IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 AS.No. 787 of 1995() -------------------- OS.473/1991 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT/PLAINTIFF: -------------- KUNNAMKULAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY MUNICIPAL OFFICE, KUNNAMKULAM. BY ADV. SRI.A.K.CHINNAN RESPONDENT/DEFENDANT: --------------- THOMAS JOHN, S/O. V J JOHN JONES COTTAGE ARANATUUKARA - 680 618, TRICHUR. BY ADV. SRI.M.VENUGOPAL,V.G.SANKARAN,G.MANI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/01/2010, THE COURT ON 18/01/2010 DELIVERED THE FOLLOWING: A. K. BASHEER & M.L. JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - A. S. NO: 787 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of January, 2010. JUDGMENT Joseph Francis J., This appeal is filed by the plaintiff Municipality in O.S. no. 473 of 1991 on the file of Sub Court, Thrissur. Respondent herein is the defendant in that suit which was filed for damages. 2. The case of the plaintiff, in brief, is this: The plaintiff Municipality invited tenders for the lease of the room bearing No.12 belonging to the Municipality. The defendant was one of the tenderers. His tender for Rs.1,717/- per mensem was the highest. He submitted his tender on 29.9.1986. Since the tender for the self same building for the previous year was confirmed at a higher rate of Rs.2,225/- the plaintiff Municipality wanted to ascertain whether anybody else was A. S. NO: 787 of 1995 :2: prepared to take the room at a higher rate. The Municipality wanted to ascertain this as per its Council's decision dated 30.9.1986. It has come to the notice of the Municipality that one Mr. Ibrahim was prepared to take the same building at Rs.2,285/ per mensem. The plaintiff, with all good intention, sent a letter to the defendant on 3.10.1986 showing the details and he was also informed that in case he is not prepared to pay a higher rate, the Municipality would have to take a different decision. The defendant sent a letter on 17.10.1986 requiring a week's time to deliberate on the matter. But never replied. 3. The defendant considering himself legally entitled for the room as his tender was the highest, rushed to the Munsiff's court, Chavakkad and initiated O.S. 594/1986 for a permanent injunction restraining the plaintiff Municipality from giving possession of the building to anybody else and also from re- tendering and accepting any other tender. He had also moved A. S. NO: 787 of 1995 :3: an I.A. before the said court as No.1614/1936 for a temporary injunction. The Chavakkad Munsiff's court allowed the application by an interim order dated 22.10.1986. By the said order, the Municipality was prevented from taking any decision regarding C shape room No.12 and the tenders submitted. The plaintiff had never been under any legal obligation to accept the defendant's tender as it had the discretion to reject the same by virtue of clause 18 of the Tender Rules applicable to the room. The defendant had no vested right over room no.12 by virtue of his being the highest tender. There was no legally binding and concluded contract between the plaintiff and the defendant. The Municipality never accepted his offer and no valid agreement was executed between the plaintiff and the defendant. The filing of the suit O. S. 594/1986 and the passing of an exparte interim injunction prevented the plaintiff from doing anything and that resulted in heavy pecuniary loss to the A. S. NO: 787 of 1995 :4: Municipality. The temporary order of injunction passed on 22.10.1986 was finally disposed only on 7.10.1988 vacating the interim order. In spite of the order vacating the interim injunction, the plaintiff could not do any further action as the said order was subject to the result of the suit, which was ultimately dismissed with costs on 6.11.1989. The Municipality could not take any action of tender in the light of this until 6.11.1989. From 22.10.1986 to 6.11.1989 the plaintiff was prevented from re-tendering or otherwise entrusting the room no.12 to anybody covering the period of three years, one month and eight days and by the tender submitted by the defendant at Rs.1,717 per mensem plaintiff suffered a loss of Rs.63,972/- by way of licence fee for the said room. The defendant' suit in Chavakkad Munsiff's court was only with the malafide intention to to prevent the plaintiff from exercising its legal rights and obligations and this resulted in heavy loss to the plaintiff. In A. S. NO: 787 of 1995 :5: the circumstances, the plaintiff is entitled to claim interest on the amount at 18%. 5. The defendant contests. The contentions of the defendant in his written statement, in brief, are these: The suit is not maintainable in law. The tender submitted by the defendant was the highest. True that in the previous year the tender was confirmed for a sum of Rs.2,225/- But as there was financial loss, the previous licensee surrendered possession. After receiving the highest offer from the defendant, the plaintiff Municipality issued a notice to the defendant stating that another man has offered Rs.2,2,85/ as rent for room no.12 and thus rejected the tender of the defendant. As per the terms of the tender, the plaintiff is bound to lease the room to this defendant since he has quoted the highest amount. 