The main legal point established is that the action for malicious prosecution can be based on the institution of civil proceedings under Section 144 of the Criminal Procedure Code, and the burden of proof lies upon the plaintiffs to show absence of reasonable and probable cause and the presence of malice.

Wadsworth, J.

1. The appellants were defendants in a suit for damages for malicious prosecution arising out of an application which they preferred to the Magistrate against the plaintiffs and others praying the Magistrate to take proceedings under Section 144 of the Criminal Procedure Code.

2. The trouble arose out of a dispute between two sections of Sengundars with reference to the conduct of a festival managed by their community in the village temple. The appellants belong to the minority faction, which, owing to dissensions, had refused to pay its subscriptions to the funds out of which the festival is financed. As a consequence of this refusal, the majority faction, represented by the plaintiffs in this case, refused to allow the appellants party certain privileges at the festival. The one with which we are now concerned was the privilege of making an offering known as Deeparadhana before the God, and having it returned intact after it had been offered. Although the appellants asserted before the Magistrate that their offerings had been refused, the whole grievance appears to have been that they were not allowed to get back their offerings intact as they thought they should be allowed. The complaint to the Magistrate, Ex. VI, describes the history of the quarrel, states that the respondents were preventing the petitioners from participating in the Deeparadhana as per mamool and that the continuance of the festival in view of this dispute is likely to involve serious breach of the peace; the petitioners therefore pray the Magistrate either to direct the majority faction and the Gurukkal to give the petitioners the customary facilities for Deeparadhana, or to prevent the conduct of the festival in the absence of such facilities. The Magistrate apparently went to the village on the same day; the respondents to the petition asked time to file their objections; consequently, on that same day, an order was issued (Ex. E) temporarily prohibiting the festival. On the 10th, that is to say, three days later, both parties presented an adjournment petition with a view to compromise. On the 13th, the Magistrate passed orders referring to the admissions regarding the customary levy of contributions, stating that though the respondents might not be justified in enforcing the payment by refusing Deeparadhana, there was no necessity to prevent the conduct of the rest of the festival in view of the undertaking of the respondents that it should be peaceful and of the arrangements made for a police guard. After this order the festival was concluded.

3. There were two other suits filed by the appellants, one relating to their rights in the Kappukattu ceremony with which we are not now concerned and the other relating to the rights in the Deeparadhana ceremony. The appellants succeeded in all the suits in the trial Court and in all the suits failed before the lower appellate Court. I have passed orders dismissing the second appeals from the decisions in the two connected suits mainly on the ground that they relate to matters of ritual outside the jurisdiction of the Civil Court.

4. In the present second appeal, various contentions have been raised; firstly, it has been contended that there was no prosecution properly speaking and therefore that no suit for damages for malicious prosecution can lie. Now, with reference to this contention, it cannot, I think, be denied that a suit for damages for malicious prosecution can be based on the institution of proceedings under Section 144 of the Criminal Procedure Code, provided that the necessary facts are established. So much has been laid down by this Court in Appala Narasimhulu v. Mahant Hari Narayana Das Bavaji (1900) 11 M.L.J. 122 and it seeme to me that the view taken by the Bench which decided that case is one which necessarily follows from the principles upon which the action for malicious prosecution is based. These have been succinctly-stated in the case of Wiffen v. Bailey (1915) 1 K.B.