In a malicious prosecution case, the plaintiff must prove that the defendant had no reasonable or probable cause for the prosecution, but once the plaintiff succeeds in proving this, the burden shifts to the defendant to show that there was reasonable and probable cause.

GUMAN MAL LODHA, J.

( 1 ) WHERE Sarva Shri Joshi, Lodha and Mridul failed can any one expect that Dallu Dhakar would succeed?

( 2 ) WHEN three eminent members of Bar Council, two of whom are adorning this Bench and third one equally eminent, adjudicates that land in dispute had some similarity in shape and measurements with the land in earlier litigation, causing grave suspicion against conduct of Advocate, can it be held that Dallu Dhakar unwary illiterate simple villager is expected to possess third sense having more knowledge awareness than Sarva Shri Joshi. Lodha and Mridul. is the real controversy in this case.

( 3 ) MR. H. C. Rastogi. counsel for the appellant and plaintiff Satvakam Advocate wants me to hold that in spite of the above glaring speaking feature of the case, I must hold that Dallu had no reasonable and probable cause to complain against the Advocate, who was exonerated by the Bar Council on the "benefit of doubt" theory, as if this benefit also cannot be extended to the Door undefended Tiller.

( 4 ) THIS is a plaintiffs civil second appeal, who was successful in the trial Court, but was unsuccessful in the first appellate Court, in his effort to obtain damages for malicious prosecution against the villager, who has filed a complaint against him in the Bar Council of Rajas-than. Dallu. who was once defended by plaintiff-Satyakam, as an Advocate, became an adversary in second inning of litigation, where the plaintiff-Satvakam Advocate decided to appear against him. When Shri Dallu objected to this conduct of Satvakam Advocate by an application in the Court. Satvakam Advocate defended, himself, by saving that the land in dispute in the earlier suit and the present suit are different and therefore, he can very well opt to appear against his own client Dallu of the earlier litigation, as there is no bar in law.

( 5 ) SHOCKED by this behaviour of Shri Satvakam. Dallu knocked the door of Disciplinary Committee of the Bar Council to provide him protection. The committee of the Bar Council which was presided by Shri M. L. Joshi. the then member of the Bar Council who later on adomed the bench of this High Court and. associated with another important member. Shri S. K. Mal Lodha who also now adorns this bench of High Court, and the third member of, Shri M. Mridul found the conduct of Shri Dailu as plausible and attractive and held as under:-- "the argument being apparently plausible and attractive was given due consideration as there was some similarity in the shape of the land and the measurements of the lands in question. But on careful consideration looking to the dissimilarity of the boundary and want of cogent explanation it cannot be held that the land involved in the previous litigation was the same as in dispute between Girraj and the petitioner. At the best it is a case of grave suspicion but even the gravest suspicion cannot be sufficient to hold a person guilty in absence of evidence beyond any manner of doubt. "

( 6 ) AT the end of the order, the learned members of the Par Council decided to give benefit of doubt to Shri Sitvakam and dismissed the complaint as such, but did not allow any costs to Shri Satyakam. The relevant operative portion of the order reads as under:--

"the result is that we give benefit of doubt to the respondent and dismiss the complaint accordingly but without any order as to costs. "

( 7 ) ON 29th April, 1966 after getting benefit of doubt from the Bar Council. Satyakam, the Plaintiff, did not feel satisfied and fled the present suit on 14th April. 1967 for damages of Rupees 5,500.

( 8 ) PLAINTIFFs case was that Dallu has filed a complaint in the Bar without any reason and plausible cause and with malice. Dallu controverted the above allegations. The trial Court after framing of the issues and recording of the evidence, agreed with the plaintiff that the complaint in the Bar was without any reason and plausible cause but refused to grant damages of Rs. 5,500 and granted