District: Rajshahi
In the Court of the Senior Assistant
Judge, Mohonpur, Rajshahi
Present: - Md. Abdul Malek, Senior Assistant Judge
Other Class Suit No. 08/2016
Mr. Md. Alimuddin Mondal and others (Plaintiffs)
Versus
Mr. Md. Nawshad Ali Dewan (Defendant)
The suit’s trial ended and the argument is heard
In
the presence of
Mr............................………Learned
Advocate for the Plaintiff.
Mr.....................................Learned
Advocate for the Defendant.
And having stood for consideration to this
day, the Court delivered the following judgment:
This is a suit for damages
for malicious prosecutions.
The Plaint in the nutshell:
The plaintiffs are peaceful persons and members of a respectable family in their locality. The defendants filed a petition case in the Court of Additional District Magistrate, Rajshahi bearing No. 170 P/2016 (Mohonpur) under section 144 of the Code Criminal Procedure on 21.03 2016 mentioning a fabricated story along with some untrue, defamatory, and insulting words and statements. The plaintiffs contested the case submitting a written objection on 18.08.2016 denying all of the claims of the defendants and also stating that defendant filed the petition case intentionally to harass and defame the plaintiffs. The plaintiffs allege that the contents of the petition case No. 170 P/2016 (Mohonpur) under section 144 Of the Code of Criminal Procedure of the defendants are slag language and absolutely false, fabricated, unworthy, and defamatory statements, as well as the law, procedures, and definition of section 144 of the Code Criminal Procedure, do not appreciate the petition the defendants made against them. As a result, the plaintiffs could not pursue the ordinary movement before the people of the locality and suffered mental oppression for the insulting words used by the defendants openly to all against the plaintiffs. Accordingly, the plaintiffs underscore that they suffered from economic and financial loss due to this malicious and false implication brought against them. And, hence is the suit.
The Written Statement in the nutshell:
The Defendant contested the suit by denying the material averments made in the plaint. They contended, inter alia, that the Plaintiff lacks in locus standi, the impugned facts are fabricated, false and baseless, and the very suit is legally untenable, barred by limitation, and suffers from the defect of parties and cause of action. It is stated that the defendants filed a petition case in the Court of Additional District Magistrate, Rajshahi bearing No. 170 P/2016 (Mohonpur) under section 144 of the Code Criminal Procedure on 21.03 2016. An order for investigation was made and a report was submitted. The investigation report suggests that there was apprehension of breach of peace with respect to the scheduled lands of that petition. However, the petition case resulted in the disposal of on 05.09.2016. The defendant also stated in said petition case that the plaintiffs were troublemakers and cankerous persons, and their predecessor was also like them. And hence, the suit is liable to be dismissed with costs.
Issues:
The pleadings of the
parties are considered. As such, in order for determining the matters in
controversy, the already framed issues are reframed under Order 14 Rule 5 of
the 1908 Code of Civil Procedure in the following way:
1.
Whether the suit is
maintainable in the present form and manner.
2.
Whether there is causes of action for the suit.
3.
Whether the suit is
barred by limitation or defect of parties.
4.
Whether the plaintiffs
are entitled to damages for malicious prosecution.
5. Whether the plaintiff may get relief as prayed for.
Findings
and Decisions
In proof of the claims, the plaintiff examined 03 witnesses and produced for the court's inspection documentary pieces of evidence which are marked as Exhibit Nos. 1-4. Defendant also examined himself and produced documents marked as exhibit Ka. The argument of the learned advocates for both parties was heard.
Issue
No. 02 & 03:
Pleading is a statement of claims. For every cause of action or relief, there must have a foundation in the pleadings. The purpose of Pleadings is to pinpoint the matters of controversy between the contending parties to enable them to meet their respective claims. Moreover, every suit presupposes the existence of a cause of action because when there is no cause of action the plaint will have to be rejected. Even though the expression cause of action has not been defined in the Civil Procedure Code, it may be described as a bundle of essential facts that it is necessary for the plaintiff to prove before he can succeed. The classic definition of the said expression is found in the case of Cooke Vs. Gill (1873) 8CP107(116), wherein Lord Brett observed; “Cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court”. So, the court is required to consider the plaintiff's pleading in its entirety [vide BCR 2004 AD 138].
03. With regard to the instant suit, prayers or claims clearly
specified in the pleadings that the instant suit is for damages for malicious
prosecution [vide, averments relating to the cause of actions and relief
claims]. In the present suit plaintiffs asserted that the defendants have
prosecuted them without any reasonable cause by setting into motion false
criminal cases claiming damages for malicious prosecution which was denied by
the defendants' side vide the written statement. So, there exists a material proposition
of facts asserted by one party and denied by the other which shows that there
is the cause of action for the suit. Accordingly, there exists a cause of action for
the suit.
