DIFFICULTIES OF TORT LITIGANTS IN INDIA

Author(s): R. Ramamoorthy
Source: Journal of the Indian Law Institute , APRIL-JUNE 1970, Vol. 12, No. 2 (APRIL-
JUNE 1970), pp. 313-321
Published by: Indian Law Institute

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 DIFFICULTIES OF TORT LITIGANTS IN INDIA*

The Difficulties of the tort-litigants in India are considered u

two major heads, viz., the general difficulties and the difficul
arising out of the judicial decisions.

I. General Difficulties

The people of India came under the influence of the common

jurisprudence in a peculiar way. 1 The English law has been the s
of the law of torts, as applied by the courts in India but its a
extent of application remained vague. A number of decisions2
specially cases relating to slander and contribution in between the jo
tort-feasors show that the English common law has not been strict
lowed by the Indian courts. Application of the English law of to
the Presidency towns and the mofussil in some respects differed
each other. 3 The English statutes on maintenance and champe
have been held not applicable in India. 4 Only those statutes of E
which were suitable to the local conditions of India were held
cable. Under these circumstances it became difficult to know whether
or not a particular statute of England was applicable in India. Fur-

*This paper was presented at the All-India Seminar on Law of Torts organized
by the Indian Law Institute at Mount Abu during May 1969.
1. It is difficult to say factually when the English law came to be applied in
India. However, the long accepted view is that which was affirmed by the Privy
Council and summed up by Lord Kingsdown in the following words :
The English law, Civil and Criminal, has been usually considered to have been
made applicable to Natives, within the limits of Calcutta, in the year 1726, by
the Charter, 13th Geo. 1. Neither that nor the subsequent Charters ex-
pressly declare that the English law shall be so applied, but it seems to have
been held to be the necessary consequence of the provisions contained in
them.
Advocate-General of Bengal v. Ranee Surnomoyee Dossee, (1863) 9 M.I.A. 387 at
426-27.

2. See, for instance, Advocate-General of Bengal v. Ranee Surnomoyee Dossee ,

ibid; Sheikh Parabdi Sahani v. Sheikh Mohammed Hussein, (1868) 1 Beng. L.R.
(A.C.) 37; Bhola Nath Nuudi v. Midnapore Zemindary Co, (1904) I.L.R. 31 Cal.
503 (P.C.).
3. See, for instance, Bhooni Moni Dasi v. Notowar Biswas, (1901) I.L.R. 28 Cal.
452, a case from the Presidency of Calcutta where the plaintiff's suit for damages
for defamatory words (slander) failed because he could not prove special damage
suffered; on the other hand, in Sukhan v. Bipad, (1907) I.L.R. 34 Cal. 48 a case from
the mofussil it was held that slander is actionable without proof of special damage.
See also Jain, M.P., Outlines of Indian Legal History 583, 587 (2nd ed. 1966).
4. Ram Coomar Coondoo v. Chunder Canto Mookerjee, (1877) I.L.R. 2 Cal.
233 (P.C.); Raja Rai Bhagwat v. Debi Dayal Sahu, 10 Bom. L.R. 230 (P.C.).

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314 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 12:313

ther, if that particular statute was repealed or amended in England, it

was not clear whether this affected the law in India ? No definite
answer can be given to such questions. Thus until a judge decided, it
was difficult to know what principles of English law applied in India. 5
Even after the promulgation of the Constitution of India, the law of
torts remains uncodified. According to article 372 6 of the Indian Cons-
titution the law in force immediately before the commencement of the
Constitution continues. The decisions of the English courts are no
more binding upon the Indian courts. They may, at the most, have
persuasive authority. So the position of the law of torts remains
much the same. The applicability of the English law of torts to the
Indian conditions not having been considered in many fields, many as-
pects of the law of torts remain vague. The distinction between the law
in the Presidency towns and the law in the mofussil though negligible
is not completely gone. 7 The parties cannot have clear idea as to their
rights and liability before going to the courts of law. The lawyers too
cannot offer any useful advice as many parts of law are doubtful. Even
the task of the judge who tries the case is not light. For instance, in a
case of state liability the judge, in order to ascertain whether the govern-
ment is liable for the torts committed by its servants, has to refer to
article 300 of the Constitution. Article 300 in its turn directs him to
section 176(1) of the Government of India Act, 1935. And section
176(1) refers back to the legal position as it stood before the enactment
of that Act i.e. section 32(3) of the Government of India Act, 1915.
It says :

Every person shall have the same remedies against the Secretary of State in
Council as he might have had against the East India Company if the Go-
vernment of India Act, 1858, and this Act had not been passed.

