Madras High Court
Chellappan Pilai vs Murugan Asari @ Ganesh Asari on 18 June, 2021
S.A.(MD)No.398 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.398 of 2007
Chellappan Pilai ... Appellant
Vs.
1.Murugan Asari @ Ganesh Asari
2.Karuthudayan Dhas,
Sub Inspector,
Kulasekharam Police Station,
Kanyakumari District.
3.Samuel
4.Radhakrishnan
5.The State of Tamil Nadu,
Rep. by District Collector,
Kannyakumari District,
Nagercoil. ... Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgment and decree dated 10.03.2006 passed in
A.S.No.83 of 2002 by the Sub-Ordinate Judge (Camp Court),
Kuzhithurai, confirming judgment and decree dated 11.07.2000
passed in O.S.No.666 of 1993 by the 1st Additional District Munsif,
Kuzhithurai.
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S.A.(MD)No.398 of 2007
For Appellant : Ms.J.Anandhavallli
For R1 : Mr.V.Meenakshisundaram
For Mr.D.Nallathampi
For R3 : No appearance
For R2 and R5 : Mr.R.Ragavendran,
Government Advocate.
JUDGEMENT
The plaintiff in O.S No.666 of 1993 on the file of the I Additional
District Munsif Court, Kuzhithurai is the appellant in this second
appeal. The plaintiff filed the said suit claiming damages from the
defendants for malicious prosecution.
2.The case of the plaintiff was that his brother, namely, Krishna
Pillai was in possession of 15 cents of land in R.S.No.89/1 in Pacode
Village and that he obtained an order of interim injunction against
Murugan Asari @ Ganesan Asari in O.S.No.31 of 1989 (re-numbered
as O.S.No.373 of 1989 and transferred to the file of District Munsif
Court, Kuzhithurai). On 12.05.1989, when the appellant, his
brother/Krishna Pillai and his sister were standing in the suit
property, the defendants 1 to 4 entered the place. A quarrel arose.
That was followed by lodging of a complaint in Crime No.232 of 1989
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S.A.(MD)No.398 of 2007
before Kulasekharam Police Station by Murugan Asari @ Ganeshan
Asari against the appellant herein. The case was registered for the
offences under Sections 454 and 380 of I.P.C. The appellant was
arrested on the same day and he could come out on bail only on
17.05.1989. The case was charge sheeted and taken on file in
C.C.No.6 of 1990 on the file of the Chief Judicial Magistrate,
Nagercoil. The case ended in acquittal on 24.06.1992. There is no
doubt that the said judgment of acquittal has become final as it was
not put to challenge either by the State or by the defacto complainant.
Thereafter, the present suit for malicious prosecution was laid on
23.06.1993.
3.The appellant examined himself as P.W.1 and one Justus as
P.W.2. Exs.A1 to A16 were marked. The first defendant examined
himself as D.W.1 and the second defendant, who was the investigation
officer examined himself as D.W.2. Exs.B1 to B7 were marked.
4.After considering the evidence on record, the trial court
dismissed the suit by judgment and decree dated 11.07.2000.
Questioning the same, the appellant filed A.S.No.83 of 2002 before the
II Additional Sub Court, Kuzhithurai. By judgment and decree dated
10.03.2006, the first appeal was also dismissed. Challenging the
same, this second appeal came to be filed.
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S.A.(MD)No.398 of 2007
5.The second appeal was admitted on the following substantial
question of law:-
“Whether the courts below erred in casting the entire
burden on the appellant?”
6.Heard the learned counsel on either side.
7.The learned counsel for the appellant reiterated all the
contentions set out in the memorandum of grounds and called upon
this Court to answer the substantial question of law in favour of the
appellant and allow this appeal.
8.Per contra, the learned counsel for the respondents submitted
that the impugned judgments and decrees do not call for any
interference.
9.I carefully considered the rival contentions and went through
the evidence on record. As already noted, this second appeal arose
out of a suit of malicious prosecution. In a suit for malicious
prosecution, the plaintiff is obliged to show that the defendant
prosecuted him and that it ended in his favour and that the
prosecution lacked reasonable and probable cause and that the
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S.A.(MD)No.398 of 2007
defendant acted maliciously (AIR 1966 Cal 388). No doubt, this is
rather a heavy burden for the plaintiff to discharge. But the plaintiff
would be substantially relieved, if it involves “false imprisonment”
also. The expression “false imprisonment” has been defined as arrest
without just or probable cause. In such a case, the burden to prove
the existence of reasonable cause is upon the defendant, since arrest,
unlike prosecution, is prima facie a tort and demands justification
[(1977) 1 SCC 133, Narayan Govind Gavate vs. State of
Maharashtra]. Where the prosecution also included arrest, while the
burden of proof would rest lightly on the plaintiff, when the onus
shifts, the defendant has a heavy task to discharge. In the case on
hand, the prosecution initiated against the appellant ended in
acquittal. On that there is no dispute. There is also no dispute that
the plaintiff was arrested on 12.05.1989 and that he could come out
on bail only on 17.05.1989. Therefore, the suit though styled as one
for malicious prosecution is also anchored on the cause of action of
false imprisonment. On the relevant date i.e., 12.05.1989, the
plaintiff's brother was very much having an order of interim injunction
in his favour. Armed with an order of injunction, the plaintiff was
present along with his brother in the suit property. If the stand of the
defendant was that the property on which, the appellant/plaintiff was
standing was not covered by the order of injunction, the burden lay
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S.A.(MD)No.398 of 2007
only on him to establish the same. This burden has not at all been
discharged by the contesting first defendant. The courts below
misdirected themselves by casting the entire burden on the plaintiff.
Therefore, I answer the substantial question of law in favour of the
appellant.
10.Though the police officer who arrested the plaintiff has also
been arrayed as a defendant, I refrain from fastening any liability on
him. I bear in mind that the occurrence had taken place way back in
the year 1989. The amendments to Cr.Pc came more than two
decades later. D.K.Basu and Arnesh Kumar decisions had not
become part of our jurisprudence. Even during these pandemic
times, police indiscriminately arrest and magistrates also
mechanically remand the accused. The State cannot be faulted for
having acted with alacrity on the complaint given by the first
defendant. Therefore, the suit is dismissed as against defendants 2
to 5 and it is decreed only against the first defendant.
11.The learned counsel for the appellant would submit that the
suit must be decreed with interest from the date of plaint. I am not
inclined to accept this. This is because I am obliged to take note of the
subsequent developments. The decree passed in favour of the
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S.A.(MD)No.398 of 2007
appellant's brother was subsequently reversed in first appeal.
Therefore, the first respondent is directed to pay a sum of Rs.10,000/-
to the appellant on or before 01.08.2021. He can take a demand draft
favoring the appellant and hand over the same to the counsel for the
appellant in this appeal. In the alternative, he can deposit the same to
the credit of the suit so that the appellant can withdraw the same. If
the first defendant fails to pay or deposit as directed above, he will
have to pay together with interest at the rate of 6% from 01.08.2021.
12.The judgments and decrees passed by the courts below are
set aside. The second appeal is allowed on the above terms. No costs.
18.06.2021
Index : Yes / No
Internet : Yes/ No
skm
Note :In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the
correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1.The Sub Judge,
Camp Court, Kuzhithurai.
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S.A.(MD)No.398 of 2007
2.The I Additional District Munsif Judge,
Kuzhithurai.
3.The District Collector,
Kannyakumari District, Nagercoil.
4.The Sub Inspector of Police,
Kulasekharam Police Station,
Kannyakumari District.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.398 of 2007
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.398 of 2007
18.06.2021
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