1. These are two second appeals arising from two connected suits: (1) Suit No. 127 of 1964 which was the leading case and the plaintiffs in which were Gopal Prasad and 3 others, who are the four appellants in Second Appeal No. 2866 of 1968; and (2) Suit No. 206 of 1965 in which the plaintiff was Gopal Prasad Chaturvedi who is the sole appellant in Second Appeal No. 2864 of 1968. The first of these two suits was for a permanent injunction for restraining the defendant State of Uttar Pradesh from realising in one lump sum or by arresting the plaintiff, the amount of a loan which had been taken by him. The other suit was for damages against the defendant State of Uttar Pradesh and Sri R.C Saxena, the then Tehsildar, Mathura, and Sri Raghunandan Swarup, the then District Industries Officer, Mathura, in the sum of Rs. 2,000/-, for wrongfully arresting the plaintiff in order to recover another loan.
2. The trial court decreed both the suits, by issue of a permanent injunction in Suit No. 127 of 1964 restraining the defendant State of Uttar Pradesh and its officers from making a lump sum recovery of the loan as arrears of land revenue, under certificate dated 14th Nov. 1962 (Paper No. 72.A in Suit No. 206 of 1965); and by decreeing recovery of Rs. 2,000/- as damages against all the three defendants in Suit No. 206 of 1965. The defendants appealed to the District Court from the decrees in both the suits. The appeals were allowed and both the suits for injunction and damages were dismissed. The learned counsel for the plaintiff-appellant in Second Appeal No. 2866 of 1968 stated before that the amount of loan for the recovery of which proceedings had been taken against the plaintiff Sri Gopal Prasad Chaturvedi, and in respect of which injunction was sought in Suit No. 127 of 1964 must have been paid off by now under the interim order of this Court dated Nov. 29, 1968 and consequently Second Appeal No. 2866 of 1968 arising from the suit for injunction has become infructuous and was liable to be dismissed as such but prayed that there may be no order as to costs.
3. In the suit for damages giving rise to Second Appeal No. 2864 of 1968, the following six issues were framed by the trial court:—
“(1) Whether the plaintiff was wrongfully and maliciously arrested as alleged in the plaint? If so which defendant is responsible?
(2) Whether the plaintiff suffered any damages? If so to what compensation the plaintiff is entitled?
(3) Whether defendant No. 1is also liable for the acts of any of the other defendants?
(4) Whether defendants Nos. 2 and 3 are not liable as alleged in para 11 of the written statement of defendant No. 3 and para 9 of the written statement of defendant No. 2?
(5) Whether the notice under Section 80 of the CPC is valid?
(6) Plaintiff's relief?”
4. The trial court, on issues Nos. 1, 3 and 4, held that the plaintiff did commit a breach of cls. 2 and 3 of the agreement (Ext. A-4), and the creditor was authorised by cl. 8(4) to recover the whole amount then due as arrears of land revenue by sale of the property pledged or any other property of the borrower or the sureties in addition, or in the alternative to forthwith enforce the charge on the property pledged or any part thereof, by way of the remedies of a holder of a simple mortgage, but could in no case arrest the plaintiff for the recovery of the loan of Rs. 4,500/- under the terms of that agreement; that the arrest of the plaintiff was thus wrongful but the plaintiff led no satisfactory evidence to show that there was any malice on the part of the District Industries Officer (defendant-respondent No. 3). On the question which of the defendants was responsible for the arrest of the plaintiff, the trial court held that defendant-respondent No. 2 had ordered the plaintiff's arrest under the documents which were papers Nos. 72-A in Suit No. 127 of 1964 and Ex. 3, in Suit No. 206 of 1965, and the stand of the defendant respondent No. 2 that hear rested the plaintiff under the directions obtained therein was wrong; that under the law, the plaintiff could not have been arrested for recovery of either of the loans, and since the defendant-respondent No. 3 had recommended the recovery of the two loans as arrears of land revenue against the terms of the agreement, and since it was his action which ultimately led to the arrest of the plaintiff, both the defendant-respondents Nos. 2 and 3 were liable to pay damages for the wrongful arrest of the plaintiff. As to the liability of the first defendant-respondent, it was held that although the State is not liable for the acts of omission and commission by its officers acting in exercise of powers under a statute or in matters relating to the exercise of the sovereign power of the State, yet it was vicariously liable for the wrongful acts of its servants in commercial and other transactions, and, accordingly, all the three defendant-respondents were responsible for and liable to pay damages for, the wrongful arrest of the plaintiff. On issue No. 2, the plaintiff's claim of Rs. 2,000/- as damages, was found reasonable and proved. On Issue No. 5, the notice under Section 80 of the CPC was found to be valid, and in the result the plaintiff was found entitled to the relief claimed; and the suit was decreed accordingly.
