CH. MUHAMMAD IQBAL, J. Brief facts of the case are that the respondent/plaintiff filed a suit for recovery of Rs.125 Million as damages and compensation for malicious prosecution against the petitioner/defendant in which the petitioner appeared and filed an application under Order VII, Rule 11, C.P.C. for rejection of the plaint which was dismissed by the learned Civil Judge, Faisalabad vide order dated 01.02.2022. Hence, this civil revision.
3.(sic.) I have heard the arguments advanced by the learned counsel for the parties at full length and gone through the record with their able assistance.
4. The pivotal question requires consideration in this ease is that whether the remedy of malicious prosecution is available in respect of initiation of civil litigation or not? The malicious prosecution falls under the Law of Torts which provides redressal of grievance of those who have been prosecuted "without reasonable cause" and that prosecution is tainted with "malice". Malicious prosecution is an action instituted with intention to injure body and rights of a person without any probable cause. A person who has been subjected to face legal proceedings instituted against him will naturally be aggrieved by such proceedings. He has to put expenses to defend himself in the civil lis and also to face agony of the proceedings as well as loss of precious time. Thus, if at the end of lis, such civil litigation against a person fails, then he has remedy to approach Civil Court for grant of compensation in the shape of the damage(s) caused to him due to such malicious civil litigation just to curb the chronic and Court bird litigant.
5. Admittedly, petitioner/defendant earlier to instant suit, filed a suit for recovery of damages of Rs.558 Million titled as "Messrs Dairy Crest Food Ltd. v. Sh. Muhammad Saleem and others" against the respondent/plaintiff and others which was dismissed by the learned Civil Judge, Faisalabad vide judgment and decree dated 22.12.2012. No further challenge was thrown by the petitioner which dictum has attained the status of finality. Thereafter, the respondent/plaintiff filed instant lis for recovery of damages against the petitioner/defendant. The controversy with regard to the civil malicious prosecution has been resolved by the Hon'ble Supreme Court of Pakistan in a case titled as Muhammad Akram v. Mst. Farman Bi (PLD 1990 SC 28) wherein it is held as under:- "On the 2nd aspect of the factual side of the case also namely, the conclusions regarding ingredients of "malicious" prosecution we have net reason to differ with the impugned findings that the plaintiff-respondent frilly satisfied the tests laid down from time to time in this behalf. The learned counsel could not challenge the following elements of the tests.
(i) That the plaintiff was prosecuted by the defendant;
(ii) That the prosecution ended in plaintiffs favour;
(iii) That the defendant acted without reasonable and probable cause;
(iv) That the defendant was actuated by malice;
(v) That the proceedings had interfered with plaintiffs liberty and had also affected her reputation; and finally;
(vi) That the plaintiff had suffered damage.
We having carefully perused the reasoning of the learned Judge in the High Court, agree with him that the distinction in our country between criminal 'prosecution' and the 'Civil' 'prosecution' for purpose of denying the right to institute the latter for damages in torts, is not at all well founded.
The Privy Council judgment showing itself a conflict of trend for some time in the judgments in a country where "the action for damages, for malicious prosecution is part of the common law of England" is no more an authority for us under our own constitutional and legal set up. Even otherwise we do not agree with the learned counsel that the denial of right to sue for damages in such like cases, was universally accepted as good law. The contrary view, with respect, is more logical and is much convincing. The learned Judge has correctly analysed the case-law in this behalf."
Prior to the pronouncement of the judgment (supra), the Consensus of the superior Courts of the country was that no suit for malicious prosecution arising out of civil litigation would be maintainable. However, the august Supreme Court of Pakistan defined certain condition precedents for a person to have a 'cause' for, damages on the basis of malicious prosecution arising out of civil litigation. Reliance is placed on the cases titled as Willers v. Joyce and another (2016 SCMR 1841) [rendered by the learned Supreme Court of United Kingdom], Amir Hussain Khan v. Ghulam Akbar Khan (1993 MLD 686) and Dr. Abdul Qadir Akhund v. Ms. Shahila Perveen (2017 MLD 666).
It is one of the basic ingredients for a person to file suit for damages on the basis of malicious prosecution to establish that 'the defendant acted without reasonable and probable cause and the proceedings were tainted with malice. Reliance in this regard is placed on judgment rendered by the Hon'ble Supreme Court of Pakistan cited as Niaz and others v. Abdul Sattar and others (PLD 2006 SC 432), wherein it is held that if a plaintiff succeeds to prove that he was proceeded against by the defendant in any proceedings/civil litigation with malice and without any reasonable and probable cause and such proceedings had result in damage to his person, property or reputation etc, he can initiate civil or criminal proceedings. Moreover, a plaint can only be rejected for want of jurisdiction, lack of cause of action, barred by law or non-affixation of court-fee. The Provision of Order VII, Rule 11, C.P.C. are reproduced as under: Rejection of plaint.---The plaint shall be rejected in the following cases: - a) where it does not disclose a cause of action; b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; d) where the suit appears from the statement in the plaint to be barred by any law.
Thus the suit of the respondent does not suffer any flaw postulated in the supra provision of law.
The assertion of the respondent requires recording of evidence and thus the plaint cannot be, summarily rejected mere on the whim of the rival party.
In view of what has been discussed above, it can conveniently be held that the suit for recovery of damages on the allegations of malicious civil prosecution filed by the respondent/plaintiff is maintainable, thus, the learned trial Court rightly rejected the application of the petitioner filed for rejection of the plaint under Order VII rule 11, C.P.C.
6. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity, in the impugned order passed by the Civil Judge and has also not identified any jurisdictional defect,
7. In view of above, this civil revision is dismissed being devoid of any force. No order as to costs.
However, the learned trial court is directed to decide the main lis between the parties strictly in accordance with law on merits expeditiously.