' SYED SAJJAD HASSAN SHAH, J.--- This revision petition under section 115, C.P.C. Calls in question the judgment and decree dated 26-7-2007 passed by learned Additional District Judge, Karak, whereby the appeal filed by the respondent-defendant was accepted, the judgment and decree of learned trial Court was set aside and the suit of the petitioners-plaintiffs was dismissed.
2. Briefly stated facts are that the petitioners-plaintiffs filed a suit against the respondent- defendant for recovery of Rs,3,00,000 as compensation/damages on account of institution of a civil suit against them by the respondent-defendant, on the grounds that the same was false, illegal and without any entitlement.
3. The respondent-defendant contested the suit by filing his written statement. The learned trial Court framed issues arising out of divergent pleas of the parties. The parties produced their respective evidence as they wished to adduce. After hearing the arguments, the learned trial Court decreed the suit in favour of the petitioners-plaintiffs Muhammad Rafique and Nasrullah to the extent of Rs,43,000 each.
4. Feeling aggrieved, the respondent-defendant assailed the judgment and decree of the learned trial Court by filing an appeal which was accepted, the impugned judgment and decree of the learned trial Court was set aside and suit of the petitioners-plaintiffs was dismissed. Hence, the instant revision petition by the petitioners-plaintiffs.
5. The learned counsel for the petitioners contended that the learned appellate Court failed to advert to legal aspect of the case, thus, fell in error and decided the matter illegally and unlawfully.
He further contended that it was the prime duty of the learned appellate Court to have discussed the entire evidence available on record, as being the Court of appeal is the first Court of law and final Court of facts. The judgment and decree of the learned appellate Court is erroneous and has been passed in sheer violation of law which is liable to be set aside.
6. As against that, the learned counsel for the respondent-defendant supported the judgment and decree passed by the learned appellate Court and contended that the petitioners-plaintiffs failed to prove their case in accordance with the requirement of law. He further contended that the petitioners-plaintiffs have not produced the evidence in support of their claim. The learned trial Court grossly erred in passing the decree in favour of the petitioners-plaintiffs. Moreso, no reasoning has been given in support of its judgment and decree. The petitioners-plaintiffs failed to point out any illegality or irregularity committed by the learned appellate Court while deciding the appeal.
7. I have considered the submissions of learned counsel for the parties and carefully scrutinized the record.
8. The instant suit has been filed by the petitioners-plaintiffs against the respondent-defendant seeking the recovery of compensation/ damages on account of litigation regarding mental agonies, defamation and monetary loss instituted by the respondent-defendant against the petitioners-plaintiffs. Suit No,102/1 of 1991 was filed by the respondent-defendant against the petitioners-plaintiffs on 23-2-1991.
9. During the pendency of suit, an application for rejection of plaint was filed under Order VII Rule 11, C.P.C. The learned trial Court rejected the application. The petitioners-plaintiffs filed revision petition assailing the judgment and order of the learned trial Court. The petition was fixed for arguments before the learned District Judge on 21-5-1997. The respondent-defendant moved an application for withdrawal of the suit with permission to bring fresh one on the ground that the suit is suffering from formal defect. The learned District Judge heard both the parties and permitted the withdrawal of suit with permission to bring fresh suit on payment of cost as Rs,500. Here it is important to note that the present petitioners-plaintiffs have not sought further remedy against the withdrawal with permission to file fresh suit. Had the previous suit been false or the respondent- defendant had no cause of action or the same was the result of any mala fide, the petitioners- plaintiffs would have sought further remedy for setting-aside the order for withdrawal of the suit with permission to file fresh one. The silence on the part of petitioners-plaintiffs vividly shows that they were not sure that the suit of the respondent-defendant was without any substance, rhyme and reason or the result of ulterior motive or he had no cause of action to file the suit, as such, the respondent-defendant was given the safe passage by the petitioners-plaintiffs to file the fresh suit.
It appears from their conduct that they were satisfied with the judgment and order passed by the learned District Judge.
