Indian law allows for exemplary damages in cases of malicious prosecution and malicious house search, and exemplary damages are consolatory rather than penal, resting upon the principle that where there is malice, the mental pain caused to the plaintiff must be taken note of and a solatium awarded for it.

Chandrasekhara Aiyar, J.

1. This second appeal has been preferred by the plaintiffs against a reduction made by the District Judge in the amount of damages awarded to them by the Subordinate Judge in an action for damages for malicious prosecution and malicious house search. The correctness of the principle applied by the learned District Judge in reducing the amount is challenged by the appellants.

2. There is a memorandum of objections preferred by the first defendant to the effect that no damages ought to have been awarded at all and that, in any event, no damages could be allowed for the house search, as there is no such tort known to law.

3. Both the lower Courts have found that the prosecution and the search were malicious, that the plaintiffs are wealthy and respectable people and that the second plaintiff was a purdhanashin lady. The Subordinate Judge held that the first defendant moved the Magistrate for a search warrant and prosecuted the plaintiffs with intent to dishonour them and that he did so because of a longstanding enmity which impelled him to wreak his private vengeance. So he took the view that the case called for the award of exemplary damages, which he fixed at Rs. 2,000. But the learned District Judge allowed only Rs. 750 instead, Rs. 500 as damages for malicious prosecution and Rs. 250 as damages for malicious house search. He held that the long-standing strained relations between the parties justified the non-award of exemplary damages. While the Subordinate Judge decreed the plaintiffs costs in full, the District Judge ordered proportionate costs of the suit and in appeal.

4. Taking the memorandum of objections first, it was contended that the award of exemplary damages was not known to Indian law and that our Courts have set their faces against it. The decisions in Parvathi v. Mannar I.L.R.(1884)Mad. 175, and Maganatha Sastri v. Subramania Iyer AIR1918Mad700 were quoted in support of this position. Parvathi v. Mannar (1931) 62 M.L.J. 107 is a case of vindictive damages, which is different from exemplary damages. As pointed out in-Clerk and Lindsell on Torts, 9th Edition, at page 119, exemplary damages are consolatory rather than penal, resting upon the principle that where there is malice, the mental pain caused to the plaintiff must be taken note of and a solatium awarded for it. In Naganatha Sastri v. Subramania Iyer (1931) 62 M.L.J. 107 the plaintiff brought a suit for defamation and left the question of damages in the hands of the Court. The Subordinate Judge awarded only nominal damages under the circumstances. Sadasiva Iyer, J., expressed the opinion that the plaintiff would have been better advised if he had treated the whole matter even in the beginning with indifference and that he should not have pursued the matter in the appellate Court after he had obtained a judgment in the first Court, or filed a second appeal Alter having said all this he noticed an argument addressed by Mr. T. Rangachariar that penal and exemplary damages ought to be awarded in such cases and dismissed it with this remark:

I shall content myself with observing that the whole doctrine of penaland exemplary dammages is due to the illegitimate encroachment of the considerations of punishment by fine criminal jurisprudence into the realms of avil litigation and I wholly deprecate the introduction of such complications of the English system into India.

5. The facts stated, clearly show that this observation of the learned Judge was purely obiter.

6. The award of exemplary damages in cases where the defendant has acted contumeliously is sanctioned not only by English law but also by decisions of this Court applying the Indian law. For instance, in Venkatappayya v. Ramakrishnamma (1931) 62 M.L.J. 107, Venkatasubba Rao and Pakenham, Walsh, JJ., gave exemplary damages in a case of malicious prosecution and raised the amount from Rs. 500 fixed by the lower Court to Rs 1,500 fixed by themselves as adequate in the circumstances