Shri O.P. Goel vs Shri Tapan Kumar Das
2015 Latest Caselaw 7631 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 6th October, 2015

+                        RFA No. 303/2009

       SHRI O.P. GOEL                                    ..... Appellant
                     Through:        Ms. K.A. Nagamani, Advs.

                                  Versus

    SHRI TAPAN KUMAR DAS                      ..... Respondent

Through: Mr. K. Sunil & Mr. Aviral Mittal & Mr. Navdeep Jain, Advs.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This Regular First Appeal under Section 96 of the Code of Civil

Procedure, 1908 (CPC) impugns the judgment and decree dated 16th

September, 2008 of the Court of Mrs. Sarita Birbal, Additional District

Judge (ADJ) of dismissal of Suit No.15/2008 (instituted on 31 st May, 1997)

of the appellant for recovery of Rs.6,40,000/- by way of damages for

malicious prosecution from the five defendants viz. State of Bihar, Tapan

Kumar Dass, Vijay Kumar Jha, Vijay Nandan Dubey and Director General,

All India Radio (AIR).

2. The memorandum of parties of this appeal shows only one respondent

viz. Tapan Kumar Das.

3. On enquiry, the counsel for the appellant informs, (i) that the suit was

earlier decreed on 6th April, 2004 awarding damages / compensation of

Rs.3,00,000/- along with interest at 9% per annum from the date of filing of

the suit and till realization; (ii) 75% of the said decretal amount was directed

to be paid by the defendant No.3 Vijay Kumar Jha and the rest of the

decretal amount was ordered to be shared by the other defendants equally;

(iii) the said decree in so far as against the sole respondent herein viz. Tapan

Kumar Das was an ex parte decree; ;(vi) the respondent filed an application

under Order IX Rule 13 of the CPC for setting aside of the said judgment

and decree and which application was allowed vide order dated 21st April,

2006 and the ex parte judgment and decree was set aside only against the

respondent Tapan Kumar Das. It is thereafter that the impugned judgment

and decree was passed. It is on this basis that in this appeal, there is a sole

respondent as the impugned judgment is confined to the respondent only.

4. On enquiry, the counsel for the appellant informs that execution of the

judgment dated 6th April, 2004 against Vijay Kumar Jha from whom 75% of

the decreetal amount is to be recovered is pending and the State of Bihar and

the Director General AIR, each of whom were to pay 1/4th of the balance

25% of the decretal amount, have paid their respective share.

5. The counsel for the appellant has argued that the order dated 21 st

April, 2006 of the ADJ setting aside the ex parte judgment and decree dated

6th April, 2004 qua the respondent is bad and was obtained by the respondent

by fraud.

6. The counsel for the respondent intervenes that the appellant had

preferred a Civil Revision Petition before this Court against the order dated

21st April, 2006 setting aside ex parte against the respondent and the same

was dismissed vide order dated 15th May, 2006.

7. The counsel for the appellant also agrees but contends that since the

order dated 21st April, 2006 of the ADJ setting aside ex parte decree was a

nullity, the appellant is entitled to challenge the same now also. On enquiry,

whether at the time of dismissal of the Revision Petition preferred

thereagainst, on 15th May, 2006, the said right was reserved or not, the

counsel for the appellant states that the appellant did not have proper legal

assistance at that time.

8. The counsel for the respondent again intervenes to state that the

appellant is learnt to have gone to the Supreme Court also against the order

dated 15th May, 2006 of this Court.

9. The counsel for the appellant states that though a Special Leave

Petition was preferred but was never listed for hearing and thus the question

of dismissal of the same did not arise.

10. In my view, once this Court in exercise of powers under Section 115

of the CPC has examined the order dated 21st April, 2006 of the learned

ADJ, it is not open to me at this stage to again entertain a challenge thereto

in this Regular First Appeal. I am in this jurisdiction not sitting in appeal

over the order dated 15th May, 2006 of this Court of dismissal of the

Revision Petition preferred by the appellant against the order dated 21 st

April, 2006.

11. Notwithstanding the counsel for the appellant having been informed of

the same, she insists on arguing on that line only and on no other. She has also

handed over a three page synopsis which is taken on record but the same also,

save for citing three judgments on the aspect of malicious prosecution viz. i)

Dau Dayal Vs. The State of Uttar Pradesh 1959 AIR SC 433, ii) West Bengal

State Electricity Board Vs. Dilip Kumar Ray AIR 2007 SC 97, and, iii)

Ravinder Singh Vs. Sukhbir Singh 2013 (9) SCC 245, is entirely on this aspect

only.

