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PETITIONER:

SHRI RAVINDER KUMAR SHARMA

Vs.

RESPONDENT:

THE STATE OF ASSAM AND ORS.

DATE OF JUDGMENT: 14/09/1999

BENCH:

M.J.Rao, M.Srinivasan

JUDGMENT:

M. JAGANNADHA RAO,J.

The appellant was the plaintiff in title Suit No.40 of

1978, on the file of the Assistant District Judge, Jorhat.

He filed the suit for damages for malicious prosecution

against three defendants, the State of Assam and two Police

Officers for recovery of various amounts shown in Schedules

A, B and C. Schedule A of the suit was an amount of

Rs.2,53,425/- claimed as damages towards mental pain, social

and public humiliation, wrongful confinement and expenses

incurred for defending the criminal cases (For convenience

we shall describe them as non-pecuniary damages). Schedules

B and C comprised the value of paddy and rice of the

appellant which was seized and then sold by the police

officers, defendants 2 and 3 (For convenience we shall

describe them as pecuniary damages). The trial Court

dismissed the suit on 16.7.84. But on appeal, 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 Rs.44,592.10 was

realised. This amount is shown in the B and C schedules.

The appellant was discharged by the Criminal Court on

12.4.78, on the ground that the Assam Control Order of 1961

was not in force at the time of search, seizure and arrest

of the appellant on 1.10.1977 but that it had expired on

30.9.1997. The appellant contended in the courts below that

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the search, seizure and arrest were unauthorised as the

Central Government had, in fact, removed various

restrictions w.e.f. 1.10.1977 and that the news in that

behalf was published in various newspapers on 29.9.1977. He

also contended that he had personally informed the

respondents 2, 3(defendants 2 and 3) on 1.10.1977 at the

time of the search operation about the expiry of the Control

Order, that the defendants 2 and 3 did not pay any heed and

went ahead and arrested the appellant because their demand

for a bag of rice was not complied with. It was also

contended that the defendants 2 and 3 acted mala fide, that

the appellant and the owners of the paddy/rice had permits

for milling paddy and the same were produced before these

officers but they did not care even to look into them. The

sale of goods was also made in haste. These facts,

according to the plaintiff, showed that there was no

reasonable or probable cause for the prosecution.

Therefore, the defendants were liable for damages as stated

in plaint Schedules A, B and C. The defence of the State

and the police officers was that on 1.10.1977, no order of

the Central Government was published in the gazette, that

even appellant had no knowledge of the said order because no

such fact was stated even in the bail petition filed later

and that, in fact, the State of Assam had issued

instructions on 30.9.97 by wireless message to its officers

that the order of the Central Government would not come in

the way of the enforcement of the Assam Control Order of

1961. It was contended that the action of search, seizure

and arrest taken on 1.10.1977 pursuant to such instructions

of the State Government issued on 30.9.77 was bona fide.

The demand for a bag of paddy was denied. It was also

stated that no permits for milling paddy were shown either

by the appellant or by the owners of the paddy. There was,

therefore, reasonable and probable cause for the prosecution

and hence the suit was liable to be dismissed. The trial

court rejected the evidence of the appellant and held that

the action of the defendants was based upon the State

Government's wireless 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 Schedules i.e. value of paddy

and rice sold. However, the High Court refused to grant a

decree for the A Schedule, i.e. mental pain, loss of

reputation, wrongful confinement etc. on the ground that

the appellant "did not adduce any evidence with regard to

damages in Schedule A". The plaintiff has filed this appeal

for the non-pecuniary damages in A Schedule items. The

defendants have, as already stated, accepted the decree for

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the pecuniary damages in B and C Schedule items and have not

chosen to file any appeal in regard to the pecuniary damages

in B and C schedules nor any cross-objections in regard to

the adverse finding that there was no reasonable or probable

cause for the prosecution. In this appeal, the learned

counsel for the respondents-defendants contended before us

that the finding of the High Court in regard to the

prosecution being without reasonable and probable cause or

that it was malicious etc. was not correct and that hence

no decree could be passed for the non-pecuniary damages in A

Schedule. On the other hand, the appellant-plaintiff

contended that the decree for pecuniary damages in B and C

Schedules was based on the same finding and that neither the

decree for pecuniary damages in B & C schedule nor the

adverse findings regarding absence of reasonable and

probable cause, malice etc. were questioned by the

respondents by way of an appeal or by cross- objections and

that therefore the said findings could not be attacked by

the respondents under Order 41 Rule 22 as amended in 1976.

The findings on which decree for pecuniary damages in B and

C Schedules was based had become final and operated as res

judicata. Alternatively, the appellant-plaintiff contended

that the findings regarding absence of reasonable and

probable cause malice etc. were based on ample evidence as

pointed out by the High Court and that the High Court ought

to have passed a decree for the non-pecuniary damages in A

Schedule also. On the above pleas, the following points

arise for consideration: (1) Whether the respondents, not

having filed an appeal or cross-objection in regard to the

pecuniary damages in B and C schedules could be permitted to

rely on Order 41 Rule 22 CPC(as amended in 1976) and to

contend that the findings relating to malice, absence of

reasonable and probable cause was not correct and whether

the respondents could be permitted to support the dismissal

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 service on

him or his pleader of notice of the day fixed for hearing

the appeal, or within such further time as the Appellate

Court may see fit to allow".

