Modi, J.—This is yet another case of the type with which I have had to deal recently wherein the appeal must be allowed on the short ground that the judgment produced by the learned Judge of the first appellate court is not at all a judgment in accordance with law.

2. The appeal arises out of a suit for malicious prosecution. It appears that there was some election in village Dalai, and that was the cause of bad blood between the plaintiff Dhanraj and his associates on the one hand and Hirachand defendant on the other. On the 14th June, 1956, the defendant lodged a complaint against the plaintiff and thirteen other persons in the court of the Sub-Divisional Magistrate, Jalore, for offences under sec. 452, 323 and 147 of the Indian Penal Code on the allegations that there was considerable bad blood between the parties, and that on the 12th June, 1956, at about 8 or 9 P.M. when the defendant was sleeping in his Pol, all the accused including the plaintiff came in a body and entered into the Pol, that they were all armed with lathis and were actuated by a common intention to beat him, that out of the plaintiffs party, two persons, namely, the plaintiff and one other person Bhagwana beat him with lathis as a result of which he fell down and that thereafter all the accused further beat him with slaps and kicks at which on an outcry having been raised some neighbours came on the scene and saved the defendant. The plaintiffs case further was that after seeking several adjournments in the court of the Magistrate,the defendant made an application on the 15th April, 1957, for withdrawing the complaint. In this application it was mentioned that his witnesses had become hostile and that he had no hope of their deposing the true facts of the case, and, therefore, he was compelled to give them up and there was no other evidence, and so the complaint be dismissed and the accused discharged. The Magistrate discharged the plaintiff and the other accused on the same date accordingly. Thereafter the plaintiff filed the present suit in court of the Munsiff Jalore on the 9th April, 1958, for damages for malicious prosecution. His case was that the defendant had filed the complaint against him falsely and maliciously and without any reasonable and probable cause, and he prayed for an award of damages amounting to Rs. 1100/- to him out of which Rs. 168/4/- were claimed as special damages and the balance of Rs. 933/12/- (the actual amount comes to Rs. 931/12/- only) as general damages.

3. The defendant resisted the suit. He denied that the complaint filed by him against the plaintiff and his associates was either false or malicious or without any reasonable or probable cause and contended that it was true. He also pleaded that the claim for damages was extravagant.

4. It was found by the trial court that the plaintiff had failed to establish that his prosecution by the defendant was either malicious or without any reasonable or probable cause, and in that view of the matter it dismissed the plaintiffs suit. The plaintiff then went up in appeal to the Senior Civil Judge, Jalore, who also concurred in the decision of the trial court. Aggrieved by this decision, he has now come up in second appeal to this Court.

5. Now it seems to have been urged before the learned Judge of the first appellate court that even though the burden of establishing that the complaint lodged by the defendant against the plaintiff was lodged maliciously, and without reasonable and probable cause and knowing it to be false, was rightly placed on the plaintiff, yet that burden was sufficiently discharged by the plaintiff by filing a copy of the judgment of the criminal court by which he was discharged, as it was a case where the prosecutor must necessarily know whether his accusation against the accused was true or false, and that in this class of cases the production by the plaintiff of the judgment in the criminal case was sufficient to discharge the burden of proving want of reaso

Click Here to Read the rest of this document