12. In the circumstances the hearing was closed with order to be dictated

in Chamber after going through the appeal file as well as Trial Court record

requisitioned in this Court.

13. The counsel for the respondent handed over copy of the judgment of

the Supreme Court in West Bengal State Electricity Board Vs. Dilip Kumar

Ray AIR 2007 SC 976.

14. However the order could not be dictated on the same day and the

counsel for the appellant since then has filed another written submissions

also dated 5th October, 2015 along with a fresh Vakalatnama dated 3rd

October, 2015.

15. I have gone through the records aforesaid as well as the written

submissions of the appellant.

16. The learned Additional District Judge (ADJ), in the impugned

judgment dated 16th September, 2008, has recorded of having been informed

that appeals against the judgment/decree dated 6th April, 2004 filed by some

of the other defendants were pending before this Court and has further

recorded that the appellant / plaintiff filed the suit pleading:-

A. that the appellant/plaintiff was employed in AIR and was

transferred to AIR Station at Darbhanga on 8th August, 1989 as

its Station Engineer;

B. that he was acting as Head of Office of AIR Station Darbhanga

w.e.f. 1st April, 1990;

C. that the respondent herein was also posted at AIR, Darbhanga

and was working as Station Director at the relevant time, till

31st March, 1990;

D. that due to wrongful activities of the respondent, he was

transferred from Darbhanga and his transfer order was received

by the appellant/plaintiff in the first week of April, 1990;

E. accordingly, the appellant/plaintiff as Head of Office at

Darbhanga Station of AIR issued relieving order to the

respondent but the respondent avoided receiving the same and

consequently the appellant/plaintiff had to himself go to deliver

the same to the respondent at his residence in the presence of

other officials posted at AIR, Darbhanga;

F. that the respondent on 10th April, 1990, in a mala fide and

malicious manner, made false police complaint against the

appellant/plaintiff and nine other officials posted at AIR,

Darbhanga;

G. no prosecution was initiated by the Police on the basis of the

complaint as the Police did not find any substance in the same;

H. on 12th April, 1990, the respondent made another complaint on

the same very facts and sent the same to the Police through the

defendants no.3 & 4 namely Shri Vijay Kumar Jha and Shri

Vijay Nandan Dubey for lodging First Information Report

(FIR);

I. as a consequence of this criminal conspiracy between the

respondent and the defendant no.3 Shri Vijay Kumar Jha and

defendant no.4 Shri Vijay Nandan Dubey and the then

Superintendent of Police, Darbhanga, criminal case bearing FIR

No.57/90 at Nagarthana Darbhanga under Sections 143, 342,

427, 448, 504 and 506 read with Section 34 IPC was registered

on 14th April, 1990 against the appellant/plaintiff and eight

other officials then working at AIR, Darbhanga;

J. the matter was reported to the defendant no.5 Director General,

AIR who gave his go-ahead to the prosecution of the

appellant/plaintiff and eight other officials;

K. that malicious prosecution on these allegations was lodged

against the appellant/plaintiff at the behest of the respondent

and the said Vijay Kumar Jha and Vijay Nandan Dubey;

L. that the appellant/plaintiff, due to harassment and threat of his

physical elimination and finding no protection from the

concerned quarters, had to take premature voluntary retirement

from his service on 21st October, 1990 and shifted to Delhi;

M. that charge sheet was filed in the aforesaid FIR on 21 st June,

1990 and charge framed on 1st June, 1992 against the

appellant/plaintiff and other eight persons;

N. ultimately, after trial the appellant/plaintiff and other accused

persons were acquitted on 12th July, 1996.

The appellant / plaintiff filed suit from which this appeal arises

claiming, (i) damages in the sum of Rs.2 lacs for harassment,

loss of reputation, mental torture and agony; (ii) expenses

incurred in contesting the prosecution in the sum of

Rs.3,10,000/-, (ii) loss of emoluments of Rs.1 lac, and (iii) loss

of earnings of Rs.30,000/- i.e. total Rs.6,40,000/-.