The Rule is in two parts. The first part deals with

what the respondent can do by way of attack of an adverse

finding even if he has not filed any appeal or

cross-objection. The second part deals with what the

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respondent has to do if he wants to file cross-objection.

To give a very simple example, let us take this very case of

a plea of malicious prosecution where damages are sought for

pecuniary loss (B & C schedules loss of paddy etc.) and also

damages for non-pecuniary loss (A schedule, pain, anguish,

loss of reputation). The High Court held that there was

malice etc. on the part of the defendants and granted a

decree for pecuniary losses in B and C schedules but did not

grant any decree for non-pecuniary losses, as no proper

evidence was adduced in that behalf. The plaintiff has

appealed before this Court for damages seeking a decree for

non-pecuniary loss in A schedule. Can the respondent-

defendant, even though he has not filed any appeal or cross-

objection in regard to the adverse finding as to malice and

against the decree for pecuniary loss in plaint B & C

schedules, attack the finding as to malice etc. and support

the decree of dismissal of suit so far as the A schedule

non-pecuniary losses are concerned?

Though in certain earlier cases in the Madras High

Court, a view was taken that the defendant-respondent in

such situations could not attack such a finding, a Full

Bench of the Madras High Court in Venkata Rao and Ors. Vs.

Satyanarayana Murthy and Anr. [AIR 1943 Madras 698 = ILR

1944 Madras 147] set the controversy at rest by holding that

the respondent could attack a finding upon which, part of

the decree against him was based, for the purpose of

supporting the other part of the decree which was not

against him. In that case, Leach,CJ accepted the view of

the referring Judges Wadsworth,J. and Patanjali Sastri,J.

( as he then was ) to the following effect: "Under Order 41

Rule 22, it is open to a defendant-respondent who has 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 necessitated the total dismissal of the

suit". The above judgment of the Full 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 Rule

22(1) CPC, (after the 1976 Amendment) reads as follows:

"O.41 R.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

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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 service on him or his

pleader of notice of the day fixed for hearing the appeal,

or within such further time as the Appellate Court may see

fit to allow."

The 1976 Amendment has also added an Explanation below

Order 41 Rule 22, as follows:

"Explanation: A respondent aggrieved by a finding of

the court in the judgment on which the decree appealed

against is based may, under this rule, file cross objection

in respect of the decree in so far as it is based on that

finding, notwithstanding that by reason of the decision of

the Court on any other finding which is sufficient for the

decision of the suit, the decree is, wholly or in part, in

favour of that respondent".

In connection with Order 41 Rule 22, CPC after the

1976 Amendment, we may first refer to the judgment of the

Calcutta High Court in Nishambhu Jana vs. Sova Guha [(1982)

89 CWN 685]. In that case, Mookerjee,J. referred to the

54th report of the Law Commission (at p.295) (para 41.70) to

the effect that Order 41 Rule 22 gave two distinct rights to

the respondent in the appeal. The first was the right to

uphold the decree of the court of first instance on any of

the grounds which that court decided against him. In that

case the finding can be questioned by the respondent without

filing cross-objections. The Law Commission had accepted

the correctness of the Full Bench of Madras High Court in

Venkata Rao's case. The Commission had also accepted the

view of the Calcutta High Court in Nrisingha Prosad Rakshit

vs. The Commissioners of Bhadreswar Muncipality that a

cross-objection was wholly unnecessary in case the adverse

finding was to be attacked. The Commission observed that

the words "support the decree..." appeared to be strange and

"what is meant is that he may support it by asserting that

the ground decided against him should have been decided in

his favour. It is desirable to make this clear". That is

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

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attacks the decree. The language of the rule, however,

requires some modifications because a person cannot support

a decree on a ground decided against him. What is meant is

that he may support the decree by asserting that the matters

decided against him should have been decided in his favour.

The rule is being amended to make it clear. An Explanation

is also being added to Rule 22 empowering the respondent to

file cross- objection in respect to a finding adverse to him

notwithstanding that the ultimate decision is wholly or

partly in his favour."

