1. ' This petition for civil revision has been filed by the defendant Muhammad Akram (hereinafter referred to as petitioner) to challenge the correctness of the judgment of learned Additional District Judge Jhelum dated 4-10-1988 giving decree to the plaintiff for Rs,20,000 as damages for malicious prosecution.
2. ' Brief facts giving rise to the present litigation are as follows:-Petitioner claimed that Mst. Farman Bi respondent was married to him some years ago and had lived with him as his wife for some time and thereafter left his house for her parents' house never to return. Upon these allegations, he brought a suit for restitution of conjugal rights against respondent in the family Court at Jhelum on 15-12-1982. Respondent resisted the suit and controverted the allegations in regard to her marriage and its consummation. In nut-shell, defence offered by her was that the petitioner had set forth a false claim of marriage against her. To resolve this dispute, the trial Court settled following two issues:-
(1) Whether the defendant is legally wedded wife of the present plaintiff?
(2) If so to what effect on the merits of the suit?
3. ' Parties to the suit led evidence for and against their respective versions. Upon consideration of the evidence, learned Judge Family Court found that "the plaintiff had badly failed to discharge the burden of proving the present issue. Hence it is concluded against him". While commenting upon the oral evidence produced in support of marriage and the discrepancies existing therein, learned Judge Family Court in the earlier part of his judgment observed, "in such circumstances I fail to understand that how a woman can agree to marry a person when her sister and her brother were at daggers drawn with their respective wives and husbands. The defendant herself appeared in the witness-box and deposed in examination-in-chief that the present suit was mala fidely instituted against her on the basis of enmity between the two families caused due to above referred family litigation. She deposed in examination-in-chief that she was a widow of one Muhammad Yousaf who was killed in Bengal during war and upto the day of deposing evidence before this Court, she was receiving payment of the pension of her deceased husband. The plaintiff also produced a document concerning decision of Arbitration Council, Ex.P.1 in order to prove that the marriage ceremony had really occurred between the parties. Such decision is not binding upon the findings of this Court. Moreover, from the wording of that decision it is evident that even before that council there was a dispute concerning existence of relationship of husband and wife between the parties".
4. As a result of these findings, suit for restitution of conjugal rights was dismissed with costs by the Family Court, on 2-4-1984. Though the order dismissing the suit was appealable under section 14 of the Family Courts Act 1964, yet for reasons of his own not descernible from the present records, petitioner did not choose to prefer an appeal against adverse findings in the judgment of the Family Court. Therefore, decision dated 2-4-1984 attained finality under the law and shall be deemed to have been accepted by the petitioner.
5. ' On 17-10-1984, the action out of which the present civil revision has arisen was commenced by the respondent to recover Rs,25,000 as damages for malicious prosecution. Previous history of the litigation to support malicious prosecution and claim for damages was enumerated in the plaint and made basis for a cause of action against the petitioner. Petitioner contested the suit and took up several defences. It was pleaded that the form of the suit was defective; that the plaintiff had no cause of action to sue for malicious prosecution and to claim damages; that the suit for damages was out of malice; that Mst. Farman Bi was his legally wedded wife. However, earlier litigation between the parties and its result were not controverted.
6. ' Pleadings gave rise to following issues:-
(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether the plaintiff has no cause of action? OPD
(3) Whether the suit is mala fide? OPD
(4) Whether the suit for restitution of conjugal rights instituted by the defendant defamed and damaged the plaintiff? OPP
(5) Whether the plaintiff is entitled to recover Rs,25,000 as damages from the defendant? OPP
(6) Relief.
7. ' Mst. Farman Bi examined Muhammad Ashraf P.W-1 and herself entered in the witness-box as P.W.-2 to make her own statement to establish her case. It was brought out in the evidence that the petitioner had lodged a false case for restitution of conjugal rights against her out of malice and without reasonable and a probable cause for it. It was deposed that Mst. Farman Bi was not the wife of the petitioner nor had she ever lived with him as his wife and cohabited. Petitioner refuted this evidence by his own statement and that of his real brother Muhammad Aslam. Muhammad Aslam testified that marriage had taken place 12/13 years ago and the respondent (Mst. Farman Bi) had lived with her husband for a month or two. Petitioner himself confirmed that his marriage took place 12/13 years ago and respondent Mst. Farman Bi resided with him as his wife for 6/7 years. It is in evidence and is otherwise also not disputed that Mst. Arshan Bi sister of Mst. Farman Bi was married to Muhammad Aslam D.W.-1 a real brother of petitioner (Muhammad Akram). Likewise Mst.
