IMPORTANT POINT
Summary remedy provided under Section 95 Civil Procedure Code is an alternative remedy in cases of wrongful obtainment of an injunction and it does not in any way interfere with the principles regulating suits for damages for tort of malicious legal process.

Headnote:(i) Civil Procedure Code, 1908-Section 95-Compensation claim-Malicious legal process-Temporary injunction applied for and granted on insufficient grounds-Summary remedy provided under Section 95 CPC-It is an alternative remedy in cases of wrongful attainment of an injunction-It does not in any way interfere with principles regulating suits for damages for tort of malicious legal process-Injured party can file a regular suit-A regular suit not barred by a summary and a concurrent remedy being also provided therefor -Regular suit for compensation not barred by omission to proceed under summary procedure provided under Section 95 CPC-However, if an application is made and disposed of-Such disposal would operate as a bar to regular suit whatever may be the result of the application-Difference between conditions necessary for the two remedies.
       Held : Section 95 CPC provides for a summary remedy to get compensation where a temporary injunction has been granted if such injunction was applied for on insufficient grounds or there were no reasonable or probable grounds for instituting the claim for injunction. The defendant is such a proceeding is simply to present a petition to the court and the court subject to its pecuniary jurisdiction can give compensation upto Rs.1,000/-. The remedy under the Code is optional and an injured can file a regular suit against the applicant for injunction for compensation if he has not already sought relief under the aforesaid provision. Thus this section is an alternative remedy in cases of wrongful obtainment of an injunction and it does not in any way interfere with the principles regulating suits for damages for tort of malicious legal process. (Para 7)
       As a general principle where two remedies are available under law one of them should not be taken as operating in derogation of the other. A regular suit will not be barred by a summary and a concurrent remedy being also provided therefor, but if a party has elected to pursue one remedy he is bound by it and cannot on his failing therein proceed under another provision. A regular suit for compensation is not barred by the omission to proceed under summary procedure provided under Section 95 C.P.C., but if an application is made and disposed of, such disposal would operate as a bar to regular suit whatever may be the result of the application. There is, however, a difference between conditions necessary for the maintainability of an application under Section 95 C.P.C. and those necessary to maintain a suit. The regular suit is based on tort for abusing the process of court. Under the law of torts in a suit for compensation for the tort the plaintiff must not only prove want of reasonable or probable cause of obtaining injunction but also that the defendant was attracted by malice which is an improper motive. (Para 8)
       In justifying a claim for damages apart from Section 95 C.P.C., a distinction has to be drawn between acts done without judicial sanction and the acts done under judicial sanction improperly obtained. Proof of malice is not necessary when the property to a stranger, not a party to the suit, is taken in execution but if the plaintiff bringing a suit for malicious legal process is a party to a suit, proof of malice is necessary. The plaintiff must prove special damage. The claim of a person for damages for wrongful attachment of property can fall under two heads-(1) trespass and (2) malicious legal process. Where property belonging to a person, not a party to the suit, is wrongly attached, the action is really one grounded on trespass. But where the act of attachment complained of was done under judicial sanction, though at the instance of a party, the remedy is an action for malicious legal process. In the case of malicious legal process of Court, the plaintiff has to prove absence of probable and reasonable cause. In cases of trespass the plaintiff has only to prove the trespass and it is for the defendant to prove a good cause or excuse. In the former case plaintiff has to prove malice on the part of the defendant while in the latter case it is not necessary. (Para 9)
       (ii) Civil Procedure Code, 1908-Section 95 Compensation claim-Maintainability-Plaintiff obtained possession of godown in execution of a decree-Godown obtained not in a vacant condition but with oil seeds stored therein-Employee of plaintiff decree holders was made custodian of goods-Defendants by an injunction order restrained plaintiffs from removing oil seeds-By not removing oil seeds on their own, defendants became liable to damages -Plaintiffs not having been able to utilise the godown effectively in a gainful manner-Bank, pledgee of goods could not claim an independent right in respect of premises-Malice arising in the case-High Court was justified in holding that plaintiffs had suffered pecuniary loss and damages.
       Held : In the present case, the facts ascertained are absolutely clear that the godown had been let out and the firm M/s. Bansidhar Baijnath or its partners could not establish any title, right to interest in the said godown after the decree was passed in the ejectment suit and, therefore, they had no right to possess the said godown either actually or constructively by keeping their goods therein. M/s. Bhagat Oil Mills which impleaded as a defendant in the suit was the sub-lessee of the disputed premises and Baijnath Bhagat had appeared in the said suit as proprietor and on his death other defendants were substituted in his place. In those circumstances, all defendants were bound by the decree of the execution of which the recovery of possession was delivered to the plaintiffs-respondents by the bailiff of the court. Defendants Nos. 2 to 4 could not claim any right independent of Bansidhar Baijnath and, therefore, even apart from Section 95 C.P.C. the plaintiffs could institute an independent suit for damages for wrongful use and occupation of the godown in question by defendants Nos. 1 to 4. The decree-holders plaintiffs had no claim whatsoever over the said oil seeds nor did they make any claim at any stage. There was no dispute regarding the fact that the bailiff had kept the goods in the custody of one of the employees of the plaintiffs and it is the defendants who had made an application on the very next day for an injunction and obtained the same. (Para 10)
       In the background in which the injunction was obtained and the manner in which the defendants prevented the plaintiffs from utilising their premises, it is clear that the same had seen obtained on insufficient and improbabale grounds. The intention of the parties is very clear that it is only to deprive the defendants of the possession of the premises that such an order was obtained. The Bank was pledgee of the goods and coud not claim an independent right in respect of the said premises. The suit premises was not in their possession either under licence or by way of lease. They should not only have ascertained whether the goods belong to the pledgor but also should have known as to whether the premises where the goods were kept belonged to them at the time they obtained the pledge. In those circumstances, even the Bank cannot absolve itself of malice arising in the case. Want of pleadings or arising an issue in a suit would arise where any party is put to prejudice. In a case where the facts are writ large and the parties go to trial on the basis that the claim of the other side is clearly known to them, we fail to understand as to how lack of pleadings would prejudice them. (Para 11)
       (iii) Practice and Procedure-Where two remedies available under law-One of them should not be taken as operating in derogation of the other-A regular suit will not be barred by a summary and a concurrent remedy being also provided therefor-If a party has elected to pursue one remedy, he is bound by it and cannot on his failing therein proceed under another provision. (Para 8)