Mookerjee, J. observed in Nishambhu Jana's case (see

p.689) that "the amended Rule 22 of Order 41 of the Code has

not brought any substantial change in the settled principles

of law" (i.e. as accepted in Venkata Rao's case) and

clarified (p.691) that "it would be incorrect to hold that

the Explanation now inserted by Act 104 of 1976 has made it

obligatory to file cross-objections even when the respondent

supports the decree by stating that the findings against him

in the court below in respect of any issue ought to have

been in his favour". A similar view was expressed by

U.N.Bachawat, J. in Tej Kumar vs. Purshottam [AIR 1981 MP

55] that after the 1976 Amendment, it was not obligatory to

file cross- objection against an adverse finding. The

Explanation merely empowered the respondent to file

cross-objections. In our view, the opinion expressed by

Mookerjee, J. of the Calcutta High Court on behalf of the

Division Bench in Nishambhu Jena's case and the view

expressed by U.N.Bachawat, J. in Tej Kumar's case in the

Madhya Pradesh High Court reflect the correct legal position

after the 1976 Amendment. We hold that the

respondent-defendant in an appeal can, without filing

cross-objections attack an adverse finding upon which a

decree in part has been passed against the respondent, for

the purpose sustaining the decree to the extent the lower

court had dismissed the suit against the

defendants-respondents. The filing of cross- objection,

after the 1976 Amendment is purely optional and not

mandatory. In other words, the law as stated in Venkata

Rao's case by the Madras Full Bench and Chandre Prabhuji's

case by this Court is merely clarified by the 1976 Amendment

and there is no change in the law after the Amendment.

The respondents before us are, therefore, entitled to

contend that the finding of the High court in regard to

absence of 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)

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Order, 1961 w.e.f. 1.10.77". It was on 1.10.77 that the

respondents 2 and 3 conducted the search, seizure and arrest

operations. But, as noticed by the trial court, the Assam

Government had issued a wireless message 363773 dated

30.9.77 to all Dy.Commissioners and SDOs that the Government

of India's procurement policy dated 29.9.77 did not state

that the existing restriction on movement of paddy/rice was

withdrawn w.e.f. 1.10.77 as reported in the Press.

Moreover, Assam Food Grains(Licensing & Control Order, 1961)

had not been repealed and the new procurement policy would

commence from 1.11.77. The message stated:

"...please, therefore, ensure that the provisions of

the aforesaid Assam Food Grains (Licensing and Control)

Order, 1961, are enforced even after 1st October, 1977,

pending further instructions from the Government."

The record also shows that this was communicated to

officers lower down on 3.10.77. This aspect was not given

due importance by the High Court.

Newspaper reports regarding the Central Government

decision could not be any basis for the respondents to stop

action under the Assam Control Order of 1961. The paper

reports do not specifically refer to the Assam Control

Order, 1961. In fact, Government of Assam itself was not

prepared to act on the newspaper reports, as stated in its

wireless message. Section 81 of the Evidence Act was relied

upon for the appellant, in this behalf, to say that the

newspaper reports were evidence and conveyed the necessary

information to one and all including the respondents 2 and

3. But the presumption of genuineness attached under

section 81 to newspaper reports cannot be treated as proof

of the facts stated therein. The statements of fact in

newspapers are merely hearsay [Laxmi Raj Setty vs. State of

Tamil Nadu 1988 (3) SCC 319]. Now if the defendants 2 and 3

as police officers of the Assam Government acted upon the

instructions of the Assam Government and proceeded to apply

Control order even on 1.10.77, they cannot, in our opinion,

be said to be acting without reasonable or probable cause.

The remedy of suit for damages for false imprisonment is

part of the law of torts in our country (A.D.M. Jabalpur

vs. Shivakant Shukla 1976 (2) SCC 521 (at 579)). In

Glinski vs. McIver [1962 A.C. 726 (at 776)], Lord Devlin

stated:

"The defendant can claim to be judge not of the real

facts but of those which he honestly, and however

erroneously, believes; if he acts honestly 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

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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 defendants 2 and 3, we do not find sufficient pleading

on this aspect. In any case we find that no question was

put when 2nd defendant was cross-examined. As pointed out

by Sarkar on Evidence (15th Ed., 1999, Vol.2, p.2179) in the

context of section 138 of Evidence Act,

"generally speaking, when cross-examining, a party's

counsel should put to each of his opponent's witnesses, in

turn, so much of his own case as concerns that particular

witness or in which he had a share."

The 3rd defendant was asked and he denied the

suggestion. Therefore, the plea showing permits has not

been properly substantiated. The other allegation is that

the defendants 2 and 3 entered the Mill and demanded a bag

of rice. We are of the view that the evidence of the

appellant and his munim was rightly disbelieved by the trial

court. No such case was put forward by the appellant in the

criminal case. The view of the High Court that the

respondents 2 and 3 did not personally sign the written

statement appears to us to be too technical once the issues

were framed and evidence was led by both sides. We do not

also find any warrant for the use of the words "abuse of

powers" or "atrocious" etc. by the High Court. For the

aforesaid reasons, we are of the view that the finding of

the High Court regarding malice or the absence of reasonable

and probable cause cannot be accepted, notwithstanding the

fact that such a finding was the basis for granting

pecuniary damages in B & C schedules which decree has become

final. If that be so, the respondents can sustain the

dismissal of the suit in regard to the non- pecuniary

damages in A schedule. We hold in favour of the respondents

and against the plaintiff appellant on the Point 2. For the

aforesaid reasons, the appeal filed by the plaintiff seeking

damages in respect of the non-pecuniary damages in the A

schedule is dismissed and the decree of dismissal of the

first appeal in regard to the said A schedule is sustained

without going into the question of proof of damage due to

pain or loss of reputation etc. The decree for the

pecuniary losses in B and C schedule items remains. The

appeal is, accordingly, dismissed but in the circumstances

without costs.