In order to award damages the plaintiff is required to prove that the person who instituted the suit was prosecuted by the defendants in the Criminal Court. But, there is no law under which the Civil Court can award damages if a person is made to suffer civil proceedings.
(2001) ILR(Karnataka) 3816 : (2001) 5 KantLJ 453 : (2001) 4 KCCR 2755
KARNATAKA HIGH COURT
( Before : Chandrashekaraiah, J )
THE CONTROLLER OF WEIGHTS AND MEASURES, BANGALORE AND OTHERS Vs. DIESAL (INDIA), BANGALORE
Regular First Appeal No. 400 of 1997
Decided on : 27-02-2001
Civil Procedure Code, 1908 (CPC) – Section 80, Section 9
Counsel for Appearing Parties
Sri Mohammed Athar, Additional Government Advocate, for the Appellant; Sri S.V. Shastri, for the Respondent
1. This appeal is by the defendants challenging the judgment and decree dated 29-8-1996 passed in O.S. No. 1741 of 1997 on the file of the II Additional City Civil Judge, Bangalore. The parties in this appeal are referred to as arrayed in the Trial Court.
2. The plaintiff-respondent firm has filed a suit for declaration that the provisions of Karnataka Weights and Measures (Enforcement) Act, 1958 is not applicable to the platform scale held by its concern and for the consequential relief that the seizure of the platform scale from it so made by the second defendant on 15-3-1985 is illegal and void and also for damages of Rs. 9,039/- from the defendants. The said suit has been resisted by the defendants.
3. From the averments of the plaint it is seen that the platform scale was seized by the defendants on 15-3-1985 in exercise of the power under the Karnataka Weights and Measures (Enforcement) Act, 1958 (hereinafter referred to as ‘Act’). According to the plaintiff the said seizure is illegal and void on the ground that the provisions of the said Act has no application to its concern. The defence of the defendants is that as the platform scale was used for trade and commerce the seizure is justified. On the basis of the pleadings the Trial Court has framed the following issues.–
1. Whether the plaintiff proves that the provisions of the Karnataka Weights and Measures Act is not applicable as the platform scale is not used for commercial or trade purpose?
2. Whether the plaintiff is entitled for damages?
3. Whether the plaintiff is entitled for total reimbursement of the value of the platform scale valued at Rs. 4,214/-?
4. Whether the plaintiff is entitled for expenses of Rs. 3,000/- and Rs. 250/- notice charges?
5. Whether the suit is bad for non-compliance of Section 80 of the Civil Procedure Code?
6. Whether this Court has no jurisdiction?
7. Whether the defendants prove that their actions are in good faith?
8. What decree or order?
On issue No. 1 the Trial Court has held that the provisions of the Act are inapplicable to the scale in question used by the plaintiff-firm. But, ultimately has not granted relief regarding the declaration that the provisions of the Act are not applicable to the plaintiffs concern. But, the Trial Court has passed a decree granting damages of Rs. 7,320/- in favour of the plaintiff.
4. The learned Government Advocate appearing for the appellants submits that the Trial Court is not right in holding that it has jurisdiction to try the suit.
Now the points that arise for consideration in this appeal are.–
(1) Whether the Trial Court is justified in holding that it has jurisdiction to entertain the suit?
(2) Whether the Court below is justified in decreeing the suit for damages?
