Rachhpal Singh, J.:— These are two plaintiff's first appeals arising out of two suits to recover damages for malicious prosecution.
2. The facts which have given rise to the litigation between the parties, can briefly be stated as follows:— The following pedigree will show the relationship between Chatur-bhuj, plaintiff, and Mauji Ram, defendant.
3. The plaintiff, Sah Chaturbhuj, alleged that owing to the enmity which exists between him and Mauji Ram, defendant, the latter complained to the Superintendent of Police of Mainpuri who directed on that complaint that proceedings under Section 107, Criminal Procedure Code should be taken against Chaturbhuj and certain other persons. When the case under Section 107, Criminal Procedure Code was pending in the court of a Magistrate at Mainpuri the defendant made a complaint under Section 506 of the Indian Penal Code against the plaintiff. The case was tried by the same Magistrate, who had heard the case under Section 107, Criminal Procedure Code. The plaintiff alleged that the complaint made against him under Section 506 of the Indian Penal Code was false to the knowledge of the defendant and was filed without reasonable and probable cause and maliciously. It is also the case of the plaintiff that the proceedings under Section 107 of the Criminal Procedure Code were also started at the instance of the defendant falsely, maliciously and without any reasonable and probable cause.
4. The learned Magistrate, who heard both these cases, found that the complaint under Section 506 of the Indian Penal Code was true and further that the case under Section 107, Criminal Procedure Code was one in which it was necessary to bind down Chaturbhuj, plaintiff. In the case under Section 107, Criminal Procedure Code he was bound over for a period of one year. Against these two orders Chaturbhuj, plaintiff, preferred appeals to the court of the Sessions Judge of Mainpuri, who held that both the complaints were untrue and, therefore, he acquitted the plaintiff in respect of the charge under Section 506 of the Indian Penal Code and also passed an order of discharge in connection with the case under Section 107, Criminal Procedure Code.
5. After the termination of the above mentioned two cases, Chaturbhuj, plaintiff, instituted two suits for malicious prosecution against Mauji Ram, defendant. Appeal No. 381 of 1931 relates to the charge under Section 506 of the Indian Penal Code; while Appeal No. 380 of 1931 relates to the case which had been started under Section 107, Criminal Procedure Code. The defence in both the cases was that the charges were true and there was no want of reasonable and probable cause. The learned Subordinate Judge, who tried the two cases, came to the conclusion that the plaintiff had failed to make out the cases set up by him. In his opinion in both the cases the charges were true. The result was that both the suits were dismissed. The plaintiff has preferred these two appeals against the decision of the learned Subordinate Judge. In the court below the evidence was recorded in respect of both complaints in one suit, but separate judgments were given. In our opinion it will be convenient if we deal with these two appeals separately. We first propose to deal with the case in connection with the charge under Section 506 of the Indian Penal Code.
6. Before we proceed to discuss the merits of the appeal before us, it is necessary to give a finding on a point which has been urged before us by learned counsel for the appellant. It has been strenuously argued by him that in a case like the one before us if a criminal court gives a verdict of not guilty against the person prosecuted, then it is no longer open to a civil court, in a suit for malicious prosecution to challenge the order of acquittal and further that it is not open to the complainant to prove that the charge made by him was true and, therefore, no damages should be allowed as against him. In other words, the contention of the learned counsel, if accepted, amounts to this that after the acquittal of a person prosecuted the prosecutor is estopped from showing in a suit for malicious prosecution that the charge made by him was in fact true. For the purpose of his argument learned counsel divides cases relating to malicious prosecution into two divisions. One may be a case in which the truth or falsity of the charge is known to both the prosecutor and the person prosecuted. The other may be a case in which the prosecutor acts on the information received by him from other persons and about matters in connection with which he himself has no personal knowledge. In regard to the cases falling in the second category the counsel agrees that it is open to the prosecutor in a suit for malicious prosecution to show that he had reasonable and probable cause for prosecuting the opposite party and that there was no malice on his part. In regard to the cases falling within the first division he, however, contends that the prosecutor would be incompetent to show that the charge made against the person prosecuted was true. Learned counsel for the appellant in support of his argument relies on a ruling of their Lordships of the Privy Council in Balbhaddar Singh v. Badri Sah(1). Their Lordships held in that case that in an action for malicious prosecution the plaintiff had only to prove, inter alia, that he was prosecuted by the defendant and that the proceedings complained of terminated in favour of the plaintiff, if from their nature they were capable of so terminating. That was a case which went in appeal against the decision of the Court of the Judicial Commissioner of Oudh. It appears that a Bench of two learned Judicial Commissioners of Oudh while dealing with the question as to what the plaintiff had to prove in a suit for malicious prosecution made the following remarks:—
In an action for malicious prosecution the plaintiff has to prove:—
(1) That he was prosecuted by the defendant.
