1. The plaintiff and the defendants are cosharers in Mouzah Rahmatpur and it appears that the plaintiff having applied to the Collector under the Estate Partition Act for the separation of his interest, some of the defendants filed a statement before the Collector supporting the plaintiff. Upon notice being issued to the other proprietors, a cosharer named Mt. Bhagwati objected to the partition. The Colleotor declined to accept the objection and ordered the partition to proceed, whereupon she was compelled to institute a suit in the civil Court, namely, Title Suit No. 1/289 of 1913, for a declaration that the estate was not liable to partition by reason of a previous private partition between the cosharers. The suit was tried by the District Judge of Darbhanga and was decreed against the present plaintiff and present defendants 1, 2, 3, 4, 7, 11, 14, 15 and 17 with costs and against the remaining defendants of that suit without costs. Mt. Bhagwati then took out execution for her costs and realized the whole sum from the plaintiff. The plaintiff now sues the former set of defendants for contribution in proportion to the shares held by each in the estate. His claim against these defendants, namely, Nos. 1, 2, 3, 4, 7, 11, 14, 15 and 17 of this suit is Rs. 626-14-0. He makes no claim against the other defendants. Defendant 7 only contested the suit before the Munsif, with the result that though there was an ex parte decree against defendants 1, 2, 3, 4, 11, 14, 15 and 17 the suit was dismissed as against defendant 7. There was then an appeal before the Additional Subordinate Judge, who found that there was collusion between the plaintiff and defendants in setting up a false defence in the suit before the District Judge of Darbhanga and agreed with the decree of the Munsif. The present second appeal is preferred by the plaintiff.

2. Upon the dismissal of her objection petition before the Collector it was open to Mt. Bhagwati Kuer to appeal to the Commissioners under Sections 112 and 113 of the Partition Act and in the event of success to recover costs from the opposite party. She had however, another remedy namely by civil suit and this she chose, she was successful and obtained not only the declaration that she sought as to the estate not being liable for partition, but also a decree for costs. I take that was open to the civil Courts be award her the costs not only of the suit but also of the proceedings in the Collector's Court, but the decree seems in fact to have been only for the costs of the suit. The first question then that arises' is whether the plaintiff and defendants in making the application for partition before the Collector committed an actionable wrong. I will assume that the lower appellate Court has found (though as a matter of fact it has not) that in doing so the plaintiff and the defendants acted maliciously and without reasonable or probable cause. The answer to the question put above must be in the negative.

3. It is now settled law that the malicious institution of civil proceedings without reasonable and probable cause is not generally an actionable wrong which would entitle the party aggrieved to sue for damages. The principle is that the latter will be sufficiently indemnified by a judgment which gives him costs and that he cannot generally prove special damages: see Cotterell v. Jones(1), Quartz Hill Gold Mining Company v. Eyre(2). The first of these cases is instructive, because there two persons A and B brought maliciously a false suit for debt in the name of an insolvent, named D, against G. The alleged benamidar plaintiff D was nonsuited but no costs were allowed. It was held that the declaration showing no award of costs either ordinary or extra formed no ground of legal damages. To like effect is Raj Chunder Roy v. Shama Soondari Debi(3). There the Court held that the injury must be something other than that which might have been compensated for by an award of the costs of the suit or, in other words, to use the language of Lord Holt in Savile v. Roberts(4), the injury must be a collateral wrong.

4. There are however, other proceedings which though civil come within the mischief which is sought to be cured by an action for malicious prosecution on a criminal charge. These are proceedings which involve loss of reputation or loss of liberty to the person and upon the face of them involve damages. But the case before us is clearly not one coming within this class of proceedings. I am of opinion that the plaintiff and the defendants, even if they in furtherance of a conspiracy maliciously without reason able or probable cause made applications to the Collector praying for a partition, did not commit a wrong for which the law allows a remedy by an action for damages and if this is the case with the applications for partition, much more so is it the case with a conspiracy to put forward and maintain a false defence, in the subsequent suit. In my opinion, therefore, the learned vakil for the respondents must also fail on his alternative contention, which is that even if the making of an application did not constitute an actionable wrong, the collusive and false defence in the civil suit did constitute such a wrong. It is quite clear that Mt. Bhagwati Kuer was amply indemnified against these collusive acts by the award of costs.