8. Walayat Bi was married to Khadim Hussain real brother of Mst. Farman Bi. This was an exchange marriage. Mst. Arshan Bi has since been divorced under a Court decree, in the result of a suit for dissolution of marriage filed by her against her husband and in regard to Mst. Walayat Bi some litigation is stated to be pending in Court. It is in evidence that a son born to Mst. Walayat Bi from her marriage with Khadim Hussain is getting maintenance under a Court decree. It also transpires from the record that Khadim Hussain and his real mother were convicted for abducting the above minor child but were acquitted of the charge in appeal preferred by them. Relevant records of this litigation fought out between the two families had not been brought on file of this case. Alleged marriage between the parties was oral. It was neither reported to Nikah Registrar nor was it registered with him. Registration of marriage solemnized under Muslim law required compulsory registration under section 5 of the Family Laws Ordinance 1961. Therefore, though registration of marriage was compulsory under the aforenoted provision of law, yet its non-registration, in itself, does not invalidate it, if the same is otherwise proved to have taken place in accordance with requirements of Islamic law. However, if the factum of marriage is in serious dispute between the parties to it, its non-registration may cause some doubts on its existence and solemnization. See Dr. A.L.M. Abdullah v. Rokeya Khatoon and another PLD 1969 Dacca 47. In face of civil and criminal litigations between the two families and presence of seriously deteriorated and acrimonous relations, it is difficult to entertain an idea of marriage of the petitioner with the respondent. In the existing background, it would be clear that the petitioner made a false claim of consummated marriage against Mst. Farman Bi respondent out of spite and without reasonable and probable cause existing for it merely to hurt, humiliate and defame her who was a widow whose husband had laid his life in defence of the country in East Bengal. She was recipient of Government pension also. Respondent had vehemently denied her marriage with the petitioner who otherwise was her close relation. As said above, suit for restitution of conjugal rights had failed and the judgment given in the suit attained finality and put a final seal upon its non-existence. Independent of the judgment of Family Court negating the marriage, there is no clear and convincing evidence to establish marriage of the petitioner with the respondent. Upon review of whole evidence, ambient circumstances and the natural probabilities of the case, falsity of the marriage set up is quite evident which appeared to have been set forth merely to defame the respondent and other members of her family. There is no doubt that a false claim of consummated marriage hurts, humiliates, defames and lowers the person falsely charged in estimation of others. Respondent belonged to a respectable family of agriculturist class. There can be no dispute that in the result of litigation launched against her, her fair name and reputation like her family members seriously suffered in addition to causing her mental agony of the Court litigation which remained pending for a year and a half. She defended the suit through an Advocate and was forced to expend money upon her defence.
9. ' Raja Amir Akbar, learned counsel for the petitioner relied on Muhammad Amin v. Jogendra Kumar Bannerjee and others A.I.R.1947 Privy Council 108 and argued that suit for damages for malicious prosecution in respect of civil action does not lie and that in any event, suit was not maintainable as there was provision in law for awarding costs to the successful party and in the instant case, Family Court did award the costs to Mst. Farman Bi. Also submitted that earlier litigation was neither out of malice nor was in absence of reasonable and probable cause. Learned counsel referred to the following observations from the above Privy Council's case. "The action for damages for malicious prosecution is part of the common law of England, administered by the High Court at Calcutta under its Letters Patent. The foundation of the action lies in abuse of the process of the Court by wrongfully setting the law in motion and it is designed to discourage the preversion of the machinery of justice for an improper purpose. The plaintiff must prove that the proceedings instituted against him were malicious, without reasonable and probable cause, that they terminated in his favour (if that be possible), and that he has suffered damage. As long ago as 1698 it was held by Holt, C.J., in Savile v. Roberts that damages might be claimed in such an action under three heads, (1) damage to the person, (2) damage to property, and (3) damage to reputation, and that rule has prevailed eversince. That the word "prosecution" in the title of the action is not used in the technical sense which it bears in criminal law is shown by the fact that the action lies for the malicious prosecution of certain classes of civil proceedings, for instance falsely and maliciously presenting a petition in bankruptcy or a petition to wind up a company: Quartz Hill Consolidated Gold Mining Co. v. Eyre. The reason why the action does not lie for falsely and maliciously prosecuting an ordinary civil action is, as explained by Bowen, L.J. In the last mentioned case, that such a case does not necessarily anti naturally involve damage to the party sued. A civil action which is false will be dismissed at the hearing. The defendant's reputation will be cleared of any imputations made against him, and he will be indemnified against his expenses by the award of costs against his opponent. The law does not award damages for mental anxiety, or for extra costs incurred beyond those imposed on the unsuccessful party. But a criminal charge involving scandal to reputation or the possible loss of life or liberty to the party charged does necessarily and naturally involve damage and in such a case damage to reputation will be presumed".
