Ruby Gautam vs Satwant Kaur
2007 Latest Caselaw 1938 Del

JUDGMENT

J.M. Malik, J.

Page 2870

1. The whole controversy centres around the question whether the daughter of the main defendant, who, instituted and continued the alleged malicious prosecution can be roped in and arrayed as one of the defendants, merely because she used to accompany her father to the court. Respondent Smt. Satwant Kaur filed a suit for damages for malicious prosecution and claimed a sum of Rs. 4,50,000/- from seven defendants. Adumbrated in brief her case is this. Flat No. 63A Pocket A, Mayur Vihar, Phase-II belongs to one Sh. S.R. Bansal. He wanted to sell it. He requested Satwant Kaur and authorised her to enter into negotiations with the proposed purchasers Page 2871 and to effect the sale of the said flat. Negotiations for the sale of the said flat went on between Umrao Singh defendant No. 4 through one Sh. Dalip Rai. Umrao Singh approached Smt. Satwant Kaur along with one Rattan Singh and paid a sum of Rs. 40,000/- and it was agreed that the deal would be completed within 30 days. On 07.03.2001 Dalip Rai paid a sum of Rs. 2,40,000/- to Smt. Satwant Kaur. On 08.03.2001 Satwant Kaur gave a receipt wherein she endorsed "received from and through Dalip Rai".

2. A sum of Rs. 12,10,000/- was still outstanding against Umrao Singh. Instead of paying the residue amount Umrao Singh sent a legal notice dated 13.03.2001 through his advocate, where he made very wide allegations against accused Smt. Satwant Kaur and Sh. Dalip Rai to the effect that they had played a fraud upon him, had cheated him and as a matter of fact Satwant Kaur was not the owner of the said flat.

3. The above said earnest money in the sum of Rs. 40,000/- and Rs. 2,40,000/- had actually been paid to Sh. S.R. Bansal. Dalip Rai approached Smt. Satwant Kaur and asked her to pay him back the sum of Rs. 2,40,000/-. It was actually paid by him and as a matter of fact Umrao Singh had no enough money to negotiate the above said deal. The said money was paid back to Dalip Rai.

4. On 12.03.2001 Umrao Singh filed a criminal complaint against Smt. Satwant Kaur under Sections 420/506/34 IPC. The matter was sent for report of the police under Section 156(3) Cr.P.C. It is alleged that Pankaj Singh, Sub Inspector and Tej Singh Verma, SHO while working in tandem sent a report to the trial court that Satwant Kaur as well as Dalip Rai were guilty of offences under Sections 420/506 IPC. They registered the case against Satwant Kaur and Dalip Rai under Sections 406/420/465/471/506/120B/34 IPC being FIR No. 359/2001.

5. The anticipatory bail matter was heard by Sh. V.K. Jain, Additional Sessions Judge. He granted the bail vide order dated 03.11.2001 subject to the condition that Satwant Kaur would return Rs. 40,000/- to the complainant. The petitioner was also directed to deposit Rs. 1 lac towards the amount of Rs. 2,40,000/-. The appeal was filed before this Court and Satwant Kaur and Dalip Rai were ordered to be released on bail without any condition.

6. Ms. Ruby Gautam was also arrayed as one of the defendants in the above said case. Ruby Gautam is stated to be a practicing lawyer at Patiala House. She continued appearing along with her father during the course of the proceedings in the court of learned MM, Patiala House courts. It is averred she is the mastermind behind this criminal and malicious prosecution launched by her father Umrao Singh against Satwant Kaur and Dalip Rai. The court of Sh. A.K. Sarpal, learned MM discharged the accused vide order dated 02.08.2004.

7. During the pendency of this case Ms. Ruby Gautam moved an application under Order 7 Rule 11 read with Section 151 CPC wherein she prayed that suit against her be dismissed as it was without any cause of action. The said application was dismissed by the learned trial court. Aggrieved by that order the present petition has been moved.

