' JAWWAD S. KHAWAJA, J.---The respondent has been served but none has appeared on her behalf despite service. She is, therefore, proceeded against ex parte.
2. The respondent had filed a suit against the petitioner/defendant to recover Rs,20,000 as damages for malicious prosecution. The case set up by the respondent/plaintiff was that the petitioner/defendant had filed an application before a Conciliation Court for the recovery of Rs,7,200 as arrears of rent with malicious intent. According to her, she had been dragged in this litigation for about two years and in the end the application filed, by the petitioner/defendant had been dismissed. The fact is that the petitioner had succeeded in the rent proceedings and pursuant thereto possession of the property had been delivered to him.
3. In order to prove malicious prosecution, it was necessary for the respondent/plaintiff to prove malice. From the contents of the order passed by the. Rent ' Controller in the litigation between the parties relating to the property, which was subject-matter before the Rent Controller, it does appear that even though the respondent/plaintiff had denied the relationship of. Landlord and tenant between herself and the petitioner,there was some basis for filing the ejectment proceedings. It, therefore, follows that there was basis for filing a suit to recover outstanding rent amounting to Rs,7,200:
4. The record also shows that the respondent/plaintiff had failed to prove malice through any evidence brought on record. The learned Appellate Court has also misdirected itself by holding that the respondent had suffered loss of reputation and had undergone mental and physical agony while resisting the ejectment proceedings against her and was, therefore, entitled to recover damages. It is to be noted that the respondent could have claimed costs in the ejectment proceedings but she, in fact, lost the said litigation and was, thus, not entitled to the same. In the circumstances, she could not have filed a separate suit for recovery of damages.
5. In the above circumstances, I am not left in any doubt that the learned Appellate Court exercised its jurisdiction with material irregularity while decreeing the respondent's suit. As a consequence, the appellate decree dated 5-10-1999 is set aside. Consequently, the decree of the learned trial Court dated 28-1-1992 dismissing the suit of the respondent/plaintiff stands restored.