In other words the liability of the present Indian Republic for the torts
committed by its servants should be known by referring back to the
liability of the East India Company. 8 What strenuous efforts the judge
has to make in order to find out whether the government is liable or
not liable ? What guarantee is there that all three judges will follow
the same path ? What happens, when the cause of action arose not

5. Jain, M.P., op. cit. supra note 3 at 537.

6. Ind . Const, art. 372 (1)
Not withstanding the repeal by this Constitution of the enactment referred
to in article 395 but subject to the other provisions of this Constitution, all
the law in force in the territory of India immediately before the commence-
ment of this Constitution shall continue in force therin until altered or
repealed or other competent authority.
7. See, Jain, M. P., op. cit . supra note 3 at 587.
8. In K. Krishnamurthy v. State of Andhra Pradesh , A.I.R. 1961 A.P. 283 at 286,
Kummarayya, J. observed :
The law in India however has been surprisingly static. It is still almost the

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1970] DIFFICULTIES OF TORT LITIGANTS IN INDIA 315

in the territory under the control of the British government but

an independent raja (ruler) ? In that case article 300 of the
titution refers not to the Government of India Act, 1935 but
laws of the independent state.*

II. Difficulties Arising out of the Judicial Decisions in India-

HIGHLIGHTED THROUGH THE TORT OF MALICIOUS PROSECUTION

A glance at appendix I at the end of this paper would reveal that

the tort which is very frequently litigated in India is malicious prose-
cution. Almost all the High Courts had the ample opportunity of
considering this tort in all its aspects. So malicious prosecution is
chosen to highlight the difficulties of tort litigants.
The courts in India seem to be of the opinion that the law of mali-
cious prosecution in India is exactly the same as in England and the
United States. 9 This being the position as understood by them, they
frequently refer to certain textbooks10 and decided cases. It may be
appreciated that any difference of opinion amongst the authors is bound
to cause uncertainty in law and in its turn would cause hardships to the
litigants. An attempt has been made in this writing to find out the views
of the different authors which are usually relied upon by the courts
in India, on the essentials of the tort of malicious prosecution and how
the courts in India have understood them.
In Gliński v. Mclver, 1 1 Viscount Simonds had held that in suit for
damages for malicious prosecution in order to succeed the plaintiff has
to prove (1) that he was prosecuted by the defendant; (2) that the

same as it was in or about the year 1858 when the Sovereignity under the
Government of India Act passed to the Crown in England. At no time, it
would appear the law in India in this behalf was identical with that in Eng-
land. It is true as already observed the law of torts in India is based on
common law principles of England.
*The vicarious liability of the government of India for the torts committed
by its servants has come to be stabilized through a series of decisions of the Supreme
Court, see generally, State of Rajasthan v. Mst. Vidhyawati, A.I.R. 1962 S.C. 933;
Kasturi Lai v. State of U.P., A.I.R. 1965 S.C. 1039; Superintendent and Legal Remem-
brancer, State of West Bengal v. Corporation of Calcutta, A.I.R. 1967 S.C. 997
and Postmaster General v. Radhabai, A.I.R. 1969 N.S.C. 89. Further, the Govern-
ment (Liability in Tort) Bill, 1967, whichhas recently been approved by the Joint
Committee of the Parliament also contains elaborate provisions to determine the
scope of the government's liability in torts committed by its employees. Editor.
9. 5. T. Sahib v. Hasan Ghani, A.I.R. 1957 Mad. 646, 652
10. The text-book authors, usually referred to by the judges in India,
are Winfield, Salmond, Clerk and Lindsell, Pollock, Underhill, S. Ramaswami Ieyr,
Ratanlal and Dhirajlal, R. L. Anand and Sastri. Recently courts are also refer-
ring to Fleming, and the American Restatement on Torts. The list is collected from
the actual study of the judgements of the cases reported in the Al India Reporter
on malicious prosecution.
11. [1962] A. C. 726, 742.