Page 2872

8. I have heard the counsel for the parties.

9. The allegations against defendant No. 5, petitioner herein, as noted by the learned trial court, are reproduced as follows:

...Para 13 of the plaint reads as under:

...The defendant No. 4 and his daughter defendant No. 5 who is a practicing lawyer at Patiala House continued appearing along with her father during the course of the proceedings in the court of ld. M.M. Patiala House Courts, New Delhi. In fact, it is the defendant No. 5 who is the mastermind behind this criminal and malicious prosecution launched by the defendant No. 4 against the plaintiff and said Dalip Rai. The defendant No. 4 and 5 who are father and daughter have constituted themselves into a gang and both of them have instituted innumerable cases against unsuspected and innocent personnel, who have the misfortune to fall a pray to their deceitful manipulation. The plaintiff and the said Sh. Dalip Rai are just one of them.

Para 23 of the plaint reads as under:

That the defendant No. 5 being the daughter of defendant No. 4 actively participated in the malicious prosecution against the plaintiff. Being an advocate, the defendant No. 5 was in league with defendant No. 4 and even continued ringing up plaintiff to cough out Rs. 2,00,000/- for a compromise with the plaintiff. it was the price the defendant No. 5 wanted to charge from plaintiff to blackmail her.

The trial court has also quoted para 10 of the notice under Section 80 CPC, which is reproduced as under:

That you addressee No. 5 being the daughter of the addressee No. 4 actively participated in the malicious prosecution against my client. Being an advocate, you are in league with your father addressee No. 4 and even continued ringing up my client to cough out Rs. 2,00,000/- for a compromise with my client. It was the price you wanted to charge from my client to blackmail her.

10. Counsel for the respondent has also drawn my attention towards para 24 of the plaint, which is reproduced as under:

24. That the defendant No. 4 and 5 who have constituted themselves into a clique have made litigation their profession. The Defendant No. 5 was engaged with one Shri Satinder Bharti but then filed a case under Section 4 of Dowry Act and also squeezed from them a sum of Rs. 50,000/-. The Defendant No. 5 also filed a criminal case against the person with whom she had engaged, which is still pending. The Defendant No. 4 also filed a complaint case under Section 138 of N.I. Act although the accused was always ready to pay him the cheque amount but he deliberately refused to accept the amount. The matter came up before the court of Shri A.K. Sarpal. The accused offered him the cheque amount but he refused to accept. The copy of the order of Shri A.K. Sarpal is attached hereto at Annexure-P.

Page 2873

11. Counsel for the respondent submits that the respondent should be given an opportunity to prove all these allegations. Counsel for the respondent admits that, although, she happens to be an advocate, yet, she was not the counsel in that case. She was only appearing along with her father.

12. I am of the considered view that the reasoning given by the trial court and arguments urged by the learned Counsel for the respondent are lame of strength. In the Law of torts by Salmond, Fourteenth Edition (1965) at page 588, it has been stated as follows:

In order an action shall lie for malicious prosecution or the other forms of abusive process which have been referred to, the following conditions must be fulfillled:

(1) The proceedings must have been instituted or continued by the defendant;

(2) He must have acted without reasonable and probable cause;

(3) He must have acted maliciously;

(4) In certain classes of cases the proceedings must have been unsuccessful - that is to say, must have terminated in favor of the plaintiff now suing.

13. The observations made in the following authorities neatly dovetail with this view:

State of Bihar v. Rameshwar Prasad Baidya and Anr. , Amar Singh v. Smt. Bhagwati , Sukhwinder Singh v. Ravinder Singh and Philip v. Hindu Madhan Dharma, Paripalana Sabha and Ors. .

14. In the instant case the above said first ingredient does not stand proved. The proceedings were neither instituted nor continued by the petitioner. Sans her father, or otherwise she was not in a position to continue the proceedings. She had no authority in this context. Imputation, if any was made by her father. She had no role to play in the above said alleged malicious prosecution. Even if she demanded Rs. 2,00,000/- on telephone that does not come within the purview of malicious prosecution.

15. I, therefore, allow the petition. The name of Ruby Gautam be deleted from the array of defendants. Petition and application stand disposed of. Parties are directed to appear before the trial court on the date fixed before the trial court.