4. Further, the defendant filed a request to allow him to withdraw the suit on his being allotted the said room at A. S. NO: 787 of 1995 :6: Rs.1,717 per mensem. The plaintiff informed the defendant that the Municipality is prepared to allow him without prejudice to its claim to demand the loss caused by the defendant's action and he was informed about this by a registered letter delivered to him on 2.2.1989. However, in as much as loss is caused to the plaintiff, the plaintiff is entitled to realise the loss of Rs.63,972/ with interest at 18% and the suit is laid for the said relief. 6. The Government order published in the gazette dated 20.12.1985 also entitles the defendant to take on lease the room. Room no.12 is not situated in an important place as that of the other rooms in the C shape building. The issuance of notice rejecting the tender of the defendant is ab initio void. The defendant has not requested for time for deliberation. The defendant has filed the suit only to get his right established. He had filed the suit for legal remedy. The plaintiff has not taken A. S. NO: 787 of 1995 :7: any steps to get the injunction vacated in O.S. 594/1986. The plaintiff waited for two years. There were laches on his part. Even after the order of injunction was vacated, the plaintiff has not taken any action for retender. The injunction was obtained for valid reasons. The plaintiff did not file any application for compensation for injunction on insufficient grounds. There is no bonafides on the claim made by the plaintiff. 7. The defendant is in no way responsible for the delay in disposal of the injunction application. Even after the injunction petition was disposed of, the plaintiff did not take steps for leasing out the room. The Municipality alone is responsible for the delay in re-tender. The averment in the plaint that the Municiaplity was not able to retender due to the action of the defendant is absolutely incorrect. The plaintiff has not suffered any loss. The amount claimed is in any way excessive. The defendant filed the suit in Chavakkad Munsiff's Court with all A. S. NO: 787 of 1995 :8: bonafides. The plaintiff has absolutely no cause of action against the defendant. The plaintiff is not entitled to get any interest. The suit is without bonafides. For the reasons stated in the written statement, the defendant prays for a dismissal of the suit. 8. In the Sub court PW1 and DW1 were examined and Exhibits A1, B1 to B3 were marked. The learned Sub Judge on considering the evidence dismissed the suit without costs on finding that there was no malicious intention or want of reasonable or probable cause in the initiation of O.S. No. 594 of 1986 by the defendant. Against that judgment and decree the plaintiff filed this appeal. 9. Heard the learned counsel for the appellant. 10. The learned counsel for the appellant argued that even though the tender submitted by the defendant was the highest, he had no legal right to get the tender confirmed in his name A. S. NO: 787 of 1995 :9: and as such the suit filed by the defendant against the plaintiff Municipality was with malafide intention to prevent the plaintiff from exercising its legal right. 11. Admittedly, the plaintiff herein had called for tender to take building no. 12 belonging to it on monthly rent and that defendant offered his tender and the offer made by the defendant for Rs.1,717/- was the highest. Instead of accepting the tender of the defendant, the plaintiff made a search for persons who could offer a rate higher than what was offered by the defendant. Then the plaintiff intimated the defendant that one Ibrahimkutty was prepared to take the building at Rs.2,285/- and that the defendant has to offer the said amount or else the plaintiff will have to take a different decision. When the plaintiff was not prepared to accept the highest tender of the defendant, the defendant was forced to file O.S. No. 594 of 1986 before the Munsiff Court, Chavakkad for a permanent A. S. NO: 787 of 1995 :10: prohibitory injunction restraining the plaintiff Municipality from giving possession of that building to anybody else and also re-tendering and accepting any other tender and the defendant moved a petition as I.A. No. 1644 of 1986 for a temporary injunction. 