10. Pursuant to that order, the respondent- defendant filed a fresh suit No,26/1 on 16-7-1997. The petitioners-plaintiffs filed an application seeking the rejection of the plaint. The learned trial Court accepted the application and rejected the plaint of subsequent suit filed on the same cause of action, vide order dated 2-9-1999. Notwithstanding that the learned trial Court without providing ample opportunity to both the parties to substantiate their claims by leading evidence of their own choice, entertained the application under Order VII Rule 11, C.P.C. And decided the same in view of the following reasons:- "Perusal of the file shows that the plaintiffs Nos.4 to 8 were directed to be produced in Court.
However, on the very next day, counsel for the plaintiff submitted an application praying therein that the above mentioned plaintiffs be transposed to the column of defendants and by doing so the plaintiff's mala fide, in filing the instant suit became evident.
' Hence in the light of the above discussion, the plaint is rejected."
' The perusal of the above referred order transpires about anxiety of the learned trial Court that the direction for appearance of plaintiffs Nos.4 to 8 was nth. Complied with, however, the application was made that the said plaintiffs may be transposed and arrayed as defendants in the suit. This aspect of the case was considered as proof of mala fide on the part of respondent-defendant.
11. Even the above cited finding does not fall within the ambit of Order VII, Rule 11, C.P.C., because the plaint is rejected where the suit appears from the statement in plaint to be barred by any law or the direction of Court for correction of valuation and making up the deficiency within the specified time has not been complied with. Since the question of mala fide is a question of fact, therefore, without recording the evidence, no finding can be rendered about the controversial question of mala fide. Thus, the matter has not been decided on its merits. The reasons given by the learned trial Court require the proof as to whether any of the plaintiffs has expired or the respondent- defendant cannot seek the permission of the Court to transpose the said plaintiffs in the array of the defendants. Moreover, without transposition of any of the plaintiffs in the panel of defendants, the plaintiff who is proceeding with the suit can carry on with the same in his personal capacity as plaintiff.
12. While deciding Appeal No,43/13 of 1998, the learned appellate Court has also not adverted to this aspect of the case that without there being any proof about the mala fide act of the respondent- defendant, how can his action be deemed as based upon mala fide. No reason has been given that how the suit of the petitioners-plaintiffs is not maintainable, except that reproduced the findings made by the learned trial Court. The copies of the judgments made the basis of instant suit for awarding the decree for damages per se are not sufficient and do not provide the support to the claim of the petitioners-plaintiffs, unless supported by independent, trustworthy, cogent and reliable evidence. Thus, the judgments made in earlier suits were the outcome of presumptions, conjectures and surmises.
13. The following necessary ingredients of suit for damages have been laid down by the august Supreme Court in the case titled Abdur Rauf. v. Abdur Razaq and another (PLD 1994 SC 476):--- "Insuch-like suits, the plaintiff is under the onus to show that; he was prosecuted by the defendant in a false litigation, prosecution terminated in favour of the plaintiff, the prosecution was malicious, the prosecution was without reasonable and probable cause, the proceedings had interfered with the plaintiff's liberty and has also effected his reputation, and,
(6) the plaintiff had suffered damages."
