Judgment:
ORDER
N.K. Mody, J.
1. Being aggrieved by the judgment and decree dated 11-10-2005 passed by IADJ, Dhar in Case No. 3-A/03 whereby the suit filed by the appellant for realisation of Rs. 1,50,000/- was dismissed, the present appeal has been filed.
2. Short facts of the case are that appellant and respondent are husband and wife. In the suit filed by the appellant, it was alleged that appellant was married with the respondent on 12-11 -94. The behaviour of the respondent was not cordial with the appellant as according to the appellant, she was involved in love with someone else and marriage took place against her wishes. It was further alleged that respondent requested the appellant to give divorce. It was also alleged that request was made by the respondent repeatedly and frequently and it was also offered that if the appellant agrees to give divorce to the respondent, then the respondent shall not claim Rs. 11,786/- as amount of Mehar, on the contrary, she will pay a sum of Rs. 50,000/- as consideration 'Talakul Kulah'. It was further alleged in the plaint that upon the request of the respondent, appellant gave divorce to the respondent on 11-3-95 and information was sent to the respondent by post and telephonically as well. Further case of the appellant was that the respondent with an oblique motive to defend the appellant after taking the divorce filed a petition under Section 125, Cr.PC. On 28-3-97 in the Court of JMIC, Dhar and also filed a suit in the Court of Civil Judge Class II, Dhar on 27-3-97 which was registered as Civil Suit No. 11 -A/97. It was alleged that both the cases were instituted by the respondent knowing it well that there is no cause against the appellant. It was further alleged that for contesting the case, appellant was compelled to come from Ahmedabad to Dhar on each and every date. It was further alleged that case instituted under Section 125, Cr.PC. was dismissed on 18-9-97 and the civil suit was also dismissed on 19-9-97. It was alleged that appellant is entitled for a sum of Rs. 1,50,000/- as compensation from the respondent. The suit was contested by the respondent by filing the written statement wherein plaint allegations were denied. It was prayed that suit be dismissed.
3. On the basis of pleadings of parties, learned Trial Court framed the issues, recorded the evidence and dismissed the suit, against which the present appeal has been filed.
4. Learned Counsel for appellant submits that learned Court below committed error of law in dismissing the suit. It is submitted that since the respondent prosecuted the cases maliciously, therefore, appellant is entitled for compensation but the learned Court below has wrongly denied the same.
5. Mr. Sunil Jain, learned Counsel for respondent submits that suit itself was not maintainable. The proceedings initiated by the respondent were of civil nature. In the proceedings filed under Section 125, Cr.PC also the prayer was for maintenance. Therefore, the nature of that proceedings was quasi criminal. It is submitted that for filing a suit on account of malicious prosecution, the plaintiff is required to prove:
(i) that he was prosecuted by the defendant,
(ii) that the prosecution terminated in favour of plaintiff,
(iii) that prosecution was malicious, and
(iv) that it was without probable and reasonable cause.
6. It was further submitted that if any of the ingredients is missing, then the suit for malicious prosecution deserves to be dismissed. For this contention, reliance is placed on a decision of Kerala High Court in the matter of T. Subramanyam Bhatta v. A. Krishna Bhatta : AIR1978Ker111 .
7. Further reliance was placed on a decision in the matter of Genu Ganpati Shivale v. Bhalchand Jivraj Raisoni AIR 1981 Bombay 170, wherein Division Bench of Bombay High Court has held that in order to succeed in establishing malicious abuse of civil proceedings, the plaintiff is required to prove a number of ingredients: (1) In the first place, malice must be proved. (2) Secondly, the plaintiff must alleged and prove that the defendant acted without reasonable and probable cause and the entire proceedings against him have either terminated in his favour or the process complained of has been superseded or discharged. (3) The plaintiff must also prove that such civil proceedings have interfered with his liberty or property or that such proceedings have affected or are likely to affect his reputation. The plaintiff must establish that he has suffered damage.
8. In Para 717 of Page 367, Halsbury Laws of England, it has been mentioned as under:
717. Remedy analogous to an action for Malicious Prosecution: The law allows every person to employ its process for the purpose of asserting his rights without subjecting him to any liability other than the liability to pay the costs of the proceedings if unsuccessful. In civil proceedings, however, which involve an interference with liberty or property, or affect, or are likely to affect, reputation, an action lies analogous to the action for malicious prosecution, if those proceedings are undertaken maliciously and without reasonable and probable cause.
9. In the present case, unfortunately the appellant is claiming the damages from his own wife who is respondent herein on account of malicious prosecution. Out of the two proceedings, one of them was filed under Section 125, Cr.PC., which was for claiming maintenance and other was under the provisions of Mohammaden Marriage Dissolution Act.
10. From perusal of the record, it appears that appellant has failed to prove that act of the respondent was harmful to the appellant and has affected or likely to affect his reputation. There is no evidence to show that the action of respondent was malicious as alleged. Since the appellant has failed to establish that the respondent filed the suit against the appellant maliciously or without reasonable or probable cause and the action of respondent had not caused any damage to the appellant, this Court is of the view that no illegality has been committed by the learned Trial Court in dismissing the suit. In view of this, the appeal stands dismissed.
No order as to costs.