5. On appeal it was urged before the lower appellate court that the State cannot be responsible for the tortious acts of its employees and reliance was placed on certain cases including the decision of the Supreme Court in Kasturi Lal v. State of U.P (AIR 1965 SC 1039). It was held by the lower appellate Court that even if the act of the Tehsildar in pursuance of the orders of the District Magistrate, Mathura, on the report of the District Industries Officer may not have been legal, or may have been even tortious, the State could not be liable for the same. It was further held, in the context of the cases relied upon on behalf of the plaintiff, that the State could not be said to have ratified the wrongful acts of its servants and was, therefore, not liable. With regard to the two other defendants who were the officers held by the trial court to be primarily responsible for the wrongful arrest of the plaintiff, the lower appellate court observed that they had not appealed from the decree, but the decree could not be allowed to stand in view of the fact that the plaintiff had failed to prove that his arrest was malicious in addition to proving that it was illegal. The lower appellate court further held that the process for recovery of the amount as arrears of land revenue having been issued, a warrant for arrest could be issued and it was, therefore, not unnatural or abnormal if the Tehsildar sought to recover the amount by arresting the plaintiff, and consequently the act of the Tehsildar in arresting the plaintiff could not be said to be malicious. In the result the lower appellate court held that neither of the three defendant-respondents was liable to pay any damages for the plaintiff's arrest.
6. Mr. G.P Bhargava, learned counsel for the plaintiff-appellant, has urged before me that in a suit for damages for false imprisonment, the law does not require the plaintiff to establish that the defendants were actuated by malice in addition to proving that the arrest was unwarranted by law or illegal, and further that the principle laid down by the Supreme Court in Kasturi Lal's case does not apply to the present case, as the matter did not relate to any sovereign act of the State, nor had it been shown that the arrest was made by the defendant-respondents Nos. 2 and 3 under any statutory authority. The learned Standing Counsel relied upon cases of malicious prosecution where it is well established that in addition to proving the absence of reasonable and probable cause for the prosecution, the plaintiff has also to prove that the defendant was actuated by malice in prosecuting the plaintiff.
7. In Winfield on Tort: (7th Edn., page 162) the law has been stated thus:—
“False imprisonment must be sharply distinguished from the tort of malicious prosecution…………… the plaintiff in an action for it (malicious prosecution) must prove that the defendant (a) instituted a prosecution of him which (b) ended in the plaintiff's favour, and (c) was instituted without reasonable or probable cause, and (d) was malicious. Compare this with the much lighter burden of proof in an action for false imprisonment. All that the plaintiff need prove is the restraint by the defendant. He need not prove that it was unlawful. The burden of proof is on the defendant to show that it was lawful.”
8. In Salmond on Tort (12th Edn., pages 299-300) the position of the law has been stated thus:—
While in an action for malicious prosecution “the plaintiff can succeed only if he proves both malice and the absence of any reasonable and probable cause for proceedings complained of…………inan action for false imprisonment, just as in all other cases of trespass to person or property, liability is created, in general, even by honest and inevitable mistake.”