10. Reference was also made to the case of Judge Sahu v. Dwarka Prasad AIR 1948 Patna 88 wherein at page 90 of the Report, it was observed; "True, it is not an actionable wrong to institute civil proceeding without reasonable and probable cause even if malice be proved, for in the contemplation of law, defendant who is unreasonably sued is sufficiently indemnified by a judgment in his favour, which gives him his costs against the plaintiff. But there are proceedings which, though civil are not ordinary actions, and fall within the reason of the law which allows an action to lie for malicious prosecution. Such proceedings, for example, are proceedings in bankruptcy against a trader. Such a proceeding, if instituted without reasonable and probable cause and with malice, is an actionable wrong: Quartz Hill Gold Mining Co. v. Eyre (1883) 11 Q.B.D.
11. 674". Decisions in Sultan Ahmad Awan v. Ghulam Muhammad Awan Advocate and another PLD 1987 Lah.663, Ali Asghar v. Fazal Akbar and 2 others 1988 CLC 147 were also relied upon.
12. ' Law of malicious prosecution tries to balance two conflicting interests of high social importance: one, the privilege of every citizen to put the machinery of law in motion for the purpose of assisting and aiding law enforcement, and the other, the desire to safeguard an individual from being harassed by unjustifiable litigation. It is ultimately concerned with a proper adjustment between two interests and the principle of social policy. It is so important that action of malicious prosecution is more carefully guarded than any other in the law of Tort. Essential elements to sustain an action for malicious prosecution are:-
(a) That the plaintiff was prosecuted by the defendant;
(b) That the prosecution ended in plaintiff's favour;
(c) That the defendant acted without reasonable and probable cause;
(d) That the defendant was actuated by malice;
(e) That the proceedings had interfered with plaintiff's liberty or property or had affected or were likely to affect his reputation and finally;
(f) That the plaintiff had suffered damage.
13. ' It is well-settled that for success in action for malicious prosecution, all the above elements must concur and co-exist. In Kapoor Chank Rikhi Ram Mahajan v. Hakim Jagdish Chand Siripat Rai and another AIR 1974 Punjab and Haryana 215, Muni Lal verma, J. , observed that "A suit for compensation or damages on account of malicious prosecution is always maintainable.
14. 'Prosecution' carries a wider sense and does not mean prosecution in a criminal Court only. It means prosecution which may not be of criminal nature but is such as would cause any slur or odium upon the good name of the plaintiff and an action for damages lies if the other essentials of 'malicious prosecution' are made out". After holding this view, the Court gave damages to the plaintiff for his malicious prosecution which arose out of a civil action. To prosecute is to bring before a Court to carry on a legal prosecution and it consists in setting a judicial process in motion.
