted in his evidence that, if he could pull down the existing structure and erect a new building on the site, he could have earned a very fair return from his investment. The Corporation, obviously, was not prepared to face the odium of popular resentment by attempting to force the tenants to move out. There is no dispute that the building had to be secured either by partly demolishing and partly repairing or that it had to be pulled down entirely. The pressure was on and each party, wanted the other to pull the chestnut out of the fire. The Plaintiff had all along been acting through his lawyer. I fail to understand why he did not secure immunity from prosecution by taking proceedings u/s 575. If, as laid down by the authorities cited above, the reasonable and probable cause for a prosecution could be said to be an honest belief in the guilt of the accused founded upon reasonable grounds, assuming the existence of the state of circumstances to be true, which would lead any ordinarily prudent and cautious man to the conclusion that the person charged was probably guilty of the crime imputed, could it be said that the Corporation or its employees responsible for the prosecution of the Plaintiff lacked such reasonable and probable cause.

Both the testimony of Saha Choudhury and the records in evidence establish that (i) on October 18, 1954, Saha Choudhury inspected the premises and found it extensively damaged, (ii) that he made a report to his superior officer B. Bose, the Chief Building Surveyor, drawing his attention not only to the condition of the building but also to the previous order of the Municipal Magistrate, the requisition under the previous notice and the order of the Administrative Officer arid (iii) that in response to the said report. B. Bose along with Saha Choudhury inspected the premises at the end of November 1954 and came to the conclusion that a certain portion required to be pulled down while the rest could be secured by repairs. B. Bose, accordingly, recommended action under Rule 5(1) and (2)(pp. 57-9, Ex. G). Even in the witness-box Saha Choudhury stuck to his opinion that while part of the building required to be demolished the rest could be repaired. It is further, seen that notices under both Rule 5(1) and (2) dated November 19; 1954, were served on the owner and the occupiers of the premises and that similar notices dated July 27, 1955, were also served on both the owner and the occupiers. Further, the Standing Building Committee, on September 8, 1955 and December 16, 1955, respectively, considered the written objections by the Plaintiff''s lawyer as well as similar objections on behalf of the occupiers and disallowed both sets of objections. It is to be noted that the tenants'' objection to the requisition for vacating certain-rooms of the building were that that part of the building was not in a dangerous condition, that the landlord had deliberately failed to effect any repairs for a long time, that the landlord was trying to evict them and that the tenants were ready and willing to effect the necessary repairs at the cost of the landlord. The Plaintiff was duly given notice of the rejection of his objections by the Standing Committee and was required to comply with the requisitions. It was only when it was later reported that the Plaintiff had failed to comply with the notice that the application for the issue of summons was made before the Municipal Magistrate. I am of the opinion that the Plaintiff has failed to establish that his prosecution by the Corporation was without reasonable and probable cause and the issue No. (3) must be answered against the Plaintiff. As it has neither been alleged nor proved that the Defendant Corporation was actuated by any improper or indirect motives in instituting the proceedings against the Plaintiff, the second issue, must also be answered against the Plaintiff.

Though in view of my decisions oh issues Nos. (2) and (3) it may not be strictly necessary to consider the remaining issues, as arguments have been advanced by the learned Counsel, I would briefly deal with the same. Mr. Manna did not advance any arguments to show that the notice u/s 586 of the Act was in any way invalid or insufficient or was served out of time, the issue No. (6) must be decided against the Defendant.

So far as damages are concerned I am unable to accept the contention of Mr. Manna that the Plaintiff has failed to prove the amounts of the fees and charges claimed to have been paid to the lawyers and the engineer. I see no reason to disbelieve the evidence given by the Plaintiff that he actually made these payments, though he obtained the relevant receipts later at the time of the institution of the suit. So far as the general damages are concerned, I am not satisfied that the prosecution of a landlord by the Municipality for failing to comply with its requisitions to demolish or repair would cause him to be considered a greedy, callous or antiracial man or that he was not fit to be a law-abiding member of the society. Due to the negligence and failure of the Corporation to conduct the prosecution diligently the Plaintiff has undoubtedly suffered harassment and strain and had also to incur costs for defending himself. I would have assessed the general damages in this case at Rs. 5,000 if the Plaintiff had succeeded on the main issue.

The suit must be dismissed. I have not arrived at this decision without some reluctance. The conduct of the Corporation after instituting proceedings u/s 537 against the Plaintiff on two separate occasions and having summons issued against him, to have remained inert for years until the Magistrate on the first occasion in utter disgust dismissed the case and acquitted the Plaintiff is indefensible. No explanation has been offered by either the witnesses for the Defendant or its learned Counsel as to why no evidence was tendered by the Corporation at the time of the second prosecution and why the proceedings were allowed to be dragged on for over two years. The Corporation seems to be utterly indifferent to any unnecessary harassment or trouble caused to its tax-payers. Though this case has been decided in its favour more or less on technical considerations, in my opinion, the proper order for costs would be that the Defendant Corporation do pay to the Plaintiff his costs of this suit and I order accordingly.