In an action for malicious prosecution, the plaintiff must prove that the defendant acted with malice and without reasonable and probable cause.

Bhandari, J.

1. The short point for decision in the present case is whether the Court below was justified in dismissing the plaintiffs suit for damages for malicious prosecution on the ground that the prosecution was not inspired by malice and was not destitute of any reasonable or probable cause.

2. The parties to the litigation out of which this appeal has arisen are owners of two contiguous properties which were separated by a wall belonging to the defendant. On 19-9-1946 the defendant sent a registered notice to the plaintiff in which he complained that the plaintiff was endangering the safety of his wall by piling up bricks and other building materials against the wall and warned him that if his property sustained damage by reason of any act done by him, his agents or his labourers, the plaintiff would be held responsible for any loss that may be caused.

3. The plaintiff paid no heed to this notice and at 10 Oclock on the night of 4-10-1946 the wall came down all of a sudden causing a certain amount of damage to a printing press which a tenant of the defendant had set up near the wall. The defendant reported the matter to the Police on the following day and filed a regular complaint on 10-1-1947, in this complaint he alleged that both the plaintiff and his munim Mithan Lal had intentionally and mischievously piled up a large quantity of building material against the wall with the object of demolishing the wall and encroaching upon the land belonging to the defendant and that they had stolen the materials of the complainants wall and brought the same to their own use. It was accordingly prayed that action be taken against them under Sections 427 and 379, Penal Code. The trial Court came to the conclusion that the guilt had not been brought home to the accused beyond reasonable doubt and ordered their discharge under Section 253, Criminal P. C. This was on 31-7-1947.

4. On 13-11-1947 the plaintiff brought the present action for the recovery of a sum of Rs. 10,000/- by way of damages from the defendant on the ground that the latter had maliciously and without reasonable and probable cause brought a false complaint against him and his munim Mithan Lal. The trial Court dismissed the suit with costs and the plaintiff has accordingly come to this Court in appeal.

5. The essential ingredients of an action for damages for malicious prosecution are well known and well understood. A person who wishes to recover damages to person, property or reputation must establish that he sustained injury by reason of previous proceeding which was commenced or continued without reasonable and probable cause, but with malice, and which has terminated in favour of the plaintiff. These elements must all unite in order to produce liability. Reasonable and probable cause may be defined to mean reasonable grounds for suspicion supported lay circumstances sufficiently strong in themselves to warrant any ordinary prudent and cautious man in the belief that the person charged with the crime was probably guilty of the offence with which he is charged. There can be no reasonable and probable cause unless the defendant genuinely and honestly believed that the prosecution, or other proceeding complained of, was justifiable. 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. As pointed out by Cave, J., in --Brown v. Hawkes, (1891) 2 QB 718 at p. 722,

"malice in its widest and vaguest sense has been said to mean any wrong or indirect motive; and malice can be proved, either by showing what the motive was and that it was wrong, or by showing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor."

The co-existence of malice and want of probable cause is an essential prerequisite to the success of an action for malicious prosecution