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1972 Supreme(P&H) 153
PUNJAB & HARYANA HIGH COURT
S.S.Sandhawalia and M.R.Sharma JJ.
Gian Singh
Versus
S.P.Batra
First Appeal No. 46 of 1970,
Decided On : MAY 26, 1972
In a suit for malicious prosecution, the plaintiff must prove that the defendant had no reasonable and probable cause for prosecuting him and that the defendant was actuated by malice.
Headnote:
MALICIOUS PROSECUTION - Ingredients - Reasonable and probable cause - Malice - Burden of proof - Transfer of property - Fraud - Jurisdiction of Court.
Fact of the Case:
The appellant filed a suit against the respondent for damages for malicious prosecution. The appellant alleged that the respondent had filed a false criminal complaint against him, resulting in his arrest and prosecution. The respondent claimed that he had reasonable and probable cause for filing the complaint and that he was not actuated by malice.
Finding of the Court:
The court held that the appellant had failed to prove that the respondent had no reasonable and probable cause for prosecuting him. The court also held that the appellant had failed to prove that the respondent was actuated by malice. The court dismissed the appeal.
Issues: 1. Whether the respondent had reasonable and probable cause for prosecuting the appellant? 2. Whether the respondent was actuated by malice?
Ratio Decidendi: 1. The burden of proving that the proceedings were initiated without any reasonable and probable cause lies on the plaintiff who seeks damages. 2. The existence of reasonable and probable cause has to be judged in relation to the prosecutor's state of mind at the time when he initiated the proceedings. 3. Malice means the presence of some improper and wrongful motive that is to say an intent to use the legal process in question for some other than its legally appointed and appropriate purpose.
Final Decision: The appeal was dismissed.
M.R.Sharma, J.
1. This first appellant arises out of the judgment and decree delivered by the Senior Subordinate Judge, Chandigarh, dated November 11, 1969. The facts giving rise to the controversy may briefly be stated as follows.
2. The respondent owned Plot No. 57-D in Sector 9-A, Chandigarh, which he wasted to sell. It appears that he wrote letter to his friend R. N. Chona in which it was mentioned that he intended to dispose of the above mentioned plot. Shri R. N. Chona contacted Messrs. P. L. Sahni and Co. Property Dealers, at Chandigarh, and discussed this matter with them. In the course of the discussion, the price of the plot was settled at Rs. 7,500/- and the said property Dealers handed over a crossed cheque for Rs. 500/- as advance against the sale price of this plot to Mr. Chona for being forwarded to the respondent. Mr. Chona sent this cheque to the respondent along with his letter dated the 4th of March, 1960. Some more letters were also exchanged between Mr. Chona and the respondent. The respondent wrote to Messrs. P. L. Sahni and Co., Property Dealers, on March 16, 1960, wherein he stated, that he had paid a sum of Rs. 6,862.25 as the price of the plot, that the dealers commission would be 2 per cent. only, that the costs involved in registration and transfer of plot will be paid by the purchaser, and that-
"In view of the time and the money involved in coming over to Chandigarh for the transaction it will be much appreciated that the transfer may be completed by the property dealers on my behalf on behalf on receipt of a letter of authority from me. He may kindly be requested to send me a pro forma to be filled up, and if necessary to be countersigned by a Magistrate."
It was also mentioned that if these terms and conditions were acceptable to the dealers, the respondent would have no objection to release the plot at the quoted price of Rs. 7,500/-. Messrs. P. L. Sahni and Co., Property Dealers while answering the queries made by the respondent, mentioned as follows in their letter dated March 19, 1960:-
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"(2) Since the site above said is not yet registered with the Government, it can be transferred to the purchaser party on affidavits executed on non-judicial stamp paper of Rs. 2/- by both the parties and the presence of the seller party is not absolutely necessary for effecting transfer. We will shortly be sending the affidavit of the transferor, i.e., Shri S. P. Batra, to you for his signature, attestation and return, for further necessary action here."
3. At this stage, the appellant, who retired as a Major in the Indian Army, approached the said property Dealers for getting a plot at Chandigarh. Messrs. P. L. Sahni & Co., suggested that he could purchase the plot belonging to the respondent in consideration for a sum of Rs. 7500/-. The appellant accepted the offer and paid a sum of Rs. 750/- as advanced to the said Property Dealers on March 21, 1960. On that very day, the said property Dealers sent two copies of the draft affidavit of transfer to be completed and sworn by the respondent and for returning the same to the property Dealers was not replied to by the respondent and for returning the same to the Property Dealers for effecting the transfer of the plot. This letter of the Property Dealers was not replied to by the respondent and on May 2, 1960, the property Dealers sent a fresh set of draft affidavits to be completed and sworn by the respondent. On May 15, 1960, the respondent wrote to the Property Dealers that he would be sending the completed draft affidavits in a few days. On May 20, 1960, the appellant paid a sum of Rs. 6,750/- as the balance of price and a sum of Rs. 150/- as the dealers commission to the said property Dealers.
By this time, it appears that the respondent was being offered some higher price for the plot and his wife vide her letter dated May 27, 1960, wrote to the Property Dealers that they should contact some party to purchase the plot at Rs. 8,000/- as the minimu
