IN THE COURT OF THE CIVIL JUDGE NO:2, KAMRUP,

GUWAHATI

Present : Sri R.Bhattacharjee, A.J.S.,

Civil Judge No.2,

Kamrup, Guwahati.

Money Suit No : 34 of 2007

1. Mukuli Rabha

2.Kanduri Boro

3.Namti Boro

4.Dharmeshwari Boro

5. Nirmali Engti

6. Usha Maraba

7. Tami Boro

8. Sibashri Swargiary...........................................Plaintiffs

Versus

1. Padmini Barman

2. kishore Barman.............................................Defendants

Advocate for the Plaintiff : Mr. S. Medhi, Learned Counsel;

Mr. G. Kalita, Learned Counsel;

 Mr. D. Barman, Learned Counsel;

Mr. D. Goswami, Learned Counsel.

Advocate for the Defendant : Mr. P. Upadhyay, Learned Counsel;

Mr. K. Das, Learned Counsel;

Mr. K. Pathak, Learned Counsel.

Date of evidence : 5.12.2009, 25.1.2010, 25.2.2010, 14.5.2012,

8.10.2012, 11.6.2013.

Date of argument : 13.9.2013.

Date of Judgment : 20.9.2013.

and having stood for consideration to this day, the court delivered
the following judgment:-

JUDGMENT

1. This is a suit filed by the plaintiffs seeking damages for malicious

prosecution along with consequential reliefs.

2. Plaintiffs’ suit for seeking the decree and relief are based upon the
plaint version, in brief, is that the plaintiff no.1 had a land dispute with
the defendants in connection with which there are some litigations set
into motion by them. Plaintiffs stated that subsequently, the defendants
along with their men trespassed over the landed property of plaintiff
no.1 in order to usurp the land and the members of “Mahila Samity”,
that is the plaintiff no.s 2 to 8, intervened to pacify resulting in the
defendants retreat from the place of occurrence. Plaintiffs outlined that
the defendants, with malicious intent, consequently lodged Complaint
Case No.s 2686C/2005 and 2690C/2005 against them in the Learned
Court of the Chief Judicial Magistrate, Kamrup in connection with which
the plaintiffs were forced to spend money in meeting various incidental
expenses as well as they had to face with sufferings and social stigma
in-spite of being hailing from respectable families. According to the
plaintiffs, Learned Magistrate, after hearing the parties, acquitted them
vide judgment pronounced on 19.12.2006 and this being the position it
is clearly notable that such complaints were actuated by malice without
any reasonable and probable cause. The plaintiffs, furthermore,
submitted that in the above background, they are entitled for damages
of Rs. 9,00,000/- along with interest. Hence the suit and the reliefs
claimed as stated at the outset.

3. Defendants contested the suit by laying down written statement. The

defendants resisted the suit on various law points such as there is no
cause of action, the suit is not maintainable, the suit is bad for defect of
parties and so on and so forth. Defendants denied the averments and
the allegations pressed by the plaintiffs and inter-alia submitted that
the defendants have not committed any illegality by initiating the
criminal proceedings against the plaintiffs. According to the defendants,
they were compelled to initiate the proceedings and proved the cases
though the Learned Trial Court has been pleased to dismiss the
complaints on the ground that the defendants have failed to establish
the cases beyond reasonable doubt. The defendants, further, submitted
that the allegations brought into the complaint cases being true, no
question of malicious prosecution arise. The defendants prayed for
dismissal of the suit with costs.
4. Following issues were framed by my Learned Predecessor for the
adjudication of the lis:-

Issues

i) Whether the suit is maintainable in its present form?

ii) Whether there is cause of action for the suit?

iii) Whether the suit is bad for non-joinder of necessary parties?

iv) Whether the Complaint Case visde case no. 2686 C /05 and 2690
C/05 filed by the defendants against the plaintiffs were based on facts
and with probable and reasonable cause?

v) Whether the allegations made in the complaint case against the

plaintiffs was totally false, baseless and defamatory?

vi) Whether the plaintiffs are entitled to the reliefs by way of

compensation for damage as prayed for and if so to what extent?

vii) To what other relief/reliefs parties are entitled?

5. Both the sides adduced evidence by witnesses and also exhibited

documents.

6. Heard argument of learned counsel for both the plaintiff side as well
as defendant side. Perused and considered available materials.
 7. DECISION AND REASONS FOR DECISION.

a) Issue No.ii

i) For the sake of convenience, at the outset I have taken up the present
issue “Whether there is cause of action for the suit?” prior to other
issues.

ii) Every suit presupposes the existence of a cause of action because

when there is no cause of action the plaint will have to be rejected.