12. Ext.B1 is the certified copy of the I.A. No. 1644 of 1986 on the file of Munsiff's Court, Chavakkad. An exparte temporary injunction was granted in the I.A on 22.10.1986. The respondent Municipality sought for several adjournments for filing counter and the counter was filed only on 12.6.1986 and the enquiry was posted along with the suit. On 7.10.88, the learned counsel for the plaintiff/ petitioner in that petition submitted that interim order may be vacated without prejudice to the contention of the petitioner and his right to proceed with the suit and mainly on the basis of that submission the interim injunction was vacated. The suit was ultimately dismissed on A. S. NO: 787 of 1995 :11: 6.11.1989 which is evident from Ext.A1 which is the certified copy of the decree in O.S. No. 594 of 1986. From Ext.B1, it is clear that the defendant Municipality in that suit did not take any prompt steps to get the Interim injunction vacated. The defendant/ Municipality in that suit did not file any appeal to vacate the interim injunction granted in that suit. 13. The normal rule is that a party who institutes any civil proceedings, against another but fails to get success in those proceedings which are terminated in favour of that another, does not render himself liable to compensate that another in damages sustained as a result of those proceedings, but is saddled only with costs in the discretion of the court disposing of those proceedings. The normal rule again is that costs follow the event, that is to say, that the unsuccessful party in a civil proceedings has to compensate his opponent in costs, unless the court which has disposed of those proceedings has directed A. S. NO: 787 of 1995 :12: otherwise and stated the reasons for its departure from the normal rule. 14. In the decision reported in Inassu v. Velu (1970 K.L.T. 472), it was held that “A distinction has necessarily to be drawn between cases where orders of injunction or arrest are obtained maliciously and cases where there is unlawful seizure or attachment of property by the party who is sought to be made liable for the damages. In the first category of cases the defendant is acting under the authority of Court while in the other there is no sanction of the authority of court as the act would be void for want of jurisdiction. In the latter case it would, in effect, be an act of the defendant himself for which the defendant would be answerable. An action for damages arising from the conduct of the defendant in securing an order which is void, as being in excess of authority and which is allowed to operate prejudicially is maintainable even without proof of malice, as it is in effect an action in A. S. NO: 787 of 1995 :13: trespass. But if the defendant has procured an order of court even on insufficient grounds he is not answerable for damages merely by reason of the fact that he obtained such order from the court without sufficient grounds or even falsely. It is because, damage is caused not by his own act but by an act of the court and unless it is because, damage is caused not by his own act but by an act of the court and unless it is shown that the court was caused to act in that manner by reason of the malicious conduct of the defendant and there was no reasonable or probable cause for setting in motion the machinery of the civil court, he would not be liable as an actionable wrong. It would be tort for any person to put the civil law into motion for the purpose of abusing its process. Such abuse would be assumed when the law has been set in motion maliciously and without reasonable or probable cause. Just as in a suit for damages for malicious prosecution the plaintiff should show not only that the prosecution ended in his favour but that the prosecution was malicious and was without reasonable or probable A. S. NO: 787 of 1995 :14: cause, in a suit for compensation for wrongful injunction obtained by the defendant against the plaintiff, the latter has a duty to show not only that the injunction order was later vacated or the suit was dismissed, but that the order was sought for maliciously and without reasonable or probable cause.” 15. The plaintiff in the present case has no case that by granting the interim injunction in the suit filed by the defendant, the court has acted without jurisdiction or that order was without sanction of law. In other words, the plaintiff in the present suit has no case that the defendant had called upon the court to pass an order of interim injunction beyond its jurisdiction and against the provisions of law. That means the defendant has acted with the authority of the court and that the order of interim injunction was not malafide. As observed by the learned Sub Judge, it is only in cases where jurisdiction of the court is invoked to pass an order which has no sanction of A. S. NO: 787 of 1995 :15: law or in excess of authority, the party who sustains loss on account of the order can claim compensation without proof of malice. Considering the facts and circumstances brought out in evidence, it is clear that there was no malicious intention or want of reasonable or probable cause in the initiation of O.S. No. 594 of 1986 by the defendant. Therefore we find that the learned Sub Judge is fully justified in dismissing the suit. Accordingly the appeal is dismissed. The judgment and decree dismissing the O.S. No. 473 of 1991 on the file of Sub Court, Thrissur is confirmed. Parties are directed to suffer their respective costs in this appeal. A. K. BASHEER, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/