JUDGMENT

Rajendra Babu, J.-For purposes of convenience, we refer to the parties as arrayed in the original suit out of which this appeal arises. Shital Chandra Das and Karmadhar Das filed Title Suit No. 77/59 in the court of Subordinate Judge at Alipore against Madhuri Choudhary, daughter-in-law of the original lessee of a godown bearing No. 103/1B Raja Dipendra Street, Calcutta. The sub-tenants Brij Kishore Bhagat, Nawal Kishore Bhagat and Durga Devi Bhagat were also impleaded in the said suit as defendants. The said suit was decreed on September 30, 1963 against all the defendants, including Brij Kishore Bhagat Nawal Kishore Bhagat and Durga Devi Bhagat. The plaintiffs in that suit levied execution in Case No. 18/63 in which warrant for delivery of possession of the disputed premises was issued. In the disputed godown there were racks on which oil seeds were stacked. Inasmuch as the said oil seeds could not be immediately removed, the plaintiffs therein obtained delivery of possession of the godown along with oil seeds stacked in several bags. The said oil seeds were kept in the custody of Sitaram Roy, an officer of the plaintiffs by the process-server of the court. Thereafter the Bank of India, defendant No.1 in the suit, filed an application under Order XXI Rule 101 of the Civil Procedure Code (C.P.C) claiming that the Bank was in possession of the godown as pledgee of the goods from an alleged partnership firm, namely, M/s. Bansidhar Baijnath and Brij Kishore Bhagat, Durga Devi Bhagat and Nawal Kishore Bhagat, who are stated to be the partners of the said firm. M/s. Bansidhar Baijnath, the firm, also filed an application under Order XXI Rules 100 and 101 C.P.C. claiming to be in possession of the godown on the date of the delivery of the possession. These applications were registered as Miscellaneous Case No. 1/72 and Miscellaneous Case No. 3/72 in the court of Subordinate Judge, Alipore. The plaintiffs contended that the present defendants were bound by the decree and the claim of possession of M/s. Bansidhar Baijnath or the Bank as pledgee were all baseless. It was also contended that Bhagat group were in possession of the godown on the date of the delivery of the possession. The defendants filed two separate applications in those two miscellaneous cases for restraining the decree holders from removing the stacks of oil seeds from the godown. The ad interim injunction was made absolute on the understanding that the miscellaneous cases would be expeditiously disposed of and an inventory of the oil seeds was made by a Commissioner appointed by the court Miscellaneous Case No. 1/72 was filed seeking for a direction upon the defendant No. 1, the Bank, to remove the said oil seeds on the ground that the plaintiffs were suffering substantial loss daily and the goods were perishable. The Subordinate Judge, Alipore, granted leave to the Bank to remove the said goods. Defendants No.1-Bank, however, applied for modification of the order dated June 27, 1972. A revision petition was filed in the High Court. Before the High Court defendant No.1 withdrew the petition for removal of the said goods and the order of the Subordinate Judge passed on June 27, 1972 was set aside. In view of the indifference by the defendants, the plaintiffs had suffered loss by way of rent and by not delivering the vacant possession to the Bank by obtaining an order of injunction wrongfully and by not removing the goods in spite of the offers made by the plaintiffs and having kept the goods in spite of the offers made by the plaintiffs, the defendants have become liable to pay compensation. A separate suit was also filed for ascertaining the mesne profits and in the suit out of which these proceedings arise, the plaintiffs claimed damages wrongfully keeping the said alleged oil seeds from January 15, 1972.

2. Defendant No.1-Bank, contested the suit. It is pleaded that M/s. Bansidhar Baijnath is a partnership firm and a constituent of the Bank which carried on

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2000 Supreme(SC) 542

IMPORTANT POINTSummary remedy provided under Section 95 Civil Procedure Code is an alternative remedy in cases of wrongful obtainment of an injunction and it does not in any way interfere with the principles regulating suits for damages for tort of malicious legal process.

Cases Referred (1)

IMPORTANT POINT
Summary remedy provided under Section 95 Civil Procedure Code is an alternative remedy in cases of wrongful obtainment of an injunction and it does not in any way interfere with the principles regulating suits for damages for tort of malicious legal process.