Shiva Sagar Lal v. Mata Din

P.L Bhargava, J.:— This is a plaintiff's appeal against the judgment and decree of the District Judge of Farrukhabad affirming the judgment and decree of the Munsif of Kanauj.

On the 26th April, 1943, Ajudhiya Prasad, son of Raghubar Dayal, who was defendant No. 1 in the suit, which has given rise to this appeal, lodged a report at police station Kanauj charging the plaintiff, Shiva Sagar Lal, under section 406 of the Indian Penal Code, with having committed criminal breach of trust in respect of a sum of Rs. 900 which was said to have been deposited with him by Raghubar Dayal shortly before his death in the month of February, 1943. The plaintiff was, accordingly, prosecuted and Ajudhiya Prasad, Mata Din, Munshi Lal and Ram Bharose (defendants 1 to 4) were prosecution witnesses at the trial. The prosecution ended in an acquittal.

The plaintiff then instituted the suit to recover damages for malicious prosecution. His case was that there existed enmity between the parties, and Mata Din and others (defendants 2 to 5), who formed one group, with a view to harass him at first sent an anonymous petition to the Tahsildar of Kanauj alleging that he had misappropriated the property of Ajudhiya Prasad, but the allegations in the petition were not verified by Ajudhiya Prasad himself and then they again prompted Ajudhiya Prasad and took him to the District Magistrate of Parrukhabad before whom he made a complaint, which was sent to the Tahsildar of Kanauj for enquiry and finally they induced Ajudhiya Prasad to make the report, dated the 26th April, 1943, which was false and malicious and had been made without any reasonable or probable cause.

The suit was contested on behalf of Ajudhiya Prasad, who was a minor, by a pleader, who was appointed his guardian by the court. On the 31st July, 1944, the plaintiff filed an application saying that there had been a settlement between him and Ajudhiya Prasad and he had consequently released him. The guardian did not oppose the application, which was granted and Ajudhiya Prasad was discharged.

The other defendants, with the exception of Munshi Lal, contested the suit and denied having sent any anonymous petition or having got the report made by Ajudhiya Prasad. They denied the alleged conspiracy and pointed out that they had stated before the criminal court what they knew and believed to be true.

The learned Munsif, who tried the suit, found that the report made by Ajudhiya Prasad was not false and the other defendants had no concern with it and dismissed the suit. On appeal the learned District Judge of Farrukhabad came to the conclusion that the plaintiff's prosecution was malicious and without reasonable or probable cause and that the defendants had conspired together in setting the law into motion against the plaintiff. Consequently all of them were jointly liable for damages. He further held that the position of all the defendants, including Ajudhiya Prasad, was that of joint tortfeasors, that the law was set into motion against the plaintiff by Ajudhiya Prasad at the instigation of the other defendants and that the plaintiff having released Ajudhiya Prasad from liability as a tortfeasor and the cause of action against all the joint tortfeasors being one and the same the other defendants must be deemed to have been simultaneously discharged and the plaintiff could not proceed against them. In this view of the case he upheld the decision of the trial court.

In this appeal the learned counsel for the appellant has contended that the learned District Judge has taken an erroneous view on the question of law and that, in the circumstances of the case, the release of Ajudhiya Prasad did not amount to release of other defendants from liability and it merely amounted to a covenant not to sue. He relied upon the case of Duck v. Mayeu. The principle underlying this decision will appear from the following observations appearing at page 513:

“A release granted to one joint tortfeasor, or to one joint debtor, operates as a discharge of the other joint tortfeasor, or the other joint debtor, the reason being that the cause of action, which is one and indivisible, having been released, all persons otherwise liable thereto are consequently released.”

And it was further pointed out that

“A covenant not to sue one of two joint debtors does not operate as a release to the other joint debtor, Hutton v. Eyre, the reason being that the joint action is still alive. We have found no case where it has been held that a covenant not to sue releases a joint tortfeasor; and in our judgment the principle upon which it has been held that such a covenant does not release a joint debtor applies to the case of a joint tortfeasor.”

