1996 Supreme(MP) 1177

IN THE HIGH COURT OF MADHYA PRADESH
S.K. DUBEY, SHAMBHOO SINGH, JJ.
Mevalal – Appellant
Vs.
State of M.P. – Respondent
MA. No. 492 of 1988 (J)
Decided on : 24-02-1996

Headnote:Tort – – suit for recovery of damages on account of malicious prosecution – plaintiff – failing to prove as to whether prosecution remained unsuccessful – – suit is premature – – deserves to be dismissed.

        Short Note

       1. The appellant is the plaintiff who instituted the suit for malicious prosecution against the respondent and claimed damages of Rs.1,27,000/ – on the averments that the plaintiff holds a licence to operate his saw mill in Guru Chouraha locality of Rewa over the Government land with the due permission. Because of the personal ill – will of respondent No.4 with the father of the defendant in connection with the demand of Rs. 200/ – the loan amount taken by defendant No.4 he threatened the appellant to suffer the consequences. When on 30.11.1983 the plaintiff was out of station, the defendant No.4 along with defendant No.3 and 5 came to the premises of the saw mill of the plaintiff, seized 3 bogie load of teak wood stocked therein, of which a seizure memo was prepared. They also seized the saw mill of the plaintiff, which was allowed to be operated by the order dated 28.8.1985, passed by the defendant No.2 in the proceedings initiated under section 52 of the Forest Act. During the pendency of the proceedings of confiscation, the plaintiff instituted the suit against the respondent for the recovery of damages, which the plaintiff suffered for illegal closure of the saw mill. The trial Court dismissed the suit of the plaintiff as premature as it did not give any cause to the plaintiff till the culmination of the proceedings in his favour. Against the said judgment and decree passed in Civil Suit No.78 of 1987 decided on 1st August, 1988 by the District Judge, Rewa this appeal has been filed by the plaintiff.

       2. Learned counsel for the appellant submitted that from the plaint allegations the malice is apparent, hence, the suit for malicious prosecution was maintainable. Therefore, the trial Court committed an error in dismissing the suit.

       3. After hearing the counsel and on going through the record of the case we are of the opinion that this appeal has no merit. In order to succeed in the malicious prosecution four conditions are to be fulfilled, namely, (i) that the proceedings must have been instituted or continued by the defendant; (ii) that he must have acted without reasonable or probable cause; (iii) that he must have acted maliciously; and (iv) that the prosecution has been unsuccessful, that is, must have been terminated in favour of the plaintiff. See, the decision of Patna High Court in the case of State of Bihar v. Rameshwar (AIR 1980 Pat. 267).

       4. Admittedly in the present case, the plaintiff/appellant instituted the suit before the termination of the proceedings in his favour. Even during the course of hearing, learned counsel for the appellant could not point out the result of the prosecution or the action taken under the provisions of Forest Act. True, an action for damages may lie when rightful owner is kept out to use his property because of malicious prosecution but to succeed in that a plaintiff has to discharge the burden by establishing that the prosecution or the proceedings instituted by the defendant were without reasonable and probable cause and the defendant has acted maliciously; in that the prosecution remained unsuccessful and terminated in favour of the plaintiff. As the plaintiff failed to plead that the prosecution remained unsuccessful, the suit was rightly held to be premature as no cause of action arose till the proceedings instituted under the provisions of the Forest Act terminated in favour of the plaintiff.

       5. Accordingly, this appeal has no merit and is dismissed with no order as to costs.