SHAHID WAHEED, J. The plaintif f has brought this appeal unde r Section 96 CPC raising a question as to whether the plaint of his suit seeking a decree against the defendants for recovery of damages amounting to Rs.200,725,000/- on account of malicious prosecution could be rejected under Order VII Rule 11 CPC. Ostensibly it seems to be a simple question of civil law, but deep down inside it is being complained that when the law is set in motion on the basis of false accusation, does the legal system provide any remedy to palliate the injury caused to human dignity and reputation of a person. The immediate response that comes to mind for this question is that the legal system is rooted in the values of our society that believe in promotion of good and prevention of evil. And human dignity is the foundation of promotion of good. Inasmuch as the human dignity is the image of Allah Almighty in each human being, it is inherent and inborn. That is why on the one hand our Constitution says that no action detrimental to the life, liberty , body or reputation of any person shall be taken and the dignity of man shall be inviolable and on the other hand, at the same time, this right has been made subject to law. Whereas the object of the law is to prevent the evil, that is to say, the commission of crime so as to safeguard the reputation and dignity of man and this is possible only when a duty is laid on the citizen to state to the autho rities what he knows respecting the commission of crime. Duty is thus a primary concept, indeed the main focus, of the law and it often takes priority over right. For the sake of public justice, therefore, charges and communications which would otherwise be slanderous and actionable, are protected if bona fide made for the prevention of crime. Indubitably , an information provides clue to the police on the basis of which it starts investigations into a case and, therefore, its importance cannot be denied. However , empirical study suggests that people are not afraid of lodging false report, which in common parlance is known as FIR, as it is a non-cognizable offence. The false and frivolous case lodged against a person causes a great injury to the human dignity and reputation of the person, although under the law, the person is presumed to be innocent until proven guilty but the society in which we live today , presumes a person guilty once1 2 he is accused of an offence irrespective of whether false FIR has been filed or later he gets discharged or acquitted by the Court, but he cannot get that respect in the society as earlier . An innocent stigmatized by false implications have to carry this irreparable stigma throughout his life span and its shadow on his next generations also leave dark impressions. On the other hand those responsible for bringing such treache ry enjoy all the best in their life.
Such type of dichotomy creates imbalance between rights and duties causing injury to the human dignity . This is highly abominable and, therefore, courts always loathe approving it. And so we must appreciate the quintessence of law and the general sociological background for the resolution of all such disputes. It is from this legal standpoint we shall now proceed to examine the present case.
2. The relevant facts giving rise to the question for our consideration may be shortly stated. The plaintif f is a resident of the Co-operative Model Town Society , Lahore ("the Society") while some of the defendants at the relevant time were the office-bearers of the Society and some are its employees. The contents of the plaint unfold that there was some tussle between the plaintif f and the defendants on the affairs of the Society . The plaintif f alleges that he received an electricity bill of excessive amount for the month of July, 2015 and went to the Society' s office for its rectification, but the defendants demanded bribe to correct it, upon which he protested and raised voice through complaints before different fora; and, that on this protest the defendants became inimical against him and maliciously lodged false report at the Police Station Model Town, Lahore. This report was recorded by the police under Section 39-A of the Electricity Act, 1910 read with section 462 PPC vide FIR No.253 dated 23rd May, 2016. It is an admitted fact that the police after investigation recommended cancellation of FIR No.253, that was approved by the Area Magistrate vide order dated 7th of February , 2017 and which, upon challenge by defendant No.4 through a constitutional petition, that is, W.P.No.10463 of 2017, was maintained by this Court through its order dated 12th June, 2017. Upon dismissal of the constitutional petition, the plaintif f instituted a suit for recovery of damages. The defendants traversed the allegations and contested the claim of the plaintif f by filing a joint written statement taking preliminary objections, which inter alia, included that the plaintif f had no cause of action; that the suit was premature; that the suit was barred due to non-compliance with the mandatory provisions of sections 70 and 70-A of the Cooperative Societies Act, 1925; that the suit in its present form was not maintainable and proceedable; and, that plaint was liable to be rejected under Order VII Rule 1 1 CPC being barred by law .