Even though the expression cause of action has not been defined in the

Civil Procedure Code, it may be described as a bundle of essential facts

which it is necessary for the plaintiff to prove before he can succeed.

iii) The classic definition of the said expression is found in the case of

Cooke Vs. Gill (1873) 8CP107(116), wherein Lord Brett observed;

“Cause of action means every fact which it would be necessary for the

plaintiff to prove, if traversed, in order to support his right to the

judgment of the court”.

iv) In the present suit plaintiffs asserted that the defendants have
prosecuted them without any reasonable cause by setting into motion
false criminal cases claiming damages for malicious prosecution which
was denied by the defendants side vide the written statement. So there
exists material proposition of facts asserted by one party and denied by
the other which shows that there is cause of action for the suit.
Accordingly, there exists cause of action for the suit and this issue is
decided in favour of the plaintiffs.

b) Issue No. i and iii

i) Next, I intend to take up the issues “Whether the suit is maintainable

in its present form” and “whether the suit is bad for non-joinder of
necessary parties”?

ii) The defendants vide their written statement contended that one
Indrajit Boro along with Aruna Boro, Manas Kumar Sharma and Tapan
Barman have supported them by adducing evidence the proceedings
initiated before the Learned Court of the Chief Judicial Magistrate,
Kamrup and they are the necessary parties in this suit and since they
were not impleaded by the plaintiffs, as such the suit is bad for defect
of parties which was refuted by the plaintiffs and other than that there
is no averments relating to express challenge of maintainability of the
suit.

iii) In examining the rival contentions in this regard it is apposite to note

the settled proposition that there is an essential distinction between a
necessary and proper party to a suit. A necessary party is one whose
presence is indispensible to the constitution of the suit, against whom
the relief is sought and without whom no effective order can be passed.
A proper party is one in whose absence an effective order can be
passed, but whose presence is necessary for a complete and final
decision on the question involved in the proceeding.
iv) In the instant suit, the Plaintiffs in their relief, inter-alia, claimed
damages alleging malicious prosecution triggered by the defendants by
setting into motion Complaint Case No.s 2686C/2005 and 2690C/2005
in the Learned Court of Chief Judicial Magistrate, Kamrup and since it is
admitted position that the defendants have initiated such criminal
proceedings before the Learned Court of Chief Judicial Magistrate,
Kamrup, and as both the defendants are already arrayed in such
capacity, accordingly, in my considered view, the presence of the parties
as named hereinbefore is neither indispensable nor it can be said that
in absence of them any effective decree would not materialise and as
such the suit is not bad for non-joinder of necessary parties.

v) Therefore, the decision of present issues goes in favour of the

plaintiffs.

c) Issue No.iv and v

i) Now I intend to discuss the issue no. (iv) “Whether the Complaint
Case vide case no. 2686 C /05 and 2690 C/05 filed by the defendants
against the plaintiffs were based on facts and with probable and
reasonable cause” and (v) “Whether the allegations made in the
complaint case against the plaintiffs was totally false, baseless and
defamatory” together.

ii) Prior to consideration of the materials on case record for decisions in

these issues I intend to make an attempt to examine the essential for
the action of malicious prosecution.
iii) The settled proposition is that the action for damages for malicious
prosecution is part of the common law of England. In India the law on
the subject is same as the law in England and the U.S.A.

iv) Professor Winfield in his well known work on Law of Torts described
the history of such tort taking us back to the old writ of conspiracy—De
odio et atia—which was in existence as early as King Edward-I’s reign
and how its progress towards its modern equivalent had to make way
slowly between two competing principles, viz., the freedom of action
that every man should have in bringing criminals to justice and the
necessity for checking lying accusations of innocent people.

v) Thus “malicious prosecution a very ancient action, regarded as a

remedy is a distinctive action ex-delicto for the recovery of damage to
person, property or reputation shown to have proximately resulted from
a previous civil or criminal proceeding which was commenced or
continued without probable cause but with malice and which has
terminated unsuccessfully”. (emphasis supplied).

vi) Their Lordships of Privy Council in Mohammed Amin Vs. Jogendra

Kumar, AIR 1947 PC 108 laid down that in a suit for damages for
malicious prosecution the plaintiff has to prove 1) that the defendant
has prosecuted the plaintiff, i.e., instituted criminal proceedings or
certain other proceedings reflecting upon the plaintiff’s honour or
character; 2) that the prosecution has ended in favour of the plaintiff; 3)
that the defendant has prosecuted without reasonable and probable
cause; 4) that the defendant in prosecuting was actuated by malice i.e.,
an indirect and improper motive; and 5) that the plaintiff when the
proceedings are other than criminal proceedings has suffered special
damage, unless the proceedings are such as from their very nature are
calculated to injure the credit or honour of the plaintiff.

