Bombay High Court
Balaji Sadnyanrao Kale vs Gangadhar Kondiba Kale on 27 March, 2025
2025:BHC-AUG:10851
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SA 229.97.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 229 OF 1997
Balaji s/o. Sadnyanrao Kale
Age 50 years, Occ. Service,
R/o. Hirapur, now R/o. Parbhani .. APPELLANTS
VERSUS
1. Gangadhar Kondiba Kale
Age major, Occ. Agril.
2 Shrihari Gangadhar Kale
Aged major, Occ. Agril
Both R/o. Mirzapur,
Tq. And Dist. Parbhani. .. RESPONDENTS.
...
Mr. Anil H. Kasliwal, Advocate for appellant.
Mr. Vivek Bhavthankar, Advocate for respondents.
CORAM : S.G. CHAPALGAONKAR, J.
DATE : 27th MARCH, 2025.
JUDGMENT :
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1. The appellant impugns the judgment and decree dated 25 th
March, 1997, passed by District Judge, Parbhani in RCA No. 103 of 1993,
thereby upholding the judgment and decree dated 24.9.1993 passed by
Joint Civil Judge J.D.) Parbhani in RCS No. 224 of 1992.
2. The respondent/plaintiff instituted suit for grant of decree of
damages for malicious prosecution, contending that they are closely
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SA 229.97.odt
related with defendant. Defendant is nephew of plaintiff No.1. They
hold movable and immovable property at Mirzapur. The defendant
lodged complaint against them with Police Station (Rural), alleging that
plaintiff committed theft of power spray. Lateron, filed private complaint
RCC No. 271 of 1990 with same allegations and prosecuted them for
offence under Section 379, 411 r/w. 34 of IPC. In that case, plaintiffs are
acquitted on trial. According to plaintiffs, there is common wall between
their houses and it was constructed with understanding that both of them
would equally contribute the expenditure. The plaintiff caused
construction of the wall at his expenses and asked defendant to
contribute his half share, which he declined. Enraged by such demand,
lodged false report against them. The police, on inquiry, found no
substance in the report. Still, defendant prosecuted them by filing private
complaint with false allegation without just cause. According to plaintiffs,
defendant had no reasonable and probable cause to lodge complaint
against them.
3. The plaintiffs were made to face inquiry by police Sub
Inspector, furnish sureties and incur expenditure for that purpose. They
engaged advocate, attended 15 dates of trial and undertook travel by ST
Bus to Court from their native place. Their work was disturbed and their
status was lowered in the esteem of society. Hence, in order to get
damages, they filed suit. The defendant filed written statement and
resisted their claim. According to him, he had purchased power spray
from Padalkar Agency for agricultural purpose. Plaintiffs had stolen the
same. He saw it in the house of plaintiffs. Therefore, he lodged
complaint to police station believing that plaintiffs have committed theft
or they were receivers of stolen property. His complaint/prosecution was
based on reasonable cause, which cannot be termed as malicious
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SA 229.97.odt
prosecution. The acquittal of plaintiffs itself cannot be construed
prosecution was malicious. Rest of the averments regarding expenditure
incurred by plaintiffs in defending criminal prosecution or loss of
reputation were denied.
4. The trial court framed issues, recorded evidence and
concluded that plaintiffs are entitled for damages of Rs. 6,000/- for
malicious prosecution from defendant. As such, decree came to be passed
on 24.9.1993. The Appellate court concurred with the findings recorded
by trial court and dismissed the appeal. Defendant filed present second
appeal which has been admitted by this court vide order dated
17.7.2000 on following substantial questions of law :-
"1. In the absence of issue of reasonable and probable
cause whether the suit for malicious prosecution was
maintainable ?
2. Whether in absence of proof of a loss of reputation
and issue to that effect, the suit for malicious prosecution
can be decreed."
5. In pursuance to aforesaid substantial question of law framed
at the time of admission of appeal, Mr. Kasliwal, learned advocate for
appellant submits that trial court failed to frame the issue of reasonable
and probable cause, which is essential for deciding the suit as to
malicious prosecution. He would further submit the plaintiffs failed to
bring on record any sort of evidence, to prove loss of reputation to them
on account of alleged malicious prosecution. Even such an issue was not
framed by trial court. On this count also the decree passed by the trial
court and affirmed by appellate court is liable to be quashed and set
aside.
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SA 229.97.odt
6. In support of his contention, he relies upon the observations
of this Court Dhanjishaw Rattanji Karani vs. Bombay Municipality and
others, reported in AIR 1945 Bombay 320.
