Smt. Munni Devi vs Matroo Lal

Tejinder Singh Dhindsa, J.—The present second appeal has been filed by the plaintiff against the judgement of the Lower Appellate Court

dated 19.9.2006. Briefly noticed, the plaintiff filed a suit against the defendants for a decree of mandatory injunction for removing

obstruction/encroachment and construction made by defendant No. 1 on the disputed 20 feet wide rasta existing between the house of the plaintiff

and defendant No. 1. Further prayer had been made for a decree for recovery of Rs. 2 lacs from the defendant No. 1 as damages towards

malicious prosecution. It was pleaded that the plaintiff is the owner in possession of a residential house bearing No. 1076, F.C.A. situated in

Sanjay Gandhi Memorial Nagar, Faridabad. In front of the residential house there existed a pucca road 20 feet wide under the ownership of

Municipal Corporation, Faridabad, defendant No. 2 and it was meant for the use and enjoyment of the inhabitants of the locality. Defendant No. 1

in collusion with defendant no. 2 had unlawfully made encroachment on such 20 feet wide road and it was causing inconvenience and hindrance to

the users and residents of the locality. The plaintiff had filed a complaint u/s 133 Cr.P.C. in the court of S.D.M., Faridabad for removal of such

illegal encroachment at the hands of defendant No. 1 and the same was disposed of in terms of passing of order dated 13.2.2001. It was further

pleaded that defendant No. 1 had filed a civil suit in which the plaintiff had been impleaded and the same had been dismissed on 25.9.2001 and

even the civil appeal preferred by defendant No. 1 was dismissed vide order dated 5.11.2001. Defendant No. 1 then filed a Regular Second

Appeal in the High Court which was also dismissed vide judgement dated 20.11.2001. It was pleaded that the plaintiff had, thus, been put to

harassment and humiliation and had been unnecessarily dragged in false and frivolous litigation. The plaintiff pleaded that she was put to loss and

had suffered mentally as also physically apart from economically as the wages that she earned by doing household work in other houses was

deducted by the employers as she was forced to remain absent from work on account of attending to the litigation. On such pleadings her claim of

damages/compensation amounting to Rs. 2 lacs had been set up. The decree for mandatory injunction was with respect to the removal of the

encroachment and to restore the 20 feet wide road/rasta to its original condition.

Defendant No. 1 contested the suit and denied having caused any illegal encroachment upon the 20 feet wide road. Defendant No. 1 on the

other hand pleaded that it was the plaintiff, who had initiated a number of frivolous litigations and as such defendant No. 1 was entitled to be

awarded compensatory cost to the tune of Rs. 20,000/-. Broadly, a case of denial was set up by defendant No. 1. Defendant No. 2 also filed a

written statement and stated that the encroachment made by defendant No. 1 i.e. Sh. Matroo Lal in front of the house of Munni Devi, plaintiff had

already been removed and as such there was no encroachment as alleged.

The parties went to trial on the following issues framed by the Trial Court:-

Whether the defendant No. 1 is liable to remove the encroachment, obstructions made in the rasta existing between the house of the plaintiff and

between the house of the defendant No. 1? OPP

Whether the plaintiff is entitled for recovery of damages for an amount of Rs. 2,00,000/- from the defendant No. 1? OPP

Whether the plaintiff is entitled for injunction, as prayed for? OPP

Whether the suit of the plaintiff is not maintainable in the present form? OPD

Whether the present suit is barred u/s 289 of Haryana Municipal Act? OPD

Whether the plaintiff has no locus standi to file the present suit? OPD

Whether the plaintiff has not affixed the proper court fee? OPD

Relief.

In view of the specific stand in the written statement filed by the Municipal Corporation that the alleged encroachment already stood removed as

such the prayer regarding mandatory injunction was rendered infructuous. In fact defendant No. 2, Municipal Corporation, Faridabad was given

up by the plaintiff vide order dated 4.3.2006 passed by the Trial Court.

