P L D 1970 Karachi 757 (PLP)

Both the plaintiff and the defendant‑have examined witnesses and produced documents in support of their case under these issues and I shall now consider the evidence.

4. Issue No. 1

As the plaintiff has admitted in his evidence that he was employed as a Junior Accountant and Cashier by the defendant, the only point for determination under this issue is whether he had discharged his duties honestly and conscientiously as claimed by him. Although the burden of the issue may be on him, an employee's claim that he has discharged his duties faithfully is not of such evidentiary value and, as the defendant was his employer, it had to place before the Court the evidence about the manner in which the plaintiff had discharged his duties. Apart from documentary evidence, the defendant was required to examine its manager or those persons under whom the plaintiff had worked. As the defendant has not produced this evidence, I pointed out by Mr. Zamirul Haq that it would lead to an adverse inference against the defendant. But learned counsel replied that the defendant had proved that the plaintiff had committed misconduct, and if this submission is correct, further evidence by the defendant would not be necessary, and the issue would have to be decided against the plaintiff. I have therefore to examine the evidence about the alleged mis conduct of the plaintiff whilst he was in the defendant's employ ment.

5. In support of his submission that the plaintiff had com mitted misconduct, Mr. Huq relied on the evidence of Mr. A. G. Khan and his audit reports of 1951 to 1954 Exhs. 7/1 to 7/3). Mr. A. G. Khan said in his evidence that he was the Cost Accounts Officer in the Ministry of Finance and that as he was deputed to audit the defendant's accounts, he audited them and submitted his reports (Exhs. 7/1 and 7/2). Broadly speaking, according to these reports the plaintiff had deducted a sum of Rs. 5,566‑6‑0 from the pay of the defendant's employees on account of their absence and/or late attendance from 1‑3‑53 to 28‑2‑54 and not credited these deductions to the Company's funds, and further he had fraudulently drawn out a sum of Rs. 3,321‑13‑3 from the defendant's cash on account of the pay of individuals who had left the defendant's employment. Although these reports contain a finding of fraud against the plaintiff, it is admitted before me that Mr. A. G. Khan, had not cared to examine the plaintiff or hear hint before coming to his finding against the plaintiff. It is also significant that, although the defendant had not given any particulars of its allegations of fraud and miscon duct against the plaintiff in its written statement, it did not dare to cross‑examine the plaintiff on any of the allegations against him in these reports, therefore they are of hardly any evidentiary value. Additionally,, the reports have been drawn up on the assumption that the plaintiff was in physical charge of the defendant's cash and had misappropriated the same. But the defendant has not produced any evidence whatever to prove this assumption, nor has it cross‑examined the plaintiff about this assumption. Further, even though the plaintiff had examined the defendant's auditor, Mr. Mushtaq Hussain, thus permitting the defendant to cross‑examine its own employee, the defendant did not even elicit from this witness an admission that the plaintiff alone was in charge of the defendant's cash. It is also relevant to observe here that this aspect of the case was con sidered by the learned Sub‑Divisional Magistrate in his well considered orders discharging the plaintiff. I have examined these orders, and I may refer here only to a couple of these orders. Thus in his order (Exh. 5/11) the learned Sub‑Divisional Magistrate has stated as follows: The evidence of the Company's Financial Advisor Mr. Mureford shows that the Chief Accountant was responsible for keeping all cash. In another order (Exh. 5/12) the learned Magistrate has again observed "The cash used to‑ remain with the Chief Accountant. There is nothing to show that the accused kept this amount with himself and misappropriated it . . . . ." This suit had given the defendant another opportunity of proving that the plaintiff was incharge of its cash is assumed by Mr. A. G. Khan. But, despite the orders quoted, as it has not produced any evidence in this respect, I have absolutely no doubt that the plaintiff was not incharge of the defendant's cash, and its failure to examine Mr. A. G. Khan on this aspect of the case, and its failure to cross‑examine both the plaintiff and Mr. Mushtaq Hussain appears to be deliberate.

