2014 PLP 579 (CLD)

ABDUL LATIF KHAN, J.

Through the instant revision petition, the petitioner has called in question the judgment and decree dated 9-2-2011 passed by the learned District Judge, D.I. Khan whereby appeal of the respondents was accepted, the judgment and decree dated 31-3-2010 of learned Civil Judge-II, D.I. Khan was set aside and suit of the respondents for recovery of Rs.24,000 (Rs.20,000 on account of mental torture etc and Rs.4,000 for expenses of the complaint) was decreed.

2. Learned counsel for the petitioner contended that the appellate Court has wrongly reversed the findings of trial Court without assigning any reason. It was argued that the plaintiff filed suit for damages on the ground that criminal complaint lodged by the petitioner against the respondents/plaintiff was s dismissed, but ignored the fact that it was due to the pendency of civil litigation between the parties. He contended that in cases of private complaint, normally the accused are not arrested. The complaint was dismissed in the instant case after preliminary arguments and the plaintiffs were not arrested and cannot claim to be humiliated or disgraced in any manner. It was contended that the complaint was dismissed due to non-maintainability and no findings were given that the petitioner had falsely prosecuted the plaintiffs or the complaint was dismissed on merits. He contended that neither receipt of counsel fee has been annexed with the plaint nor any documentary evidence has been produced with regard to recovery of Rs.20,000 towards mental torture suffered by the plaintiffs. He contended that the judgment and decree passed by the appellate Court is based on conjectures and is liable to be reversed.

3. As against that, learned counsel for the respondents argued that the ingredients of false prosecution are proved in the instant case. The complaint was filed against the respondents which ended in favour of the respondents and they were discharged by the competent Court while dismissing the complaint filed by the petitioner. He argued that the petitioner was actuated by malice and has filed the complaint without reasonable and probable cause.

4. I have given my anxious thought to the arguments of learned counsel for the parties and perused the record with their able assistance.

5. To establish the malicious prosecution, the following ingredients are to be proved by the plaintiff:-- "(i) that plaintiff was prosecuted by the defendant. (ii) that prosecution ended in favour of plaintiff. (iii) that the defendant acted without reasonable and probable cause, (iv) that the defendant was actuated by malice, (v) that the proceedings had interfered with plaintiff's liberty and has also affected his reputation, and (vi) that the plaintiff has suffered damages."

6. The plaintiffs have filed the suit for recovery of Rs.24,000 with breakup of Rs.20,000 for defamation and mental torture and Rs.4,000 for expenses of complaint. No receipt has been annexed issued by the counsel nor in respect of any expenses incurred upon the litigation in complaint case with the plaint. Similarly, no evidence to this effect has been produced that Rs.4,000 were spent upon expenses and fee of counsel. Even the name of counsel is not mentioned nor he has been produced as witness in support of claim by the plaintiffs.

7. So far as Rs. 20,000 are concerned, the plaintiffs have failed to prove the damages regarding defamation and mental torture. They have not been arrested in the case. The case was not conducted, rather the complaint was dismissed in limine and accused were discharged. The plaintiffs failed to prove that how they suffered damages and mental torture. It is not in the evidence that the defendant acted without reasonable and probable cause or was actuated by malice. The evidence recorded as P.W.1 to P.W.3 by the plaintiffs, is silent about the proof of the amount of damages as well as expenses. All the ingredients mentioned above are lacking in the instant case. The complaint was dismissed on account of pendency of civil case between the parties, rather than on merits. The learned appellate Court was swayed by the consideration other than judicial. Extraneous material has been based upon for awarding decree instead of scanning the evidence available on file. No reasons have been assigned by the appellate Court for grant of decree in favour of the plaintiffs, therefore, the impugned judgment is not sustainable in the eye of law.

8. For the reasons mentioned above, this petition is accepted, the impugned judgment and decree dated 9-2-2011 of learned District Judge, D.I. Khan is set aside and the judgment and decree dated 31-3-2010 of learned Civil Judge-II, D.I. Khan, dismissing the suit of the plaintiffs/respondents, is restored. No order as to costs. AG/651/P Order accordingly.