As regards damages on account of forced litigation and malicious prosecution the suit filed by the plaintiff was decreed and she was held entitled

for recovery of Rs 1 lac from defendant No. 1 subject to payment of court fee. Aggrieved of the same, defendant-appellant preferred a civil

appeal and vide impugned judgement dated 19.9.2006 passed by the Additional District Judge, Faridabad, the appeal was accepted and the

judgement and decree of the Trial Court dated 16.5.2006 was set aside and the suit of the plaintiff was ordered to be dismissed. It is under such

circumstances that the plaintiff-appellant is in second appeal before this Court.

It would be appropriate to notice herein that this Court vide order dated 13.2.2009 had passed an order accepting the Regular Second Appeal

holding the findings recorded by the Lower Appellate Court to be perverse and had directed payment of damages to the plaintiff-appellant to the

tune of Rs. 50,000/-. Upon the matter having been taken up before the Hon''ble Apex Court in Civil Appeal No. 8682 of 2009 the judgement

dated 13.2.2009 passed by this Court was set aside and the matter was remanded back to the High Court for a fresh consideration of the second

appeal. Accordingly, I have heard Mr. Abhishek Sethi, learned counsel appearing for the appellant and Mr. R.B. Gupta, learned counsel for the

respondent at length.

Learned counsel appearing for the appellant strenuously argued that the judgement of the Lower Appellate Court in reversing the well reasoned

findings of the Trial Court is wholly erroneous. Learned counsel would contend that the appellant had suffered litigation initiated at the hands of the

respondent and such litigation was wholly misconceived and frivolous. Learned counsel would further submit that the intent of the respondent in

having initiated litigation and which had remained unsuccessful after the High Court was lacking in bonafides and in fact had been malicious in

nature. In furtherance of his submissions, learned counsel has relied upon a judgement of this Court dated 22.7.2005 passed in R.S.A. No. 2112

of 2003 in case of Pawan Kumar and another v. Hans Raj,.

Learned counsel for the respondent on the other hand would contend that the respondent was a bonafide litigant. He had initiated civil

proceedings on the basis of a sale deed, wherein the width of the street in question had been mentioned as 20 feet wide and it was in furtherance

towards adjudication of his legal rights that the civil suit had been filed. Learned counsel for the respondent in support of the impugned judgement

of the Lower Appellate Court would contend that the findings of the Trial Court deserved to be reversed in as much as no issue with regard to a

frivolous or false litigation had been framed.

In the judgement relied upon by the counsel for the appellant i.e. Pawan Kumar and another v. Hans Raj (supra) reliance has been placed upon

a Full Bench judgement of the Kerala High Court and it had been noticed that four ingredients were required to be proved by a plaintiff in an action

for malicious prosecution i.e. (i) that he faced prosecution at the hands of the defendant (ii) that the prosecution terminated in favour of the plaintiff

(iii) that the prosecution was malicious and (iv) that it was with a reasonable and probable cause. In facts in hand, even though, the first two

ingredients would certainly be met in so far as the plaintiff-appellant having faced civil proceedings initiated at the hands of the respondent in which

she had been impleaded as a party and such prosecution having ultimately failed, as regards the prosecution being malicious, no such issues have

been framed by the Trial Court. It was imperative for the Trial Court for purposes of awarding damages to have framed an issue as to whether

there was any malicious prosecution/false, frivolous litigation. No such issue was framed and no evidence had been led to show that there was any

malicious prosecution. It would be useful to refer to the relevant discussion by the Trial Court in relation to issues No. 1 and 3 while awarding

damages to the tune of Rs. 1 lac against the respondent, which was in the following terms:-

Defendant also admitted in his cross examination that it is correct that his illegal encroachment was demolished by the MCF by virtue of the

court order. He also admitted that court also found his illegal encroachment. He also admitted that it is correct that in the suit as well as in the

appeal, the counsel for the plaintiff was appeared. From the order of Hon''ble High Court it is also revealed that counsel for the plaintiff was also

appeared.

Thus, it is established that the plaintiff had to face the false and frivolous litigation of the defendant Matroo Lal up to the Hon''ble High Court.

