Prosecution launched by Municipality.

This Second Appeal arises out of a suit for damages for malicious prosecution by the defeated plaintiff in both the lower Courts.

The respondents-defendants are respectively the Municipal Council, Palghat, the Commissioner of that municipality during the years 1943 to 1946 and a neighbour of the plaintiff. The learned District Munsif as well as the learned Subordinate Judge held that though the plaintiff was acquitted in the criminal proceedings the prosecution was not without reasonable and probable cause and was not actuated by any malice and also that the suit against the Commissioner was bad for want of notice under section 80 of the Code of Civil Procedure. The plaintiff has come up in Second Appeal against the decision of the lower appellate Court.

Both the plaintiff and the third defendant are owners of neighbouring compounds in each of which is situated a house with appurtenant gardens containing fruit trees and other trees. The plaintiff became the owner of one of the properties in 1937 whereas the third defendant purchased the other property in 1944. After his purchase the third defendant made certain improvements and extended the compound wall whereupon the plaintiff objected to the extension of the compound wall on the ground that such extension was an encroachment on her property. This has resulted in the plaintiff filing O.S. No. 334 of 1944 on the file of the District Munsif’s Court, Palghat, on 26th July, 1944, for an injunction restraining the third defendant from further building up the compound wall and for a mandatory injunction compelling the third defendant to pull down the wall already constructed. Then within a few days of the filing of the suit, the third defendant addressed a letter, Exhibit A-4, dated 20th November, 1944, to the Commissioner of the Palghat municipality, the second defendant in the suit now under appeal, stating that in the backyard of the plaintiff’s house on the eastern side there are two trees, one a jack tree and another a mango which are a source of nuisance especially in the season when the winds are blowing heavily. It was further stated that there are two. cocoanut trees in the plaintiff’s compound slanting towards the third defendant’s house and that there are also one or two margosa and other trees by the side of the compound of the third defendant. On account of the slanting position of the cocoanut trees and the branches cocoanuts fall and invariably cause damage to the third defendant’s building. For these reasons it was requested that the Commissioner should direct the house-owner (plaintiff) to abate the nuisance. It is the plaintiff’s case that this complaint was without reasonable and probable cause and was actuated by malice with the intention of stifling the suit O.S. No. 334 of 1944. On getting this complaint, the Commissioner inspected the locality on 14th March, 1945 and made an endorsement on the application that the overhanging leaves may be ordered to be removed. The plaintiff says that at the time of the inspection by the Commissioner she was not given any notice. In the intervening period there were several letters passing between the plaintiff and the municipality. On 22nd March, 1945, by Exhibit A-5 the plaintiff, was asked by the second defendant that since the two cocoanut trees and the overhanging branches of the other trees standing in her compound are a source of danger to the structure and the wall of her neighbour, the third defendant, the plaintiff was directed under sections 219(1) and 313(c) of the Madras District Municipalities Act to tie up the two cocoanut trees with ropes and also to cut away the overhanging branches of the margosa tree and other trees near the wall of the third defendant within seven days from the date of the receipt of that memo. To this memo. a reply was sent Exhibit A-6, dated 29th March, 1945, wherein the plaintiff remonstrated with the Commissioner and stated that the Commissioner did not give any opportunity to e