1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 251 OF 2007. Tony Fernandes, son of late Inacinho Fernandes, 53 years old, married, Dy. Suptd. Of Police, Indian National, resident of H. No. 728, Bhiunsa, Cuncolim, Salcete, Goa. .... Petitioner. Versus 1. Anthony Rebello, son of late Pio Rebello, major, service, resident of Bhiunsa, Cuncolim, 2. Girish Balchandra Aude, Journalist, resident of House No. 240, Aveden, Quepem, Goa. 3. Ramesh Govind Prabhu, Asst. Police Sub-Inspector (Retd.), resident of H. No. 307, Agaswada, Maxem, Loliem, Poinguinim, Canacona, Goa. 4. State of Goa, Through the Secretary (Home), Government of Goa, Secretariat, Porvorim, Goa. .... Respondents. Mr. S.G. Dessai, Senior Advocate with Mr. Shivan Dessai, Advocate for the Petitioner. Mr. V. P. Thali, Advocate for the Caveator/Respondent No.1. CORAM: S. A. BOBDE, J. DATE: 4 th MAY, 2007. ORAL ORDER: The petitioner has challenged the Order of the learned Ad-hoc 2 Additional District Judge, Fast Track Court, South Goa, Margao, directing that the petitioner's counter claim filed in his capacity as defendant no.2 be excluded in exercise of the power under Order VIII, Rule 6-C of C.P.C. 2. The petitioner who is a police officer has been sued along with others for malicious prosecution by the respondent No.1 Anthony Rebello. According to the respondent No.1, the petitioner along with others, played a role in his malicious prosecution and he has therefore claimed damages against the petitioner and others. This suit is registered as Civil Suit No. 64/2005. In this suit the petitioner filed a counter claim which has been excluded. By the counter claim the petitioner has claimed that the Civil Suit No. 64/05 has been filed by the respondent No.1 to malign him in the eyes of superiors and subordinates in the police force and that the institution of the suit has caused him enormous stress and therefore the petitioner is entitled to damages in the sum of Rs.2 lakhs. He has claimed general damages estimated at Rs. 3 lakhs. The counter claim specifically states that the cause of action is accrued after the filing of the above suit vide paragraph 37. 3. After the counter claim was filed, the respondent No.1/plaintiff filed an application under Order VIII Rule 6-C praying for exclusion of the counter claim. Order VIII Rule 6-C reads as follows :- “6-C. Exclusion of counter-claim.- Where a defendant sets up a counter- 3 claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit. “ The trial Court has held that since the petitioner will be entitled to any relief in the counter claim only if the respondent's suit is dismissed, the counter claim is premature and is liable to be excluded. 4. Mr. Dessai, learned counsel for the Petitioner, submitted that the counter claim could not have been excluded since the petitioner's cause of action is the very institution of the present suit against him and which suit is vexatious and false. Therefore, since a counter claim for damages can certainly be made, as observed by the Supreme Court in Gurbachan Singh v. Bhag Singh and others reported in (1996) 1 SCC 770. It could not have been excluded at this stage. 5. Mr. Thali, learned counsel for the respondent submitted to the contrary that the basis of the counter claim is not really the suit, but also 4 the alleged character of the suit i.e. t is vexatious and false. He therefore submits that the mere institution of the suit, cannot give rise to another counter claim by way of damages on the assumption that the suit is false and vexatious even at this stage. This submission is made without prejudice to the contention that a claim for damages cannot lie in respect of a civil proceeding such as that instituted by the respondent at all. 6. Having considered the rival submissions, there appears no doubt that the counter claim has been rightly excluded at this stage. The counter claim for damages is made on the basis that respondent No.1's suit is false and vexatious. The submission on behalf of the petitioner that the mere institution of the suit has given rise to the counter claim is not correct. The cause of action is clearly the institution of a false and vexatious suit. Indeed if the suit of the respondent No.1 were to be decreed, there would be no merit whatsoever in the counter claim. It is of no avail to the petitioner to contend that a counter claim can be made independent of the claim in the suit. Undoubtedly, that is the law laid down by the Supreme Court in Jag Mohan Chawla and another v. Dera Radha Swami Satsang and others reported in (1996) 4 SCC 699. It is true that the language of Rule 6-A of Order 8 is so couched in words of wide import so as to enable a party to bring his independent cause of action in respect of any claim that would be the subject matter of an independent suit. The question, therefore is whether the petitioner could have brought an independent suit for damages because the 5 respondent No.1 has sued him for malicious prosecution ? The answer would be in the negative because the petitioner would obviously have a cause of action for damages arising out of a false and vexatious suit only where such a suit was dismissed. Clearly if the suit were to be decreed the petitioner could not be said to have any grievance. Indeed the boot would be on the other foot. The position would be that the petitioner has been responsible for malicious prosecution and for damages, etc. and for injury caused to respondent No.1. 