6. Again even if I assume for the sake of argument that the plaintiff was in charge of the defendant's cash, Mr. A. G. Khan's reports are no more than his own opinion of what happened, and the defendant had to prove the alleged misappropriations, the more so as it did not dare to cross‑examine the plaintiff about it. Thus, for instance, with regard to the misappropri ation of the sum of Rs. 5,566‑6‑0, the defendant had to prove first that the plaintiff had made deductions from the salary of its employees and then to prove that he had illegally withheld these deductions. Similarly, as to the charge of fraudulently drawing out a sum of Rs. 3,321‑13‑0 the defendant had to prove first that the plaintiff had drawn out this amount from the defendant, and further to prove that the amounts were shown as paid to persons who had ceased to be in its employ ment. Apart from the fact that this is obvious common sense, in all his orders discharging the plaintiff the learned Sub -Divisional Magistrate had pointed out that the prosecution had not produced an iota of evidence to show that the plaintiff had either received any cash illegally or misappropriated it. In these circumstances, I am completely unable to understand the defendant's failure to produce any evidence in support of its allegations against the plaintiff, especially as, further, the principal evidence of its allegations could only be based on the entries in its own books. Thus, as I have already pointed out, as it alleged that the plaintiff had misappropriated deductions from the salaries of its employees, it should have produced its books of account to show the deductions made by the plaintiff from the salaries of its employees and to show the amount retained by the plaintiff: Similarly, for the other charge of misappropriation it had to produce its books of account and its registers to show that the plaintiff had paid salaries to persons not in its employment. Its failure to produce the documents in its exclusive possession leads to a very strong inference against its plea under this issue, and the result is that there is absolutely no evidence in support of its allegation of misappropriation and defalcations against the plaintiff:

6. In the circumstances discussed and in view of the evidence of Mr. Mushtaq Hussain I decide this issue in the plaintiff's favour.

7. Issues Nos. 2 and 3.‑It will be convenient to consider these issues together. The defendant has not produced any evidence to show that its Liquidator had terminated the plaintiff's employment. However, by his letter dated 17th January 1955, to the plaintiff (Exh. 5/5) the defendant Liquidator had informed him that he had been dismissed from the defendant's employment. According to Mr. Abul Khair this notice was illegal because it was not in compliance with the defendant's rules and regulations Exh. 5/18. Under these rules the defendant could dismiss its employees for mis conduct only in the manner prescribed under rule 12, which required it to hold an enquiry before dismissing the employee concerned. As the defendant's case is that the plaintiff had misappropriated the cash entrusted to him it had to hold an enquiry under rule 12 before dismissing him. It had therefore ordered an enquiry vide its letter to the plaintiff dated 26th July 1954 Exh. 5/2 but later it had cancelled that enquiry, and as it did not hold any enquiry before dismissing the plaintiff vide its letter dated 17th January 1955, Exh. 5/5 it is clear that it had first suspended and then dismissed the plaintiff in utter disregard of its own rules, and to this extent I decide both these issues in the plaintiff's favour. But although the plaintiff was dismissed illegally, he was nonetheless dismissed, therefore my finding on these issues is not of any assistance to the plaintiff's case.

8. Issue No. 4.‑As the plaintiff's employment was not terminated in accordance with the defendant's rules and as the defendant has completely failed to prove its allegations of mis appropriation against him it is clear that he was illegally dismis sed. Because he was illegally dismissed Mr. Abul Khair submitted that he must be deemed to have remained in the defendant's employment. I agree with learned counsel that the plaintiff's dismissal by the defendant was illegal, because, as I have explained, it was in utter disregard of the defendant's rules and regulations Exh. 5/18. But the defendant, being a company under the Companies Act, is a private employer and the relief which its employees can claim for illegal dismissal is compensation for such illegal dismissal. I am fortified in my opinion by the observations of the Supreme Court in Faiz Muhammad v. The Registrar of Co‑operative Societies, West Pakistan Lahore (1). The facts in the case before their Lordships were that the petitioner was employed in a Co‑operative Bank, to which Government Service Rules had been made applicable by the Bank's bye‑laws. As the petitioner was dismissed he filed a writ petition challenging the legality of his dismissal and contended inter alia that his dismissal was illegal because it was in contra vention of the Government Service Rules. In repelling this contention Hamoodur Rehman, J. (as he then was) now the Chief Justice, observed at page 319 that where Civil Service Rules were made applicable to employees of private institutions "not by virtue of any statutory provision but purely by the adoption thereof under the bye‑laws of the Co‑operative Bank, which were no more than the rules laid down for the guidance of the bank itself. These rules, therefore, did not create any right in the appellant to hold his office in accordance with them nor did the said rules automatically extend the protection given to a Govern ment servant under the constitutional provisions". This decision was affirmed by their Lordships in Zainul Abidin v. Multan Co‑operative Bank (P L D 1966 S C 445). The principle laid down in these judgments is fatal to the plaintiff's claim in the instant case. As, in the judgments cited, the Civil Service Rules did not entitle the petitioners to claim any right to remain in employment on the basis of those rules, because they were applicable qua contract only, it follows, in the instant case also, that the defendant's contravention of its own rules (Exh. 5/18) did not confer any right on the petitioner to remain in service, howsoever illegal the manner of his dismissal. I may also observe here that the same view has been taken by this Courts in Gulf Steamship Co. v. Baluch (P L D 1962 Kar. 899). Accordingly although the plaintiff has been dismissed) illegally he does not continue to be in defendant's employment and I decide this issue against him.

