JUDGMENT

1. This is a first appeal by Abdul Shakur whose suit for damages for malicious prosecution against Lipton and Company, Calcutta, has been dismissed by the Subordinate Judge, Lahore.

2. The appellant is a general merchant of Lahore, and, up to the 31st December 1914, was under agreement with Liptons' not to sell their tea below certain rates. From the 1st January 1915 he commenced to undersell the other local merchants, who remained bound by the agreement. The result was protests on the part of the other merchants and correspondence between Liptons' and their Lahore Agent, a man named Lajpat Ram, about the best means of pacifying them. This correspondence shows that Liptons' wished at the same time to raise the prices of their various brands of tea, and that the Lahore merchants in February 1915 accepted an enhancement of two annas per pound tin of the yellow and blue label brand and one anna per tin of the red label brand, bringing the rates at which Liptons' teas were to be sold in Lahore upto Be. 1-4-0, Re. 1-2-0 and 0-14-0 per tin. Meanwhile, a price list issued by the appellant Abdul Shakur on 1st February advertised Liptons' yellow label tea at 0-15-0 per tin, blue label at 0-13-0 per tin and red label at Re. 0-10-0 per tin. As a counter stroke Liptons' advertised by hand-bills, posters and in the press a warning to the public that certain merchants in Lahore were holding old stocks of tea which they were trying to foist on the consumers at reduced rates, and inviting purchasers to insist upon being suplied with tins labelled "Packed in 1915." A considerable number of special labels were sent from Calcutta by Liptons' to Lajpat Ram for the purpose of being affixed to tins which had been received by retail vendors in 1915 and had left the Calcutta warehouse before the system of special labelling had been started there. Simultaneously, according to Mr. New by, witness, for the defendants in this case, who was Liptons' Calcutta Manager at the time, Lajpat Ram was instructed to invite the Lahore shopkeepers to return the remainder of their 1914 stocks to Calcutta, and to receive fresh tea in exchange. Whether these instructions were actually given or not is a point in dispute, and no letter conveying them has been forthcoming, but it has been provel that tea tinned in Calcutta as far back as March 1914 was labelled in a Lahore shop as packed in 1915.

3. The next thing that happened was, that tins of Liptons' tea were exposed for sale by Abdul Shakur in his shop labelled: This was despatched by Messrs, Lipons' Limited, Calcutta, on 22nd December 1914 and received here on 4th January 1915. Guaranteed good. If not good return with the pelative cash memo, and the price raid will be returned."

4. Lajpat Ram reported this to Liptons and informed them that Abdul Shakur was so labelling tea which he had received from Calcutta in 191.4. Liprons' were indignant, expressed their intention of taking legal proceedings against Abdul Shakur, and directed Lajpat Ram to secure as many of Abdul Shakur's labelled tins as possible, and send them down to Calcutta for examination.

5. Lajpat Ram obtained and sent some tins, the exact number of which has not been elicited. Liptons' consulted their Solicitors in Calcutta, who communicated with Mr. Broadway, Advocate, in Lahore. Lajpat Ram was instructed to see Mr. Broadway and to place at his disposal all his information on the matter. As a result, a complaint was drawn up by Mr. Broadway, charging Abdul Shakur with offences, under Sections 487, and 488, Indian Penal Code, in that he had affixed the labels described above to tins of tea supplied to him before 22nd December and had sold goods in receptacles bearing false marks. The complaint was presented in Court on the 9th April 1915 by Mr. S.H. Andrews an employee of Liptons', who had been sent up from Calcutta for the purpose and was accompanied by six tins of tea bearing Abdul Shakur's labels, which Mir. Andrews swore in his examination as co