K.V.Mohan Rao vs Mechala Lakshminarayana
2023 Latest Caselaw 5082 AP

        THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                   APPEAL SUIT NO.42 OF 2015

JUDGMENT:

1. The Appeal, under Section 96 of the Code of the Civil Procedure,

1908 (for short, 'C.P.C.'), is filed by the appellant/plaintiff challenging

the decree and Judgment dated 30.06.2014 in O.S. No.68 of 2007

passed by the learned I Additional District Judge, Vizianagaram, (for

short, 'trial court'). Appellant is the plaintiff who filed the suit in

O.S.No.68 of 2007 seeking damages of Rs.20,25,000/- with subsequent

interest at 12% p.a., from the date of the suit till the date of realization

and for costs of the suit. Respondent is the defendant in the said suit.

2. Referring to the parties hereinafter as arrayed in the suit is

expedient to mitigate potential confusion and better comprehend the

case.

3. The factual matrix, necessary and germane for adjudicating the

contentious issues between the parties inter se, may be delineated as

follows:

The plaintiff is a civil contractor with good financial capacity and

caliber, sophisticated machinery. He has many credentials in his

career, and he is an Income Tax assessee and manoeuvring job works

and completing them within the schedule time. The defendant, to

obstruct his development, filed C.C.No.12 of 2004 against him, his son

and their workers on the file of Judicial Magistrate of First Class,

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Kothavalasa (for short 'the Magistrate Court'). The plaintiff had set up a

small-scale industry in S.No.53/3 in Appannadorapalem village

engaged in Oil extraction from Lime Grass (Nimmagaddi) and had

obtained all necessary permission for construction including sheds,

fencing and an approach road. The defendant also had established a

competing industry for manufacturing fly ash bricks and tiles in the

vicinity. Upset by the plaintiff's development and progress, the

defendant, with the connivance of the other disgruntled elements,

motivated some villagers to obstruct plaintiff's developments. The

plaintiff filed a suit in O.S.No.26 of 2001 on the file of Senior Civil

Judge Court, Vizianagaram, against them. As the plaintiff resisted

these threats and attempts to interfere with his works, the defendant

resorted to filing a false criminal case against the plaintiff and his son,

it caused the plaintiff significant emotional distress, physical strain,

and discomfort, as he had to appear in the Kothavalasa Court as an

accused. He spent considerable amounts on legal fees, travel expenses,

and other miscellaneous costs related to his court appearances,

attending the court a total of 14 times. Ultimately, the case ended in

acquittal on 28.06.2007, but the plaintiff had already incurred

substantial financial expenses. In response to his hardships, the

plaintiff issued a notice to the defendant on 07.11.2007, calling upon

him to pay damages and the same was received by him on 08.11.2007,

but did not respond or pay damages.

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4. In the written statement, the defendant contended that the lands

covered by S.No.53/3, 53/2 and 53/7 originally belonged to Saripalli

Gangulu and were purchased by defendant under registered sale deed

Nos.314/1974 on 07.02.1974 and since then, he had been in

continuous possession and enjoyment of these lands; the plaintiff

purchased lands in the vicinity of the survey numbers and

subsequently approached the defendant to convey these lands to the

plaintiff; however, the defendant refused his request; the plaintiff fully

aware that land in S.No.53/3 belonged to the defendant and Saripalli

Demudu had no title to the land covered by S.No.53/3 and the plaintiff

trespassed onto this land on 30.08.2003, as such, the defendant filed

C.C. No.12 of 2004 against the plaintiff, in which the plaintiff was

ultimately acquitted on the ground that it was a matter of civil nature;

since, the plaintiff intentionally trespassed onto his land and had no

legal right to it, the defendant was not liable to pay any damages to the

plaintiff.

5. Based on the above pleadings, the trial Court framed the following

issues:

(1) Whether there is any malice on the defendant's part in launching Prosecution against the plaintiff? (2) Whether the plaintiff entitled to claim the damages against the defendant, and if so, at what quantum?

(3) To what relief?

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6. During the trial, on behalf of the plaintiff, P.Ws.1 to 3 were

examined and marked Exs.A.1 to A.27. On behalf of the defendant,

D.Ws.1 and 2 were examined, and Exs.B.1 to B.4 were marked.

7. After the trial completion and hearing both sides' arguments, the

trial Court dismissed the suit without costs.