7. Having considered submissions advanced by Mr. Kasliwal
and on perusal of record, it can be observed that trial court did not frame
the issue as to reasonable and probable cause for initiation of
prosecution. Similarly, there is no issue as to loss of reputation in
deference to the malicious prosecution. However, trial court framed issue
as to whether defendant maliciously prosecuted plaintiffs. While
disposing of the aforesaid issue, the trial court has rightly discussed the
evidence on record and recorded a finding of non availability of
reasonable and probable cause for filing suit for malicious prosecution.
A specific finding of fact is recorded in para.19 with further elaboration
of defendant's wrongful act observing intentional prosecution of plaintiffs
without just cause, excuse, lacking reasonable and probable cause.
Moreover, the appellate court while dealing with the challenge to the
decree passed by trial court, specifically framed the point for
consideration covering the aforesaid aspect.
8. So far as the issue on the point of loss of reputation and
consequential calculation of damages based on malicious prosecution,
both the courts have concurrently held that defendant had no reasonable
and probable cause to prosecute plaintiffs. The evidence of defendant is
self-contradictory which depict that filing complaint was not on bonafide
belief. Both courts have concluded that action of defendant was actuated
with malice, on account of dispute over to contribution towards
construction of common wall. Apparently, allegations made against
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SA 229.97.odt
plaintiff in criminal proceeding was false. Undisputedly, initially police
complaint was lodged and thereafter, private criminal case was instituted
with allegation of theft against plaintiffs.
9. In this background, following observations of the Supreme
Court in the matter of Dhanjishaw (supra) are relevant :-
"This is an action for " Malicious Prosecution". The law on the
subject is perfectly well-settled. As stated in Clerk & Lindsell on
Torts, 9th Edn., at p. 662, it is obviously a grievance that an
individual should be harassed by legal proceedings improperly
instituted against him. If there is no foundation for them no doubt
they will not ultimately succeed, but: during their progress they
may cause great injury. It is the right of everyone to put the law in
motion if he does so with the honest intention of protecting his own
or the public interest, or if the circumstances are such, be his
motives what they may, as to render it probable prima facie that the
law is on his side. But it is an abuse of that right to proceed
maliciously, and without reasonable and probable cause for
anticipating success. Such an abuse may of necessity be injurious,
as involving damage to character, or it may in any particular case
bring about damage to person or property. There are, says Lord
Holt, three sorts of damages anyone of which would be sufficient
ground to support an action of malicious prosecution. (1) The
damage to a man's feme, as if the matter whereof he is accused be
scandalous, (2) The second sort of damages which would support
such an action are such as are done to the person; as where a man is
put in danger to lose his life or limb or liberty which has been
always allowed a good foundation of such an action, (3) The third
sort of damage which will support such an action is damage to a
man's property as where he is forced to expend his money in
necessary charges to acquit himself of the crime of which he is
accused (Savile v. Roberts (1823) 1 Ld. Raym. 374, 378)."
10. If aforesaid principles of law are applied, in present case ,
when both the courts have arrived at the finding that prosecution againts
plaintiffs was not with honest intention, but it was abuse of process of
law, without reasonable and probable cause for anticipating success, the
damage to man's fame can be discerned. In the present case, plaintiffs
have brought on record sufficient material in support of action for
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SA 229.97.odt
malicious prosecution, namely, "damage to men's fame" whereof, he is
accused be scandalous.
11. In the light of aforesaid observations, it is evident that non-
framing of issue of reasonable and probable cause for institution of
malicious prosecution or issue as to loss of reputation, has not resulted
into prejudice to the appellant. It is trite that if parties have recorded
their evidence on relevant aspect of the matter and the court has dealt
with such an issue, which has further received elaborate consideration by
the appellate forum, decree would not be rendered invalid for want of
specific issue.
12. The provisions of Order 41 Rule 23 of C.P.C. encompass
sufficient powers to appellate court to frame and consider the issue,
which is omitted by the trial court and render the findings on the basis of
evidence recorded by the parties. In the present case, it is not contention
of the appellant that omission to frame the issue has resulted into denial
of opportunity to establish his case. In that view of the matter, no
prejudice is caused to the appellant/defendant. In the result, the
substantial questions of law, as framed, are answered in the negative.
Second appeal stands dismissed accordingly.
[S.G. CHAPALGAONKAR, J]
grt/-
