JUDGMENT
Sadasiva Aiyar, J. — The defendant is the appellant. The suit was brought for damages for malicious prosecution claiming Rs. 400 as damages. The District Munsif dismissed the suit on the grounds (a) that the defendant bona fide believed himself to be the owner of the house in reference to which he launched the prosecution and had a probable and reasonable cause for prosecuting the plaintiffs; and (b) that even if the defendant had no reasonable and probable cause, the defendant had no personal spite against the plaintiffs and no malice was therefore made out.
The Subordinate judge on appeal arrived at certain findings in a rather confused manner. He begins by saying that the District Munsif “complicated” the case by entering into the question as to who was the owner of the whole house which the defendant claimed by purchase and that in his (Subordinate Judge's) opinion, it was “a needless question to go into.” Then he says, “For the purposes of the present enquiry we must assume that the defendant is the owner of the northern house marked Y in the plan given in the judgment.’ Then he says that the complaint of criminal trespass brought by the defendant against the plaintiff was not sustainable because though it was found in another civil suit between the parties which was instituted during the pendency of the criminal complaint by the defendant against the plaintiff that the plaintiff did commit a civil trespass by building on a joint wall without the defendant's consent and though the plaintiff was directed to pay damages to the defendant, the defendant ought to have treated the matter as a pure civil trespass and ought not to have rushed to the Criminal Court. Then the subordinate Judge says (paragraph 4 of his judgment) that the truth or falsehood of the defendants criminal complaint should not be mixed up with the want of reasonable and probable cause and that the defendant's belief in the truth of his complaint should not have led him to suppose that there was a criminal trespass. Then in the course of another confused paragraph (5) occur the following sentences: “I do not believe therefore that the defendant had a reasonable and probable cause to go to the Magistrate under these circumstances. But it is the plaintiffs' duty nevertheless to show want of reasonable and probable cause. Their acts as described by the District Munsif would have given to the defendant only the probable cause but not at all the reasonable cause. Reasonable and probable cause means ordinarily what a prudent and careful man might or even ought to do under particular circumstances. The fact that he had immediately filed a civil suit on the heels of the criminal case shows that he had only a probable cause but not a reasonable cause to go to a Magistrate.” I must confess that I find myself unable to understand this finding.
Then in the 6th paragraph the learned Subordinate Judge says: “I should think legal malice is made out from the want of reasonable cause. The wrong motive with the defendant was to coerce the plaintiffs to recognise his title, That is legal malice.” Finally the Subordinate Judge awarded Rs. 30 as damages.
In Quartz Hill Gold Mining Company v. Eyre Brett, M. R. says at page 687 “whenever the Judge holds that there is a want of reasonable and probable cause, there is evidence to go to the jury of malice. When there is no other evidence of malice except what the Judge has stated to be in his opinion a want of reasonable or probable cause, I incline to agree with Huddleston, B., and Hawkins J., in Hicks v. Faulkner, that upon the question of malice the jury are not bound by the holding of the Judge as to the absence of reasonable cause, but they may consider whether in their view there was a want of reasonable or probable cause”. (The italics are mine). Thus it is clear that the want of reasonable or probable cause is not conclusive on the question of malice though it is one of the elements to be considered in arriving at a conclusion on the question of malice. In the same page 687 from which I have made the above quotation from Brett, M. R., the learned Judge first uses the expression want of reasonable and probable cause’, then he uses the expression ‘want of reasonable or probable cause’, then he uses the expression ‘absence of reasonable cause alone and lastly the expression’ want of reasonable or probable cause’. So also Bowen, L. J. at page 693 uses the expression ‘want of reasonable or probable cause’ and says that both ‘want of reasonable or probable cause’ and ‘malice’ must be proved by the plaintiff. At page 694, he uses the expression ‘absence of reasonable and probable cause’ in two places. The distinction made by the Subordinate Judge therefore that in any particular case, there might be probable cause but there may not be reasonable cause and that there should be both probable and reasonable cause as if the two could be distinguished is in my opinion opposed to the rules laid down by eminent Judges on this branch of the law of Torts. Whether it is called ‘probable and reasonable cause’ or ‘reasonable or probable cause,’ I think the meaning is “reasonably probable” cause that is, a cause which an ordinarily reasonable man having knowledge of facts and the belief (arrived at in a reasonable manner) as to facts which the defendant then had would be justified in considering as affording a fair basis for the opinion that a criminal offence had been committed by the plaintiff and hence as being a probable cause for the institution of criminal proceedings against the plaintiff. The fact that a civil suit for damages was a better or more appropriate remedy has very little relevency on this question of want of reasonable and probable cause. A man is entitled to pursue any of the legal remedies which he considers to be in his own interest to adopt in any order he likes.