04. As this is a suit for malicious prosecution, as per article 23 of the 1908 Limitation Act, the period of limitation for a suit for compensation for malicious prosecution is one year and the period of limitation begins from the date when the plaintiff is acquitted or the prosecution is otherwise terminated. On perusal of the parties’ pleadings and pieces of evidence, it appears to the Court that, except averments made in pleadings, no party to the suit raised any point as to the fact that the suit is bad for parties, and there is no material on record to demonstrate the non-joinder of parties to the suit. Therefore, it gives the impression that, in absence of anything contrary to it, the cause of action of the suit arose on 05/09/2016 [ext.: 01] and the instant suit was instituted on 10/11/2016. Given the above propositions of law and facts, it is, therefore, held that the suit has been filed within the period prescribed in law. Hence, these issues are decided in favor of the Plaintiffs.
Issues No. 02 & 04:
In pleading, the
plaintiffs assert that the defendants filed a petition case in the
Court of Additional District Magistrate, Rajshahi bearing No. 170 P/2016
(Mohonpur) under section 144 of the Code Criminal Procedure on 21.03 2016
mentioning a fabricated story along with some untrue, defamatory and insulting
words and statements. The plaintiffs contested the case denying all of the claims
of the defendants stating that defendant maliciously filed the petition case
intentionally to harass and defame the plaintiffs. It is the plaintiffs’ case
that the contents of the petition case No. 170 P/2016 (Mohonpur) under section
144 Of the Code of Criminal Procedure of the defendants are absolutely false, fabricated,
unworthy, and defamatory statements, as well as the law, procedures, and
definition of section 144 of the Code Criminal Procedure do not appreciate
the petition the defendants made against them. As a result, the plaintiffs
could not pursue the ordinary movement before the people of the locality and
suffered mental oppression for the insulting words used by the defendants openly
to all against the plaintiffs. Accordingly, the plaintiffs underscore that they
suffered from economic and financial loss due to this malicious and false
implication brought against them.
6. In evidence, the PW-01 asserted the same proposition, and the PW 02-03 are found to be in support of the facts asserted by the PW-01 in his testimony. So, if the shreds of evidence produced by PWs 01-02 are closely considered, they are found to be mutually supportive. Pertinently, the defendant side made a cross-examination to the PW-01 as to those premises but nothing contradictory in terms of evidence is unearthed regarding the plaintiffs’ testimony. On the other hand, the defendant adduced evidence as DW-01 in ways that he admitted the veracity of the plaintiff's claims that he (defendant) instituted the prosecution in question with untrue allegations against the plaintiffs (DW-01). Therefore, the court holds that the defendant’s admission as to the plaintiffs’ claims for the defamatory statement made in the prosecution in question is proved and established by the adduced oral testimony in this regard.
07. Now consider the
relevant laws dealing with the facts established here. It is also germane to
reiterate that malicious prosecution is a tort, the liability of which consists
in improperly instituting unsuccessful criminal proceedings for an improper purpose
and without reasonable and probable cause: a prosecution is one that is begun
in malice without probable cause to believe it can succeed and finally ends in
failure. In a suit for damages for malicious prosecution the plaintiff has to
prove 1) that the defendant has prosecuted the plaintiff, i.e., instituted
criminal proceedings or certain other proceedings reflecting upon the
plaintiff’s honor or character; 2) that the prosecution has ended in favor of
the plaintiff; 3) that the defendant has prosecuted without reasonable and
probable cause; 4) that the defendant in prosecuting was actuated by malice
i.e., an indirect and improper motive; and 5) that the plaintiff when the
proceedings are other than criminal proceedings has suffered special damage unless
the proceedings are such as from their very nature are calculated to injure the
credit or honor of the plaintiff. It is the law that if any one of these
elements is lacking the result is fatal to the action.
08. On perusal of the
documentary piece of pieces of evidence [ext.: 01-04], it vividly appears that the
proceeding in question was criminal prosecution by the defendant in an
executive forum under the provision of section 144 of the 1898 Code of Criminal
Procedure. Although this proceeding was related to disputes that arise out of land disputes, which fall under the provision of section 145, the plea of being
a quasi-civil or criminal proceeding does not hold water in this respect. It
also transpires that the termination of that proceeding goes in the favor of
the plaintiff, that is to say, the defendant had not been able to obtain a
prohibitory or restraining order in his favor. The question of whether the defendant
instituted that prosecution in absence of reasonable and probable cause and
thus, acted maliciously is also conspicuous on the materials on record. The
question of reasonableness and probable cause, for the prosecution, is an
independent question and should not be regarded as finally answered in the respondent’s favor. So, the plaintiff must give some evidence showing the
absence of probable cause [vide Cotton Vs.James (1830)109 E.R.735]. Besides, in
an action for malicious prosecution, the burden of proof, in the first instance,
lies on the plaintiff.