(2) That he was innocent of the charge upon which he was tried.
(3) That the prosecution was instituted against him without any reasonable and probable cause.
(4) That it was due to a malicious intention of the defendant, and not with a mere intention of carrying the law into effect.
7. Their Lordships held that proposition No. (2), as stated by the learned Judicial Commissioners, was quite erroneous. They expressed an opinion that what the prosecutor was required to prove was:—
(1) That he was prosecuted by the defendant.
(2) That the prosecution terminated in his favour.
(3) That the prosecution was instituted against him without any reasonable and probable cause.
(4) That it was malicious.
8. Learned counsel for the appellant argued that where the charge was of such a nature as must be true or false to the knowledge of the defendant, then no question of reasonable and probable cause can arise. This contention is correct. If the prosecutor in his complaint says that the defendant gave him a blow and it is found that the statement was false, then there would be no question of reasonable and probable cause. The falsity of the statement by itself would go to show the want of reasonable and probable cause and would further establish malice on the part of the prosecutor. The question of reasonable and probable cause would arise in those cases where the truth or falsity of the charge depends on the information which the prosecutor might have received from other persons. Learned counsel for the plaintiff-appellant contended before us that as in the case under appeal the charge was proved to be false to the satisfaction of the criminal court, the finding of that court is in a way binding on the civil court. We find ourselves wholly unable to agree with this contention. The law as regards malicious prosecution in India is exactly the same as the law in England. It appears to us that there is no authority for the proposition that if a criminal case ends in an acquittal in favour of the person prosecuted, then in a suit for malicious prosecution it is not open to the prosecutor to show that the charge was in fact true and, therefore, the person prosecuted should not be allowed any damages.
9. One of the points to be considered in cases for malicious prosecution is what is the value of the judgment of a criminal court acquitting an accused person. On this question we may refer to a recent decision of our own Court, Subrati v. Shamsnddin(2), where a Bench of two learned Judges of this Court observed
10. that the judgments of the criminal courts are conclusive for the purpose of showing that the prosecution terminated in favour of the plaintiff. Other decisions on the point to which reference may be made are Mohammad D'aud Khan v. Jia Lal(3), Baboo Gunnesh Dutt Singh v. Mugneeram(4), Jiwan Das v. Hakumat Rai(5), Pedda Venkatapathi v. Ganagunta Balappa(6) and Gulabchand Gopaldas v. Chunnilal Jagjhvandas(7).
11. In the Madras case referred, to above we find the following observations at page 644:—
Under Section 43 of the Indian Evidence Act it appears to me that the judgment can be used only to establish the fact that an acquittal has taken place as a fact in issue in the Civil Court. I know of no provisions of the Act which will justify the Civil Court in taking into consideration the grounds upon which that acquittal was based………….
12. We are in entire agreement with the view expressed in Subrati v. Shamsuddin and Pedda Venkatapathi v. Ganagunta Balappa. In fact there may be no necessity for the plaintiff to file a judgment of the criminal court in a suit for malicious prosecution. All that is necessary for him is to plead in his plaint that the prosecution terminated in his favour. If that point is admitted by the defendant in his written statement, then it is no longer necessary for the plaintiff to put in evidence the judgment of the criminal court.
13. In our opinion there is nothing in the judgment of their Lordships of the Privy Council in Balbhaddar Singh's case, to which a reference has been made above, to support the argument of the learned counsel for the appellant that the judgment of acquittal by the criminal court in favour of the person prosecuted is a bar against the defendant in a suit for malicious prosecution from proving that the charge made by him against the person prosecuted was in fact true and was not without reasonable and probable cause.
