Bishun Singh v. A.W.N. Wyatt

This is an appeal on behalf of the Defendant in an action for damages for what has been described as malicious abuse of judicial process. The circumstances under which the claim has been preferred, have not formed the subject of serious controversy in this Court, and may be briefly narrated. On the 3rd June, 1901, the predecessor of the Plaintiff commenced an action for rent against the Defendant for the years 1307 and 1308, F.S The substantial dispute between the parties related to the rate of rent annually payable; the Defendant pleaded that the rent was much lower than what the Plaintiff had demanded, and that whatever was lawfully payable had been duly paid. The Court of first instance overruled the defence and decreed the suit. Upon appeal, the Subordinate Judge reversed that decision and dismissed the suit. On appeal to this Court, the Plaintiff-Appellant asked for leave to withdraw from the suit, with liberty to bring a fresh suit on the same cause of action. On the 2nd March, 1906 the application was granted and the following order was recorded: “The application is allowed on condition that the Appellant pays to the Respondent the costs incurred by him in this litigation, including the costs of this Court, within six weeks of the arrival of the record in the lower Court. If such costs are not paid within the time aforesaid, this appeal will stand dismissed with costs”. The records were sent down in due course and appear to have been received in the lower Court on the 17th June, 1906. Meanwhile, the Plaintiff, who had already instituted a suit on the 8th February, 1906, for recovery of the arrears of rent for the years 1310 to 1313, deposited the money in Court on the 23rd May, 1906, No notice of the deposit was given to the Defendant, and it has now been ascertained that the entry of the payment, as made in the Court Register, was inaccurate and misleading, because the names of the parties as Plaintiff and Defendant were interchanged. There is some evidence to show that one of the officers of the Plaintiff verbally informed the Defendant that the deposit had been made: but, in the events which had happened, and in view of the fact that the records had been removed from Champaran to Chapra, it was not possible for the Defendant, to whom the challan had not been shown, to ascertain whether the money had actually been deposited, and to withdraw the sum from the Court. The result was that, when the suit commenced on the 8th February, 1906 for realisation of the arrears of the years 1310 to 1313 came on for trial, the Defendant objected that, as the Plaintiff had not carried out the order of the High Court in the appeal in the previous suit for rent, the subsequent suit could not be enteri ained., This objection prevailed, and the suit was dismissed on the 31st May, 1906, as the Plaintiff was unable to satisfy the Court that she had deposited the money in accordance with the Order of this Court. She then appealed to the District Judge and contended, not that the deposit had been made in time, but that, as the order of the High Court referred to a suit for rent for an earlier period, failure to comply with that order could not bar the subsequent suit, and the District Judge, on the 20th November, 1906, gave effect to this contention. The Defendant then appealed to this Court and contended that, as the order of the High Court in the previous suit had not been carried out, the result was that the appeal preferred to this Court on that occasion stood dismissed, and the decision of the Subordinate Judge, as to the rate of rent, was in effect confirmed: consequently the trial of the question of the rate of rent was barred by res judicata. This Court, on the 5th April, 1909, directed an enquiry into the question, whether the order of the High Court in the previous suit had been carried out in time. The lower Court, upon investigation and upon evidence adduced by the Plaintiff reported that the deposit had been made on the 23rd May, 1906 before the expiry of the time allowed for the payment of the money. On receipt of the report, this Court held, on the 19th April, 1910, that the previous suit had been withdrawn and no question of the res judicata arose for consideration. Meanwhile, on the 6th June, 1907, that is after the adjudication by the Courts below that the costs had not been paid in time and the appeal to this Court, consequently, stood dismissed with costs, the Defendant as decree-holder applied for execution of the decree for costs throughout that litigation. The Plaintiff as judgment-debtor entered appearance and objected to the execution on the ground that no notice, under sec. 248 of the Civil Procedure Code of 1882, had been served and that the whole of the decretal amount had been already deposited in Court. The execution Court overruled the first objection on the ground that the order of this