TMI Blog1999 (9) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court while holding that the defendants 1 to 3 were guilty of malicious prosecution, abuse of power and unauthorised action, granted relief only in regard to pecuniary damages in the B and C Schedules ( value of goods ) but dismissed the suit for non-pecuniary damages in A Schedule items(pain, damage to reputation etc.) on the ground that the pleadings and evidence in respect of the said items were vague. The plaintiff has filed this appeal for non-pecuniary damages covered by the A Schedule items. The defendants 1 to 3 have not filed any appeal in regard to amount decreed for pecuniary damages as per the B or C Schedules. The facts in brief are as follows: The defendants 2 and 3 entered the appellant s Mill towards dusk-time on 1.10.1977 and seized the paddy and rice and arrested the appellant for alleged violation of the provisions of the Assam Food Grains (Licensing and Control) Order, 1961. A criminal case was filed against the appellant. On 4.10.1977, the appellant was granted bail but he was released only on 5.10.1977. The paddy and rice were sold and an amount of ₹ 44,592.10 was realised. This amount is shown in the B and C schedules. The appellant was dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eless message dated 30.9.77 to the effect that the Control Order of Assam could be enforced, that the case of demand of rice bag was false and that the entire claim was imaginary. There was reasonable and probable cause for the prosecution. The suit was dismissed. .pa On appeal in FA 89/84, the High Court of Gauhati reversed the findings and held that the defendants 2 and 3 exceeded their authority inasmuch as the Assam Control Order of 1961 was not in force on 1.10.77 and that the officers abused their powers, that there was no material before the said officers to have reasonable and probable cause to launch prosecution. It held that the written statement having been signed by Sri D.K. Borthakur, ( Additional Dy. Commissioner, Sibasagar) on behalf of all defendants (and not by defendants 2 and 3), it must be deemed that the allegation of demand for a bag of rice was not denied, that the appellant and owners of the paddy showed their permits to the officials but it went unheeded and that the treatment meted out by the defendants 2 and 3 to the appellant was most atrocious and malicious . On those findings the High Court granted a decree for the pecuniary damages in B and C S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missal of the suit by the High Court so far as the non-pecuniary damages in A schedule were concerned, on that basis? (2) Whether, in case the respondents are held entitled to attack the said adverse findings under Order 41 Rule 22 CPC, the said findings as to the existence of reasonable and probable cause malice etc. are liable to be set aside? Point 1: Under this point, the scope and effect of Order 41 Rule 22 CPC as amended in 1976 falls for consideration. We shall first refer to the position of the law in regard to Order 41 Rule 22(1) CPC as it stood before the 1976 Amendment. Thereafter, we shall refer to the 1976 Amendment and its effect. .pa Order 41 Rule 22 (1), as it stood before the 1976 Amendment, stood as follows: Order 41 Rule 22(1): Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour, and may also take any cross objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench was approved by this Court in Chandre Prabhuji s case [1973 (2) SCC 665 = AIR 1973 SC 2565] by Mathew, J. speaking on behalf of the Bench. That means that under Order 41 Rule 22 CPC, before the 1976 Amendment, it was open to the defendant-respondent who had not taken any cross-objection to the partial decree passed against him, to urge, in opposition to the appeal of the plaintiff, a contention which if accepted by the trial court would have resulted in the total dismissal of the suit. This was the legal position under the unamended Order 41 Rule 22 as accepted by the Madras Full Bench in Venkata Rao s case and as accepted by this Court in Chandre Prabhuji s case. The next question is as to whether, the law as stated above has been modified by the 1976 Amendment of Order 41 Rule 22. It will be noticed that the Amendment has firstly deleted the words on any of the grounds decided against him in the Court below, but take any cross-objections in the main part of Order 41 Rule 22 CPC and added the words but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour in the main part. The main part of Order 41 Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s why the main part of Order 41 Rule 22 was amended to reflect the principle in Venkata Rao s case as accepted in Chandre Prabhuji s case. So far as the Explanation was concerned, the Law Commission stated (page 298) that it was necessary to empower the respondent to file cross-objection against the adverse finding. That would mean that a right to file cross-objections was given but it was not obligatory to file cross-objections. That was why the word may was used. That meant that the provision for filing cross-objections against a finding was only an enabling provision. These recommendations of the Law Commission are reflected in the Statement of Objections and Reasons for the Amendment. They read as follows: Rule 22(i.e.as it stood before 1976) gives two distinct rights to the respondent in appeal. The first is the right of upholding the decree of the Court of first instance on any of the grounds on which that court decided against him; and the second right is that of taking any cross-objection to the decree which the respondent might have taken by way of appeal. In the first case, the respondent supports the decree and in the second case, he attacks the decree. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable and probable cause or malice - (upon which the decree for pecuniary damages in B and C schedules was based) can be attacked by the respondents for the purpose of sustaining the decree of the High Court refusing to pass a decree for non-pecuniary damages as per the A schedule. The filing of cross-objections against the adverse finding was not obligatory. There is no res judicata. Point 1 is decided accordingly in favour of respondents-defendants. Point 2: The question here is whether there is proof of malice and proof of absence of reasonable and probable cause for the search, seizure and arrest of the appellant and for his prosecution. We have been taken through the oral and documentary evidence adduced in the case by both sides. The notification of the Central Government dated 30.9.77 (N.S.O. 696(E)), Ministry of Agriculture Irrigation (Gazette Part II-Sec.3(II)) dated 30.9.77 (at pp. 2639-40) no doubt states that in exercise of power conferred by Section 3 of the Essential Commodities Act, 1955 (Act 10/55), the Central Government hereby rescinded the Assam Food Grains (Licensing and Control) Order, 1961 w.e.f. 1.10.77 . It was on 1.10.77 that the respondents 2 and 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon fiction, he can claim to be judged on that. The question is not whether the plaintiff was ultimately found guilty but the question is whether the prosecutor acted honestly and believed that the plaintiff was guilty. As pointed out by Winfield and Jolowicz on Tort (15th Ed., 1998, p.685) in prosecutions initiated by police officers, the fact that they did so upon advice or instruction of superior officers is one of the relevant facts unless it is proved that the particular police officer did not himself honestly believe that the plaintiff was guilty of an offence. The High Court was, in our opinion, wrong in concluding that there was absence of reasonable and probable cause because the action, in view of the notification of the Central Government, was unauthorised or illegal. Illegality does not by itself lead to such a conclusion. Further there is no truth in the appellant s case that on 1.10.1977 at the time of seizure, he informed the defendants 2 and 3 about the Gazette notification. The point is that such an assertion was not made even in the bail application moved after arrest. As to the contention that the appellant and the owners of paddy showed permits to the de ..... 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