8. Sri M.S.R.Subrahmanyam, learned Counsel representing the

appellant/plaintiff, put forth an argument that the defendant's conduct

was malicious and contumacious; the learned trial Judge has

fundamentally misunderstood the essence of a malicious Prosecution

suit; the trial Judge made a significant error in dismissing the suit

despite the evidence on record that clearly indicates the defendant's

wrongful actions taken without any just cause or excuse; the learned

trial Judge focused too much on minor details while assessing the

evidence, instead of considering the broader context of the case; in a

suit for malicious prosecution, the Court is responsible for thoroughly

evaluating the evidence and reaching an independent conclusion about

whether the defendant had reasonable or probable cause to prosecute

the plaintiff; the evidence, as per the appellant's counsel, undeniably

establishes that the defendant initiated a malicious prosecution against

the plaintiff, which resulted in losses that the defendant should be

obligated to compensate. Consequently, the plaintiff should be entitled

to the damages sought in the suit.

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9. Per contra, Sri Taddi Nageswara Rao learned Counsel representing

the respondent/defendant would contend that the plaintiff failed to

establish the Prosecution was without reasonable and probable cause;

the plaintiff was given the benefit of the doubt on the ground that the

nature of the dispute is civil; the trial Court correctly appreciated the

case facts and came to a correct conclusion; the reasons given by the

trial Court do not warrant any interference.

10. Concerning the pleadings in the suit, the findings recorded by the

Trial Court and in light of the rival contentions and submissions made

on either side before this Court, the following points would arise for

determination:

1) Is the trial Court justified in holding that the plaintiff failed to establish that the Prosecution of the plaintiff in C.C.No.12 of 2004 on the file of the Magistrate Court with a malafide intention on the part of the defendant and that there was reasonable or probable cause for the defendant to institute criminal proceedings against the plaintiff?

2) Does the Judgment passed by the trial Court need any interference?

POINT NOs.1 & 2:

11. Before considering the rival contentions raised on behalf of both

sides, I briefly mention the following admitted facts which are

established from the record:

(a) The defendant filed a complaint against the plaintiff covered

by Exs.A.3, inter alia, alleging criminal trespass by the

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plaintiff into the defendant's lands on 19.12.2003. In support

of his case, the plaintiff relied on Ex.A.1 certified copy of

docket sheet maintained in C.C. No.12 of 2004 on the file of

the Magistrate Court, Ex.A.2 certified copy of complaint

lodged by the defendant against the plaintiff and others,

Ex.A.3 certified copy of calendar in C.C. No.12 of 2004 on the

file of the Magistrate Court, Ex.A.4 certified copy of

Judgment in C.C. No.12 of 2004 on the file of the Magistrate

Court, Ex.A.27 relevant portion of deposition of PW.1 in C.C.

No.12 of 2004 on the file of the Magistrate Court,

dt.19.12.2006.

(b) The defendant further alleged in the Ex.A.2 complaint that

the plaintiff and others damaged, with a common intention

which is punishable under sections 447 and 427 of the

Indian Penal Code, 1860 (for short, 'I.P.C'); the learned

Magistrate after trial, acquitted the plaintiff (accused) inter

alia observing that PW.1 (defendant herein) miserably failed

to prove the charge under section 447 and 427 of I.P.C.

against the accused (plaintiff herein) and the dispute in

property is purely civil. The remedy of the complaint is

misconceived. After the institution of the criminal case, the

defendant herein filed the suit in O.S. No.102 of 2007 and

succeeded in establishing that the disputed property was in

his possession and enjoyment.

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12. To prove his case, the plaintiff examined himself as PW.1, PW.2

(M.Ravi Shankar) and PW.3 (K.Ram Prasad). PW.1 testified that he is a

Class-I contractor in civil works and has good financial stability; he has

undertaken many projects as an A-I contractor with good calibre,

sophisticated machinery, and a sound financial background. He

completed such projects within the prescribed timings. PW.1 also

testified that the Income tax department complimented him for his

honesty in paying the highest income tax; with his winning manners, he

has been moving men and manoeuvring job works and completing them

within scheduled timings. In support of the contention, the plaintiff

relied on Exs.A.7 to A.26. The trial Court has not considered those

documents on the grounds that the said documents were marked

subject to proof. Admittedly, the plaintiff must still examine the

witnesses to prove the documents. The trial Court observed that the

mere marking of documents does not amount to proof of documents.

The plaintiff only got marked Ex.A.7 to A.26 without trying to prove

them. Hence, the trial Court is not inclined to place any reliance on

Exs.A.7 to A.26.

13. In A. Narayan Rao V. Shanta Bai and others 1, the composite

High Court of Andhra Pradesh held that:

7. It is well known that in a suit for damages for malicious Prosecution, the plaintiff has to prove:

(a) That Criminal proceedings were instituted and continued against him by the defendant;

2002 S.C.C. OnLine AP 1106

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(b) That there was no reasonable or probable cause for the defendant instituting those proceedings;

(c) That institution of such proceedings was malicious; and

(d) That those proceedings ended in his favour.

