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SERAJUDEEN v. ALLAGAPPA CHETTY
NLR21V428
1919.
Present: De Sampayo J. and Loos A.J.
SERAJUDEEN v. ALLAGAPPA CHETTY.
157-D. C. Nuwara Eliya, 452.
Action based on false allegation of partnership-Summons not served- Seizure of
goods-Action for damages for malicious institution of civil action and for
wrongful seizure of goods-Malice-Animus injuriandi.
The defendant sued on a promissory note granted to him by Sawanna Sina Abdul
Cader both Abdul Cader, the maker, and his brother, the plaintiff, falsely
alleging that they were partners, obtained judgment without service of summons
on the plaintiff, and seized his shop goods in execution.
The plaintiff on hearing of these proceedings took steps to get
the judgment set aside, and thereafter instituted this action for damages
for malicious institution of a civil action and for malicious
seizure of goods.
Held, that in the circumstances the defendant's conduct was malicious, and that
he was liable in damages.
Malice does not mean ill-will. It has the import of mala fides, on intention to
cause wrongful injury, or such reckless action that the party must be held
responsible for . the consequences. It is generally expressed as animus
injuriandi, but the intention need not be express.
THE
facts appear from the' judgment.
A. St. V. Jayawardene (with him Hayley and Sunderam), for defendant, appellant.
Bawa, K. C. (with him Bartholomeusz), for plaintiff, respondent.
October 15, 1019. DE SAMPAYO J.-
This is an action for damages for malicious institution of a civil action for an
alleged debt, and for malicious and wrongful seizure of property in execution of
a decree in the civil action. The plaintiff Serajudeen, is a trader at Nuwara
Eliya, carrying on business under the vilasam or initials of Sawanna Sina. The
defendant sued the plaintiff and his brother Mohamadu Abdul Cader in the action
No. 44,765 of the District Court of Colombo on a promissory note signed by
Mohamadu Abdul Cader with the said initials Sawanna Sina, alleging that the
plaintiff was a partner of Mohamadu Abdul Cader. The District Judge has found
that there was no such partnership, and there is no reason to disagree with him
on that point. The only facts which the defendant really had to go upon in
alleging the two men to be partners are that they were brothers and used the
same initials. The plaintiff says, and there is no evidence to the contrary that
the initials were those of their father's name, and were common to all the
brothers, including a third brother named Omer Abdul Cader. These facts could
not possibly have induced a belief in the defendant that the plaintiff and
Mohamadu Abdul Cader were partners. The defendant was apparently conscious of
this weakness, for he called as his witness his kanakapulle or manager, who
pretended that at the commencement of the defendant's dealing with Mohamadu
Abdul Cader the plaintiff had come and said that he was his partner, and asked
the defendant to deliver to Mohamadu Abdul Cader the goods represented by the
promissory note. This is manifestly false, and it must be taken that the
defendant had no knowledge that the plaintiff was partner of Mohamadu Abdul
Cader, and the allegation to that . effect on which he joined the plaintiff as
defendant in the action No. 44,765 was quite reckless. The proceedings in that
action throw a further sinister light on the defendant's conduct in regard to
the plaintiff. Both the plaintiff and his brother reside at Nuwara Eliya, and
had no residence in Colombo, but in the plaint and the affidavit filed with the
plaint it was falsely alleged that they were residents of Third Cross street,
Colombo. The summons purported to be served on them in Colombo, and on this
false return of service, for which the defendant or his agent was responsible, a
judgment by default was entered in the case. A writ was applied for and obtained
for execution of the judgment. The plaintiff's case is that, in pursuance of