9. Issue No. S.‑The burden of proving that a prosecution is malicious falls heavily on the plaintiff. As pointed out by the Privy Council in Raja Braja Sunder Deb and others v. Bamdeb Das alias Pattanaik and others (A I R 1944 P C 1) In order to succeed in an action for malicious prosecution the plaintiff must in the first instance prove two things: (i) that defendant was malicious and (ii) that he acted without reason able and probable cause. Malice has been said to mean any wrong or indirect motive, but a prosecution is not malicious merely because it is inspired by anger. However, wrong headed a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be the initiator of a malicious prosecution. But malice alone is not enough: there must also be shown to be absence of reasonable and probable cause. If, in the present case, the respondents honestly believed a criminal offence to have been committed and had reasonable cause for so doing, they are not liable in this action, and even though they were malicious they still would not be liable if they had reasonable and probable cause for believing in the appellant's guilt. I am in respectful agreement with these observations and the question is whether the plaintiff has discharged the heavy burden of proof on him under this issue.

10. In support of the plea that the prosecution was malicious the plaintiff has said in his evidence "I was implicate in criminal cases because I had a quarrel with the Time‑Keeper E and the Stenographer of the General Manager. This quarrel took place in June 1954. I was then suspended but later on re instated". P. W. A. R. Khan has supported this evidence and further said that he knew that the Time‑Keeper was "related to the General Manager's P. A." Even Mr. Mushtaq Hussain, the defendant's auditor, has said in his evidence "that there was a dispute between the plaintiff and the Time‑Keeper of the defendant. I was appointed an Enquiry Officer to investigate this dispute " The defendant has neither cross‑examined the plaintiff nor Mr. A. R. Khan nor Mr. Mushtaq Hussain on this allegation of malice. I therefore pointed out to learned counsel that in view of the failure of the defendant to cross‑examine the plaintiff and his witnesses, this evidence of malice had to be accepted. Learned counsel thought that it was unlikely that a General Manager would implicate an innocent person on the instigation of his Stenographer or Time‑Keeper. Improbable things do happen in life, and the question is of evidence. As the defendant did not examine its General Manager, the plaintiff's allegation that the prosecution was filed maliciously against him has to be accepted. But, as I have pointed out, by the time the complaints were lodged with the police the defendant had gone into liquidation, therefore the complaints were filed by Lt.‑Col. Salam, the defendant's Liquidator. According to learned counsel for the defendant, as Lt.‑Col. Salam was not related to any body in the defendant's employment, he had no malice against the plaintiff, therefore as the defendant had filed the complaint through him no malice could be attributed to it. The question whether Lt.‑Col. Salam was related or not to the defendant's officers and his motives in filing the complaints with the police are questions of fact on which the defendant was required to examine him. It is not irrelevant here to point out that the suit had been decreed ex parte against the defendant and its restoration application had been allowed by this Court, yet it has not cared to examine its witnesses, therefore this leads to an adverse inference against it. In these circumstances I see no F reason to reject the plaintiff's evidence and this means that he has proved that the prosecution was malicious.

