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ALLAHABAD HIGH COURT
Bhagwan Sahai - Appellant
Versus
Gopal Rai - Respondent
S.A. No. 1104 of 1921
Decided On : 08-12-1922
JUDGMENT
Gokul Prasad, J. - This is a plaintiff's appeal arising out of a suit for damages for malicious prosecution. The plaintiff's case is that the defendant filed a complaint against him u/s 342 of the Indian Penal Code, that the plaintiff was acquitted of that charge which was malicious and has now sued the defendant claiming Rs. 668 as damages. The defence taken was that the complaint was true and was not malicious. The first Court found that the complaint was malicious and without reasonable and probable cause and decreed Rs. 300 as damages. On appeal the lower appellate Court has, in a so-called judgment, come to the finding that the plaintiff has failed to discharge the burden of proof which lay very heavily upon him, and has allowed the appeal and dismissed the suit. The learned Munsif took a good deal of trouble in discussing the evidence adduced in this case and the probabilities of the case and came to the conclusion favourable to the plaintiff. The learned Judge has discussed two of the reasons given by the Munsif for coming to the conclusion at which he has arrived, namely, that the admitted enmity out both ways and was not conclusive on the question of truth or falsity of the complaint, and another reason given by the Munsif, namely, that the plaintiff's name was not mentioned in the first report. He has said that he does not agree with these reasons but he has not even attempted to consider the evidence so far as it appears from the judgment. A judgment like this that the plaintiff has failed to discharge the onus which lay on him might be a typical judgment which could be printed to any suit or appeal. In my opinion there has been no proper trial of the appeal. I therefore allow the appeal set aside the decree of the lower appellate Court and send the case back to that Court under Order 41, rule 23 for disposal according to law. Costs here and hitherto will abide the event.
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