In that case the plaintiff had accepted a sum of money in full discharge of the personal liability of one of the joint tortfeasors without prejudice to the claim against the other and it was held that did not amount to a release, but was merely a covenant not to sue.

The question whether the action of the plaintiff amounted to a release of the entire cause of action or to a covenant not to sue has to be decided with reference to the intention of the parties to be gathered from document of release. In the present case there was a settlement between the plaintiff and Ajudhiya Prasad, one of the tortfeasors consequently the latter was discharged and the suit proceeded against others. It may be mentioned here that Ajudhiya Prasad was a minor and it was alleged that the other defendants had instigated him to make the report. The intention of the plaintiff, therefore, was to preserve the right against the other defendants.

In Basharat Beg v. Hira Lal the plaintiffs had instituted a suit against several defendants who were joint tortfeasors claiming damages for injuries caused to them. They entered into a compromise with some of the defendants and obtained an ex parte decree against five others and the remaining defendant, who was absent and had not been summoned, was discharged. There also the argument was that, in view of the compromise and release of one of the defendants, the cause of action was extinguished and the claim could not have been decreed against absent defendants. Repelling this argument Pullan and Niamatullah, JJ., pointed out that in an earlier case reported in Ram Kumar Singh v. Ali Husain it had been held that a compromise of that nature was no bar to a decree against the other defendants and it did not discharge their liability. They also pointed out that they did not consider the exemption of one of the defendants as putting an end to the cause of action against the joint tortfeasors, as it did not amount to any discharge.

Consequently the discharge of Ajudhiya Prasad in the present case was merely a covenant not to sue and it did not amount to a release of all the joint tortfeasors and the contrary view taken by the learned District Judge was wrong.

The learned counsel for the respondents has challenged the finding of fact recorded by the lower appellate court, and it has been contended that it is vitiated in so far as it is based on inadmissible evidence, namely the anonymous complaint with which the respondents had no connection and the admission of Ajudhiya Prasad which could not be used against them. But apart from these two pieces of evidence there was oral evidence on the record which was considered by the learned District Judge. I have looked through that evidence myself and having regard to all the circumstances I have come to the conclusion that Raghubar Dayal could not have deposited any money with the plaintiff. Raghubar Dayal died within two days of his return from Warsi. He was ill when he came to Kanauj. Evidently he was not able to stay in his ancestral house where the plaintiff was living and in which he no longer retained a share. The plaintiff did not allow Ajudhiya Prasad, who was a minor, to live in the house. Consequently it is difficult to believe that he would have allowed Raghubar Dayal to stay in the cause. There is evidence on the record to show that he stayed in some temple. In such a state of feeling between them it is not possible to believe that Eaghubar Dayal would have entrusted any money to the plaintiff. The evidence produced by the plaintiff further shows that there was one Suraj Prasad living in Kanauj, who was of Raghubar Dayal's family, and that when his luggage arrived from Warsi it was kept at the house of Suraj Prasad.

The learned District Judge has found it proved that the other defendants had conspired with Ajudhiya Prasad in setting the law in motion. It appears from the evidence on the record that Mata Din and Mathura Prasad (defendants 2 and 5) had taken Ajudhiya Prasad to the District Magistrate of Farrukhabad and then to the Tahsildar of Kanauj. All the defendants, except Mathura Prasad, gave evidence against the plaintiff which was found to be false. As there is sufficient evidence on the record to support the findings of the fact recorded by the lower appellate court I see no reason whatsoever to disturb it.

The courts below have found that the plaintiff had suffered damages to the extent of Rs. 330 and he is entitled to recover the said amount from the defendants.

The defendants have filed cross-objections as regards costs, but they are without any substance.

The appeal is, therefore allowed, the decrees passed by the courts below are set aside and the plaintiff's suit is decreed for Rs. 330 and proportionate costs throughout. The cross-objections are dismissed with costs.

Appeal allowed.