14. Counsel for the appellant argued before us that if the defendant in a suit for malicious prosecution was given an opportunity to prove that the charge made by him was true, then the civil court will be retrying the question of the guilt of the opposite party. We cannot accede to this contention. So far as the question of guilt or otherwise of the accused is concerned, the matter is finally decided by the criminal court and can no longer be questioned by any competent court. When the defendant in a suit for malicious prosecution gives evidence to prove that the charge made by him was true, he is not asking the civil court to set aside the order of acquittal but he is giving evidence in a suit in which the opposite party claims damages from him. The question before the court in a suit for malicious prosecution is whether the plaintiff is entitled to damages. The plaintiff in a suit for malicious prosecution can get damages only when he establishes that he was prosecuted without reasonable and probable cause and maliciously. Civil court will not grant him damages unless it is proved that the prosecution was without reasonable and probable Cause and malicious. What the defendant in effect says in a case of this description is:—
Please do not grant damages to the opposite party because I will show to you that he does not deserve any. I will prove that I had reasonable and probable cause for his prosecution and I was not acting with malice. The question may be looked at in another way. Suppose a plaintiff files a suit to recover damages for malicious prosecution. Opposite party contests the claim. The only evidence which the plaintiff produces on his behalf is the judgment of the criminal court showing that an acquittal was entered in his favour. The question is whether in these circumstances any court will give him a decree for damages. We are clearly of opinion that no decree would be granted to the plaintiff. The court will be justified in saying “Yes, it is true that you were acquitted by the criminal court, but then you have not proved that you were prosecuted without any reasonable and probable cause and maliciously and, therefore, you are not entitled to any damages.” Where the truth or falsity of a charge is known to the defendant, the plaintiff, before he can get any damages, must prove not only his acquittal but further that his prosecution was without reasonable and probable cause and malicious. In a case in which the truth or falsity is known to both parties, the plaintiff will have to prove not only that the prosecution terminated in his favour but further, to prove that the prosecution was without reasonable and probable cause and malicious. These points, he can only establish by showing that the charge was false to the knowledge of the prosecutor. It will be only when he has established this fact that he will ask the court to draw an inference of want of reasonable and probable cause and also malice on the part of the prosecutor. If he is allowed to prove want of reasonable and probable cause and malice, we know no principle of law under which the opposite party can be debarred from producing evidence in rebuttal. We may cite here an American case, Carp Queen Insurance Company(8), decided by the Supreme Court of Missouri, reported in Wigmore's Select Cases on the Law of Torts, Volume II, at page 572, where the following observations made in Three foot v. Nuckols(9), were quoted with approval:—
Surely no reason can be assigned, nor any respectable authority produced, to justify the shocking proposition that the guilt of a plaintiff in a suit for malicious prosecution may not be shown in any manner or by any proof, no matter how, or where, or when acquired. Reason and conscience revolt at the bare thought of a proven criminal recovering damages against the prosecutor.
15. There may be a case in which the prosecutor may not be able to prove a charge to the satisfaction of the criminal court for want of some evidence which was not available to him at the time and it is conceivable that later on when he is sued for malicious prosecution that evidence may be available to him. This additional evidence may prove the charge, which had failed in the criminal court, beyond any possibility of doubt. It will be altogether unreasonable in a case like that to hold that the defendant in a suit for malicious prosecution should not be permitted to show that the charge was true. In Johnston v. Sutton(10), Lord Mansfield made the following observation:—
The essential ground of this action is, that a legal prosecution was carried on without a probable cause. We say this is emphatically the essential ground; because every other allegation may be implied from this: but this must be substantively and expressly proved, and cannot be implied. From the want of probable cause, malice may be, and most commonly is implied. The knowledge of the defendant is also implied. From the most express malice, the want of probable cause cannot be implied. A man, from a malicious motive, may take up a prosecution for real guilt, or he may, from circumstances which he really believes, proceed upon apparent guilt; and in neither case is he liable to this kind of action.
16. Wigmore's Select Cases on the Law of Torts, Volume II, page 569.
17. If the contention raised on behalf of the appellant were to be accepted, then it will lead to very curious results. A plaintiff, in a suit for malicious prosecution will be permitted to prove that he was acquitted by the criminal court and further that his prosecution was without reasonable and probable cause, but the defendant would not be given an opportunity to show that there was reasonable and probable cause and want of malice on his part. Such a position would be intolerable and it would amount to a denial of justice to the defendant.