17. The following issues were framed on 18th October, 2006:-

"1. Whether this court has no territorial jurisdiction to try this case? OPD2

2. Whether the suit is not maintainable and barred by principles of resjudicata? OPD

3. Whether the plaintiff is entitled to claim damages against defendant no.2 as prayed? OPP

4. Relief."

18. The appellant/plaintiff examined himself only; the respondent, besides

himself, examined one Shri Rajender Kumar as his witness.

19. The learned ADJ decided the Issues No.1 & 2 aforesaid in favour of

the appellant/plaintiff.

20. However the learned ADJ decided Issue No.3 against the

appellant/plaintiff and in favour of the respondent, reasoning:-

(a) mere acquittal of a plaintiff in a prosecution initiated by the

defendant is not sufficient to hold that there was malicious

prosecution of the plaintiff; if the defendant has reasonable or

probable cause of launching the criminal prosecution, no

amount of malice will make him liable for damages;

(b) reasonable and probable cause has to be such as would operate

in the mind of a reasonable man; „malice‟ and „want of

reasonable and probable cause‟ have reference to the state of

the defendant‟s mind at the time of initiation of criminal

proceedings and the onus rests on the plaintiff to prove the

same;

(c) reliance was placed on West Bengal State Electricity Board Vs.

Dilip Kumar Ray AIR 2007 SC 976, Ravinder Kumar Sharma

Vs. State of Assam AIR 1999 SC 3571, Surat Singh Vs. Delhi

Municipal Corporation AIR 1989 Delhi 51, Major Gian Singh

Vs. S.P. Batra AIR 1973 Punj. & Har. 400 and C.B. Aggarwal

Vs. P. Krishna Kapoor AIR 1995 Delhi 154;

(d) that though the respondent had filed complaints dated 10 th

April, 1990 and 12th April, 1990 which gave rise to the

prosecution but cognizance of the alleged offence was taken by

the Judicial Magistrate and the charge sheet filed by the Police

at Darbhaga; whether the Police was justified in recording the

FIR and filing the charge sheet was the subject matter of the

appeals pending before the High Court filed by the State of

Bihar and some other defendants. (Though the outcome thereof

is not known);

(e) that the appellant/plaintiff, to succeed was thus required to

show that at the time of making of the complaint the respondent

had no reasonable or probable cause for making the complaint;

(f) that at the relevant time while the appellant/plaintiff was posted

at Darbhanga Station as its Station Engineer, the respondent

was working as Station Director; there was a policy at the

relevant time by which both the appellant/plaintiff and the

respondents were required to act as the Head of the Station in

rotation for one year each; the respondent acted as Head up to

31st March, 1990 and thereafter the appellant/plaintiff was

acting as Head w.e.f. 1st April, 1990;

(g) on 30th March, 1990 the Director General, AIR, Darbhanga

issued a transfer order transferring the respondent from the post

of Station Director, AIR Darbhanga to the post of Station

Director, AIR Kurseong;

(h) that as per the transfer order, the respondent was required to

relinquish his charge at Darbhanga on being relieved by one

Shri V.S. Srivastava; there was some delay in reporting by Shri

V.S. Srivastava at Darbhanga and the respondent continued to

discharge his duties;

(i) on 10th April, 1990 the appellant/plaintiff passed an order

relieving the respondent from Darbhanga and the relieving

order was sought to be served by the appellant/plaintiff on the

respondent on 10th April, 1990 at about 9.30 P.M. at the

residence of the respondent;

(j) the case of the appellant/plaintiff was that he had to go to the

residence of the respondent in the night to serve the order as the

respondent was avoiding to receive the order;

(k) per contra, the case of the respondent was that the

appellant/plaintiff came to his residence along with large

number of other persons in between 9.00 p.m. and 9.30 P.M.

and gheraoed his house and forcibly tried to open the door and

disconnected the telephone line to the house of the respondent

and this led to the filing of the complaint to the Police which

gave rise to the FIR;

(l) that the Chief Judicial Magistrate vide his judgment dated 12 th

July, 1996 held that the prosecution had not been able to prove

allegations against the accused persons beyond reasonable

doubt and accordingly acquitted the appellant/plaintiff and

other accused; it is noted in the judgment that the wife and son

of the respondents were material witnesses but were not

examined during the trial; it has further been held in the

judgment that in the facts and circumstances, the purpose of the

assembly of which the plaintiff was a party could not be said to

be unlawful within the meaning of Section 141 IPC; it is also

observed that there was some delay in recording of FIR;