In Corea v. Peiris, the following passages are found in the judgment of their Lordships of the Privy Council:—It is clear upon the above evidence that the real charge which the prosecutor wished to have preferred against the appellant was that of criminal trespass since he looked upon the trespass as an act directed against his title to and ownership of these and possibly other lands in the district.” (I may add that the prosecution in that case was for theft of goods also along with criminal trespass.) “In the result, therefore, the respondent proved that he believed the story his old and trusted servants had told him; that he consulted his legal advisers at every step and that he took action in defence of his title to his property in the bona fide belief that the appellant had trespassed on his land and forcibly removed his goods. The case made against him is that he could not have believed, or should not have believed, without much stronger proof that Mr. Corea was capable of committing a theft, and that he acted recklessly in accusing him of having committed theft.” At page 552, Their Lordships use the expression ‘reasonable and probable cause’ and at page 555, merely ‘absence of reasonable cause’ (without adding the word ‘probable’ to “reasonable” separated by either ‘and’ or ‘or.’ Then they say: “The crucial questions for consideration are:—Did the prosecutor believe the story upon which he acted? Was his conduct in believing it and acting on it that of a reasonable man of ordinary prudence? Had he any indirect motive in making the charge ?” Thus their Lordships use the words ‘reasonable cause’ as synonymous with “reasonable and probable cause” and “reasonable or probable cause”. I am therefore clear that the Subordinate Judge misdirected himself on the question of law in respect of what facts should be proved to justify a Court in finding want of reasonable and probable cause. His statement that there was probable cause but not reasonable cause is almost unmeaning.
As regards the question of malice also, the use of the expression “legal malice” as distinguished from “malice in fact” is misleading in actions for malicious prosecution. In Vydinadier v. Krishnaswami Iyer, (decided by Sundara Aiyar, J. and Spencer, J.), the lower Appellate Court in its judgment said that “the degree of caution expected of a man who wants to set the Criminal law in motion is that he should reflect like a man of ordinary prudence as to what chances there were of conviction against the person whom he accuses and how far his conduct would amount to an offence. Every man is supposed to know the law.” Upon this the learned Judges of this Court remark: “This cannot be accepted as correct. All that the defendant had to be satisfied about was that there was reasonable and probable cause for the charge, that is reasonable grounds for believing that the plaintiff was guilty of abetment and not reasonable grounds for coming to the conclusion that the Court would convict him of it.” Then the learned Judges say at the end “carelessness on the part of the defendant in deciding whether there was reasonable and probable cause would not amount to malice and both malice and absence of reasonable and probable cause had to be proved.” “It has no doubt been decided that if a man has been reckless, whether the charge be true or false, that might amount to malice but not recklessness in coming to the conclusion that there was reasonable and probable cause.” On the question of malice therefore also, the Subordinate Judge has misdirected himself in the case before us.