18. Another aspect of the case has also to be borne in mind. The criminal court has only to decide whether the person charged is or is not guilty. It hears the evidence on both sides and forms a conclusion that the person accused is not guilty and therefore gives him an acquittal. No question of damages arises before it. The conditions are, however, different when a suit for malicious prosecution is instituted. It is the duty of the civil court in cases of this description to decide itself whether or not the plaintiff or the defendant should succeed. Before it can grant a decree for damages, it has got to be satisfied that the plaintiff has made out a case entitling him to damages. If the judgment of the criminal court is to create an estoppel against the defendant, then it would mean that the civil court will not be in a position to grant damages, because it will be open to the civil court to say that as the opposite party is not in a position for no fault of his to produce evidence in rebuttal then it will not grant the relief claimed by the plaintiff. In Subrati v. Shamsuddin(11) a Bench of two learned Judges of this Court made the following observation:—
In our opinion the judgment of the criminal courts are conclusive for the purpose of showing that the prosecution terminated in favour of the plaintiff, but we doubt if the findings of the criminal courts by themselves are any evidence of the malice or want of reasonable and probable cause. It is for the civil court to go into all the evidence and decide for itself whether such malice or cause existed or not.
19. It was not necessary in that case for their Lordships to decide whether the findings of criminal courts were by themselves any evidence and, therefore, we find that they used the words
we doubt if the findings of the criminal courts by themselves are any evidence of the malice or want of reasonable and probable cause.
20. We are clearly of the opinion that the judgment of the criminal court is evidence merely showing the acquittal of the person prosecuted and the findings of the criminal court are no evidence at all in a civil case between the parties. In all suits for malicious prosecution it is the civil court which has to decide the question as to whether or not there was a malicious prosecution, and in order to decide that question it has to go into the evidence produced before it. The civil court will not take into consideration the reasons which may have led the criminal court to acquit the accused. In Pedda Venkatapathi v. Ganagunta Balappa(12), Curgenven, J. made the following observations, which are to be found at page 643:—
Besides the fact of the prosecution and of its termination in favour of the plaintiff it has to be shown that the prosecution was instituted against him without any reasonable and probable cause and that it was due to a malicious intention…… I know of no provision of the Act which will justify the civil court in taking into consideration the grounds upon which that acquittal was based, and upon this point I am in agreement with Gulabchand v. Chunnilal, [1907] 9 Bombay Law Reports, page 1134 and Shubrati v. Shamsnddin, I.L.R 50 All. 713, in the view that there is no such provision. The clear and straightforward issue in the present case, which must be decided before we can find an absence of reasonable and probable cause, is whether the respondent was deliberately making a complaint which was in substance false when he alleged that the appellant took part in the disturbance and fired the shot which injured the third witness for the defendant, and the appellant must establish the falsity of this complaint by disproving it before he can be entitled to damages.
21. These two cases Shubrati v. Shamsuddin and Pedda Venkatapathi v. Ganagunta Balappa are against the contention raised by learned counsel for the appellant. For the reasons given above we are of opinion that there is no authority for the proposition that in a suit for malicious prosecution the judgment entering an acquittal in favour of the plaintiff can be pleaded as a bar which would prevent the defendant from proving that the charge made by him against the plaintiff in the criminal trial was in fact true and on that ground the plaintiff was not entitled to recover damages.
22. Another point which we consider necessary to dispose of before considering the evidence in the case has been raised by learned counsel for the defendant. It has been contended before us by him that if the plaintiff in a suit for malicious prosecution has been convicted by the trial court, then no suit for malicious prosecution will lie although the plaintiff may have subsequently been acquitted on appeal. It appears that this view found favour in Jadubar Singh v. Sheo Saran Singh(13). The head-note in the case runs thus:—
The fact that the plaintiff in a suit for damages for malicious prosecution has been convicted by a competent court, although he may subsequently have been acquitted on appeal, is evidence, if unrebutted, of the strongest possible character against the plaintiff's necessary plea of want of reasonable and probable cause.
23. With great respect to the learned Judge of this Court who decided the case, we find ourselves unable to agree with his view. As we have already pointed out, in a case for malicious prosecution, it is for the civil court to hear the evidence on both sides and then decide for itself as to whether or not the prosecution of the plaintiff was without reasonable and probable cause and malicious. The judgments of the criminal courts are evidence only of the fact that the prosecution ended in favour of the plaintiff. They can be used for no other purpose. In our opinion, there is no warrant for holding that the judgment of the First Criminal Court convicting the plaintiff
is evidence, if unrebutted, of the strongest possible character against the plaintiff's necessary plea of want of reasonable and probable cause.