So far as the other litigation is concerned, the same has no effect on this suit because this is a suit filed by the plaintiff not by the defendant for

damages. Moreover, defendant No. 1 himself admitted that he was in illegal encroachment over the street in question. Consequently, the plaintiff is

entitled for damages against the false and unauthorized encroachment of the defendant. Resultantly, I find it justified that plaintiff is legally entitled

for recovery of damages from the defendant No. 1 of Rs. 1,00,000/-. Thus, these issues are decided in favour of the plaintiff.

The question of malicious abuse of civil proceedings and the distinction between a malicious use as opposed to a malicious abuse of the legal

process was considered by Hon''ble the Supreme Court in the matter of West Bengal State Electricity Board Vs. Dilip Kumar Ray, and it was

observed in the following terms:-

Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse,

or for want of reasonable or probable cause. Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another,

MALACIOUS. Done with malice or an evil design; willful; indulging in malice, harboring ill will, or enmity malevolent, malignant in heart;

committed want only, willfully, or without cause, or done not only willfully and intentionally, but out of cruelty, hostility of revenge; done in willful

neglect of a known obligation.

MALACIOUS"" means with a fixed hate, or done with evil intention or motive, not the result of sudden passion.

Malicious abuse of civil proceedings. In general a person may utilize any from of legal process without any liability, save liability to pay the

costs of proceedings if unsuccessful. But an action lies for initiating civil proceedings. Such as action, presentation of a bankruptcy or winding up

petition, an unfounded claim to property, not only unsuccessfully but maliciously and without reasonable and probable cause and resulting in

damage to the plaintiff. (Walker).

Malicious abuse of civil proceedings.

In general, a person may utilize any form of legal process without any liability, save liability to pay the costs of proceedings if unsuccessful. But an

action lies for initiating civil proceedings. Such as action, presentation of bankruptcy or winding up petition, an unfounded claim to property, not

only successfully but maliciously and without reasonable and probable cause and resulting in damage to the plaintiff. (Walker). Malicious abuse of

legal process. A malicious abuse of legal process consists in the malicious misuse or misapplication of process to accomplish a purpose not

warranted or commanded by order of Court the malicious perversion of a regularly issued process, whereby an improper result is secured.

There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employees it for some

unlawful object not the purpose which it is intended by the law to effect; in other words, a perversion of it.

As opposed to no evidence having been led with regard to a malicious intent as also a malicious abuse of legal proceedings at the hands of the

defendant-respondent, the First Appellate Court has recorded findings to the contrary that it was the plaintiff, who had repeatedly dragged the

defendant in a series of litigation. It was noticed by the First Appellate Court that an injunction suit had been filed at the hands of the plaintiff in

which Matroo Lal had been unnecessarily made a party. Even in the present suit the plaintiff had claimed a relief for mandatory injunction inspite of

having been in knowledge that the encroachment in question stood already demolished. It was held that Matroo Lai, defendant had initiated

proceedings in terms of a certain width of the road that had been reflected in the sale deed executed in his favour and it was on the strength of such

sale deed that he wanted to prove that he had not made any such encroachment as alleged by the plaintiff. The First Appellate Court while

reversing the findings of the Trial Court has returned a categoric finding that there was neither any pleading nor any proof with regard to the

defendant-respondent having initiated any false and frivolous proceedings against the plaintiff.

In exercise of jurisdiction u/s 100 of Code of Civil Procedure, I do not find it to be a fit case to interfere with the findings and conclusions

drawn by the Lower Appellate Court. The Trial Court having not framed any issue with regard to malicious prosecution alleged to have been

initiated at the hands of the present respondent, I find that the Lower Appellate Court had rightfully reversed the judgement and decree passed by

the Trial Court. I find no infirmity in the impugned judgement dated 19.9.2006 passed by the Additional District Judge, Faridabad. No question of

law much less substantial question of law arises for adjudication in the present second appeal.

For the reasons recorded above, the present second appeal is dismissed.

Appeal is dismissed.