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316 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 12 : 313

prosecution has terminated in his favour; (3) that the prosecution

lacked reasonable and probable cause; and (4) that the prosecution
was with a malicious motive.
Salmond,12 Clerk and Lindsell,13 Fleming14 and Ramaswami
Iyer15 support the view taken by Viscount Simonds in the above case.
But some jurists like Underhill 1 6 and James 1 7 mention "damage" as an
additional ingredient to be proved by the plaintiff. Although Win-
field has not included damage in the essentials of this tort, nevertheless
he discusses them on the assumption that damage is there. 1 8 He clearly
mentions :

The action for malicius prosecuton being an action on the case it is essential
for the plaintiff to prove damage....19

In Halsburfs Laws of England "damage suffered by the plaintiff"

constitutes the fifth essential element which the plaintiff must prove in
order to succeed in an action for malicious prosecution. 20 But in the
footnote attached to that it is explained :

Damage is implied in the case of a Criminal Charge which endangers the

accused's liberty of person, or is of such a nature as to injure his fair fame
and credit.21

Except a few civil proceedings like bankruptcy and winding up proceed-

ings, ordinarily civil proceedings however maliciously brought cannot
give rise to a cause of action.22
The proof of the first ingredient "that he was prosecuted by the
defendant" involves in fact the proof of three things viz., the nature of
the offence which gives rise to liability, the prosecution has reached a
stage so as to give rise to liability and that the defendant was the prose-
cutor. While considering the nature of offence that gives rise to liabi-
lity courts both in England and in India are following the tests laid
down by Mr. Chief Justice Holt in Savile v. Roberts. 2 2There the learned
Chief Justice held that only those prosecutions that cause damage to
reputation, person or to property are prosecutions for the purposes of
malicious prosecution.

12. Salmond on The Law of Torts 720 (13th ed. by R.E.V. Heuston, 1961).
13. Clerk and Lindsell on Torts 894 (1961).
14. Fleming, The Law of Torts 577 (3rd ed. 1965).
15. Iyer S. Ramaswami, The Law of Torts 256 (6th ed. 1965).
16. Underhill, A Summary of the Law of Torts 133 (9th ed. 191 1).
17. James, General Principles of the Law of Torts 295 (1959).
18. Winfield on Tort 575 (8th ed. by Jolowicz and Lewis, 1967.)
19. Id. at 574.
20. 25 Halsbury's Laws of England 353, 354-56 (6th ed. 1965).
21. Id. at 354 n. (i)
22. Iyer, supra note 15 at 255 - 56.
23. [1698] 1 Ld. Raym. 374.

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1970] DIFFICULTIES OF TORT LITIGANTS IN INDIA 317

Pollock in his book on torts says that in an action for malicious

secution, the plaintiff has to prove inter alia that "he was innocent
that his innocence was pronounced by the tribunal before whi
accusation was made"24 instead of saying that "the prosecutio
terminated in plaintiff's favour." Prima facie it appears that P
has introduced a new element in essentials of malicious prosecut
in the footnote he illustrates the meaning of innocence :

A plaintiff who, being indicted on the prosecution complained of, has

found not guilty on a defect in the indictment... is sufficiently innoc
for this purpose.25

Viewed in the light of the aforesaid footnote it may be observ

Pollock does not differ from other authors on these essentials of this
tort. In this respect the views of Indian courts are not consistent. Prior
to the Privy Council decision in Balbhaddar v. Badri Sah 2 6 the High
Courts of Calcutta,27 Bombay,28 Patna29 and Lahore30 considered
innocence as an essential element to be proved by the plaintiff. In Nal -
liappa Goundan v. Kailappa Goundan 3 the High Court of Madras held
innocence as an essential element to be proved by the plaintiff but the
same High Court took a different view in Gopalkrishna v. Narayana 3 2
wherein Mr. Chief Justice Wallis and Mr. Justice Spencer observed :

in actions for malicious prosecution, the plaintiff must prove four things ;
(1) that he was prosecuted, (2) that the prosecution ended favourably, (3) that
the defendant acted without reasonable and probable cause, (4) that the
defendant was actuated by malice. Under the second and third heads ques-
tions as to the plaintiff's innocence generally arise. But they must... be
regarded only as incidental to the questions whether the prosecution ended
in the plaintiff's discharge or acquittal and whether the defendant acted
without reasonable or probable cause.33

