' The facts giving rise to this second appeal, briefly stated, are as follows:
1. The appellant filed a suit, being Suit No, 4 of 1978 against one Subhan, his wife and daughter in the Court of Second Senior Civil Judge, Hyderabad, claiming a sum of Rs,20,000 as damages as detailed below:-{{TABLE}} (1)Expenses during uncalled for and in warranted lengthy litigation. Rs. 10,000 (2)Mental and physical agony. Rs. 5,000 (3)Humiliation in the Biraderi and neighbourhood and threats born by the appellant and her husband.Rs. 5,000 TotalRs. 20, 000
2. Subhan has died and is now represented by his legal represent- ties, respondents 2(i) to 2(v).
3. The case of the appellant in the suit was that she and her husband being near relative and on account of love and affection were given custody of Zahida and Abdul Aziz, the two minors children of one deceased Nazir, a near relative, on his death, by the Dhobi Panchayat.
4. Subhan who was also near relative approached the appellant and requested her to send Zahida with him for a period of one month or so and promised that the child would be returned to her but she was not returned. Thereafter, the litigation started between the parties at Karachi as well as at Hyderabad. The appellant filed a guardianship application against respondent No, 2 for the custody of Zahida while respondent No, 2 filed guardianship application against the appellant for custody of Abdul Aziz at Hyderabad. According to the appellant it was done to run down her before the Biraderi. The litigation between the parties at Karachi ended against the appellant while the application filed by the appellant against respondent No, 2 at Hyderabad was dismissed in default.
5. Thereafter, the appellant filed the suit for damages. The learned second Senior Civil Judge by the order, dated 1-4-1978, rejected the plaint holding that it did not disclose any cause of action.
6. Aggrieved by the order the appellant filed an appeal under section 96, C.P.C. Being Civil Appeal No, 409 of 1978, in the Court of the District Judge, Hyderabad, which was heard by Mr. S. Fazal Hassan Shah, Additional District Judge, Hyderabad, who by the judgment, dated 5-3-1980, dismissed it holding that the allegations made in the plaint against the respondents were vague and ambiguous and he had not made out any case for damages. The learned Additional District Judge, Hyderabad, has stated in the judgment that the arguments of the learned counsel for the appellant were mainly directed against the Senior Civil Judge that he was biased and prejudiced.
He, however, came to the conclusion that the suit filed by the appellant was based on frivolous and fanciful grounds and was utterly misconceived and therefore, held that the plaint was rightly rejected.
7. Still aggrieved, the appellant has filed the present second appeal as stated hereinbefore.
8. I heard the learned counsel for the appellant and his submission was that this suit was for damages for malicious prosecution and was, therefore, maintainable. He failed to elaborate the submission as to how, in the circumstances stated, it could be said that the appellant was maliciously prosecuted, for the case of the appellant as stated in the plaint was that he and the respondents had filed separate applications for guardianship of the minors and in that the appellant had failed while respondents had succeeded. It was however, submitted by the learned counsel for the appellant that he had suffered damages in that litigation. When asked as to what were the damages he submitted that the appellant incurred expenses, in the litigation but it is admitted fact. That so far as the application for guardianship of the minor Zahida was concerned, the appellant failed in that while respondent No, 2 in his application for the guardianship of Abdul Aziz succeeded. Therefore, the question of making a claim for costs did not arise.
9. Now, so far as the contention that the suit for damages for malicious prosecution was maintainable it may be necessary to state that in a suit for damages for malicious prosecution the plaintiff has to prove.
(1) That she was prosecuted by the defendant.
(2) The prosecution was instituted against him without any reasonable and probable cause.
(3) The defendant acted maliciously (i.e, with an improper motive and not to further the ends of justice);
(4) The prosecution ended in favour of the plaintiff; and
(5) It caused damage to the plaintiff. Reliance is placed on:
(1) Balbhaddar Singh and another v. Badri Shah and another AIR 1926 P C 46;
(2) Raja Braja Sunder Deb and others v. Bamdeb Das alias Pattanaik and others AIR 1944 P C 1;
(3) Pandit Gaya Parshad Tewari v. Sardar Bhagar Singh and another 35 I A 189;
(4) Qurban All v. Sanjar Khan PLD 1963 (W.P.) Kar. 155;
(5) Baber Shaha v. Shamsuddin and others PLD 1964 Dacca 111, and
(6) Muhammad Mamtazuddin v. Shamsur Rahman PLD 1964 Dacca 618.
10. I may however, here quote a passage from the judgment of the Privy Council in the case of Raja Braja Sunder Deb (supra) which reads as follows:- "In order to succeed in an action for malicious prosecution the plaintiff must in the first instance prove two things: (i) that defendant was malicious and (ii) that he acted without reasonable and prob.Able cause. Malice has been said to mean 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 the initiator of a malicious prosecution. But malice alone is not enough, there must also be shown to be absence of reasonable and probable cause."
11. 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, the appellant must fail in this appeal. It is accordingly dismissed with costs.
12. These are the reasons for the short order, dated 25-4-1985, whereby the appeal was dismissed for reasons to be recorded separately.