5. In this connection it is necessary to notice that the contesting defendant in his written statement does not expressly plead that he and the plaintiff were joint tortfeasors. He rests his case on a contract by which the plaintiff undertook to indemnify him for the costs of the suit. The case of a joint tort appears to have been raised for the first time at the framing of the issues. At the trial he failed to prove this contract, but he succeeded in satisfying the Court that there was a joint tort to which the rules as to which the rules as to contribution would apply.

6. The learned vakil for the respondent relies on Surput Singh v. Imrit Tewari(5). This was a case of tort caused by the cutting of trees. It does not support the proposition that an agreement to maintain a false defence in a civil suit is an actionable wrong. He next relies on Manja v. Kudugechen(6). The report of this case does not show whether the Court found that a collusive defence or a trespass against property was the tort. Prom the fact that the learned Judges in this case relied on Surput Singh v. Imrit Tewari, it would seem that the tort lay in some act antecedent to the filing of a false defence. The case of Gobind Chunder Nundy v. Srigobind Chowdhry(7) does, however, go the full length of the learned vakil's contention. In that case the plaintiff and the defend-ants' were jointly held to commit an illegal act by taking a patni settlement from a proprietor who had contracted to give the patni to another person. It would seem that the learned Judges were of opinion that it was an actionable wrong for the plaintiff and the defendants to set up a false defence in a suit for specific performance by the promisee against them and the proprietor. The case, however, was remanded and the learned Judges came to no clear and definite decision. It is possible that the tort which the learned Judges had in mind was the act of inducing the proprietor to break his contract, but if the learned Judges did intend to hold that the tort lay not in procuring a breach of the contract but in making a false defence in a suit upon the contract, then I would respectfully decline to agree. To apply this principle logically in this country or for the matter of that in any other country would lead to an intolerable multiplication of suits. I consider, therefore, that accepting all the findings of the learned District Judge as they stand, it has not been established that the plaintiff and defendant 7, were joint wrongdoers in an actionable wrong, and that the rule in Merryweather v. Nixan(8) is not a bar to the present suit for contribution.

7. The learned vakil for the appellant, however, goes further and contends that the rule in this last mentioned case does not apply at all in this country, and he relies upon Shakul Kameed Alim Sahib v. Syed Ebrahim Sahib(9) and some other authorities of a like nature in support of his contention. But although it is true that Lord Hersohell in Pamler v. Wick Steam Shipping Co.(10) declined to extend the rule to Scotland, so far as I am aware there is no authority in India which has refused to apply the doctrine wherever the facts have been clearly made out. The utmost that the Courts have done in the direction of dissent is to express doubts whether the rule in Merryweather's case has not been too widely stated. It is also not irrelevant to note in this connection that in the draft Bill prepared by Sir Frederick Pollock for a Code of Civil Wrongs for India the doctrine is expressly recognized as applying to this country, and embodied in the form of a section. It is true that the Bill did not pass into law, but it is strong evidence of the opinion of a very high authority as to the law which prevails in this country.

8. My finding, therefore, is that the doctrine does apply to India, but that in the case before us there was no actionable wrong to which the plaintiff and the defendants were parties. In arriving at this conclusion I have assumed that the learned Subordinate Judge's findings of fact as to malice and reasonable and probable cause are legally sufficient; but if my view of the law had been otherwise, it might have been necessary to order a remand. In that case I would have directed the lower Court to give the parties the chance of producing the copies of the applications to the Collector in the partition proceedings as well as all the written statements in the civil suit before the District Judge.

9. It is somewhat unsatisfactory that we have had to rely for the precise terms of those applications and written statements upon the account given of them in the judgment of the District Judge in the civil suit. I agree with the learned Subordinate Judge that the judgment in question was evidence for the purpose of showing what the statements were, but it would have been more satisfactory to have called for the originals or certified copies thereof for the purpose of securing the best evidence of their contents. In any event upon the view I take of the case the appeal must be allowed and the plaintiff's suit decreed in full against defendant 7 to the extent of his share. The plaintiff will obtain costs against him in all Courts.

V.S/R.K

10. Appeal allowed.