24. Pollock's Law of Torts 233-34 (15th ed. by P. A. Landon, 1951).

25. īd. at 234 n. 23.
26. A.I.R. 1926 P.C. 46.
27. Syama Charan Karmokar v. Jhatoo Haider, (1901) 6 C.W.N. 298 and
Harish Chundra Neogy v. Nishi Kanta Banerjee, (1901) I.L.R. 28 Cal. 591.
28. Alamkhan v. Banemiya, A.I.R. 1926 Bom. 306.
29. Harihar Sihgh v. Dasrath Ahir, A.I.R. 1925 Pat. 469.
30. Pohlo Ram v. Hukm Singh, A.I.R. 1919 Lah. 255. In this case Broadway,
J. observed :
The general consensus of authorities seems to be in favour of the view taken by
the learned District Judge and the gist of the decisions is that, in a suit of
this nature, the plaintiff must call evidence to prove that he was innocent of
the charge that had been brought against him and that it had been brought
without reasonable and probable cause, merely to show that the criminal
proceedings terminated in his favour being not enough.
Id. at 256.
31. (1901) I.L.R. 24 Mad. 59.
32. A.I.R. 1919 Mad. 1039.
33. Id. at 1042.

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318 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 12 :313

The learned judges seem to have understood the essentials of malicious

prosecution as laid down by Pollock in the light of the footnote he has
attached.
The Privy Council in Balbhaddar v. Badri Sah 3 4 held that the pro-
position, that in an action for malicious prosecution the plaintiff has
to prove inter alia "that he was innocent of the charge upon which he
was tried," is erroneous and restated it thus :

That the proceedings complained of terminated in favour of the plaintiff if

from their nature they were capable of so terminating. 3 5

Even after the Privy Council decision the Sind High Court in
Rughnath Kewaji v. Teja and in Kanyalal v. Mahomed Idris Abdullah 3 7
held that the plaintiff has to prove his innocence in order to succeed.
A study of the whole of the case-law on this tort would reveal that
on many issues different High Courts have expressed different opinions.
A few instances might be taken to illustrate that the decisions of the
Indian High Courts are conflicting.
The Calcutta High Court in Golap Jan v. Bholanath KhettryZB
held that there is no prosecution until the process is issued. The same
High Court in Bishun Pergash v. Fulman3 9 held that the prosecution
commences as soon as a charge is made to the magistrate.
The Madras High Court in Narayya v. Seshayya 4 0 held that the pro-
secution terminates on the day of the acquittal or discharge and not on
the day of the dismissal of the revision petition. But the Allahabad High
Court in Madan Mohan v. Ram Sunder 41 held that the prosecution
terminates with the dismissal of the revision application and not with
the acquittal or discharge.
Appendix 2, at the end of this paper, would reveal that the amounts
awarded by the judges in India as damages for malicious prosecution
are very low. Quantum of award depends upon the amount of claim,
the seriousness of the offence with which he was charged with, the in-
conveniences the plaintiff was subjected to because of the prosecution,
the time taken for decision etc. Venkatappayya v. Ramakrishnamma 4 2
appears to be a fit case to illustrate this point. In this case, the
plaintiff could prove to the entire satisfaction of the court the essentials
of the tort of malicious prosecution. The facts in the case are mentioned
in order to highlight the factors like enmity between the parties, the

34. Supra note 26.

35. Supra note 26 at 49.
36. A.I.R. 1936 Sind 133, 135.
37. A.I.R. 1938 Sind 11, 14.
38. (1911) I.L.R. 38 Cal. 880.
39. (1915) Cal. 79.
40. (1900) I.L.R. 23 Mad. 24.
41. A.I.R. 1930 All. 326.
42. A.I.R. 1932 Mad. 53.

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1 970] DIFFICULTIES OF TORT LITIGANTS IN INDIA 3 1 9

amount of inconvenience the plaintiff suffered, time taken for decisi

and also the status of the plaintiff that should usually have a bea
on the amount awarded. In this case, the plaintiff was the presid
of the Local Fund Union and a respectable man of fifty three yea
Because of the ill-feelings that were existing between the plaintiff an
the defendants, the defendants joined together and hatched a plo
was pretended that defendant number 2 executed a promissory not
favour of defendant number 4 and borrowed from him a sum of
money. The defendant number 1 was to profess falsely to have been
the messenger who carried the promissory note to defendant number
4 and received from him the sum required. While he was taking this
money to the defendant 2's house, it was to be given out that the
plaintiff and two others suddenly pounced on him and committed
robbery. The plaintiff left his office at about 9 p.m. when he came
right in front of the police station some of these defendants created a
row, which acted as signal for the subinspector to come out, and with
his help they seized the plaintiff and pushed him into the station where
he was confined in the police lock up. The next day the plaintiff was
sent to the magistrate, making him to walk almost ten miles. The
prosecution ended in acquittal. In a suit for damages for malicious
prosecution, the lower court awarded him Rs. 500 with proportionate
costs. In appeal by the plaintiff for substantial damages, Mr. Justice
Venkatasubba Rao and Mr. Justice Walsh, holding that that was a case
where punitive damages should be awarded, enhanced the damages
from Rs. 500 to 1500. The suit was filed in the year 1923 and it was
finally decided in 1932. Though the Court held that it was a case for
punitive damages, it awarded only Rs. 1500 to the plaintiff who was
subjected to all sorts of troubles. Amount awarded also becomes in-
significant in the light of the time taken for decision.