Court, made on the 2nd March, 1906, was conditional and could be performed within six weeks of the arrival of the records in the Court below, that is, within six weeks from the 17th June, 1906, so that there could be no decree for the Plaintiff to execute till the 29th July, 1906, that is, within one year of the date of application for execution. As regards the objection on the merits, the Court directed an enquiry, and the pleader for the Plaintiff, whose services were specially retained to make the investigation, satisfied the Court that the deposit had been made. The result was that, on the copy of the challan produced in Court for the first time, on the 3rd August, 1907, the Court held that the deposit had been made and dismissed the application for execution. Meanwhile, however, events had happened which have culminated in the present litigation. Immediately on the presentation of the application for executions, the Court, at the instance of the Defendant, as decree-holder, attached 14 bighas of land, on which there was standing crop of indigo. The attachment apparently continued from the 6th June, 1907 to the 5th August, 1907, and the judgment-debtor, the present Plaintiff, does not appear to have intimated to the Court that the crop was liable to deterioration. On the 26th September, 1907, the Plaintiff commenced the present action for recovery of Rs. 600 from the Defendant as damages for malicious abuse of legal process. His case was that the Defendant maliciously took out execution for recovery of costs, which, he knew, had already been deposited in Court; that the wrongful attachment, in the course of the execution proceedings, had resulted in the destruction of his indigo crop, and had also affected his credit. The Defendant repudiated the allegation of malice and contended that he acted in good faith, that there was reasonable and probable cause for the attachment, and that the damage of the crops alleged by the Plaintiff was not the approximate result of the attachment effected at his instance. The Court of first instance found in favour of the Defendant and dismissed the suit. Upon appeal the District Judge has decreed the claim. He has held that the attachment was malicious and unlawful, and he has given the Plaintiff a decree for Rs. 290, namely, Rs. 179 as value of indigo lost, Rs. 53 as litigation expenses, and Rs. 58 as exemplary damages, The Defendant has now appealed to this Court, and, on his behalf, the decision of the District Judge has been assailed substantially on three grounds; namely, first, that upon the admitted facts, the suit is not maintainable; secondly, that, upon the facts found by the District Judge there was reasonable and probable cause for the attachment effected by him, and, thirdly, that the damages have been awarded on principles erroneous in law.

In support of the first objection taken by the Appellant, it has been contended that it is not an actionable wrong to institute civil proceedings without reasonable and probable cause even if malice be proved, for in contemplation of law, the Defendant, who is unreasonably sued, is sufficiently indemnified by a judgment in his favour which gives him his costs against the Plaintiff. In support of this proposition, reference has been made to the exposition of the law by Bowen, L.J, in Quartz Hill v. Eyre(1), where that learned Judge stated that, in the present day and according to our present law, the bringing of an ordinary action, however malicious and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution. It is not necessary for us to examine whether this statement embodies an inflexible rule of law, or whether there are not well recognised exceptions to it. There is high authority for the proposition that it is an actionable wrong maliciously and without reasonable and probable cause to issue execution against the property of a judgment-debtor, for example, to seize his goods under a writ of fieri facias after the judgment debt has been paid; this is not a trespass, it has been said, for the judgment still stands and will support the writ of execution, but it is an actionable abuse of judicial process [Churchill v. Siggers(2)]. But whether this is trespass, as indicated in Clissold v. Cralchley, or malicious abuse of judicial process it is actionable A similar view was adopted in Raj Chandra Roy v. Shama Soondari(4), and is supported by the decision of their Lord, ships of the Judicial Committee in Mudhun Mohun Dass v. Gokul Dass(5). Sir James Colville observed in the case last mentioned that, if it was important in India to check any tendency to resist the execution of legal process, it was hardly less important to maintain the principle that they who misused legal process were responsible for the consequences of that misuse. The broad proposition formulated by the learned Vakil for the Appellant that the suit as framed is not maintainable, cannot