The appellant's learned vakil (Mr. Chandrasekara Aiyar) argued that if we come to the conclusion that the Subordinate Judge's finding on the question of reasonable and probable cause could not be accepted, we should ourselves consider the evidence and the facts and come to our own finding on the question of reasonable and probable cause, or, at any rate, taking the preliminary facts as found by the lower Appellate Court, give a finding ourselves on the question of reasonable and probable cause. He argued that a finding on the question of reasonable and probable cause is a finding on a question of law and not of fact. He relied on the decision of the Calcutta High Court in Shama Bibee v. Chairman of Baranagore Municipality, Mookerjee, J. says at page 418: “In so far as the facts have been found by the Court of appeal below, they are binding upon this Court, but whether from the facts so found, absence of reasonable and probable cause or presence of malice can be inferred is a question of law for determination by the Court alone. Hailes v. Marks and Broughton v. Jackson and. Lister v. Perryman. The learned Judge admits, however, that there are passages in the decision of their Lordships of the Privy Council in Pestonji M. Mody v. The Queen Insurance Company which lay down that in Indian Courts a finding as to reasonable and probable cause in an action for malicious prosecution is a question of fact though according to English Law, it is a question left for the Judge to determine. But Mr. Justice Mookerjee thinks that the sentence in the judgment of their Lordships of the Privy Council “There is really nothing but a question of fact and a question of fact to be determined by one and the same person” is a mistake for “there is really nothing but a question of and a question of to be determined by one and the same person”. Having read the judgment of their Lordships of the Privy Council carefully, I am with the greatest respect, unable to agree with Mr. Justice Mookerjee that there is any such clerical mistake in the report of the judgment of their Lordships of the Privy Council. Their Lordships have, on the other hand, clearly laid down that a finding as to want of reasonable and probable cause is a finding of fact and not a finding of law so far as the Indian Courts are concerned. (I may add that Mr. Justice Mookerjee's statement that the finding as to existence of malice is also for the Court is opposed to even the English decisions).
In my above view that the Subordinate Judge in arriving at his findings of fact has materially misdirected himself, I would remand the case for fresh findings from the Lower Appellate Court on the two connected questions of want of reasonable and probable cause and of the existence of malice. Time four weeks from the receipt of records and ten days for objections. No fresh evidence.
Napier, J:—I entirely agree.
In compliance with the order contained in the above judgment, the District Judge of Cuddapah submitted the following
FINDING
I am to submit findings on the two following issues:—
1. Whether defendant had no reasonable and probable cause for making the complaint?
2. Whether there was malice on the part of the defendant.
2. The ownership of the suit house still seems to be not settled finally. Meda Narsayya has been in possession and has been claiming to be the owner. But the defendant has got title deed and, moreover, has got a decree for rent against Meda Narsayya, and there is no proper evidence in this suit that the sale-deeds on which defendant relies are nominal transactions as alleged by Meda Narsayya. I think, therefore, it is quite clear that defendant has a bona fide claim to the house which justified him in taking steps to prevent encroachment on the property.
3. With regard to the alleged acts of mischief and trespass complained of by the defendant before the Magistrate, the encroachment on the backyard seems to be doubtful (vide Exhibit I): but it is easy for the defendant to be under a misapprehension in regard to that matter, for the space is small and he might have really considered that the wall had been shifted.
4. With regard, however, to the raising of the joint wall, this is admitted by P. W. 1 who is the first plaintiff; and it seems to me that this act would naturally cause annoyance to the defendant. The distinction between criminal trespass and civil trespass is sometimes rather fine and it is quite possible the defendant bona fide thought the best and quickest course would be to go to the Magistrate's Court. He does not seem to have acted in an unreasonable hurry, for the evidence of D. Ws. 4 and 5 shows that the defendant took respectable persons to the site, showed them the work that was going on and they advised 3rd plaintiff to stop the work till the dispute was settled. Defendant thought the best plan of stopping the annoyance was to go to a Magistrate's Court.
5. Then it is argued that the evidence of defendant only shows that 3rd plaintiff was engaged in constructing the wall. But the 1st plaintiff himself admits that he was also constructing the wall and the three plaintiffs are brothers and defendant might have thought they were acting jointly.
6. My finding on the 1st issue sent to me is that it is not proved that defendant had no reasonable and probable cause for making the complaint.
7. With regard to the second issue sent to me, the matter is quite clear. There was no enmity between plaintiffs and defendant; the only thing that sent defendant into Court was the trespass on the joint wall. The idea of plaintiffs that the defendant wanted to coerce Meda Narsayya and plaintiffs by filing the criminal case is pure speculation.
8. I find on the second issue that there was no malice on the part of the defendant
This Second Appeal coming on for final hearing after the return of the finding of the Lower Appellate Court upon the issues referred by this Court for trial, the Court delivered the following
JUDGMENT
We accept the finding, and reversing the Lower Appellate Court's decision restore the Munsifs decree with costs here and in the Lower Appellate Court.
K. V. S.Appeal allowed.