3. On pleadings the Trial Court vide order dated 9th January , 2018 settled the following issues:
1. Whether the plaintiffs are entitled for decree of declaration, as prayed for OPP .
2. Whether the suit is not maintainable in its present form? OPD
3. Whether the plaintiff has not come to the court with clean hands and the suit is liable to be dismissed? OPD
4. Whether the suit in hand is false, frivolous, and vexatious and liable to be dismissed? OPD
5. Relief.
4. It is to be noted that the suit was for recovery of damages, so it appears that the use of words "of declaration" in issue No.1 is an inadvertent error. Since this is a clerical error, it can be ignored for the present moment, but it does not mean that it should not be corrected. The order we are going to make in this appeal will give the Trial Court a chance to rectify this error. So there is no need to comment further on this error. The other important thing that becomes apparent after reading the issues framed by the Trial Court is that though not every preliminary objection that the defendants have taken in their written statement has been made a separate issue but the ones that have been made are comprehensive and covers all. Notwithstanding the above, the defendants did something mischievous. Before the plaintif f could produce his evidence, the defendants presented a separate application under Order VII Rule 11 CPC to the Trial Court, consisting of all their preliminary objections, which were selfsame and in the same order as in the written statement, and thereby sought rejection of the plaint. It was in every sense an abuse of the court process and should have been given short shrift, but on the contrary , the Trial Court sought response from the plaintif f. The plaintif f accordingly submitted reply and denied the objections. In our opinion, this reply of the plaintif f, at the most, could have been taken on record as replication but the Trial Court proceeded in novel way and for determination of the application framed as many as five preliminary issues, which read as under:
1. Whether the plaintiff has no cause of action to file the instant suit against the defendants? OPD
2. Whether the instant suit is pre-mature in nature? OPD
3. Whether the suit is being barred keepin g in view the mandatory provision of section 70 and 70-A of Cooperative Society Act, 1925? OPD
4. Whether the instant suit is not maintainable and proceedable in its present form? OPD
5. Relief.
Only a cursory study of these preliminary issues reveals that their subject matter directly and substantially involved in the issues that the Trial Court had already framed on the pleadings vide order dated 9th January , 2018. This exercise of framing of issues was neither in accord with the procedure suggested in Rule 2 of Order XIV CPC nor in harmony with the provisions of Order XV Rule 3 CPC. The principle governing such type of circumstances is that where issues have been framed, the parties must be allowed to lead evidence and the plaint cannot be summarily rejected . The Trial Court did not take this principle into account and without recording evidence granted the application stating its finding on the above preliminary issues and rejected the plaint under Order VII Rule 11 CPC through impugned judgment and decree dated 28th February , 2019. Since this decree is not the outcome of fair trial, it can be held without hesitation that neither justice has been done nor it seems to have been done. This aspect of the matter is sufficient to set aside the decree, but we have also seen that even on merits, the findings of the Trial Court suf fer from misapplication of law , so we consider it necessary to point out those flaws as well.
5. Before proceeding further it is apposite to state here that the controversy involve d in the matter did not pertain to the affairs of the Society and, thus, compliance with the provisions of sections 70 and 70-A of the Cooperative Societies Act, 1925 was not called for. During arguments both the learned counsel conceded this fact and thus, finding returned by the Trial Court on issue No.3 is hereby reversed.
6. Let us now examine the other prelimin ary issues. We reiterate that these issues are, in fact, matters which the Trial Court, after recoding the evidence, had to examine under the issues which it had already framed in view of the contents of the plaint and its written state ment. Thus, for the order that we want to propose in this case, we will not examine these preliminary issues in detai l, but will only point out the flaws in the Trial Court' s decision and explain the principles that apply to such type of cases. In the present case the cause which led the plaintif f to institute the suit for recovery of damages is FIR No.253 recorded under section 39-A of the Electricity Act, 1910 read with section 462 PPC. It is an admitted fact that upon investigation, the police recommended its cancellation, which was accordingly approved by the Area Magis trate vide order dated 7th February , 2017. On the basis of these facts, different precedents were cited before the Trial Court calling upon it to reject the plaint on the ground that it did not meet the essential ingredients to claim damages on account of malicious prosecution. Evaluating this ground, the Trial Court first deemed it appropriate to look at the essential ingredients of the suit for damages for malicious prosecution. This approach of the Trial Court was correct and we see that in its judgments it has rightly mentioned, on the basis of precedents, the ingredients which are essential for this type of cases and they are as follows: i. The prosecution of the plaintiff by the defendant; ii. There must be a want of reasonable and probable cause for that prosecution; iii. The defendant must have acted maliciously i.e with improbable motive and not to further the ends of justice; iv. The prosecution must have ended in favour of the person proceeded against; and, v. It must have caused damage to the party proceeded against.