8. In R.L. Arora's case (supra), relied on by the learned Counsel for the appellant, it is held that in action for malicious Prosecution, the Civil Court cannot rely on the findings recorded by or evidence adduced before the criminal Court for concluding as to the incidence malice, and the absence of reasonable and probable cause and that the Civil Court should based on the evidence adduced before it only, should conclude the absence of reasonable and probable cause, without being influenced by the finding of Criminal Court regarding the credibility of the witnesses examined before it. In Yerram Seshi Reddis case (supra), a Division Bench of this Court held that a plaintiff in a suit for damages for malicious Prosecution must show that the defendant prosecuted him, that the Prosecution was determined in his favour and that Prosecution was launched without reasonable and probable cause and that launching of Prosecution was malicious. The findings arrived at by the 1st Appellate Court, Keeping in view the principles laid down in the above two decisions, would be examined.

14. This Court views that even if Exs.A.7 to A.27 documents are

assumed to be proved, They do not go to establish that the Prosecution

was launched against the plaintiff without reasonable and probable

cause and that the launching of the Prosecution was malicious.

15. The plaintiff also examined PW.2 in support of his case. PW.2

testified that in September 2005, at about 11.00 AM, he had seen the

plaintiff standing in the accused dock in the Court hall; then he

enquired from the person nearby as to why the plaintiff and others were

standing in the port; was informed that those persons, against whom

the criminal case was pending, would be called to appear and stand like

that; after the arrival of the plaintiff and others from the court hall, out

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of anxiety, firstly accosted the plaintiff and later asked him as to why he

stood there and what offence was committed; about one and half years

back, enquired the plaintiff's driver about the case, when he came

across him, he was told that the said criminal case was dismissed by

the Court and till such time, he was in the belief that the plaintiff

committed some offence. In the cross-examination of PW.2, it is elicited

that he did not enquire why the plaintiff came to the Court on that day;

he needs to know whether the case was completed.

16. The plaintiff also examined PW.3, who testified that he had

personally known the plaintiff for 15 years as an experienced Class-I

civil contractor; he used to get his advice in his research work. Usually,

the plaintiff was very active and enthusiastic in listening. Still, during

2006 and 2007, the plaintiff used to be in a perturbed mood and

appeared depressed for a day or two whenever he attended the Criminal

Court as an accused at Kothavalasa; on his enquiries, he learnt that

one person, who was a retired revenue side employee, roped him in a

criminal case instead of going for a civil remedy. In the cross-

examination, PW.3 testified that he has not seen the plaintiff as accused

in the Court; he does not know the defendant and the nature of

disputes between the plaintiff and defendant.

17. The evidence of P.W.s 2 and 3 suggests that the plaintiff did not

examine them to establish that the defendant instituted a criminal case

against him without probable and just cause.

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18. The defendant, who was examined as DW.1, testified that he

worked in Revenue Department for thirty-five years and retired in 2006;

the plaintiff himself invited Prosecution by trespassing into his land,

knowing fully well that he is the owner and that Saripalli Demudu had

no title to the land; by trespassing into his land, the plaintiff created

mental agony to him and harassed to him; the plaintiff trespassed into

his land to dictate terms to him, but the plaintiff could not succeed.

According to the defendant's version, he purchased the land from

Saripalli Gangulu and his minor son, Demudu, under a registered sale

deed dated 07.03.1974 (document No.314 of 1974); he had had the

same till 30th August 2003, i.e., on which date, the plaintiff and his men

trespassed into the said property. It is the plaintiff's stand that he

purchased the land from Saripalli Demudu in 2003; thus, there were

rival claims regarding the property's possession and title. In support of

the stand, the defendant's relief on Ex.B.3, a certified copy of the sale

deed, stood in his favour. He also relied on Exs.B.1 and B.2, the

certified copies of the Judgment and Decree in O.S. No.102 of 2007 on

the file of Junior Civil Judge Court, Kothavalasa. Exs.B.1 and B.2 show

that the Civil Court found that the defendant has the disputed property

and decreed the same.

19. In support of his case, the defendant also examined DW.2

(V.Satyanarayana), who testified that while the defendant was in

possession and enjoyment of his land, the plaintiff encroached upon the

said land ten years ago and formed a road; he was aware of the

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encroachment made by the plaintiff. In the cross-examination of DW.2,

he furnished the boundaries of the disputed property. It is not

suggested to DW.2 that the said boundaries, as he deposed, were

incorrect. Except for suggesting the evidence he deposed is incorrect,

nothing is elicited to discredit his evidence.

20. The plaintiff contends that an appeal has been preferred against

the Judgment and decree covered by Exs.B.1 and B.2, which is

pending. As such, the findings in O.S. No.102 of 2007 have yet to attain

finality. It is also pertinent to note that the suit in O.S. No.102 of 2007

was instituted during the pendency of the C.C. No.12 of 2004 on the file

of the Magistrate Court. The material placed on record prima facie

establishes that the defendant had had the disputed property as of the

alleged incident. As seen from the record, the plaintiff has not placed

any material before the Court to suggest that he did not trespass into

the schedule property as alleged by him, but he had the schedule

property.

