1. The plaintiff has filed this suit for malicious prosecution and damages against the defendant and prayed to award damages of Rs.16,65,000.
2. Brief facts of the case are that the plaintiff is tenant of defendant's wife in respect of Shop No.1, situated in building constructed on Plots Nos.371 and 372-C, Block 2, P.E.C.H. Society, Karachi, on monthly rent of Rs.100. The defendant's wife filed Rent Case No.2543 of 1971 in the Court of Xth Civil Judge/ Rent Controller, Karachi, on the ground of personal bona fide use and on other grounds. The said ejectment application was dismissed on 25-1-1988., The defendant's wife then filed Rent Case No.613 of 1978 in the Court of IInd Senior Civil Judge and Rent Controller on the ground of default and the said rent case was withdrawn by the defendant's wife on 30-5-1981. The defendant's wife then instituted another Rent Case No.842 of 1984 (new No.178 of 1985) on the ground of default and personal bona fide need and said rent case was dismissed on 19-10-1989. The defendant after seeing that he cannot eject the plaintiff from the said shop, started harassing and pressurizing the plaintiff by submitting false and fabricated applications to different authorities and instituting false criminal cases against the plaintiff so that plaintiff and other tenants vacate the tenements and the defendant can let out the same on higher rent. According to averments made in the plaint, the defendant is a very influential person and with the collusion of area police he tried to involve the plaintiff aid his other tenants in false cases. It is stated that on or about 4-10-1983, the defendant submitted a false private complaint in S.D.M., Karachi-East, alleging that he was called on telephone by the plaintiff in the tenement in possession of the plaintiff and the plaintiff closed the door of the shop and the defendant was threatened by him on the point of pistol and knife. The S.D.M. after recording the statement of the plaintiff and the defendant, directed the S.H.O. of Ferozabad Police Station to submit his report. The said S.H.O. registered three cases under sections 107/117, Cr.P.C., 145, Cr.P.C. and 506/34, P.P.C. and submitted challans.
3. The plaintiff was granted bail in case registered under sections 107/117, Cr.P.C. The said proceeding was dropped by the S.D.M. after about 11 months, on 23-8-1984.
4. In another criminal case registered under section 145, Cr.P.C. bail was granted to the plaintiff on furnishing security.
5. The third criminal case under sections 506/34, P.P.C. after framing of charge, proceeding was dropped against the plaintiff under section 119, Cr.P.C. (after about more than a year).
6. The defendant then submitted a complaint to D.I.-G., Karachi, alleging that on 5-2-1986, that when he was near his building, the plaintiff alongwith other collaborators, abused him and threatened him to kill him and the plaintiff was carrying pistol at that time. It is alleged that the defendant with the collusion of the police succeeded in lodging another false case under section 506-B, P.P.C. against the plaintiff. The police raided the house of the plaintiff on the night intervening 27th/28th of February, 1986 and before the Mohallah people the plaintiff was not only arrested by the police, but also he was insulted and abused by the police and on the next day he was released by the order of S.D.M. on the surety of Rs.5,000. The plaintiff was again arrested just after two hours of his release from his shop and was maltreated before so many shopkeepers. As per allegation of the plaintiff, the plaintiff was physically beaten and insulted at police station before the defendant, who asked the plaintiff to vacate the shop, otherwise the plaintiff will remain behind the bars. The plaintiff got bail on 2-3-1989 in this matter and acquitted on 18-12-1989. The said case again reopened at the request of the defendant. Being aggrieved by order passed in the above matter, the defendant filed Revision No.52 of 1982 in the Court of IIIrd Additional Sessions Judge, which was dismissed and against said order the defendant filed petition being Criminal Miscellaneous No.25 of 1989 in the High Court of Sindh, which was withdrawn subsequently by the defendant. The defendant then filed Criminal Case No.704 of 1987 under sections 167/466/479/34, P.P.C., which was returned to him to be presented before competent Court. It is alleged that the plaintiff, who enjoys high reputation in the area and goodwill of his business in local market, has suffered financial loss due to unjustified litigation, which has caused damage to the plaintiff not only mental and physical torture, but: also to his reputation. It is alleged that due to false litigation the plaintiff became heart patient. The plaintiff claims Rs.16,65,000 as damages under different heads mentioned in paragraph 26 of the plaint.
7. The defendant admitted filing, of above-referred cases against the plaintiff and stated that the defendant has always bona fidely adopted legal procedure for protecting his legal rights.
8. On the basis of pleadings of parties, the following issues were framed:
(1) Whether the plaintiff was prosecuted on the false complaints of the defendant?
(2) Whether the prosecution of the plaintiff was malicious?
(3) Whether the prosecution ended in favour of the plaintiff?
(4) Whether due to the malicious prosecution the plaintiff has suffered financial loss in business, injury caused to his reputation and his health has deteriorated?
(5) Whether the defendant acted without any probable cause?
(6) Whether the plaintiff is entitled to recover the damages .as prayed from the defendant?
(7) Whether the suit is barred by time?
(8) What should the decree be?
9. The plaintiff appeared in witness-box, however, the defendant failed to cross-examine the plaintiff and failed to lead any evidence in rebuttal.
