Ramnarain Prasad vs Ram Kishun Prasad

Courtney-Terrell, C.J.—This Letters Patent appeal is by the plaintiff and arises out of a suit by him to recover damages from the defendant for malicious prosecution. It is unnecessary to go into the story of the occurrence which gave rise to the prosecution of the plaintiff in any great detail, but it may be shortly stated as follows:

It seems that the defendant who is the sub-postmaster of Mirzapur stated that he had sent to the plaintiff who is the branch postmaster at Rasulpur in Saran a sum of Rs. 200 and that that sum had been received by the plaintiff and misappropriated. The defendant lodged an information with the police which resulted in the prosecution of the plaintiff. The plaintiff was acquitted and it was held that the prosecution was false and malicious. The acquittal took place on 17th March 1928 and a year later on 16th March 1929 the plaintiff began the present suit against the defendant for damages. The defence by the defendant consisted of a general denial of the allegations by the plaintiff and a series of statements to the effect that the complaint instituted by him was not malicious and was not instituted with any improper motive and that the plaintiff had not suffered any damage.

It would appear that in the argument before the Munsif who heard the case the defendant urged that the Secy. of State ought to have been made a party to the suit. It is difficult to see how he raised this argument but apparently it was taken because of some extraordinary misreading of Section 80, Civil P.C. At any rate the Munsif quite properly decided that it was not necessary to make the Secy. of State a party to the dispute. The issues which the Munsif settled and decided were six in number.

Was the defendant prosecutor of the criminal case? 2. Is the suit legally maintainable against the defendant? (Here it may be said that it was under this issue that the defendant had argued that the Secy. of State ought to have been made a party). 3. Has the plaintiff any cause of action for the suit? 4. Was the criminal case maliciously false and without reasonable and probable cause? 5. Is plaintiff entitled to any damages? If so, to what amount? 6. Is the amount claimed as damages excessive?

The result of the suit was that the Munsif decided in favour of the plaintiff and gave judgment for Rs. 250 by way of damages and also ordered the payment of costs. From this decision the defendant appealed to the Subordinate Judge. The Subordinate Judge affirmed all the findings of the Munsif on matters of fact, but the question as to the position of the Secy. of State in the argument on behalf of the defendant seams by this time to have shifted.

This time he did not urge that the Secy. of State should be made a party but he urged that the Secy. of State ought to have received notice of the suit. This argument is as incomprehensible as was the argument raised before the Munsif and was rightly rejected by the Subordinate Judge who affirmed the judgment of the Munsif. The defendant then came to this Court on second appeal. The appeal before the Subordinate Judge was heard on 11th March 1931 and the memorandum of appeal to this Court is dated 13th April 1931. The memorandum of appeal sets forth as ground 4:

For that the Court of appeal below should have held that the appellant''s report having been made in his official capacity, the suit for damages could not be without a notice to the Secy. of State for India and has erred in law in holding otherwise.

When however the case came before the learned Judge and was in the hands of an advocate of competence he took an entirely different position, and relying upon Section 80, Civil P.C., he attempted to argue that he (the defendant in the suit) should have received notice by reason of that section. For some reason or other the learned Judge who heard the appeal was apparently not informed of the history of the dispute up to that point. In the absence of any argument to the effect that the plea of want of notice to the defendant was of an entirely new character for the first time raised before him the learned Judge went into the interesting legal question as to whether the defendant was purporting to act in his capacity as a public servant and therefore was entitled to notice.

He came to the conclusion that the law was that he was then prosecuting the plaintiff acting as a public servant and was therefore entitled to notice and seems to have taken it for granted that the finding of fact in the Court below was that no notice to the defendant had been given. He reversed the judgments of the Courts below and held that as no notice had been given, the suit must fail.

Now the fact that this plea as taken before the learned Judge in open Court was a plea which had never been raised before in the history of the case, and further having regard to the fact that at the time of the hearing before the learned Judge more than two years had elapsed since the arising of the cause of action and it was impossible for the plaintiff to bring another suit, further that no issue had been raised at any time in the case as to whether or not notice had been served and inasmuch as the defendant had not at any time taken any point on the subject of notice to him, it must be held that the want of notice had been waived.

This course was taken by the Calcutta High Court in the case of Purna Chandra Sarkar Vs. Radharani Dassya and Others, and similar cases are quoted by the learned Judges who decided that case in their judgment. It was held that want of notice had been waived and stress was laid by the learned Judges upon the fact that the plea was not taken until the period of limitation had expired. In my opinion this authority applies directly to a case of this kind.

It was urged by the learned Advocate who appeared for the defendant that he relied upon the authority of AIR 1927 176 (Privy Council) that the words of Section 80, Civil P.C., are mandatory and that the plaintiff must prove that notice had been given before the Court could entertain his suit.

The facts of that case however are very different from the facts of this case. The defect of the suit in that case was that it was brought before the expiry of the regular two months of the stipulated notice and it was held that inasmuch as the two months notice was required and the suit was brought before the expiry of that period it was manifestly out of order and could not be entertained and the reasoning is very clear. The observations of their Lordships of the Privy Council with regard to the strict construction of a statute are of course matters of general knowledge and as their Lordships say this Court is not at liberty to import into the statute words which are not there or to construe the statute ignoring the express words of the section; but the case to my mind is not in the least applicable to the facts of this case.

I am sure that had the fact that this argument was being raised for the first time been brought to the notice of the learned Judge of this Court who heard the case in second appeal the suit would not have been rejected and the belated argument based on want of notice would have been rejected. I would therefore set aside the judgment of the learned Judge of this Court and restore the judgment of the Subordinate Judge and direct that the defendant pay the costs throughout.

Varma, J.

I agree.