The Jammu & Kashmir and Ladakh High Court, Srinagar while dealing with an appeal against the judgment passed by the Additional District Judge, Srinagar whereby the suit filed by the appellant got dismissed on the ground of maintainability stating that no action for the malicious prosecution can be brought in cases of civil proceedings, unlike the criminal proceedings.

A Single Bench of Justice Sanjay Dhar observed that the defendant had filed the proceedings without any reasonable cause and therefore, further stated –

"Even otherwise, unlike in the cases of malicious prosecution relating to criminal proceedings no action can be brought as a general rule in the cases of civil proceedings even though the same are malicious and have been brought without any reasonable cause. … In the instant case, there are no such exceptional circumstances that would warrant maintaining such a suit against the defendant."

The Bench said that it is only in exceptional circumstances that a suit for damages on account of malicious prosecution in civil proceedings can be maintained.

Advocate Prince Hamza appeared for the appellant.

Advocate T.H. Khawaja represented the respondent.

In this case, the appellant had filed a suit against the respondent for recovery of Rs. 6,42,730/- along with the interest. It was alleged that the respondent had engaged the services of the appellant for raising buildings of the Central Office, J&K Bank, and Agriculture University. The appellant requested a number of times to pay the labour charges and other expenses for the same the respondent did not pay the whole amount. Thereafter, the Authority under the Payment of Wages Act passed an exparte award directing the respondent to pay the remaining sum within 30 days. However, the respondent filed an application before the authority for setting aside the award but the same got dismissed. Hence, he filed a revision petition in the High Court and after that, the appeal before the District Court but the same also got dismissed.

The appellant contended that he has been unnecessarily dragged into false litigation which is leading to mental agony and financial loss. The Trial Court held that the appellant had failed to claim costs from the authority and therefore, cannot file a separate suit for the recovery. Hence, being aggrieved by such a judgment, the appellant approached the High Court. The Court in this regard observed –

"In order to succeed in a case for recovery of damages for malicious prosecution, it has to be first shown that it is the defendant who has initiated the prosecution. In the instant case, admittedly, the litigation was initiated by the plaintiff and not by the defendant. Next it has to be shown that the litigation was resorted to by the defendant without any reasonable cause. In the instant case, once an award was passed against the defendant, he had no choice but to challenge the same by way of appropriate proceedings."

The Court also noted in this case that the defendant i.e., the respondent had not resorted to any frivolous litigation against the plaintiff i.e., the appellant.

The Court also observed that "Once the plaintiff did not claim litigation expenses before the Authority under the Payment of Wages Act and the District Judge or the High Court or even if he did claim but the same was not granted in his favour, it is not open to him to file a separate suit for recovery of compensation under these heads."

Accordingly, the Court did not find any illegality in the order passed by the Trial Court and therefore, dismissed the appeal lacking merits.

Cause Title – Jagdish Giri v. Talib Hussain

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