vii) To sum up “a malicious prosecution is one that is began in malice

without probable cause to believe it can succeed and finally ends in
failure”. If any one of these elements is lacking the result is fatal to the
action.

viii) Salmond on Torts has said that “reasonable and probable cause
means a genuine belief, based on reasonable grounds, that the
proceedings are justified”.

ix) Continuing with the settled proposition, it may be noted that in an

action for malicious prosecution the burden of proof, in the first
instance, lies on the plaintiff. He must show not only that he was
prosecuted by the defendant and that the prosecution terminated in his
favour, but also that he suffered damages and that the defendant acted
maliciously without reasonable and probable cause. In support of this
proposition respectful reliance is placed upon the classical judgment of
Lord Justice Bowen in Abrath Vs. North eastern Railway Company
(1883) 11 Q.B.D. 440 wherein it was observed, “Whenever litigation
exists, somebody must go on with it; the plaintiff is the first to begin; if
he does nothing, he fails”.

x) In another landmark case Cotton Vs. James (1830) 109 E.R.735, it

was observed that “in general the plaintiff must give some evidence
showing the absence of probable cause”.

xi) “When the plaintiff has given such an evidence, which, if not
answered, will entitle him to a decree, the burden of proof shited to the
defendant. A mere scanty evidence would not warrant the court to give
verdict for the plaintiff. There must be so much evidence that a
reasonable man may accept it as establishing the issue. Reasonable and
probable cause is an honest belief in the guilt of the accused based
upon a full conviction and founded on reasonable grounds of the
existence of a state of circumstances, which, assuming to be true, would
reasonably lead any prudent and cautious man, placed in the position
of an accuser, to the conclusion that the person charged was probably
guilty of the crime imputed. That means that the plaintiff must prove
that the facts and circumstances of the case at the time of the offence
were such as to be in the eyes of the Judge inconsistent with the
existence of reasonable and probable cause. Reasonable and probable
cause depends upon the reasonable and bonafide belief in the existence
of such a state of things as would amount to a justification of the
court’s pursuits in making the accusation complained of. A man is not
bound before instituting proceeding to see that he has such evidence as
would be legally acceptable to secure a conviction. It is sufficient if he
proceeds on such information as a prudent and cautious man may
reasonably accept in the ordinary affairs of life and it is for the plaintiff
to show that there was a want of proper care in testing that
information.” (emphasis supplied)

xii) In the given case in hand it is not disputed that the first two
ingredients, out of the five, as referred hereinbefore, are made out in
as much as the plaintiffs were indeed prosecuted by the defendants and
the proceedings complained of were terminated in favour of the
plaintiffs. Thus the moot point of dispute seems to be whether the
plaintiffs have been able and successful to establish that they were
prosecuted without any reasonable and probable cause and whether
the action of the defendants in initiating such proceedings was
malicious.

xiii) In this context, it may be mentioned here that only the plaintiff no.1
Mukuli Rabha(Boro), plaintiff no.2 Kanduri Boro, and Plaintiff no.4,
Dharmeshwari Basumatary appeared in the witness box to assert the
above contentions out of eight plaintiffs initiating present suit claiming
damages.

xiv) In considering the aforesaid aspects relating to bone of contentions

that the plaintiffs were prosecuted without any reasonable and
probable cause and that the action of the defendants in initiating such
proceedings was malicious, upon the record, it is transparent that the
evidence of P.W.1, Mukuli Rabha was rejected by this court vide an
order passed on 4.6. 2012.

xv) In the heels of above position, in examining the evidence of

remaining two witnesses for the plaintiffs side, that is P.W.2, Kanduri
Boro and P.W.3, Dharmeshwari Basumatary, it appears that both of
them deposed to the effect that the defendants have committed
trespass on the land of plaintiff no.1, Mukuli Boro and cut and felled
plants and consequently, on their intervention, left the place and later-
on, initiated Complaint Case No.s 2686C/2005 and 2690C/2005, in
connection with which by attending the trial process, not only their
reputation was lowered but also they had to spent valuable time and
money but there was no attempt to elaborate the malice of defendants
in the evidence, barring feeble whisper, and it seems that much reliance
has been placed upon the certified copy of common judgment passed
in Complaint Case No.s 2686C/2005 and 2690C/2005 to drive home the
points pressed by the plaintiffs in this suit.