15. Prosecution, therefore is not confined to a criminal proceedings charging a person with a crime.
16. Term 'prosecution' may embrace in its fold civil proceedings also. In Premji Damodar v. L.V. Govindji & Co. AIR 1947 Sind 169, it was ruled that the law allows every person to employ its process for the purpose of asserting his right without subjecting him to any liability other than the liability to pay the costs of the proceedings if unsucessful. It is, therefore, seldom that one comes across an action for malicious abuse of the civil proceedings. On the question of malicious prosecution arising out of civil proceedirgs, it was ruled in Genu Ganapati Shivale v. Bhalchand Jivraj Raisoni and another AIR 1981 Bombay 170 that "Essentially, the cause of action of the plaintiff is for damages as a result of malicious abuse of civil proceedings. This cause of action is similar to the cause of action for malicious prosecution. Both these actions are in tort. In order to succeed in establishing malicious abuse of civil proceedings, the plaintiff is required to prove a number of ingredients. (1) In the first place, malice must be proved. (2) Secondly, the plaintiff must allege and prove that the defendant acted without reasonable and probable cause and the entire proceedings against him have either terminated in his favour or the process complained of has been superseded or discharged. (3) The plaintiff must also prove that such civil proceedings have interfered with his liberty or property or that such proceedings have affected or are likely to affect his reputation. For example, if the civil proceedings have resulted in the arrest of the plaintiff or if they are in the nature of bankruptcy proceedings or winding-up proceedings, they may adversely affect the plaintiff's reputation. The plaintiff must establish that he has suffered damage. Ordinarily, apart from cases involving interference with liberty, it is difficult to establish legal damage. If the malicious action is tried in public, the name and fame of the defendant will be cleared. If the action is not tried, his name is not assailed. Ordinarily, a civil action involves no damage to person. The only damage is ordinarily the expense of fighting such a litigation. Since the order in such civil proceedings for costs adequately compensates the aggrieved party for this damage, an action for malicious abuse of civil proceedings is not normally maintainable. As stated in para. 717 at page 367 of Halsbury's Laws of England, 3rd Edn., Vol. 25: "The law allows every person to employ its process for the purpose of asserting his rights without subjecting him to any liability other than the liability to pay the costs of the proceedings if unsuccessful": Hence one seldom comes across an action for malicious abuse of civil proceedings. The first ingredient of the cause of action of malicious abuse of civil proceedings is malice. Malice means an improper or wrong motive other than a desire to vindicate one's rights or interests. A malicious action is an action undertaken with a desire to injure another person and not to further one's own interests. A Division Bench of our High Court in the case of Chhaganlal Sakarlal v. Municipality of Thana, 34 Bom. LR 143: AIR 1932 Bom. 259, after discussing all the authorities on this point, has held that it is not in every case that because there is no reasonable and probable cause a Judge is justified in inferring malice. There must be something more of the nature of an indirect or sinister motive for the prosecution than the mere absence of reasonable and probable cause. In addition to malice, it must be established that the action was undertaken without "reasonable and probable" cause, that is to say, there must be an absence of sufficient ground for bringing an action. The action must have, therefore, concluded in the plaintiff's favour or it should have been incapable of so terminating either because it is dropped or superseded or for any other reason. In Mohini Mohan Misser v. Surendra Narain Singh, AIR 1915 Cal.
17. 173, it has been held that an allegation that the defendants were actuated by malice and that their suit for an injunction ultimately proved unsuccessful was not sufficient to show want of reasonable or probable cause. This factor must be independently established. In this connection, a reference may also be made to the decisions in Nasiruddin Karim Mahomed v. Umerji Adam & Co., AIR 1941 Born. 286; C.M. Agarwalla v. Halar Salt and Chemical Works AIR 1977 Cal. 356; and T.Subramanya Bhatta v. A. Krishna Bhatta, AIR 1978 Ker. 111 (FB). Lastly, the civil action must have caused damage to the plaintiff. The damage may be to his liberty, reputation or property or even otherwise. It is true that, ordinarily, it would be difficult to establish such harm unless the proceedings are manifestly such that the scandal affects a man's reputation or credit. If, however, the proceedings are such as would result in damage, there is no reason why an action should not be maintained for malicious abuse of civil proceedings".
18. ' Upon examination of case law and the observations made therein and hearing the learned counsel, I have not been able to agree with his contentions for the reasons to be presently given. If one suffers damage by a wrongful act of another person, he has to be compensated for the loss suffered by him. The right-duty syndrome gave rise to invasion of right with a corresponding duty not to injure someone else's right and the consequent loss was to be made good by the wrong doer. Malice is a wish to injure other than to vindicate cause of justice. Personal spite, ill-feeling between the parties and their past and present conduct towards each other will be evidence of malice. So also absence of reasonable and probable cause may be some evidence of the malice.
19. As I have said above, petitioner's suit for restitution of conjugal rights had failed in the Family Court and no appeal was filed by the petitioner to, judge its correctness. Oral evidence led in the present case and the findings in the earlier judgment are a clear proof of the civil action having been launched without reasonable and probable cause. Its only purpose could be to damage fair name of the respondent and to make her undergo expenses of an unjustifiable litigation. On no other hypothesis, petitioner's action could be explained. It is seen from the record that the petitioner commenced and prosecuted the civil action against the respondent with malice and without any just and legal cause for it.