11. However as observed by their Lordships of the Judicial Committee the plaintiff has not only to prove that the prosecution ended in his favour and that it was malicious but he has also to prove that it was without reasonable and probable cause, and the mere fact that the prosecution ended in his favour does not mean that it was without reasonable or probable cause. But as he could not know the defendant's motives for filing a false complaint against him the defendant had to produce evidence in this respect it should therefore have examined at least its liquidator. Mr. Huq was not able to explain the defendant's failure to produce evidence which must lead to an adverse inference against it. However, he submitted that it had acted reasonably in relying on Mr. A. G. Khan's reports (Exhs. 7/1 and 7/2). As I have explained in para. 5, these reports were prepared without hearing the plaintiff and, on the assumption that he was in sole charge of the defendant's cash. That assumption was false and the defendant, which was aware of the true position, cannot escape liability by taking shelter behind a report drawn up recklessly. In these circumstances, in view of the defendant's failure to produce evidence, the plaintiff has proved that the complaints against him were filed without reason able and probable cause.

12. Finally, Mr. Haq, argued that, as the defendant's liquidator had only forwarded complaints to the police, the plaintiff was prosecuted by the police and not by the defendant. Assuming for the sake of argument that the defendant can escape liability because it did not take any steps for the plaintiff's prosecution other than lodging a complaint, the question whether it took any other steps or not was within its own knowledge and as it has not produced evidence in support of its plea this leads to an adverse inference against it. Therefore even if the plaintiff's prosecution was conducted by the police this is not sufficient to exonerate it from liability. I am fortified in my opinion by the observations of the Privy Council in Gaya Prasad v. Bhagat Singh (I L R 30 All. 525). In reference to the very question in issue before me the Judicial Committee observed at page 533 as follows: In India the police have special powers in regard to the investigation of criminal charges, and it depends very much on the result of their investigation whether or not further pro ceedings are taken against the person accused. If, therefore, a complainant does not go beyond giving what he believes to be correct information to the police and the police without further interference on his part (except giving such honest assistance as they may require), think fit to prosecute it would be improper to make him responsible in damages for the failure of the prosecution. But if the charge is false to the knowledge of the complainant; if he misleads the police by bringing suborned witness to support it; if he influences the police to assist him in sending an innocent man for trial before the Magistrate it would be equally improper to allow him to escape liability because the prosecution has not, technically, been conducted by him. The question in all cases of this kind must be who was the prosecutor and the answer must depend upon the whole circumstances of the case. The mere setting of the law in motion is not the criterion; the conduct of the complainant before and after making the charge, must also be taken into consideration. Nor is it enough to say, the prosecution was instituted and conducted by the police. In the instant case the defendant has given no evidence of its conduct after it had filed its complaints against the plaintiff, therefore, as, in the words of the Judicial Committee, it had set the law in motion against the plaintiff on a charge that was both 1 false and malicious, it cannot contend that it did not prosecute him. Learned counsel's argument is without merit and the plaintiff has proved all the ingredients of a malicious prosecution.