24. In our opinion, in deciding the question of reasonable and probable cause and malice, the judgments of the criminal courts can not be taken into consideration at all. In malicious prosecution cases it is the function of a civil court to find out whether there was want of reasonable and probable cause and whether the prosecution was malicious. In every case of malicious prosecution, it is for the plaintiff to prove that his prosecution was without reasonable and probable cause and was malicious. If he fails to establish these points, then his suit would fail and the question about the value to be attached to the judgment of the criminal court convicting the accused would not arise at all. We do not understand what is meant by the expression used in the head note of the case reported in Indian Law Reports, 21 Allahabad, page 26,
The fact of conviction by a competent court is evidence, if unrebutted, of the strongest possible character against the plaintiff's necessary plea of want of reasonable and probable cause.
25. In the body of the judgment we find the following observations:
No doubt, as observed in the said judgment (Judgment in 3 Madras High Court Reports, page 238), judgment of one competent court against the plaintiff should not in every case be considered a sufficient answer to the suit.
26. As we have remarked, our opinion is that such a judgment can not be considered at all in deciding the case one way or the other. The view expressed in Indian Law Reports, 21 Allahabad, page 26, was dissented from in Shubrati v. Shamsuddin, where the following observations were made:—
He the learned Judge who decided the case, reported in I.L.R 21 All. 26, was influenced considerably by the circumstances that the appellate criminal court had given the plaintiff only the benefit of a doubt. With great respect we would hold that in cases where the facts contained in the plaint are professedly within the personal knowledge of the complainant, the mere fact that the first criminal court believed the complainant's statement and convicted the accused would not be any evidence of the existence of reasonable and probable cause if the appellate court comes to a contrary conclusion.
27. We agree, if we may say so, with respect, with this view. Another case on which reliance was placed by learned counsel is Ramayya v. Sivayya(14). That case is clearly distinguishable. There the plaintiff had been convicted by the trial court and his appeal had been dismissed by the Appellate court. The High Court, in revision, set aside the conviction. The Munsif dismissed the suit instituted by the plaintiff for malicious prosecution. The Subordinate Judge reversed that decree. He presumed the existence of reasonable and probable cause and malice from the fact that the High Court had acquitted the plaintiff. The learned Judges who decided the case held that the Subordinate Judge was wrong in presuming reasonable and probable cause and malice from the judgment of the High Court. At page 551, the learned Chief Justice made the following observations:—
The issue in the case was correctly framed but the Subordinate Judge does not seem to have appreciated the actual points which he had to consider. In his judgment he reviews the facts and states (Paragraph 11):— ‘In the state of things the complaint and the prosecution by the defendant must be presumed to have been made maliciously’, and he goes on in Paragraph 12: ‘I accordingly find the issue for the appellants. If he had simply found the issue for the plaintiff his finding would have been one of fact and could not have been questioned on second appeal.
28. On a perusal of the judgment it would appear that the view taken by the Judges who decided this case is opposed to the contention raised before us by learned counsel for the respondent. What was held in that case was that the plaintiff has always to prove want of reasonable and probable cause and also malicious intention on the part of the defendant before he can succeed in claiming damages, and malice can not be inferred from the judgment of an acquittal passed in favour of the plaintiff.
29. For the reasons given above we are unable to accept the contention that a judgment of conviction passed by the trial court which is subsequently reversed in appeal, can be pleaded as a bar in a suit for malicious prosecution.
30. Now we may proceed to consider the evidence which has been produced in the case. The case, under Section 506 of the Indian Penal Code, was started by Mauji Ram, against Chaturbhuj, plaintiff, on a complaint which is printed at page 86.
31. [Their Lordships then discussed the evidence and proceeded:—]
32. We are of opinion that the evidence of the plaintiff on this point is true and it must therefore be held that the plaintiff was prosecuted without any reasonable and probable cause and maliciously by Mauji Ram. In our opinion the plaintiff was entitled to a decree for damages against Mauji Ram.
33. The next question which we have to consider is as to the amount of damages which should be awarded to him.
34. [Their Lordships then considered the evidence and proceeded:—]
35. For the reasons given above we allow this appeal, set aside the decree of the court below and grant the plaintiff a decree for a sum of Rs. 5,300 with proportionate costs in both the courts.