9. In view of the above position of the law I put it to the learned Standing Counsel whether any warrant of arrest was issued by an authority competent to do so in the course of proceedings for recovery of the sums of money of the kind involved in the present case, and it so whether there was any recovery certificate for initiating the proceedings for recovery of the amounts in question as arrears of land revenue, and whether the steps of issuing a citation and the notice to show cause why the defaulter may not be arrested, were taken before the plaintiff's arrest by the Naib Tehsildar, defendant-respondent No. 2, in the present case Mr. M.G Negi, learned Standing Counsel, frankly conceded before me that there was nothing on the record to show that any warrant of arrest, or recovery certificates, or citation, notice to show cause were issued before the plaintiff's arrest by the defendant-respondent No. 2. All that he could point out was Ex. A-3 in the suit for damages and paper No. 72-A in the suit for injunction. Both these are dated Nov. 14, 1962 and addressed to Chief Revenue Accountant, Mathura, by the District Industries Officer, Mathura. Ex. A-3 was accompanied by a letter duly approved by the District Magistrate, Mathura for effecting the recovery of the loan amount advanced to M/s. Cloth and Hand Printers Industrial Co-operative Society Limited, and shows that the principal amount was Rs. 4,500/-. Simple interest was chargeable thereon at 3%. per annum from 13th Dec. 1960 up to the date of recovery, and penal interest was chargeable at the rate of 8 percent per annum on the principal amount of Rs. 4,500/- plus the amount of simple interest accrued up to 13th Dec. 1962. The letter thereafter mentions the name of the plaintiff as the Managing Director of the Society and the names of the two sureties. On the back of this letter there is a note by the Naib Tehsildar dated 21st Nov. 1962 apparently addressed to the District Magistrate which runs as follows:—
“Submitted Citation may please be issued against Managing Director.
Sd/- Illegible,
21.XI.”
10. Thereunder there is an order
“Amin to realise on the spot.
Sd/- Illegible.
22/11/62.”
11. Thereunder, there is a note showing that the three amounts of Rs. 3,000/-. Rs. 1,500/- and Rs. 978/- had been deposited, which is followed by a note forwarding the document to the O.C Collection. This document cannot be construed by any stretch as a recovery certificate or an order of the District Magistrate authorising the arrest of the plaintiff. It has, therefore, to be held that the arrest of the plaintiff was whollly unwarranted by law and was accordingly illegal and wrongful. I need not go into the question whether under the agreement of loan any proceedings for recovery of the amount could be taken by way of arrears of land revenue, inasmuch as it has not been established that the plaintiff was arrested in the course of any proceeding which may answer the description of proceedings for recovery of arrears of land revenue.
12. The question which then arises is about the liability of the defendants. It is undisputed that the second defendant-respondent effected the plaintiffs arrest at the instance of the third defendant-respondent. Both of them were acting as agents of the Government of Uttar Pradesh and it has not been shown that they were acting in the exercise of any powers conferred on either of them under any statute. The proceedings did not relate to any sovereign act of the State and the amount became due in the course of a commercial transaction of advance made by the State. In Kasturi Lal v. State of U.P (AIR 1965 SC 1039) a distinction was drawn in clear terms between acts committed by the State employees in the course of the exercise of its sovereign power and the acts committed by them in the course of performing the non-government alor non-sovereign activities of the State. That being so, the defendant State of Uttar Pradesh was clearly liable for the wrongful arrest of the plaintiff by its agents and employees in the course of recovery of amounts of loan advanced by the Government to the Co-operative Society of which he was the Managing Director. The defendant-respondents Nos. 2 and 3, are of course directly liable for the wrongful arrest of the plaintiff. As to the amount of damages claimed by the plaintiff and awarded by the trial court, nothing was shown that it was in any way excessive.
13. No other point was pressed before me by the learned Standing Counsel.
14. In the result, Second Appeal No. 2864 of 1968 succeeds and is allowed.
15. The judgment and decree of the Court of the Civil Judge, Mathura in Civil Appeal No. 229 of 1966 are set aside and the decree of the Court of the Munsif, Mathura in Suit No. 206 of 1965 decreeing the suit for recovery of Rs. 2,000/- as damages against all the three defendants is restored with costs throughout. Second Appeal No. 2866 of 1968 is dismissed as infructuous, without any order as to costs.
16. Appeal allowed.