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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.