7. I am of view that in such a case though a defendant's claim for damages by way of a counter claim is liable to be considered premature; the Court has ample power to compensate a defendant who has been sued falsely and vexatiously under Section 35-A of the Code of Civil Procedure. Moreover, the defendant's right to sue for damages or compensation is preserved by sub-section (4) of Section 35-A. The said provision reads as follows :- “ [35-A Compensatory costs in respect of false or vexatious claims or defences. - (1) If in any suit or other proceeding, [including an execution proceeding, but [excluding an appeal or a revision]], any party objects to the claim or defence on the ground that 6 the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the court, [if it is so thinks fit], may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of costs by way of compensation. (2) No court shall make any such order for the payment of an amount exceeding [three thousand rupees] or exceeding the limits of its pecuniary jurisdiction, whichever amount is less: Provided that where the pecuniary limits of the jurisdiction of any court exercising the jurisdiction of a Court of Small Causes under the Provincial Small 7 Causes Courts Act 1887 (9 of 1887), [or under a corresponding law in force in [any part of India to which the said Act does not extend]] and not being a court constituted [under such Act or law], are less than two hundred and fifty rupees, the High Court may empower such court to award as costs under this section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees: Provided, further, that the High Court may limit the amount which any Court or class of courts is empowered to award as costs under this section. (3) No person against whom an order has been made under this section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him. (4) The amount of any compensation awarded under this section in respect 8 of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence] “ 8. It was also contended by the learned counsel for the petitioner that the petitioner's counter claim could have been treated as premature under Order 7 rule 11 if the Court were of the view that the petitioner has no cause of action at this stage. Even if this be so, there is nothing to warrant the inference that the counter claim cannot be excluded under Order 8, rule 6-C as has been done in the present case. The Court acted under Order 8 rule 6-C because the application was made under that provision since the power to exclude a counter claim is clearly available under Order 8 rule 6- C. The exercise of that power would not constitute an error of law apparent from the record merely because the Court could have also acted under Order 7 rule 11 and rejected the counter claim on the ground that it does not disclose any cause of action. 9. Mr. Thali, the learned counsel for the respondent No.1 who has appeared on Caveat relied on a decision of the Privy Council in Mohamed Amin v. Jogendra Kumar Bannerjee and others reported in A.I.R. (84) 1947 Privy Council 108 where the Privy Council has observed in paragraph 16 as follows :- “The action for damages for 9 malicious prosecution is part of the common law of England, administered by the High Court at Calcutta under its letters patent. The foundation of the action lies in abuse of the process of the Court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose. The plaintiff must prove that the proceedings instituted against him were malicious, without reasonable and probable cause, that they terminated in his favour (if that be possible), and that he has suffered damage. As long ago as 1698 it was held by Holt C.J. in 1 Ld. Raym. 374 that damages might be claimed in such an action under three heads, (1) damage to the person, (2) damage to the property, and (3) damage to reputation, and that rule has prevailed ever since. That the word “prosecution” in the title of the action is not used in the technical sense which it bears in criminal law is shown by the fact that the action lies for the malicious prosecution of certain classes of civil proceedings, for instance falsely and maliciously 10 presenting a petition in bankruptcy or a petition to wind up a company: (1883) 11 Q.B.D. 674. The reason why the action does not lie for falsely and maliciously prosecuting an ordinary civil action is, as explained by Bowen L.J. in the last mentioned case, that such a case does not necessarily and naturally involve damage to the party sued. A civil action which is false will be dismissed at the hearing. The defendant's reputation will be cleared of any imputations made against him, and he will be indemnified against his expenses by the award of costs against his opponent. The law does not award damages for mental anxiety, or for extra costs incurred beyond those imposed on the unsuccessful party. But a criminal charge involving scandal to reputation or the possible loss of life or liberty to the party charged does necessarily and naturally involve damage and in such a case damage to reputation will be presumed. “ However, that is a contention which the respondent No.1 may raise in case he sued for a false and malicious civil action. It is therefore not necessary to consider Mr. Dessai's objection to the applicability of that decision to the 11 present case in the view I have taken. 10. In the result, the petition is liable to be dismissed and is hereby dismissed. There shall be no order as to costs. S. A. BOBDE, J. sl.