Malayankandi Radhakrishnan and others v. Kalapurakkal Jalajakumari and Kannankandari Haridasan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 AS.No. 167 of 1997() -------------------OS.470/1993 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANTS/PLAINTIFFS: -------------------------------------- 1. MALAYANKANDI RADHAKRISHNAN, S/O. KUTTAMAN MASTER (LATE) DRIVER, RESIDING AT OLAVANNA AMSOM AND DESOM, KOZHIKODE TALUK. 2. MALAYANKANDI JANAKI, W/O. LATE KUTTAMAN MASTER, OLAVANNA AMSOM AND DESOM, KOZHIKODE TALUK. 3. MALAYANKANDI SOBHANA, W/O. MALAYANKANDI RADHAKRISHNAN, OLAVANNA AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.P.DANDAPANI (SR.) RESPONDENTS/DEFENDANATS;: -------------------------------------------- 1. KALAPURAKKAL JALAJAKUMARI, D/O. DAMODHARAN, KARUMARA THODIYIL, NEAR MUTHAPPAN KAVU, KATCHERI AMSOM DESOM, KOZHIKODE TALUK. 2. KANNANKANDARI HARIDASAN, EDAKUTTIPURAM MEETHAL, OLAVANNA AMSOM AND DESOM, KOZHIKODE TALUK. ADV. SRI.P.V.KUNHIKRISHNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 3/ 10 /2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C. KURIAKOSE, J.** ----------------------------------------------- AS. No. 167 OF 1997 ----------------------------------------------Dated this the 3rd day of October, 2008 ## **J U D G M E N T** The plaintiffs in a suit for damages for malicious prosecution have preferred this appeal being aggrieved by the decree passed by the trial court dismissing the suit with costs. Parties will be referred to by their ranks and stati as in the court below for sake of convenience. As averred in the plaint the second plaintiff Janaky is the mother and the third plaintiff Sobhana is the wife of first plaintiff Radhakrishnan. The plaintiffs are all living together. The first defendant Jalajakumari is the widow of the first plaintiff's deceased brother. With the deliberate intention of harassing and maligning the plaintiffs defendants colluded together and filed CC No. 465/91 before the Judicial First Magistrate Court, Kozhikode for prosecuting the plaintiffs. In that calender case the second defendant appeared as a witness. After trial the complaint lodged by the first defendant was dismissed acquitting the plaintiffs who were the accused. The first plaintiff is a lorry driver working in Virajpet in Coorg District in Karnataka State. Second plaintiff is an old and infirm lady aged 78. Third plaintiff is the mother of four children. The first defendant, while her husband was alive resided along with her husband in a house constructed on the AS. 167/97 -2- property adjacent to a plot which had been allotted in partition to Satheesh Chandra another brother of the first plaintiff. The first defendant's husband died under suspicious circumstances on 11-41987 and on the very same day the first defendant shifted her residence to her paternal house. The first defendant's father and brothers trespassed into the property which was in the possession of the second plaintiff and assaulted the second plaintiff. Second plaintiff lodged a criminal complaint against them but in that complaint they were acquitted. Thereafter the second plaintiff filed a suit for partition as OS. 487/91 before the Munsiff's Court, Kozhikode and obtained a temporary injunction against the first defendant from committing acts of waste in the property. After the death of her husband the first defendant used to frequently visit the house of the second defendant. The local residents as well as members of the family viewed the relationship between the defendants with contempt. On 9-6-1991 when some local persons noticed the first defendant's visit to the house of the second defendant they questioned the first defendant about her presence in that house. In order to justify her presence in the house of the second defendant what the first defendant did was to lodge a complaint before the police station accusing the plaintiffs of AS. 167/97 -3- committing mischief by demolishing the first defendant's house situated on the property. The above complaint was submitted to the police station by both the defendants going over to the station together. The plaintiffs were detained in the police station from morning till night and had undergo great miseries and hardship from the police station. Pursuant to investigation, the complaint was referred by the police. According to the plaintiffs, the first plaintiff was away from the scene of occurrence and the second plaintiff was so infirm that she could not even walk up to the property by herself. Yet on coming to know about the refer report submitted by the police the first defendant lodged private complaint, C.C. No. 465/91 before the Judicial First Class Magistrate's Court. It was alleged in the complaint that the first defendant was ill-treated by the plaintiffs and had become forced to shift her residence to her paternal house. It was further alleged that the plaintiff on coming to the scene of occurrence on 10-6-1991 she saw her house being demolished by the plaintiffs. It is averred that all the accusations made in the private complaint submitted by the first defendant are baseless and untrue. The intention of the first defendant in filing the police complaint as well as the private complaint was to drag them to the criminal court and to AS. 167/97 -4- malign their reputation. By filing complaints containing false accusations and by perjuring before the criminal court the first defendant and her supporter the second defendant caused harm to the plaintiffs' reputation. The plaintiffs had to spend considerable amounts for defending themselves in the criminal case. The damages actually sustained by the plaintiff is much more. Yet the claim was limited to Rs.25,000/-. Suit is instituted since there was no favourable response to a suit notice which had been issued. 