(m) in the aforesaid facts, it could not be said that the respondent

had no reasonable or probable cause for making the complaint;

(n) it was not disputed that the appellant/plaintiff along with others

went to the house of the respondent at 9.30 p.m.; even if the

respondent was avoiding to receive the relieving order, the

appellant/plaintiff had been unable to show any reasonable

cause for going to the residence of the respondent at night along

with others and to make an attempt to forcibly serve the same;

(o) it was not the case of the appellant/plaintiff that he was ordered

by the administrative superiors to serve the relieving order in

such a manner;

(p) the language of the relieving order showed that the decision was

unilaterally taken by the appellant/plaintiff and appeared to be

contrary to the direction of Director General, AIR who had

ordered that the respondent shall continue to work till Shri V.S.

Srivastava reports at Darbhanga;

(q) that the appellant/plaintiff had also locked the office of the

respondent, as is apparent from the relieving order;

(r) the relieving order could have been served by sending it

through the registered post or by affixation outside the office of

the respondent;

(s) admitted attempt by the appellant/plaintiff to compel the

respondent, by going to the residence of the respondent along

with number of other persons, to receive the order at 9:00 P.M.

could have given a probable cause for filing of complaint by the

respondent;

(t) that the respondent had proved that the administrative superiors,

upon being informed of the incident, ordered re-opening of the

office of the respondent which the appellant/plaintiff had

forcibly shut down and further that the respondent had

continued to work at AIR, Darbhanga till 21st April, 1990 when

in the afternoon he relinquished charge as Shri V.S. Srivastava

joined on 22nd April, 1990;

(u) that the appellant/plaintiff had not been able to establish that he

took voluntary retirement in October, 1990 due to the complaint

aforesaid; and,

(v) rather letter dated 14th May, 1990 of the appellant/plaintiff

proved as Ex.DW2W1/6 showed that the appellant/plaintiff

who was attaining the age of 55 years on 19th May, 1990 had

sought either his transfer to Delhi or voluntary retirement to be

able to settle down in Delhi to fulfill his social obligation in and

around Delhi where he intended to ultimately settle down; no

mention was made in the said letter of the complaint made by

the respondent or the FIR.

Accordingly, it was held that the appellant/plaintiff was not entitled to

any damages against the respondent.

21. I have minutely perused the memorandum of appeal and do not find

the appellant/plaintiff to have therein controverted the reasoning aforesaid in

the impugned judgment or the premise thereof. Rather, the emphasis of the

appellant/plaintiff therein also is on the illegality of the order dated 21st

April, 2006 setting aside the ex parte judgment and decree dated 6th April,

2004 against the respondent and on the impugned judgment being contrary

to the findings in the ex parte judgment and decree dated 6th April, 2004

against the respondent.

22. As aforesaid, the order dated 21st April, 2006 of the learned ADJ

setting aside the ex parte judgment and decree was subject matter of

Revision Petition which was dismissed by this Court. It is now not open to

challenge.

23. Similarly, once the ex parte judgment and decree was set aside, no

reliance can be placed on the ex parte judgment and decree to find fault with

the judgment and decree rendered after a contested trial.

24. Besides the same, the appellant/plaintiff has contended, (i) that he had,

in performance of his official duty, gone to the house of the respondent to

deliver the relieving order as the respondent was avoiding to receive the

same; (ii) that no complaint dated 10th April, 1990 had been proved and

hence the first complaint of the incident of 10th April, 1990 was after two

days on 12th April, 1990 and was as an afterthought; (iii) that in fact the

complaint dated 12th April, 1990 also had been submitted to the Police only

on 14th April, 1990; (iv) that the delay in filing the complaint shows the

malicious intention of the respondent; (v) that the respondent had failed to

produce his wife and child who were material witnesses in the witness box

in the Suit also; and, (vi) that if there had been an incident as was

complained by the respondent, it is unbelievable that there would have been

no witnesses to it.