xvi) It is also well settled that in an action for damages on account of

malicious prosecution, a judgment of the criminal court is not
admissible in evidence except for the purpose of finding out whether or
not the decision in the criminal case was in the favour of the plaintiff. In
other words, it is not that the judgment of the Criminal Court has to be
ignored altogether. It is only not to be relied upon as conclusive for
deciding the civil suit for malicious prosecution. The civil Court has to go
into the matter on the basis of evidence adduced before it in the civil
suit independently of the view expressed by the Criminal Court. The
sense in which it is said that the Criminal Court judgment is not
admissible in evidence is that apart from the fact of the result of the
judgment of the Criminal Court, namely, termination in favour of the
accused persons, the observations of the Criminal Court or the reasons
on which the acquittal is based is not to be accepted as conclusive.

xvii) Therefore, no reliance can be independently placed upon the

certified copy of the relevant judgment pronounced by the Criminal
Court so as to arrive at the conclusion that there was no reasonable and
probable cause and that the prosecution of the plaintiffs was due to
malice on the part of the defendants.

xviii) On the other hand, the testimony of the defendants side on case
record surfaces both the D.W.1, Padmini Barman and D.W.2, Kishore
Barman harmoniously coinciding in their evidence to the effect that on
11.5.2005, the plaintiffs committing trespass over the landed property
of the defendant no.s 1 and 2 compelled them to initiate Complaint
Case No.s 2686C/2005 and 2690C/2005 in the Learned Court of the
Chief Judicial Magistrate, Kamrup.

xix) Accordingly, I am of the considered opinion that when a proceeding

or proceedings were initiated by a person or persons, which to the
knowledge and belief of such person or persons is actuated by some
right of relief, in such an eventuality, it is absolutely immaterial whether
it results in conviction or acquittal to draw an inference as to the
existence of malice in as much as when the plaintiffs have failed to even
depict a mere sketch of malicious intent, leaving aside a vivid portrait of
such ingredients of malice, as required in the backdrop of settled
proposition of law, on the part of the defendants, in initiating the
Complaint Case No.s 2686C/2005 and 2690C/2005, and as such the
bond of necessity between the wrong doer and the remedy of wrong
does not illustrated in the given facts and circumstances surfaced in this
suit.

xx) Moreso, the evidence of P.W.2, also highlights that the defendants
side elicited from the P.W.2 during cross-examination that the criminal
proceedings in question have not lowered their esteem and reputation
in the society.

xxi) In the heels of above, I am of the considered view that the plaintiffs
have failed to establish that the defendants had no reasonable and
probable cause for prosecuting them nor has they been able to prove
that the defendants in prosecuting them were actuated by malice.
 xxii) In the backdrop of above, both these issues are decided against
the plaintiffs.

d) Issue No. vi and vii

i) In the heels of decision of issue no.s iv and v, as discussed

hereinabove going against the plaintiffs, in natural consequences, the
plaintiffs are not entitled to the reliefs by way of compensation for
damage as prayed for and the defendants are entitled to the costs of
the suit.

ii) Both these issues are answered accordingly against the plaintiffs.
 8. ORDER

In result, the suit of the plaintiffs is dismissed on contest with costs.

Prepare a decree accordingly within fifteen days.

Given under the hand and seal of this Court on this the 20 th day of
September, 2013, at Guwahati.

Civil Judge No.2

Kamrup

Guwahati.
 9.APPENDIX

A. Plaintiffs’ witness:-

P.W.1 : Mukuli Rabha(Boro);

P.W.2 : Kanduri Boro;

P.W.3 : Dharmeshwari Basumatary.

B. Plaintiffs’ exhibit:-

Ext-1 : Copy of Complaint in 2690C/2005;

Ext-2 : Summon;

Ext-3 series : Copy of Complaint in 2686C/2005;

Ext-4 : Summon;

Ext-5 : Certified Copy of common judgment passed in Case No.s

2686C/2005 and 2690C/2005.

C. Defendants witness:-

D.W.1 : Padmini Barman;

D.W.2 : Kishore Braman.

 D. Defendants Exhibits:-

Ext-A and B : Certified Copies of Jamabandi;

Ext-C : Agreement of Sale ;

Ext-D : Certified Copy of General Power of Attorney;

Ext-E and F : Sale Deeds;

Ext-G : Certified Copy of complaint;

Ext-I and J : Certified Copies of Order Sheets;

Ext-K : Certified Copy of Judgment;

Ext-L : Certified Copy of Sale Deed;

Ext-M : Certified Copy of Wakalatnama.

Dictated and corrected

by me Civil Judge No.2

Kamrup.

Civil Judge No.2

Kamrup.

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