21. This Court is not supposed to go into question as to whether the

plaintiff trespassed into the scheduled property as alleged by the

defendant or the plaintiff had the schedule property, more particularly

when the matter is pending before the competent Civil Court.

22. In A. Narayan Rao's case cited supra, the composite High Court

of Andhra Pradesh further observed that a person not in possession of

land making a complaint of trespass against a person who is in actual

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physical possession of that land, prima facie smacks malice, and so

Court can draw a presumption that such a complaint was made without

reasonable and probable cause.

23. In the instant case, the competent Civil Court held that the

defendant had the scheduled property. As such, by any stretch of the

imagination, it cannot be said that the complaint was made without

reasonable and probable cause. As observed by the trial Court rightly,

the possession of the defendant in so far as disputed land is concerned

has been established by Exs.B.1 and B.2, so much so that no

presumption that the complaint made by the defendant against the

plaintiff was made without reasonable and probable cause, can be

drawn.

24. As already observed in the preceding paragraphs, the Civil Court,

based on the evidence adduced before it only, should conclude the

absence of reasonable and probable cause without being influenced by

the criminal Court's finding regarding the credibility of the witnesses

examined before it.

25. The plaintiff has not placed any material before the Court to show

that the complaint lodged by the defendant against him without

reasonable and probable cause. On the other hand, the defendant has

placed material before the Court to show that he had been in peaceful

possession and enjoyment of the property as of the date of the alleged

incident.

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26. It is settled law that in an action of malicious Prosecution, the Civil

court cannot rely on findings recorded by or evidence adduced before

the criminal Court to conclude the incidence of malice.

27. As seen from the record, the plaintiff has relied on Ex.A.5 office

copy of legal notice dt.07.11.2007 issued by the plaintiff to the

defendant, calling upon him to pay damages; Ex.A.6 shows that the

said notice was received by the defendant on 08.11.2007, but the

defendant neither responds nor pays damages. The plaintiff contends

that since the averment in Ex.A.5, the defendant did not deny notice by

sending a reply; the same is tantamount to admission of contents of the

same. As such, the defendant cannot contend that there is no malice on

his part while initiating criminal proceedings against the plaintiff.

However, the trial Court had referred the decision of the composite High

Court of Andhra Pradesh in the case of Alapatti Rattayya V. Namburi

Venkata Subramanyam2, wherein it is held that "non-giving of reply -

though can be taken as a circumstance, no broad proposition can be laid

down that whenever a reply notice is not given, it can be taken as though

automatically a case of other side is not controverted at all".

28. As rightly observed, the defendant can establish that there was

probable and reasonable cause for him to file a criminal case against

the plaintiff, and the plaintiff has also failed to establish that he has not

placed any evidence before the Court to show that the contents of the

2008 (6) ALD HCNOC 89

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complaint filed by the defendant were incorrect. As seen from the

record, the plaintiff has solely relied on the Judgment in the Criminal

Case, and this Court is of the view that the Civil Court cannot rely on

the findings recorded by the criminal Court for concluding the incidence

of malice. The evidence of PWs 1 to 3, coupled with the documentary

evidence placed on record, is insufficient to hold that the defendant filed

a complaint against him with a malafide intention without reasonable or

probable cause to institute criminal proceedings against the plaintiff.

29. As a sequel to the afore-stated findings of this Court supra, it is

to be held that the contention of the appellant/plaintiff that the decree

and Judgment of the trial Court are unsustainable under facts and in

law is without merit and is liable for rejection. On carefully evaluating

the oral and documentary evidence and after going through the

Judgment of the trial Court, this Court, for the reasons assigned in this

Judgment, finds itself in agreement with the findings recorded by the

trial Court on the issues settled and accordingly holds that the trial

Court is justified in decreeing the suit of the plaintiff. In that view, the

well-considered Judgment of the trial Court brooks no interference. For

the afore-stated reasoned findings recorded in the preceding discussion,

this Court finds that the appeal suit, without merit, is liable for

dismissal. The points are accordingly answered against the

appellant/plaintiff.

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30. As a result, the appeal suit is dismissed without costs by

confirming the Judgment and Decree passed in O.S.68 of 2007, dated

30.06.2014, by the learned IV Additional District Judge, Vizianagaram.

Miscellaneous petitions pending, if any, in this Appeal shall stand

closed.

_________________________________ JUSTICE T. MALLIKARJUNA RAO

Date: 18.10.2023 SAK

T.M.R., J A.S. No.42 of 2015

THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

APPEAL SUIT NO. 42 OF 2015

Date: 18.10.2023

SAK