III. Conclusion

The law to be applied to a tort case is not very certain and t

tinction between the law in the Presidency towns and in the m
is not completely gone. Though the treatment of the subject in
thoritative works relied upon by the courts in India is pretty con
sometimes they have interpreted them in different light. Eve
essentials of the tort of malicious prosecution the decisions
various High Courts are not consistent throughout. For so many r
like heavy court fees, delay and poverty the tort claims in India a
The awards by courts do not seem to be very encouraging. Pe
socio-legal study as to why the claims and awards are low might h
situation. Defects of the judicial legislation might be overcom
resorting to condification on simple and intelligible lines.
R. Ramamoorthy *

*LL.M. (Aurangabaď); Law College, Aurangabad (Maharashtra).

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320 JOURNAL OF THE INDIAN LA W INSTITUTE [vol 12:313

Appendix I

This table is prepared from the cases reported in the A.I.R. from 1914 to 1965.
Cases are arranged tort-wise with a view to know the frequency of each tort in
the Indian tort litigation.
1. Malicious prosecution 184
2. Negligence 132
3. Defamation 73
4. Nuisance 40
5. Trespass 40
6. Conversion 34
7. Cases on government liability 16
8. Cases on joint tort-feasors 15
9. Assault and Battery 13
10. Wrongful attachments 13
11. False imprisonment 10
12. Cases like Ry lands v. Fletcher 6
13. Conspiracy 5
14. Vicarious liability other than the government liability 5
15. Deceit 2
16. Adultery 2
17. Seduction 2
18. Inducement for a breach of contract 2
19. Miscellaneous 19

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1970] DIFFICULTIES OF TORT LITIGANTS IN INDIA 321

Appendix II

Table showing the amount of claims and awards in India. The information
is called from cases reported in A.I.R. from 1914 to 1965 on malicious prosecution -

Citation Amount claimed Amount Time

awarded taken
Rs. Rs. Yrs.

1914 Lah. 531 1500 1000

1916 Pat. 174 - 100
1916 Mad. 610 (2) - 1000
1917 Pat. 43 280 20
1918 Nag. 128 - 20
1919 Mad. 1039 3500 2000
1919 Mad. 229 - 100
1919 Oud. 31 (b) - 58#/ 4
1920 Cal. 855 (1) - 61 V2
1921 Bom. 144 - 500 31/2
1924 Mad. 665 - 55000 3
1924 All. 845 - 500 4
1925 Nag. 216 7032 5182 41/2
1927 Lah. 120 2000 550
1927 Oud. 471 500 500
1928 Cal. 691 - 250 l1/2
1929 All. 265 - 120 2
1930 Cal. 729 Nominal damages 10 3
1930 All. 216 1400 415 3
1930 All. 742 1000 700 5
1932 Cal. 847 - 300 3
1932 Mad. 53 5250 1500 81/2
1933 Oud. 94 14500 2889 2
1933 Nag. 299 1100 597 5
1933 Cal. 706 - 6000 2
1933 Cal. 909 - 3000 l1/2
1934 All. 696 500 200 4
1938 Sind 11 1000 276 2
1939 Cal. 267 - 250 31/*
1939 Lah. 505 2500 972 21/2
1946 Nag. 46 3000 550 10
1947 Oud. 116 5250 3778 5
1946 All. 139 500+500 two suits 60+50 6
1948 Oud. 135 500 290 5
1948 Oud. 291 2000 1150 61/2
1949 Nag. 273 5075 5075 6 1/a
1950 Cal. 259 503 203 6
1951 Raj. 160 250 100
1953 Pun. 213 10000 1 5
1955 Nag. 9 265 11300 315
1956 Pat. 285 4099 500 13 Va
1957 Mad. 646 10000 650 6 Va
1959 Pat. 490 5250 500 9 Va
1960 Ker. 264 1000 250 61/8
1961 M.P. 329 390 101 8
1962 Mys. 153 1000 130 8
1963 All. 580 575 199 101/*

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