IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 3RD JULY 2007 / 12TH ASHADHA 1929 SA.No. 289 of 1994(\) --------------------- AS.21/1988 of SUB COURT, TIRUR OS.150/1983 of MUNSIFF COURT, TIRUR .................... APPELLANTS:(PLAINTIFFS IN THE TRIAL COURT AND RESPONDENTS IN THE LOWER APPELLATE COURT) ---------------------------------------- 1.M.BHASKARA MENON, SON OF KALYANI AMMA, MANHAPRA EDATHIL, PAZHOOR P.O. (VIA) KUTTIPPURAM MALAPPURAM DISTRICT. 2. RADHA AMMA, WIFE OF M.BHASKARA MENON, -DO- -DO- BY ADV. SMT.PREETHY KARUNAKARAN JAYASREE.S. RESPONDENTS:(DEFENDANT IN THE TRIAL COURT AND APPELLANT IN THE LOWER APPELLATE COURT) ------------------------------------------------------------------------------ PUTHUPARAMBIL AYYAPPAN, SON OF THAMI, NADUVATTOM AMSOM, PAZHOOR DESOM, P.O.PAZHOOR, (VIA) KUTTIPPURAM, MALAPPURAM DISTRICT. BY ADV. SRI.TPM.IBRAHIM KHAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 3/7 /2007 THE COURT ON 03/07/2007 DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A. NO.289 OF 1994 =========================== Dated this the 3rd day of July 2007 JUDGMENT Plaintiffs in O.S.150/1983 on the file of Munsiff's Court, Tirur are the appellants. Defendant is the respondent. Appellants instituted the suit seeking a decree for damage alleging malicious prosecution contending that respondent lodged a criminal complaint which was taken cognizance by the Judicial First Class Magistrate, Tirur in C.C.475/1978 for the offence under section 379 of Indian which ended in acquittal under Ext.A1 judgment and that prosecution was baseless and as a result appellants sustained mental agony and it affected reputation of the appellants who belong to a respectable family and therefore they are entitled to damages of Rs.10,000/- for defamation and mental agony and Rs.5000/- for expenses. Respondent filed a written statement disputing the allegations in the plaint and S.A.289/1994 2 contending that he has been in possession of the property and the criminal complaint was filed on true facts and there was no malice and therefore appellants are not entitled to the decree sought for. 2. Learned Munsiff on the evidence of first appellant as PW1 and Exts.A1 to A5 and that of respondent as DW1 and a witness as DW2 granted a decree for Rs.2000/- holding that respondent maliciously prosecuted appellants and is liable for damages. Respondent challenged the decree and judgment before the Sub Court, Tirur in A.S.21/1988. Learned Sub Judge on reappreciation of evidence found that Ext.A1 judgment could only be looked into for deciding whether the criminal prosecution ended in conviction or acquittal and there is no evidence to prove that prosecution was under malice and appellants are not entitled to the decree for damages granted by the trial court. The suit was dismissed. It was challenged in the Second Appeal. S.A.289/1994 3 3. The second appeal was admitted formulating the following substantial questions of law. 1. Was the court below justified in holding that the burden to establish that the defendant was not in possession of the disputed property and that defendant did not raise the cultivation in the property, was on the plaintiffs, even after dismissal of Ext.A2 suit filed by the defendant? 2. When the criminal complaint was filed by the defendant based on his personal knowledge, is not the acquittal of the plaintiffs raise a presumption that there was absence of reasonable and probable cause on the part of the defendant and that malice existed? 3. When the suit for injunction was filed by the respondent and no interim order was granted in his favour, is not the institution of the criminal complaint about five months after the institution of the suit, malicious and without reasonable and probable cause? S.A.289/1994 4 5. Was the court below justified in casting the burden of proof on the appellants to an unjustifiable limit? 4. Learned counsel appearing for appellants and respondent were heard. 5. Learned counsel appearing for appellants argued that appreciation of evidence by the first appellate court was perverse and therefore under section 100 of Code of Civil Procedure, this court has jurisdiction to reappreciate the evidence and to interfere with the findings. It was further argued that Ext.A2 judgment by the civil court earlier establish that respondent instituted O.S.94/1978 seeking a decree for permanent prohibitory injunction and after evidence suit was dismissed holding that respondent has not been in possession of the property and eventhough appeal was filed that was confirmed and in such circumstance, trial court rightly found that respondent lodged the criminal complaint with malicious intention and without reasonable cause S.A.289/1994 5 and therefore it is proved that appellants were maliciously prosecuted and so they are entitled to get decree granted by the trial court. 6. Learned counsel appearing for respondent argued that no substantial question of law is involved in the appeal and appreciation of evidence by the first appellate court cannot be interfered in exercise of the limited powers of this court under Section 100 of Code of Civil Procedure and therefore appeal is only to be dismissed. 7. Eventhough substantial question of law was formulated while admitting the appeal, as provided under sub section (5) of Section 100 of C.P.C, respondent is entitled to contend that no substantial question of law as framed is involved. The questions of law formulated are all questions of fact and cannot be termed as substantial questions of law at all. Learned counsel appearing for appellants argued that if the appreciation of evidence by the courts below are perverse, it is a S.A.289/1994 6 substantial question of law which could be interfered by this court under section 100 of the Code of Civil Procedure. 8. On going through the judgments of the courts below, I cannot agree with the arguments of the learned counsel appearing for appellant that appreciation of evidence by the first appellate court was perverse. The fact that criminal prosecution ended in acquittal will not automatically lead to a conclusion that it was a malicious prosecution. As rightly found by first appellate court, burden is on the plaintiffs to establish that they were prosecuted with malice and without any reasonable cause. Second appellant was not examined. Only first appellant was examined. When examined as PW1, appellant has no case that there was any enemity between respondent and appellants. That cuts the very root of malice alleged by the appellants. What was contended by appellants was that first appellant was on inimical terms with his brother Ravunni Menon and because of S.A.289/1994 7 the enemity Ravunni Menon made respondent to file a criminal complaint. If that be the case, as found by the first appellate court, the malicious prosecution is not by the respondent but by the brother of the first appellant. Ext.A1 judgment could only be looked into for the purpose of deciding whether the criminal complaint ended in acquittal or conviction. Ext.A2 judgment is insufficient to prove that prosecution was malicious. That suit was filed by respondent claiming that he has been in possession of the property as per an assignment deed executed in his favour. The fact that subsequently on evidence it is found that his assignor had no right or that respondent has no right under the said document will not automatically lead to a conclusion that respondent lodged the criminal complaint without any reasonable cause. First appellate court on appreciating the entire evidence entered a factual finding that there is no evidence to prove that appellants were maliciously prosecuted. That S.A.289/1994 8 factual finding cannot be interfered in exercise of the limited powers of this court under section 100 of the Code of Civil Procedure. In such circumstance, the appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006