JUDGMENT

1. This appeal is against a decree of the learned District judge of Banares upholding a decree of the Additional Subordinate Judge dismissing a suit for damages for malicious prosecution. The defendant-respondent made a report at a Police Station to the effect that certain parsons had committed a riot and had assaulted him, being directed to do so by the plaintiffs-appellants. The Additional Subordinate Judge found that the witnesses for the plaintiffs who deposed that no such riot as that described in the report has been committed, were not worthy of credit. He found that the witnesses for the defendant who deposed that such riot had taken place ware worthy of credit and he dismissed the suit for damages for malicious prosecution on the clear finding that the complaint made by the defendant was in fact true, He took a completely different view to the view taken by the Criminal Court which had found that the complaint was not substantiated.

2. The learned District Judge would have been better advised to have confined himself to the point to which the Additional Subordinate Judge had directed his attention. The view that he took must, however, be supported. It is as follows: He decided that inasmuch as the evidence produced by the appellants was unworthy of belief their suit could not succeed. They set put to prove a special sate that nothing of any kind had happened as alleged in the plaint. They undoubtedly are found by the learned District Judge to have failed to prove that case.

3. In appeal it has been argued that all that the appellants had to do for the purpose of proving the falsity of the accusation was to put in the judgment of the Criminal Court which terminated in their acquittal. We do not, however, accept this view. In the words of Bowen, L.J. in Abrath v. North Eastern Railway Company (1883) 11 Q.B.D. 440 at p. 455 : 52 L.J.Q.B. 620 : 49 L.T. 618 : 32 W.R. 60 : 47 J.P. 692: In an action for malicious prosecution the plaintiff has to prove first that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made."

4. In any circumstances, we cannot disturb the finding of the learned District Judge, We accept his view that in the circumstances of this particular case the plaintiffs had failed to surmount their first obstacle inasmuch as the evidence which they produced in support of their case was unworthy of belief and did not establish their innocence. We would, therefore, dismiss this appeal with costs including fees on the higher scale.