' In the instant suit filed for the recovery of damages, it was incumbent upon the petitioners- plaintiffs to prove all the requirements mentioned above, however, they failed to substantiate the same through reliable evidence. The petitioners-plaintiffs' claim was solely based upon the civil litigation. It is clearly discernable from the record that both the suits have not been decided on merits. The first suit was withdrawn, whereas in second suit, the plaint was rejected, on account of ma's fide of the respondent-defendant but the same is not supported by any sort of evidence, rightly so, that the respondent-defendant (plaintiff of that suit) had not been provided opportunity to prove his case in accordance with law. Likewise, the petitioners-plaintiffs also did not bring on record any proof that, the civil suit was based upon mala fide or any malice. Since the suits were not decided on merits, therefore, it cannot be opined that the prosecution ended in favour of the petitioners-plaintiffs. The petitioners-plaintiffs have not pleaded and uttered a single word during their deposition before the Court that the respondent-defendant had filed the suit without reasonable and probable cause and was based upon malice. Moreover, the respondent- defendant has also not been cross examined about these important aspects of the case. Besides, PW-2 failed to give the detail information in respect of the facts involved in the instant case. None of the petitioners-plaintiffs has given the detail of loss sustained and claimed by them against the respondent- defendant. There is also no finding recorded by the learned trial Court that the respondent-defendant was actuated by any malice against the petitioners-plaintiffs in filing the said suit. The term malice in the prosecution of the suit of alike nature is not to be spite or hatred against any individual but of "malus animus" and as denoting the working of improper and indirect motives. This requirement has also neither been pleaded nor proved through cogent and convincing evidence. The mere allegation that the suit of the respondent-defendant was false, against the law and without any rhyme and reason is not sufficient to meet the requirement of law.
It has been held in the case. Of Abdur Rauf (supra) that in a suit for malicious prosecution, proof of existence of malice itself is not sufficient but should be accompanied by proof' of absence of reasonable cause. Furthermore, the above mentioned ingredients have been reiterated in case titled Mst. Amna v. Nizamuddin (1985 M LD 271) and the effects of not pleading the same in the pleadings and its proof has been given as follows:-- "I may however, here quote a passage from the judgment of the Privy Council in the case of Raja Braja Sunder Deb supra (AIR 1941 PC 1) which reads as follows:- "In order to succeed in an action for malicious prosecution, the plaintiff in the first instance must prove two things (i) that defendant was malicious and (ii) that he acted without reasonable and probable cause. Malice has been said to be any wrong or indirect motive but a prosecution is not malicious merely because it is inspired by anger. However, wrong-headed a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence, he cannot be initiator of malicious prosecution. But malice alone is not enough; there must also be shown to be absence of reasonable and probable cause."
' In the present case, the appellant had not even averred in the plaint any of those facts mentioned in paragraph 9 hereof, what to say of proving the same. Indeed, the appellant has no such case. Therefore, appellant must fail in this appeal."
14. The perusal of the judgment of the learned trial Court reveals that the learned Court has not considered the pleadings as well as evidence for arriving' at a conclusion that the grant of damages for malicious prosecution is justified or not. The petitioners-plaintiffs, besides their own statement, could not produce any other documentary and oral evidence in order to substantiate their claim of award of damages. It is a case of no evidence which was decreed by the learned trial Court, in absence of proof of the necessary requirements referred to above. The learned trial Court was influenced by the previous judgments/orders whereby the plaint was rejected and such order was upheld by the learned appellate Court. This method of awarding damages is not approved by the law of the land. The independent proof is not available of the fact that the prosecution was actuated with malice and was without reasonable and probable cause. Malice and the existence of reasonable and probable cause on the part of defendant are not to be inferred merely from the rejection of the plaint in terms of Order VII, Rule 11, C.P.C. Of the suit of plaintiff but the present petitioners must prove independently and with cogent evidence that the suit filed by the respondent- defendant was the result of afore-stated reasons. In such eventuality, it can be justifiably said that the judgment/decree of the learned trial Court is based upon no reasoning and no material has been referred and relied upon while deciding the matter before it, thus, it does not fall within the meaning of judgment and decree, as envisaged subsection (9) read with subsection
(2) of section 2, C P.C.
15. While hearing revision petition under section 115, C.P.C., this Court has to satisfy itself on three matters viz that the order of the lower Court is within its jurisdiction, the case is one in which the Court ought to exercise jurisdiction and that in exercising the jurisdiction, the Court has not acted illegally. No illegality or material irregularity has been committed by the learned appellate Court while deciding the appeal.
16. For the reasons mentioned above, the instant revision petition is without force and is hereby dismissed, leaving the parties to bear their own costs.