A suit for damages for malicious prosecution is maintainable when civil proceedings are instituted without reasonable and probable cause, and the action amounts to abuse of process of Court.

Rajiv Sharma, J.

This regular second appeal is directed against the judgment and decree of the learned District Judge, Una, H.P. dated 27.09.2014, passed in Civil Appeal No.85 of 2014.

2. Key facts, necessary for the adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff) instituted a suit for recovery of Rs. 1,20,000/- alongwith interest @ 12% per annum as compensation against the appellants-defendants (hereinafter referred to as the defendants for the convenience sake). According to the plaintiff, he is a businessman and doing work of interior decorator at Chandigarh. Village Bathari is his native place. He visits his village occasionally. Defendant No. 2 Sudesh Kumari, without any locus standi had filed civil suit bearing No. 176/2002 against the plaintiff and his brother Sh. Pritam Dass. The plaintiff and his brother had engaged the counsel and faced trial for more than five years. The defendant No. 2 got the civil suit dismissed as withdrawn on 1.5.2007. The defendants also instituted civil suit bearing No. 25 of 2007 for permanent injunction against the plaintiff and his brother Sh. Pritam Dass. On 3.4.2007, the summons was served upon the plaintiff. The civil suit was also dismissed for non-prosecution on 17.11.2008. According to the plaintiff, he and his brother had been dragged into unnecessary litigation. They had to face the trial for more than six years. The plaintiff had purchased Kh. No. 2407/1 and 2408 through sale deed alongwith Tatima-Naksha and these khasra numbers were not the subject matter to be partitioned.

3. The suit was contested by the defendants. According to them, when the plaintiff started threatening to raise construction in the joint land, the civil suit was instituted. When the plaintiff again extended threats to raise construction, the defendant also was constrained to file civil suit No. 25 of 2007.

4. The replication was filed by the plaintiff. The learned Civil Judge (Jr. Divn.), II, Una, framed the issues on 5.8.2011. The learned Civil Judge (Jr. Divn.), II, Una, dismissed the suit on 9.9.2013. The plaintiff preferred an appeal before the learned District Judge, Una, against the judgment and decree dated 9.9.2013. The learned District Judge, Una allowed the appeal on 27.9.2014 and decreed the suit for recovery of Rs. 50,000/- as compensation for malicious prosecution. Hence, this regular second appeal.

5. Mr. Y.P. Sood, Advocate, for the defendants has vehemently argued that the learned District Judge, Una has misread and mis-appreciated Ext. PW-1/A, order dated 1.5.2007 and PW-1/B order dated 17.11.2008. According to him, the suits were never decided on merits.

6. I have heard the learned Advocate and gone through the judgments and records of the case carefully.

7. PW-1 Kewal Krishan has produced the record pertaining to Civil Suit No. 176/2002, RBT No. 422/08/07 as well as the copy of order dated 1.5.2007 Ext. PW-1/A and copy of order dated 17.11.2008 Ext. PW-1/B.

8. The plaintiff has appeared as PW-2. He has tendered the evidence by way of affidavit. He has reiterated the entire contents of the plaint. In his cross-examination, he deposed that he is doing business at Chandigarh for the last 40 years. He used to appear alongwith his counsel on each and every date of hearing. He denied that the previous suit was compromised between the parties.

9. DW-1 Mohan Lal has also led his evidence by way of affidavit. In his cross-examination, he testified that he is a Carpenter by profession. He is living at Chandigarh alongwith his family. He admitted that his wife has filed the civil suit against the plaintiff and his brother in the year 2002. His wife has no immoveable property at Village Bathari. According to him, his wife was his Power of Attorney. He denied that civil suit No. 176 of 2002 was instituted by his wife with malafide intention. Volunteered that the suit was withdrawn on 1.5.2007, as compromised.

10. It is duly proved fr