12. The only question which remains for consideration is whether the amount of damages claimed by the plaintiff is reasonable. As was pointed out in the leading case of Savile v. Roberts (91 E R 1147) by Holt, C. J., the plaintiff in a claim for malicious prosecution is entitled to three types of damages : "The damage to a man's fame, as if the matter whereof he is accused be scandalous . . . . . The second sort of damages which would support such an action are .such as are done to the person ; as where a man is put in danger to lose his life or limb or liberty it has always been allowed a good foundation for such an action . . The third sort of damages which will support such an action is damage to a man's property as that he is forced to expend his money is necessary charges to acquit himself of the crime of which he is accused". 1n the instant case the plaintiff has not claimed any compensation for defending himself in the prosecutions against him in the Court of the learned Sub- Divisional Magistrate. But he claims compensation under the first two kinds of damages. As to the first kind of damage, the charges against him involved offences of the utmost moral turpitude. It is obvious that such charges would be highly injurious to the reputation of the person who is thus maligned. Further, in the instant case, the plaintiff has proved that a notice of his prosecution was published in the Dawn of 15th November 1954 (Exh. 5/17). Mr. Abul Khair therefore submitted that heavy damages should be awarded because the plaintiff's prosecution together with the surrounding circumstances had prevented him from obtaining employment until his discharge in 1962. Mr. Haq submitted that the plaintiff had not given any evidence to show that he had been prevented from obtaining employment or that he had suffered any loss in consequence of his prosecution. Bearing in mind the nature of the charges made against the plaintiff and the publicity given to it, it is obvious that he must have been prevented from obtaining suitable employment. As pointed out by Aiyar at page 324 in the 5th Edition of his Commentary on the Law of Torts : "Though damage is the gist of `an action for malicious prosecution' it need not be proved but may be presumed. For instance, in the case of a prosecution for a crime which involves some slur on character, damage to reputation is presumed and need not be proved." Additionally, it is settled law that exemplary damages can be awarded in an action for malicious prosecution. In Para. 391 of Volume 11 of Halsbury's Laws of England, 3rd Edition, states as follows Where the wounded feeling and injured pride of a plaintiff, or the misconduct of a defendant, may be taken into consideration, the principle of restitution in integram no longer applies. Damages are then awarded not merely to recompense the plaintiff for the loss he has sustained by reason of the defendant's wrongful act, but to punish the defendant in an exemplary manner, and vindicate the distinction between a wilful and an innocent wrongdoer. Such damages are said to be `at large', and, further, have been called examplary, vindica tive, penal, punitive, aggravated, or retributory. Exemplary damages may, however, be awarded in an action for tort, as, for instance, assault, conversion, trespass, negligence, nuisance, libel, slander, seduction, malicious prosecution and false imprisonment. This has also been the view of the High Courts of the sub‑continent. Thus in Vankatappayya v. Ramakristnamma (A I R 1932 Mad. 53) a Division Bench of the Madras High Court held that exemplary damages should be awarded in an action for malicious prosecution and the same view was taken by the Nagpur High Court in Manijeh v. Sohrab Peshottan (A I R 1949 Nag. 273). I respectfully agree with this view. As the plaintiff is entitled to exemplary damages both on account of the injury to his reputation and the deprivation of his liberty, therefore the next point for determination is whether the amount claimed by him as damages is excessive.

13. Unfortunately, as neither of the learned counsel had considered this aspect of the case I have tried to examine the case‑law myself. As damages are generally assessed in England by the jury, I shall only consider the case‑law of the High Courts of the sub‑continent, and at the outset, I have to observe that there is scant case‑la v on this subject. In Venkatappa v. Ramakristnamma a Division Bench of the Madras High Court awarded Rs. 1,500 as general damages for malicious prosecution after taking into account the fact that the plaintiff had spent Rs. 500 in defending himself in the malicious prosecution against him. In Lala Punnulal and another v. Kasturichand Ramaji (A I R 1946 Mad. 147) a learned Single Judge of the Madras High Court awarded Rs. 1,200 as damages, whilst in Mehtab v. Balaji (A I R 1946 Nag. 46) a learned Single Judge of the Nagpur High Court awarded only Rs. 150 as a solasium for the loss of reputation in a suit for malicious prosecution. In the Nagpur case the attention of the learned Single Judge does not appear to have been drawn to the principle that exemplary damages can and should be awarded in claims for malicious prosecution, therefore with great respect, the sum of Rs. 150 awarded by the learned Single Judge appears to be much too low. It is true that the Madras High Court has been rather more liberal in awarding damages. But even bearing in mind the differences in economic conditions then and now, it seems to me that a person who recklessly jeopardises the reputation and liberty of another citizen should not be allowed to get off so lightly as in the Madras cases, and I am fortified in my opinion by a Division Bench judgment of the Nagpur High Court in Manijeh v. Sohrab Peshottan in which the plaintiff claimed and was allowed Rs. 5,000 as general damages for malicious prosecution. The plaintiff in that case was an Advocate who is referred to in the judgment of Vivian Bose, C. J., as the son of a former Judicial Commissioner of Nagpur. There is obviously a difference between the plaintiff in the instant case, and the emi nent Advocate in the Nagpur case. But, on the other hand, the plaintiff in that case was awarded the damages claimed by him. Secondly, he did not contend that his practice as an Advocate had been damaged in any way by the false charges brought against him nor would it appear from the judgment that the prosecution was given any publicity, as in the instant case. Bearing in mind the publicity in the instant case, precisely because the plaintiff before me is a humble citizen, and because the charges against him involved allegations of dishonesty as an employee, the damage to him on account of his malicious prosecution must have been far greater than to the plaintiff in the Nagpur case. As I have pointed out, Mr. Abul Khair had relied on this in support of the amount claimed for damages by the plaintiff. Learned counsel's argument is supported by an English decision in Child v. Lewis (40 T L R 870) and I agree with the view taken in this decision. It is obvious that during the pendency of his prosecu tion it must have been difficult for the plaintiff to find suitable' employment, therefore this is a circumstance relevant to his claim for substantial damages, and he is, I think, clearly entitled to heavier damages than in the Nagpur case.