7. In the above mentioned ingredients one legal term has been used and that is "prosecution" and the Trial Court construing it as "criminal trial" has stated in its judgment that "the suit for malicious prosecution is maintainable, where the plaintiff has faced a full criminal trial. Where the prosecution ends in his favour and he is acquitted by the Trial Court with the observation that the prosecution was without reasonable and probable cause and it was also malicious and the plaintiff also suffered damages, whereas, in present case only FIR was lodged against the plaintiff which later on cancelled by the Area Magistrate." This understanding of law led the Trial Court to conclude that the essential ingredients were missin g in the case, therefore, plaintif f had no cause of action. On the basis of this conclusion preliminary issue No.1, 2 and 4 were decided against the plaintif f. In our opinion, the Trial Court has gone in the wrong direction here. Nowhere in the precedents on which the Trial Court has relied it has been stated that the term "prosecution" refers to a criminal trial, but in fact, no interpretation of "prosecution" has been made. So we are obliged to examine it. In this regard, it should first be borne in mind that although malicious prosecution is a3 4 tort for which no statute has so far been enacted in our country to regulate it, yet our legal system recognizes that calmness of mind, unsullied reputation, and bright character , which are not only highly and heartily desired, strenuously acquired but also conscientiously retained by every discreet man, should be protected from false accusations . Nothing could be more important than to underscore and defend the dignity of human person. As we have observed at the beginning of our judgment and that is also matter of common knowledge that one of the evils which is spreading in our society is "false accusation". People make false accusation for having the feeling of enmity towards someone, being jealous, getting rid of someone, taking revenge or attaining cheap fame. Such people after making false accusation become busy with their matters, but the person against whom the false accusation has been made falls into disgrace and infamy for the rest of his life. Thus, in order to curb this social evil it would be expedient to read and interpr et the word "prosecution" in the sense of criminal proceedings instead of its technical sense which it bears in criminal law. Such use of the term "prosecution" will result that the foundation of the action for damages for malicious prosecution would lie, not in the abuse of the process of court, but in the abuse of the process of law. From this consideration, to found an action for damages for malicious prosecutio n based upon criminal proceedings the test would not be whether the criminal proceedings instituted on false and frivolous allegations had reached the court; the test would be whether such proceedings had reached a stage at which damage to the plaintif f resulted. The test expounded by us hereinabove has yet to be applied by the Trial Court and, therefore, prior to that stage it can neither be held that the plaintif f had no cause of action nor the suit was premature and thus not proceedable. W e will thus, make an order of remand for redetermination of issues.
8. In the result this appeal is accepted and while setting aside the judgment and decree dated 28th February , 2019 the application filed by the defendants under Order VII Rule 11 CPC is dismissed and consequently the matter is remitted to the Trial Court with a direction to decide the suit afresh after recording evidence on the issues already framed by it vide order dated 9th January 2018. Parties are directed to appear before the Trial Court on 10.12.2020. No order as to costs. Article 4 (2) (a) Article 14(1) M/s. Hoehst Pakistan Limited v M/s. Cooperative Insurance Societies and others ( 1993 MLD 2464 ) Abdul Majeed Khan v Tawseen Abdul Haleem and others (PLD 2012 SC 80) Alam Din v Muhammad Hussain and others (PLD 2012 Lah.279 ) Abdul Majeed and others v Manzoor Hussain and others (PLD 2013 Lah. 170 )
In addition, two more precedents have been cited by the Trial Court, but the citation of one of them is incorrect and the other is related to bail under the National Accountability Ordinance, 1999, so they are not being mentioned. Muhammad Yousaf v Syed Ghayyur Hussain Shah and 5 others ( 1993 SCMR 1 185) Muhammad Yousaf v Abdul Qayyum ( PLD 2016 SC 478 ) Mohamed Amin v Jogendra Kumar Banner jee and others (AIR 1947 PC 108) Pandit Gaya Parshad Tewari v Sardar Bhagat Singh and another (35 IA 189) C.H.Crowdy v L.O.Reilly (1912) 17 CWN 555 Narendra Nath De v Jyotish Chandra Pal (1922) ILR 49 Cal 1035 Balbhaddar Singh and another v Badri Sah and another (AIR 1926 PC 46) Gur Saran Dass v Israr Haider (1927) ILR 2 Luck 746 Rabindra Nath Das v Jogendra Nath Deb (1928) ILR 56 Cal 432 Rabindra Nath Das v Jogendra Nath Deb (1928) ILR 56 Cal 432 Nayeb Ali Dafad ar v Abdul Gani alias Gutu MIA (PLD 1969 Dacca 985) Pandit Gaya Parshad Tewari v Sardar Bhagat Singh and another (35 IA 189) Niaz and others v Abdul Sattar and others (PLD 2006 SC 432 ) revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.