2. Separate written statements were filed by the defendants denying the plaint averments. According to the second defendant he being a witness to the act of mischief perpetrated by the plaintiffs was summoned to depose before the criminal court. He had no role at all in the matter of the first defendant prosecuting the plaintiffs. The first defendant contended that she was residing along with her husband in a house which was constructed by them in the property allotted to her husband in family partition. Her husband died prematurely in 1987 due to cardiac arrest. Thereafter the plaintiff began harassing the first defendant and her children so that they will become compelled to vacate the house and the property. Plaintiffs were against the first defendant's marriage with Raveendran, the second plaintiff's decased AS. 167/97 -5- son. The harassment which they meted out to the first defendant after Raveendran's demise was such that the plaintiff and her children became compelled to shift their residence to the plaintiff's paternal house. Raveendran's death was a natural death and the allegations to the contrary are unsustainable. Though residence was shifted to the paternal house, the first defendant used to go frequently to the house which belonged to her husband for the purpose of cleaning it. The plaintiffs filed suits, O.S. 667/88 and O.S. 428/91 against the first defendant to deprive the first defendant of her rights in the property which belonged to her husband. Later second plaintiff filed a partition suit as OS. 487/91 against the first defendant. When she came over to the house on 1-6-91 it was seen that the plaintiff had already demolished the house. This was why complaint was filed before the police followed by private complaint C.C. 467/1. The accused was acquitted because the complainant first defendant was unable to prove the guilt of the accused beyond reasonable doubt. The allegations levelled in the context of the relationship between the defendants are all stoutly denied. The allegation that false complaint was filed by the first defendant with the intention of justifying her presence in the locality is also denied. Second defendant is the AS. 167/97 -6- immediate neighbour to the scene of occurrence and he was cited as witness since he saw the plaintiff demolishing the house. Second defendant is happily married and is residing with his family. He always had brotherly affection towards the first defendant and her husband. The claim of the first plaintiff that he was away at Virajpet on the date of the alleged occurrence is denied. It is also denied that the second plaintiff was ill and infirm as she claims. The claim for damages is also refuted. Learned Subordinate Judge formulated the following issues for trial. 1. Whether the 1[st] defendant filed a complaint C.C.467/91 before the Judicial First Class Magistrate's Court without reasonable and probable cause? 2. Whether the plaintiffs had undergone any mental agony or loss due to the complaint? 3. What if any is the damage to be calculated to the plaintiff? 4. Reliefs and costs? Evidence at trial consisted of oral testimonies of PW-1, first plaintiff, DW-1 Jalajakumari, first defendant and DW-2 Haridas, second defendant. The documentary evidence in the case consisted of Exts.A1 to A10. A10 is copy of lawyer notice issued as a prelude. A1 series is copies of the suit notices sent on 26-5-1993 with postal receipts. A2 series is copies of suit notices sent on 9-6-1993 with acknowledgment. AS. 167/97 -7- A3 is cash bill dated 11-6-91 issued by Simla Lodge in favour of the first plaintiff. Ext.A4 is medical certificate dated 12-5-92 issued in respect of the third plaintiff. A5 is photo copy of driving licence of the first plaintiff. A6 is renewal driving licence of the first plaintiff. A7 is certified copy of judgment in C.C.465/91. A8 series is certified copy of deposition of PW! In CC.465/91 (appellant confronted in cross examination). A9 is certified copy of deposition of DW1 in C.C.465/91. A10 is certified copy of complaint in C.C. 465/91. 3. Under issue No.1 the learned Subordinate Judge rightly found that in an action for damages for malicious prosecution the plaintiff can succeed only if it is established that (1) they were prosecuted by the defendants, (2) that the prosecution ended in favour of the plaintiff, (3) that the defendants acted without reasonable and probable cause, and (4) that the defendants were actuated by mala fides. Analysing the evidence and considering the issue in the light of legal principles as laid down by this court in Krishnan v. Govindan, 1988(1) KLT 687 and in Sudhakaran v. Padmanabhan, 1986 KLT 669 the learned Subordinate Judge concluded that the plaintiffs have not succeeded in establishing that the defendants had acted without reasonable and probable cause in filing complaint against the plaintiffs and that the AS. 167/97 -8- action of the defendants in filing complaint was actuated by malice. Thus issue No.1 was answered in favour of the defendants. Following that finding, issue Nos.2 to 4 were also answered against the plaintiff. The suit was dismissed with costs. 4. Smt.Sumathy Dandapani, learned senior counsel and Sri. Jawahar Jose, learned counsel appearing along with her addressed me extensively on the grounds raised in the appeal memorandum. Smt.Bindu George addressed me representing her senior Mr.P.V.Kunhikrishnan, counsel for the respondents. My attention was drawn by the learned counsel for the appellant to Ext.A10 FIR dated 9- 6-1991 actually lodged on 11-6-1991 and to Ext.A7 judgment in C.C. No.465/91. Counsel referred to Ext.A8. Counsel read over to me almost the entirety of the testimony of PW-1 as well as the testimony of DWs. 1 and 2. Learned counsel referred to the judgment of the Full Bench in Subramanya Bhatta v.Krishna Bhatta, 1978 KLT 361 wherein the Full bench has clearly laid down the ingredients to be proved for succeeding in a suit for damages for malicious prosecution. It was argued by the learned counsel that the appreciation of the evidence by the court below was thoroughly erroneous. The