25. I have perused the Trial Court record, particularly the evidence led, to

gauge whether the findings of the learned ADJ in the impugned judgment

even though not contended to be not borne out therefrom, can be said to be

so. I do not find anything therein from which it can be said that the reasoning

of the learned ADJ of, (i) the respondent being required to be relieved from

the AIR Darbhanga only upon Shri V.S. Srivastava joining the same; (ii) the

relieving order which the appellant/plaintiff sought to serve on the

respondent being contrary thereto and being the unilateral act of the

appellant/plaintiff; (iii) that there being no occasion for the

appellant/plaintiff to serve the relieving order dated 10 th April, 1990 on the

respondent in the night of 10th April, 1990 itself at the residence of the

respondent no.2 and going with a large number of other persons to the house

of the respondent; and, (iv) the respondent feeling threatened from the

actions aforesaid of the appellant/plaintiff and making a complaint thereof,

being erroneous. In fact the appellant/plaintiff in his affidavit by way of

examination-in-chief did not even state that the relieving order dated 10th

April, 1990 was tendered to the respondent in the daytime of 10 th April,

1990 for it to be said that the respondent had failed to receive the same. It

cannot also be forgotten that the order dated 30th March, 1990 of transfer of

the respondent was not of the appellant/plaintiff but of the Director General

AIR and there is nothing on record to show that the appellant/plaintiff

working as the Head of AIR Darbhanga was required to issue the relieving

order dated 10th April, 1990 or to serve the same. Rather the

appellant/plaintiff in his cross examination could not even answer whether

he had sent copy of the relieving order dated 10 th April, 1990 to the office of

the Director General, AIR or to any other senior official. In fact the cross

examination of the appellant/plaintiff is replete with "I do not remember".

26. I also find the respondent to have proved, (i) that his house was in the

AIR residential colony; (ii) that in the night of 10 th April, 1990 his house

was gheraoed by 20-25 persons with a view to threaten and attack him and

his family members; (iii) that the Police was informed of the incident

immediately and intervened to defuse the situation; (iv) that due to the said

incident and fearing for himself and for his family, he requested to be

permitted to relinquish his charge even before the arrival of Sh. V.S.

Srivastava and was permitted to hand over his charge to the Station Director,

Darbhanga and which he did on 21st April, 1990, before the arrival of Shri

V.S. Srivastava on 22nd April, 1990; and, (v) that on his complaints

disciplinary proceedings were contemplated against the appellant/plaintiff

and to avoid which the appellant/plaintiff sought voluntary retirement.

27. I find no reason to disagree or to find error in the reasoning given by

the learned ADJ of the circumstances aforesaid giving rise to a reasonable

apprehension in the mind of the respondent of threat to him and his family

members. It is not in dispute that the appellant/plaintiff, without any

reasonable cause, along with others went to the house of the respondent in

the night of 10th April, 1990. Such uncalled for visiting by a person who

obviously was acting adversely to the respondent, along with a number of

other persons can give rise to an apprehension in the mind of the respondent

leading to the complaint. Moreover, it is not as if the respondent had pursued

any private complaint against the appellant/plaintiff. On the basis of a

complaint of the respondent the Police was expected to investigate and if

found any offence to have been made out, to only then prosecute. No error

can thus be found in the reasoning of the learned ADJ.

28. The counsel for the appellant/plaintiff in the written submissions filed

subsequently also has not contended anything to the contrary. As far as the

judgments aforesaid relied upon by the appellant/plaintiff are concerned,

they also do not lay down any different proposition than has been adopted by

the learned ADJ in the impugned judgment.

29. Before parting with this judgment, I may record that the Trial Court

record perused by me is found to contain copies of orders in RFA

No.375/2004 preferred by Shri Vijay Kumar Jha and others against the

judgment and decree dated 6th April, 2004 as well as of order in RFA

No.641/2004 preferred by State of Bihar. A perusal of the website of this

Court shows RFA No.375/2004 and RFA No.641/2004 to have been

disposed of as infructuous vide orders dated 18th February, 2010 in the light

of the judgment dated 16th September, 2008 impugned in this appeal.

30. I may also record that the appellant/plaintiff had before the Trial Court

also filed an application under Section 340 of the Cr.PC against the

respondent averring falsehood on the part of the respondent in seeking

setting aside of the ex parte judgment and decree dated 6th April, 2006 and

which application was also dismissed by the learned ADJ vide order dated

16th September, 2008. The appellant/plaintiff had preferred Criminal Appeal

No.110/2009 against the said dismissal and notice whereof was issued and

which was ordered to be listed with this appeal but which was dismissed in

default of appearance of the appellant/plaintiff on 8 th January, 2015 and no

steps for restoration thereof have been taken.

31. There is thus no merit in the appeal.

Dismissed. However no costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J OCTOBER 06, 2015 „gsr‟/ „pp‟ (corrected & released on 25th December, 2015)