consequently be supported, and the statement that the institution of an ordinary civil action however unfounded, vexatious and malicious it may be, is not a good cause of action must be qualified when there has been arrest of person or seizure of property. We may add that sec. 491 of the Civil Procedure Code of 1882 expressly recognises such right of action, for it authorises a Court which has issued an order for arrest or attachment in the course of a suit, to award compensation not exceeding Rs. 1,000 if it should appear that such arrest or attachment was applied for on insufficient grounds; it then provides that the Court shall not award a larger amount than it would do in a suit for compensation and that an order under the section shall bar a suit for compensation in respect of such arrest or attachment. Sec. 497 embodies similar provisions with regard to compensation for the issue of an injunction on insufficient grounds. In fact, it is not difficult to trace decisions in the reports in which this principle has been directly or indirectly recognised. [Doyal v. Dwarka Nath(6), Huro Soonduree v. Bungshee Mohun(7), Mahomed Rezoood-din v. Hossain Buksh(8), Gobardhan v. Banee Chandra(9), Wilson v. Kanhya Sakoo(10), Nund Kumar v. Gour Sankar(11) and Dharma Narain v. Steemutty Dossee(12)]. The learned Vakil for the Respondent also relied upon Article 29 of the Second Schedule of the Indian Limitation Act, 1877, to show that the Legislature contemplated suits for compensation for wrongful seizure of immoveable property under legal process. It is not necessary, however, to place any reliance upon the provisions of the Limitation Act, because, as has been pointed out by their Lordships of the Judicial Committee, nothing in the Limitation Act can give rise to a cause of action unless a right to sue exists independently of those provisions. [Harinath v. Mothoor Mohan(13) and Khunni Lal v. Govind Krishna(14)]. The question next arises what is the precise nature of the right of action of the Plaintiff in the case before us. In our opinion, the Plaintiff, if entitled to damages, can succeed, not on the ground of malicious abuse of legal process, but on the ground that the Defendant has committed an act of trespass. As we have already pointed out the order of this Court of the 2nd March, 1906 was to the effect that, unless the Plaintiff paid to the Defendant the costs of that litigation within six weeks of the arrival of the record in the Subordinate Court, the appeal would stand dismissed with costs. It has not been suggested and we do not think it could reasonably be suggested that this order implied that the money should be handed over personally to the Defendant: payment into Court to the credit of the, Defendant would, in our opinion, be sufficient compliance with the direction of this Court. Such payment was, as has now been ascertained, actually made within the prescribed time. Consequently the conditional order never ripened into a decree in favour of the Defendant; in other words, the essence of the matter is that the Defendant had not in the eye of law, any decree for costs against the Plaintiff which he was competent to execute. We are not now concerned with the question whether there was not reasonable excuse for the conduct of the Defendant. The fact remains that the Defendant obtained an attachment of the property of the Plaintiff under the erroneous impression that he had a decree capable of execution; the Defendant is, therefore, liable to be sued by the Plaintiffs or damages in trespass. This view is amply supported by the decision of the Court of Appeal in Clissold v. Ctalchley. In that case, execution was taken out by a solicitor for costs payable under an order of Court; the debt had, in fact, been paid at his office to a clerk, who had authority to receive it, on the very date that the writ was issued but about three hours before. As soon as execution was levied, the judgment-debtor apprised the solicitor that the debt had been paid, and execution was forthwith withdrawn. In an action against the solicitor and his client to recover damages for improper levy of execution, it was held by the Court of Appeal that, although: either the solicitor nor his client has sued out the writ maliciously they were liable in trespass. Fletcher Moulton, L.J, observed that a writ of execution upon a satisfied judgment was null and void. Farwell, L.J, added that no writ of execution can lawfully issue on a judgment that has been paid or satisfied before issue of the writ, because there is no judgment left on which to base the writ, so that the writ is void ab initio and trespass will lie against the satisfied creditor and his solicitor who have put the sheriff in motion. Vaugban Williams, L.J, relied upon a passage from Bullen and Leake (Precedents of Pleading, 3rd Ed., p. 353), where it is stated that, if the party arrested can show that the