evidence produced in this case establish to the very hilt that the first appellant is a lorry AS. 167/97 -9- driver employed at Virajpet and that he was not present at the scene of occurrence on 10-6-1991. He argued that appellant No.2 was aged 78 and she was incapable of committing the alleged offences. The allegations in the criminal complaint against the second appellant are prima facie untrue and had been made with the intention of dragging her to the criminal court. Ext.A4 medical certificate has been rejected by the court below without any sufficient reason. Counsel submitted that the reliance placed by the court below on the judgments in Krishnan v. Govindan, 1988(1) KLT 687 and Sudhakaran v. Padmanabhan, 1986 KLT 669 was not justified. The facts which obtained in those cases were entirely different from the facts in the present case. Counsel submitted that the evidence was more than sufficient to hold that the allegations in the plaint were false and that they were known to be false to the complainants and therefore the prosecution initiated by the respondents should have been found to be malicious. 5. Smt.Bindu George, learned counsel for the respondents was able to meet the submissions of learned counsel for the appellants. I have considered the rival submissions addressed at the Bar. I have gone through the pleadings and I have made a re-appraisal of the AS. 167/97 -10- entire evidence on record. 6. As rightly found by the trial court the all important question which arose for determination was whether the prosecution which was initiated and conducted by the first defendant against the plaintiffs was actuated by malice and that the action of the first defendant in launching and conducting such prosecution was without any reasonable and probable cause. Obviously, first defendant did prosecute the plaintiff. That prosecution ended in favour of the plaintiffs. Ext.A7 is the judgment in C.C. 465/91, the private complaint which was instituted against the plaintiffs by the first defendant. Though the learned counsel for the appellant claimed initially that it was an honourable/clean acquittal which had been given by the criminal court to the plaintiffs, a careful reading of the judgment will show that the decision of the court turned more on the circumstance that a civil dispute was subsisting over the immovable property which was subject matter of the suit between the second plaintiff and the first defendant. It will also be seen that the finding of the court below is to the effect that the complainant was not able to establish the guilt of the accused beyond reasonable doubt. Thus it will also be seen that the accused was given benefit of doubt also. It was not disputed AS. 167/97 -11- before me that a house in which the first defendant and her husband were living at the time of the first defendant's husband's death had fallen to the ground at a time when the parties were at loggerheads over various matters including the house property. Of course there is contradiction between the version of the complainant in the complaint before the criminal court and before the civil court as to whether she had seen the alleged demolition of the house by the plaintiffs. But it is difficult to conclude on the basis of such contradictions which have been brought in by the plaintiffs in the evidence that the accusation against the plaintiff was made by the first defendant without any reasonable and probable cause and with malice. The specific defence of the first plaintiff before the criminal court was one of alibi. That defence was not accepted by the criminal court. In fact Ext.A3 cash bill issued to him by Simla Lodge against payment of rent to that lodge on 11-6-1991, the date of occurrence had not been produced before the criminal court at all. The same is the position with Ext.A4 medical certificate pressed into service before the court below to support the case of the third plaintiff that she did not have the physical capacity on the day to commit the offence. The said certificate was never projected before the criminal court. The main offences which had been AS. 167/97 -12- alleged in the private complaint were criminal trespass and mischief upon the house property which was subject matter of the partition suit. It is conceded by the plaintiffs that the first defendant and her minor children were legal heirs of deceased Raveendran who was a sharer to the property. It is not disputed that till his death Raveendran and the first defendant were living together in that house and the plaintiffs were residing in different house. First defendant's definite case is that the house in which she and her husband were residing together was put up by them and therefore belong to them absolutely. It was only natural on the part of the first defendant to suspect the complicity of the of the plaintiffs in the matter when she finds that the house which was thitherto standing strong and sturdy on the property has fallen to the ground. The defence of the plaintiffs that the building collapsed on its own does not appear convincing to me. Whatever that be, acquittal was given because the complainant failed to establish the guilt of the accused and also because the accused were having bona fide claim over the property in view of the suit already instituted for partition. On my re-appraisal of the entire evidence I do not find any reason to vary the conclusions of the learned Subordinate Judge on the issues raised. The decision taken by AS. 167/97 **==> picture [21 x 9] intentionally omitted <==** the learned Subordinate Judge is supported by the Full Bench judgment which is relied on by the learned counsel for the appellant herself. The result of the above discussion is that the appeal fails and will stand dismissed. In the circumstances the parties will suffer the costs. **(PIUS C.KURIAKOSE, JUDGE)** ksv/- AS. 167/97 -14- PIUS C. KURIAKOSE,J. AS No. 167 OF 1997 JUDGMENTS 3[rd] October, 2008