R.S.A. No. 1785 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1785 of 2010 (O&M) Date of decision: 10.05.2010 Gurmukh Singh and another ....Appellants versus Bhagat Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. G.S. Jaswal, Advocate, for the appellants. VINOD K. SHARMA, J. (ORAL) This is defendants' appeal against the judgment and decree dated 25.2.2010, passed by the learned Courts below, vide which the suit for damages filed by the plaintiff/respondents, claiming a sum of Rs.5,00,000/- (Rupees five lac only) as damages for malicious prosecution, has been decreed. The suit was contested by the defendant/appellants. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether the plaintiffs are entitled for the recovery of Rs.5,00,000/- alongwith interest as prayed for? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the suit is bad for misjoinder and non- joinder of necessary parties? OPD 4. Whether the plaintiffs have no locus standi to file the present suit? OPD 5. Whether the plaintiffs have no cause of action to file the present suit? OPD R.S.A. No. 1785 of 2010 (O&M) -2- 6. Whether the suit is barred by limitation? OPD 7. Relief.” On appreciation of evidence, the learned Courts below have recorded concurrent finding of fact, that the plaintiff/respondents were entitled to recovery of Rs.1,00,000/- (Rupees one lac only) along with interest @ 12% per annum from the defendant/appellants for malicious prosecution. All the issues were decided against the defendant/appellants. Consequently, the suit of the plaintiff/respondents was partly allowed. Learned counsel appearing on behalf of the appellants, contends that this appeal raises the following substantial questions of law: - “1. Whether the learned Courts below could grant damages for malicious prosecution merely on guess work without there being positive evidence of damage suffered by the plaintiff/respondents? 2. Whether the learned Courts below could grant interest @ 12% per annum on the amount assessed as damages?” In support of the substantial questions of law, the learned counsel for the appellants has referred to the finding of the learned lower appellate Court with regard to damages, which reads as under: - “I have considered this contention of learned counsel for the plaintiffs and do not find myself agree with it. Learned Lower Court has rightly observed in para No.11 of the judgment that plaintiffs have not adduced cogent and convincing evidence regarding the quantum of the amount incurred by them on account of mental agony. Lawyers fee, typing charges and other charges R.S.A. No. 1785 of 2010 (O&M) -3- alleged to be incurred by them for defending the case. There is nothing on the record as to how plaintiffs have worked out the recovery of Rs. five lacs on account of damages for malicious prosecution, therefore, by exercising its own discretion learned Lower Court awarded damages to the tune of Rs. One Lac on account of mental agony and other charges incurred by plaintiffs. Perusal of statement of plaintiffs, who appeared in the witnesses as PW-1 and PW-2 reveals that while appearing in the witness box, they have not stated regarding the detail of the expenditure incurred by them on litigation. The only statement which has come on the record is that the plaintiffs engaged counsel and paid fees to him to the tune of Rs.10,000/- and thereafter, Rs.10,000/- were paid. But, no documentary evidence has come on record to this effect. Under these circumstances by exercising its discretion by guess work, learned Lower Court has rightly granted Rs.One Lac as damages to the plaintiffs. No illegality can be found in the said judgment. Thus, the appeal filed by the plaintiffs is also devoid of any merits.” The contention of the learned counsel for the appellants is, that the finding of the learned Courts below would show that there was no evidence of the damage, therefore, no damages as decreed could be granted. On consideration, I find no force in the contentions raised by the learned counsel for the appellants. The damages assessed, were for the expenses incurred, as well as for the mental agony suffered by the plaintiff/respondents. It was not possible for the plaintiff/respondents to lead evidence showing the positive damage suffered due to the mental agony. Therefore, for the mental agony there was no alternative with the R.S.A. No. 1785 of 2010 (O&M) -4- learned Courts, but assess the damages on guess work, keeping in view the status of the parties, and mental agony suffered. The contention of the learned counsel for the appellants, that the damages could not have been granted for want of evidence cannot be accepted as in the facts and circumstances of this case, the learned Courts could have only assessed the damages on guess. It is also contended by the learned counsel for the appellants, that the interest granted is on the higher side. This plea again cannot be accepted as the discretion exercised by the learned Courts below cannot be a subject-matter of challenge in regular second appeal as it cannot be said to be a substantial question of law. No merit. Dismissed. (Vinod K. Sharma) Judge May 10, 2010 R.S.