judgment was satisfied by payment or otherwise before the arrest, he may then maintain an action; the arrest in such a case would in general support an action of trespass. It is fairly clear that the liability is for trespass, not malicious abuse of process; there is no abuse of, process lawfully issued but the institution of proceedings without legal authority in its inception. (Kinkead, Commentaries on Torts, Vol. I, sec. 233; Street, Foundations of Legal Liability, Vol. I, p. 334). The substance of the matter is that, if a litigant executes any form of legal process which is invalid for want of jurisdiction, irregularity, or any other reason, and in so doing he commits any act in the nature of trespass to person or property, he is liable there for in an action of trespass; it is not necessary to prove any malice or want of reasonable or probable cause. This is an obvious corollary of the elementary principle that mistake, however honest or inevitable, is no defence for him who intentionally interferes with the person or property of another; the fundamental proposition cannot be disputed that in a case of this description a supposed justification is no justification at all. A litigant who effects an arrest or seizes property must justify the trespass by pleading a valid execution of legal process, and any irregularity or error which has the effect of making the process totally in valid will deprive him of all justification [Painter v. Liverpool Oil Gas Light Company(15) and Brooks v. Hodgkinson(16)] The learned vakil for the Appellant has however, laid considerable stress upon the circumstance that in the subsequent suit for rent when objection was taken that the action could not be maintained as the Plaintiff had failed to can out the order of this Court, the Plaintiff failed to prove that the payment had been made as alleged by him. The learned vakil has contended that, as execution was taken out after this decision, the Defendant is protected. We are unable to accept this contention as well ???. It may be conceded that no action will be against any person for issuing ??? or other wise acting in pursuance of a valid judgment or order of a Court of Justice, even though it is erroneous and even though it is afterwards reversed, or Sit aside for error. The principle that a valid judgment, however erroneous in law or fact, is a sufficient justification for any act done in pursuance of it was recognised in the cases of Williams v. Smith(17) and Smith v. Sydney(18), but it has no application to the circumstances of the case before us. Here the writ of attachment was not issued on the faith of the decision in the second rent suit which was subsequently set aside by this Court as the ultimate Court of Appeal. The Defendant took, out the writ of attachment on the assumption that the order as to payment of costs had not been carried out and there was thus a decree in his favour capable of execution against the Plaintiff. The execution also was based on this theory which had been previously setup successfully to defeat the second rent suit. We are, therefore, of opinion that the Defendant cannot rightly contend that as he relied upon the judgment of a competent Court and as he acted upon the faith of it, however erroneous the judgment might be, he ought to be protected. We must consequently hold that upon the admitted facts, the suit is maintainable, and that the Defendant is liable for damages for trespass. The first contention of the Appellant must, therefore, be negatived.

In so far as the second contention of the Appellant is concerned, namely, that upon the facts found by the District Judge, there was reasonable and probable cause for the attachment effected at his instance, it is not necessary for us to examine it in detail, in the view we take of the scope of the suit and the nature of the liability of the Defendant. As we have already explained the claim cannot be treated as one for damages for malicious abuse of judicial process: it is essentially a suit for damages for trespass. Consequently, the presence or absence of reasonable and probable cause is immaterial. We may add, however, that, upon the facts as already set out, we are not prepared to agree in the conclusion of the learned District Judge: nor are we prepared to accept the contention of the Respondent that the question is one of fact with which this Court is not competent to deal in second appeal. Whether there was reasonable and probable cause is a mixed question of fact and law: we are bound to accept the facts as found by the Court of Appeal below, but we are entitled to examine whether the inference drawn therefrom is legitimate [Panton v. Williams(19), Lister v. Perryman(20), Hailes v. Marks(21), Shama Bibee v. Chaiiman of Baranagote Municipality(22), and Ram Gopal v. Shamskhatan(23)]. We need not consider this point in further detail, however, for the reasons stated.