20. ' Next comes the question of damages suffered by the respondent, related question as to their extent and her entitlement. Section 35, Civil Procedure Code provides for awarding ordinary costs of litigation and section 35-A of the Code gives powers to the Court for awarding of compensatory costs, in respect of specified eventualities. Section 35-A is intended to deal with the cases for which exercise of ordinary discretion of the Court under section a5 would not afford sufficient compensation. Subsection (4) of section 35-A, Civil Procedure Code says that compensation awarded under this section of law in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence. From this, it can be impliedly taken that compensatory costs awarded under section 35-A of the Code shall not bar a civil suit for damages/compensation if the awarded costs are not sufficient recompense for the damage suffered. As against this, section 95 of the Code gave an alternative remedy for compensation in case of wrongful arrest, attachment and injunction provided an application to that effect is made to the Court by the affected party. In case, such an application for compensation is not made, a regular suit for compensation does not appear to be barred. See L. Evans v. Arthur Minck, of the firm of Minck & Co. AIR 1922 Lah. 303, V.
21. Srinivasaraghavan v. Sundararajan AIR 1955 Mad. 552, Parikh Jivanlal Mahilal v. Shah Chhitalal Chunilal and another AIR 1960 Born.
326. When above sections of the Code are read together, it is manifest that compensatory costs do not stand on the same footing as ordinary costs awarded in litigation. Except for sections 10 and 11 of the Civil Procedure Code and the matters specified in some other sections of the Family Courts Act, rest of the provisions of the Code are inapplicable to proceedings before a Family Court.
22. Family Courts Act, 1964 and the Rules framed thereunder do not contain any separate provision for making of an order of costs in favour of or against a party. True, the Family Court while dismissing the earlier suit had burdened the petitioner with the costs of the respondent. Decree-sheet prepared by the Court, however, indicated a sum of Rs,2 only as expenses of litigation which the respondent was found entitled to get from the petitioner. This sum was, in no measure, a proper solatium for the injury suffered by the respondent and expenses incurred by her to defend the earlier litigation. If the amount of costs is wholly insufficient as compared to the injury caused and suffered, a suit for compensation for malicious prosecution clearly lies. Statement of law that if under any particular proceedings the Court is not empowered to grant costs, no costs can be granted in an independent action by any other Court is inapplicable to the facts of the present case. Award of costs whether civil or criminal is made under statutory powers. Petitioner abused the legal process for his own malicious ends and action which gave rise to the claim for damages was slanderous. In my judgment, claim for damages, in such circumstances, was neither a case of double adjudication nor the awarded costs were a sufficient and full indemnity for the loss or damage suffered. Therefore, speaking with respect, the rule laid down by the Privy Council in case of Mohammad Din proceeds on distinguishable facts and is clearly inapplicable and the rule of law laid down in AIR 1974 Punjab and Haryana 215 represents true and correct statement of law with which I agree and hold that suit for damages for malicious -prosecution arising out of a civil action clearly lies. Case of Berry v. British Transport Commission 3 All England Report 322 (1960) shows recent state of law in England in respect of malicious prosecution arising out of civil and criminal actions and marks a clear development in this branch of law. It is correct that plaintiff gave no break up of damages suffered by her. But this circumstance is not fatal to her getting the proper relief from the Court. On the question of assessment of damages, it was observed by Kaikaus, J., an eminent Judge of this Court' and later a Judge of Supreme Court in Muhammad Sharif v. Nawab Din PLD 1957 (W.P.) Lah. 283 that "some damage must necessarily have been Caused. If we are to assess the damages only if the exact amount is proved, no damages can ever be decreed.
23. Damages have so many times to be awarded by the rule of thumb but the fact that the exact amount is not determinable can be no reason for dismissal of a suit". Judged in the light of essentials to sustain an action for damages for malicious prosecution, the judgment of the learned Judge below is correct. Therefore, Rs,20,000 awarded as damages to the respondent for her malicious prosecution causing injury to her fame and reputation and also the expenses of litigation cannot be termed as excessive. Accordingly, civil revision fails and is dismissed in limine.