10. I have gone through the record and proceedings and my findings on the issues are as under:-- Issues Nos.1 and 2 These issues are, taken together interconnected. The plaintiff in his evidence stated that on plaintiff's refusal to increase rent the defendant filed Rent Case No.2543 of 1974, which was dismissed. The plaintiff produced order of Rent Controller as Exh.P.5/1. The defendant then filed Rent Case No.613 of 1978, which was withdrawn on 30-5-1981. The defendant filed Rent Case No.178 of 1985 (Old No.842 of 1984) and the same was dismissed on 17-10-1989. The defendant then filed criminal case against the plaintiff before S.D.M., which were dismissed subsequently, and the plaintiff produced copies of proceedings as Exhs.P.5-5 to P.5-12. The plaintiff stated on oath that on the complaint of the defendant police conducted raid at the house of the plaintiff, arrested, maltreated and humiliated him in market. The plaintiff further stated that due to continuous harassm ent by the defendant the plaintiff became heart patient and remained ill fora longtime and produced medical reports as Exhs.P.5-13 to P.5-16. The defendant then filed criminal case under sections 167/466/ 474 read with section 34, P.P.C. and produced copies of orders as Exhs.P.5- 17 to P.5-20.
11. Malicious prosecution is a tort, the liability of which consists in improperly instituting unsuccessful criminal proceedings for an improper purpose and without reasonable and probable cause.
12. It is no doubt true that every one has a right to set in motion judicial machinery for protection of his own rights, but such person should not infringe the corresponding rights of others by instituting improper legal proceedings in order to harass them by unjustifiable litigation.
13. In Raja Braja Sunder Singh Deb v. Ramdeb Das alias Pattanaik reported in AIR 1944 PC p.1, Pivacy Council held:-- "In order to succeed in an action of malicious prosecution, plaintiff must in first instance prove two things:
(i) That defendant was malicious, and
(ii) that he acted without reasonable and probable 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.
14. However, wrongheaded a prosecutor may be, if he honestly thinks that accused had 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."
15. The plaintiff appeared in witness-box and made statement on oath, gave details of various criminal cases filed by the defendant in which the plaintiff not only remained behind the bars, but also humiliated in market where the plaintiff was doing his business. The defendant failed to cross- examine the plaintiff, further failed to give any evidence in rebuttal.
16. The defendant had filed more than five criminal complaints/cases against the plaintiff, one after the other and all these cases were decided against the defendant. From the evidence on record it established that the defendant tried to involve the plaintiff in false cases so as to get possession of shop from the plaintiff, which the defendant failed to get in due course of law, as rent cases filed by his wife, were also dismissed. I hold that prosecution of the plaintiff was malicious and the defendant acted without any probable cause.
17. Issue No.4 The criminal proceedings filed against the plaintiff were finally decided on 16-1-1989 and this suit has been filed within one year from the date of termination of malicious proceedings and plaintiff has been acquitted.
18. Issues Nos.3 and 5 Adverting to the claim for loss of reputation as assessed. by the plaintiff, it suffice to say that the same comes under the head of general damages in the law of tort. In case of general damages, well-established principle is that damages must be such, which would compensate the injured as far as money is concerned.
19. It is true that loss arising out of injury to reputation of a person cannot be compensated in terms of money and other non-pecuniary losses may not be accurately calculated in terms of coins, but for this reason alone, Courts do not decline' to grant compensation and still the Courts have formulated certain parameters and devised principles for evaluation of assessment of such general damages. Ordinarily in such cases just, fair and reasonable compensation is assessed and awarded to victim. From the preponderance of authorities on this issue of quantification, it emerges that there is no yardstick or definite principle for assessing damages in such cases and it becomes difficult to assess a fair compensation. In these circumstances, it is the discretion of Court, who may on facts of each case and considering how far society would deem it to be a fair sum, determine the amount to be awarded to a person, who has suffered such a damage. The general damages are those, which law will imply in every violation of a legal rights. They need not be proved by strict evidence as they arise by inference of law, even though no actual pecuniary loss has been or can be shown. The vital canon followed by judicial mind in such cases is that the conscience of Court should be satisfied that damages awarded would, if not completely, satisfactorily compensate aggrieved party. However, adequate care should be taken in this regard while dilating on the quantum of awards and the Courts should be vigilant to see that claim is not fanciful or remote, the award should never rise to be reflective of lavish generosity and must also obviously not dwindle down to be an indicator of abstemious parsimony, but Courts should give aggrieved party what it consider in all the circumstances a fair and reasonable compensation for his loss. The plaintiff's evidence on damages has not been disputed by the defendant as the defendant failed to cross-examine the plaintiff. The plaintiff claims damages of Rs.10,00,000 for injury caused to reputation, Rs.5,00,000 for financial loss in business, Rs.1,00,000 for deterioration of health and Rs.65,000 towards legal expenses for conducting criminal cases. Keeping in view the principles for estimation of damages, facts pleaded in the case and the evidence on record, a sum of Rs.3,65,000 will appear to be fairly compensating the loss of the reputation, loss of business and health of the plaintiff.
20. In the result, I decree the plaintiff's claim for malicious prosecution in the sum of Rs.3.65,000 with cost.