14. Additionally, the second head of damage, according to the judgment of Holt, C. J., is compensation for the deprivation of liberty, and, as I have observed, it is admitted before me that the plaintiff was kept in police custody for more than a week. How is compensation for this deprivation of freedom to be measured? In Venkatappayya v. Rarnkristnappa, to which I have referred, the plaintiff had been kept in custody for two days, yet the Madras High Court only awarded him Rs. 1,500 as damages for malicious prosecution. It is true that any assessment of compensation for an illegal deprivation of liberty cannot but be arbitrary. But in my humble opinion the damages awarded by the Madras High Court in this case appear to me to be grossly inadequate. I am fortified in my view by a Full Bench judgment of the Bombay High Court in Bhimsf v. Bachoo Bhaidas (I L R 48 Bom. 691). The facts in that case were that the respondent had obtained a decree against the appellant, and as the appellant had not paid the decretal amount, the respondent had obtained in execution pro ceedings an order from the Court for the appellant's arrest. The appellant was arrested in pursuance of the warrant issued by the Bombay High Court. But, as his detention was illegal, he was immediately released as his production before the High Court. He then claimed damages for his wrongful arrest, and Dinshaw Mullah, J., as he then was, awarded Rs. 100 as damages. Aggrieved by this order the appellant filed an appeal and a Full Bench of the Bombay High Court observed that "to arrest a man without any justification is a very serious matter" and increased the damages to Rs. 300, although it was not in dispute that the total period of the appellant's illegal detention was only three hours. I respectfully agree with the view of the Full Bench that any deprivation of liberty entitles the person aggrieved to substantial damages.

15. Finally, it is not irrelevant to observe here that, although the defendant had ample opportunities of producing proper evidence in support of its allegations of fraud and misappropriation against the plaintiff, it has not cared to do go. This means that it has persisted in making allegations of fraud and misappropriation against the plaintiff without any foundation whatsoever. As observed by Vivian Bose, J., in Manijeh v. Sohrab Pashottan. (This) is a matter which a Court is entitled to take into consideration in aggravation of damages." I respectfully agree with this observation and in all the circumstances of the case I hold that the plaintiff is enitled to Rs. 12,500 as damages

17. Issue No. 6.‑As I have held that the plaintiff was illegally dismissed, he had a cause of action for damages for wrongful dismissal but not for arrears of salary and emoluments as claimed by him in this suit. However, even the claim for damages had to be filed within the statutory period of limitation. Although the plaintiff was dismissed by the letter of defendant's liquidator dated 17th January 1955 (Exh. 5/5) he filed this suit in 1962, more than 6 years after the accrual of his cause of action, therefore his claim is patently time‑barred. Mr. Abul Khair then argued that, although the plaintiff's cause of action for damages arose for wrongful dismissal on 17th January 1955, it continued during the pendency of his prosecution because the prosecution prevented him from obtaining employment and, as the prosecution terminated in his favour on 31st January 1962, his cause of action continued until that date. As I have observed, learned counsel's argument that the pendency of the prosecution must have prevented the plaintiff from obtaining suitable employment is correct. But this was the consequence of the prosecution maliciously instituted against him and not of his illegal dismissal. As that malicious prosecution constituted a separate cause of action, the pendency of the prosecution did not extend his cruse of action for damages for wrongful dismissal, therefore his claim for damages for wrongful dismissal is barred by limitation.

17. However, his cause of action for damages for malicious prosecution arose only on 31st January 1962, when he was discharged and, as the suit was filed as a pauper application in the same year, his claim for damages for malicious prosecution is within time.

18. In the result, I decree the plaintiff's claim for malicious prosecution in the sum of Rs. 12,500 with interest at 6 Y. per annum from the date of the decree till the realisation of the decretal amount. As the suit was filed under Order XXXIII, rule 1, C. P. C., the court‑fees on the amount of the claim dismissed shall be a first charge on the decretal amount and shall be recovered before the same is paid out to the plaintiff. Whilst the court‑fees on the claim for damages for malicious prosecution shall be paid by the defendant. S. A. H. suit decreed