09. Now, consider the documentary shreds of evidence adduced by the parties to the suit in this respect. In the given case in hand, it is not disputed that the first two ingredients are made out in as much as the plaintiffs were indeed prosecuted by the defendants and the proceedings complained of were terminated in favor of the plaintiffs. Thus, the moot point of the dispute seems to be whether the plaintiffs have been able and successful to establish that they were prosecuted without any reasonable and probable cause and whether the action of the defendants in initiating such proceedings was malicious. Although the defendant tries to justify the reasons for initiating the proceeding against the plaintiffs, he has not been able to substantiate this with convincing evidence. In Court’s opinion, the existence of malice was amply established by the plaintiff. As a result, in considering the aforesaid aspects relating to the bone of contentions that it becomes decisive that the plaintiffs were prosecuted without any reasonable and probable cause and that the action of the defendants in initiating such proceedings was malicious.
10. It is then high
time to look into whether the Plaintiffs suffered damage as a result of the prosecution
in question. It is also well settled that in an action for damages on account
of malicious prosecution, a judgment of the criminal court is not admissible in
evidence except for the purpose of finding out whether or not the decision in
the criminal case was in the favour of the plaintiff. In other words, it is not
that the judgment of the Criminal Court has to be ignored altogether. It is
only not to be relied upon as conclusive for deciding the civil suit for
malicious prosecution. The civil Court has to go into the matter on the basis
of evidence adduced before it in the civil suit independently of the view
expressed by the Criminal Court. The sense in which it is said that the
Criminal Court judgment is not admissible in evidence is that apart from the
fact of the result of the judgment of the Criminal Court, namely, termination
in favor of the accused persons, the observations of the Criminal Court or the
reasons on which the acquittal is based is not to be accepted as conclusive.
Therefore, no reliance can be independently placed upon the certified copy of
the relevant judgment pronounced by the Criminal Court so as to arrive at the
conclusion that mere acquittal in a criminal case will not give the right to the
applicants to claim the damages for malicious prosecution.
11. In fact, damages
are compensation to vindicate the stand of the aggrieved person and to hold
that there was no substance in the allegations leveled against a person. The
illegal and wrongful prosecution in absence of specific proof of good faith,
would definitely fall within the purview of malicious prosecution and mental
torture was the natural consequence, therefore, the petitioner would also be
entitled to reasonable compensation for loss of profit and mental torture.
There is no denying that where a person of good reputation for his honesty,
integrity, and efficiency suffered malicious criminal prosecution that not only
caused him mental and physical torture but also proved a big jolt to his
reputation; then, such a person was justified in feeling aggrieved of injury caused
to his good reputation and damages were awarded to him for such defamation.
12. The quantum of the damages has to be proved clearly. Cogent and convincing material has to be placed on record to establish the actual losses. Remote and hypothetical damages cannot be measured in monetary terms, and hence cannot be granted. Accordingly, it is safe to hold that the plaintiff’s whole amount of damages as prayed for has not been proved with credible and weighty evidence; but, it appears to be assumable to calculate by taking into consideration of the attributes of the prosecution in question. Thus, the plaintiffs established that they suffered damage and injury. And their reputation was tarnished and he also suffered from mental disturbance. So, they have been able to clearly make out a case for award of damages. Considering the facts and circumstances and attributes of the suit, the court is satisfied to quantify the compensation payable to the plaintiff at Tk. 40,000.
In dispelling
ambiguity, it is also pertinent to mention that it is not necessary to enter
into a detailed discussion of the question of the onus. The reason is simple: the
whole fabric of the evidential edifice is before the court; which finds no
difficulty in arriving at a conclusion with regard to the issues in discussion.
So, in considering the aforesaid facts, relevant laws, and corroborative
evidence as well as encompassing conditions, it appears to the court that this
issue is settled in the plaintiff’s favor.
Issue No. 1 and 4:
These issues are taken together in discussing the matter in the suit for brevity, convenience, and correlation. These issues are certainly crucial in point of laws and facts for being related to the questions of the maintainability and eligibility for getting relief sought in the plaint. On perusal of the suit materials, the court is of the opinion that the plaintiffs have proved on their own strength with credible pieces of evidence that the defendant maliciously instituted the petition case No. 170/2016 against the plaintiffs with false implications and without probable and reasonable cause, by which the plaintiffs suffered the damage as a result of that prosecution.
Since the suit is not otherwise barred in laws and this is a competent court to grant relief as prayed for in this suit for damages for malicious prosecution, the court finds no reason to hold that the instant suit is hit by the mischief of any exception. As such, because of all of the issues discussed above, proven facts, and legal parlance, it is thus held that the plaintiffs have met all the requisites of malicious prosecution in getting relief as prayed for “in part”. The instant suit is therefore found to be maintainable in the present form and manner and thus, the plaintiffs are adjudged to be entitled to get relief in part. And thus, it is decided that the suit deserves to be decreed in part on the contest.
The court fee paid is sufficient.
Hence,
it is ordered
that the suit be decreed in part on contest against the defendant with costs. It is thus ordered that compensation shall be payable to the plaintiffs at Tk. 45,000 with simple interest at the rate of 6% per annum from the date of this decree till the realization of the whole amount. The defendant is ordered to pay such damages to the plaintiffs within 30 days, failing which, the plaintiffs may take steps in accordance with the law.
(Composed and corrected by me)