In so far as the third ground urged by the Appellant is concerned it has been argued that the damages have been assessed upon entirely erroneous principles. The learned District Judge has assessed damages under three heads, namely, first, the value of the indigo crop which deteriorated and ultimately became valueless: secondly, the litigation expenses incurred by the Plaintiff in the execution case, and, thirdly, exemplary damages, as the conduct of the Defendant was inexcusable. In so far as the first of these-elements is concerned, we are of opinion that the District Judge was clearly in error. We shall assume that, on the authority of the decision in Ram Kumar Ghose v. Gobind Nath Sandyal(24) the presumption is that when the land was attached, the standing crop also was attached. It may further be assumed that, as laid down in the cases of Ghedalal v. Mulehand(25), Madnyya v. Yenkata(26), Gangaprosad v. Narain(27), and Sidu v. Simbhu(28). standing crop is immoveable property, though this view may be difficult to reconcile with Surat Lal v. Umar Hazi(29), Mangun Jha v. Dulin Golab(30), and Abdullah v. Asraffali(31). Yet the question remains whether the attachment was the ??? cause of the loss of the crop. As soon as the attachment was effected, the Plaintiff might and ought to have intimated to the Court that if the decree holder intended to attach, not merely the land, but also the crop, steps had to be taken for the protection of the perishable property. If such a representation had been made, the Court might either have permitted the Plaintiff to cut the crop on such terms as to security as might be reasonable or might have appointed a Receiver. The conduct of the Plaintiff, on the other hand, is inexplicable. He never asked for the direction of the Court and did not make any the slightest effort for the protection of the property. Under these circumstances, we are unable to hold that the loss which may have resulted to the Plaintiff was the inevitable consequence of the attachment effected by the Defendant. In so far as the second element is concerned, the case is equally clear. When the Defendant applied for execution and the Plaintiff objected that the money had been deposited in due time, he had to employ a pleader to search the records to ascertain when the deposit had been made by his officer. It is inconceivable upon what principle the Plaintiff can claim to recover from the Defendant costs so incurred. In so far as the third element is concerned, we need only say that this is manifestly not a case in which exemplary damages can be legitimately claimed. Apart form the question of legal liability, we are unable to hold that the Defendant is in any way to blame for the events that have happened. The Plaintiff sued the Defendant for rent. After the litigation had been carried on to this Court, he found it necessary in his own interest to withdraw from the suit. He obtained what must be deemed an indulgence upon certain terms as to payment of costs. He might have paid the costs to the Defendant personally; in fact upon a strict and literal interpretation of the language of the order, this ought to have been done. Instead of adopting this the obvious course, he deposits the money in Court: but be does not furnish a copy of the challan to the Defendant to enable him to withdraw the money. He seems to have considered that his duty ended as soon as the deposit was made and that it was immaterial whether the Defendant could draw out the money except after considerable search and trouble. By an unfortunate error on the part of the Court officer, an inaccurate entry is made in the deposit register. When in the subsequent rent suit the Defendant asserts that the costs have not been deposited, the Plaintiff is unable to prove that he has made the deposit, and it is not till a special enquiry has been directed by this Court, that the Plaintiff is able to establish the fact, after as he admits, an expensive search by his pleader. Under these circumstances, it is difficult to appreciate how any blame can be thrown upon the Defendant for the course which he adopted, namely, to apply for execution to realise the costs due to him. No doubt, the Defendant, as we have already explained is guilty of trespass. But the case is manifestly not one for exemplary damages. The assessment made by the District Judge cannot, therefore, be supported. The Plaintiff is entitled only to nominal damages which as Lord Halsbury puts it in Median v. Comet(32) is not necessarily small damages: nominal damages are allowed in recognition of the fact that there is an infraction of a legal right which though it gives the Plaintiff no right to any real damages at all, yet gives him a right to the verdict or judgment because his legal right has been infringed: in other words, as Holt, C.J, observes in Ashby v. White(33), an action lies for trespass, though it does no damage, for it is an invasion of the property of the Plaintiff and the other has no right to come there. We, therefore, assess the damages at Rs. 75. But as the claim was grossly exaggerated and based on entirely erroneous grounds, the Appellant must have the costs of this appeal, which we find on assessment amount to an aggregate sum of Rs. 75. Consequently although the Plaintiff obtains a decree for damages, he will realise nothing from the Defendant, The parties will pay their own costs in both the Courts below.

The result, therefore, is that this appeal is allowed, and the decree of the District Judge discharged. The Plaintiff is declared entitled to damages which are set off against the costs payable to the Defendant. There will, therefore, be no decree in his favour capable of execution.

Appeal allowed.