36. We now come to the other appeal which relates to the case started by the appellant under Section 107, Criminal Procedure Code. On March 16, 1929 Mauji Ram made an application to the District Magistrate of Mainpuri in which he complained that he had received news that a large party of badmashes had gathered in Khairgarh village and they appeared to be anxious to commit such acts as to bring out a serious occurrence in the village and for that reason there was danger. If proceedings to stop this were not taken there might be trouble. He further mentioned that between 8 and 9 p.m on March 14, 1929 he and his pairokar were going to the court of the District Judge of Mainpuri in order to give evidence in a case when they found some branches of trees on the road near Kalhur with a view to stop his motor, but his driver cleverly passed the car. Further he complained that he had learnt that Amarchand and some other relations of his had been stopped by armed men at a short distance from Mainpuri. He therefore prayed for suitable action. Later on it appears that Mauji Ram complained to the Superintendent of Police of Mainpuri on the same date and he directed the Sub-Inspector of Pharha that as Mauji Ram was complaining that he was in danger of his life on account of the activities of Chaturbhuj some action under Section 107, Criminal Procedure Code should be taken against Chaturbhuj.
37. On April 6 the Sub-Inspector made a detailed report praying that action should be taken against Chaturbhuj and 17 others under Section 107, Criminal Procedure Code. In this the various activities on the part of Chaturbhuj against Mauji Ram were enumerated and then the case started against Chaturbhuj which eventually ended in his discharge by the learned Sessions Judge as already mentioned.
38. The question which we have to consider is whether the proceedings under Section 107, Criminal Procedure Code were started by Mauji Ram with malice and without reasonable and probable cause as alleged by the plaintiff. As we have already pointed out it is for the plaintiff to establish want of reasonable and probable cause and further he has to prove that there was malice on the part of the prosecution.
39. The evidence produced in the case clearly goes to show, as has already been pointed out, that there is enmity between Mauji Ram and Chaturbhuj which is of long standing. They have been fighting civil suits and they have been taking sides with the opponents of each of them, for instance, if there was a case in which Mauji Ram was helping one party then Chaturbhuj was certain to be on the opposite side and so on. The plaintiff went into the witness box and stated that Mauji Ram had no reasonable and probable cause for his prosecution under Section 107, Criminal Procedure Code. Mauji Ram on the other hand narrated various points from which the court was asked to gather that he had reasonable grounds for taking action against the opposite party and it was suggested by him that owing to the existence of enmity between him and Mauji Ram he apprehended danger from Chaturbhuj. While dealing with the case under Section 506, I. P. C. we have mentioned the versions of both the parties. It appears to us on a perusal of the evidence that though the enmity had been in existence since a very long time, yet there were very few occasions on which there was an open show of hostility by one side against the other. The fact that enmity exists between the parties is by itself no reason for one of them to go and make a false complaint against the other with a view to injure his adversary. The question which we have to keep in view in cases of this description is whether the prosecutor had a reasonable and honest belief as a prudent man that owing to some actions by the opposite party his life was really in danger. If a party goes to court and says that owing to the existence of enmity he apprehends danger from his adversary and on that ground he asks the court to take proceedings under Section 107, Criminal Procedure Code and the court decides the matter against him, then it will be very difficult to hold that it was a case which was without any reasonable and probable cause. The man had believed that the opposite party was his enemy and he was therefore apprehending danger, but an enemy has no right to concoct a case against his adversary in order to put him to trouble and if in a case it is found that with a view to support an imaginary story against an enemy one party fabricates evidence to bolster up his case against the other, then the prosecutor cannot say that his case against the other comes within probable and reasonable cause.
40. [Their Lordships then discussed the evidence and proceeded.]
41. In these circumstances we are of opinion that it must be held that according to the evidence produced in the case the prosecution of Chaturbhuj by Mauji Ram was without reasonable and probable cause and was malicious. The suit for damages should therefore have been decreed by the court below. [Their Lordships then considered the evidence relating to damages and proceeded:—] For the above-mentioned reasons we allow this appeal No. 380 of 1931, set aside the decree of the court below and grant the plaintiff a decree for a sum of Rs. 5,313 with proportionate costs in both the courts.
42. Appeal allowed
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