Regarding Point No. 1;
The defendants have seized the platform scale belonging to the plaintiff on 15-3-1985. The case of the plaintiff is that it was not using the platform scale for any trade or commerce and therefore, the authorities are not right in seizing the scale from it. The case of the defendants is that the plaintiff is a partnership concern engaged in manufacturing solution from out of certain chemicals. As the plaintiff was using the platform scale for the purpose of trade and commerce the authorities having found that the platform scale having no seal or stamp as required under the Act are justified in seizing the articles. It is not disputed that the scale that was seized did not have the seal or the stamp by the authorities as required under the Act. Even assuming that the scale has not been used for trade or commerce if it is seized by the authorities, the appropriate remedy for the owner of the scale is to work out his rights as provided under the Act under which the scale was seized. From the facts it is seen that the defendants immediately after the seizure of the scale issued show-cause notice on 16-3-1995 to the plaintiff. If the plaintiff had filed a reply showing the cause, in all probability, an appropriate order would have been passed by the concerned authority. In the instant case though the plaintiff has stated that he has sent the reply on the very day he received the show-cause notice, no material has been produced before the Court to show that he has replied to the show-cause notice. In the absence of any reply to the show-cause notice the plaintiff cannot expect any order from the authorities regarding seizure of the scale. As against the order of seizure the appropriate remedy for the plaintiff is to prefer an appeal as provided u/s 20 of the Act. In the instant case the plaintiff had not chosen to challenge the correctness of the seizure by way of preferring an appeal before the appropriate authority. Sri S.V. Shastry, learned Counsel appearing for the plaintiff submits that since the seizure was without any decision, the plaintiff had not preferred any appeal to the Appellate Authority. This argument cannot be accepted because the very seizure by the authority itself is pursuant to a decision by the authority who has been conferred with the power to seize the article. Therefore, the plaintiff cannot maintain a suit since the suit is impliedly barred u/s 9 of the Civil Procedure Code. The suit filed by the plaintiff is not also maintainable for one more reason.
Section 36 of the Act reads as follows.–
“Section 36. Protection of persons acting in good faith.–No officer or servant of the State Government shall be liable in respect of any Act in civil or criminal proceedings if the Act was done in good faith, in the course of execution of the duties or the discharge of function imposed by or under the Act”.
From the reading of this it is clear that any act of the servant of the State Government cannot be questioned if it is done in good faith. In this case the plaintiff has not adduced any evidence to show that the step taken by the defendants in seizing the article has not been done in good faith. Therefore, the suit itself was liable to be dismissed as the plaintiff failed to prove or establish that the impugned action by the officer is not in good faith.
5. Point No. 2.–The ease of the plaintiff is that the provisions of the Act are not applicable to his concern. When an enactment is made with the object of providing for enforcement of standard weights and measures and for the matters connected therewith, if any person violates the provisions of the enactment, he is liable for the consequences provided under the Act. If the prayer of the plaintiff is accepted, any act done by him contrary to the provisions would not be a ground to prosecute him under the Act. So, no relief as prayed for in the suit could be granted as it would otherwise prevent the authorities from enforcing the provisions of law as against the plaintiff. The Court below, though has recorded a finding that the provisions of the Act are not applicable insofar as the platform scale is concerned, has not granted any relief in the operative portion of the judgment.
If at all the plaintiff is entitled for damages in the event if he has suffered any damage, the appropriate prayer for him is to seek for declaration of the act committed by the defendants resulting in causing damage to him, as illegal. In the instant case though the plaintiff has prayed for a declaration that the seizure of the platform scale is illegal, the Trial Court neither has framed the issue on this point nor considered the same in the body of the judgment. The Trial Court also has not granted any relief in the operative portion of the order. Therefore, in the absence of declaration whether the seizure of the scale belonging to the plaintiff is illegal, no damages also could be awarded.
6. From the facts it is seen that the plaintiff has challenged the show-cause notice by way of filing writ petition before this Court. The said writ petition was dismissed. Thereafter, the plaintiff has challenged the correctness of the order passed by the Single Judge in the said writ petition by way of preferring an appeal. This was also dismissed. After the disposal of the writ appeal, the plaintiff had filed a criminal case seeking for release of the scale that was seized by the defendants. That criminal case was also dismissed. The order of the Criminal Court was also challenged by the plaintiff by way of a revision and the same was also dismissed. The learned Trial Judge awarded damages taking into account the amount spent by the plaintiff in the above said litigation. It is not known under what provision or under what law, the Trial Court could grant damages in respect of the loss or damage if any suffered in the civil proceedings. No doubt, under the law of torts, the Civil Court can award damages if civil wrong of malicious prosecution is proved. In order to award damages the plaintiff is required to prove that the person who instituted the suit was prosecuted by the defendants in the Criminal Court. But, there is no law under which the Civil Court can award damages if a person is made to suffer civil proceedings. Further, the plaintiff was not brought to the Civil Court at the instance of the defendants. It is the plaintiff who had gone to the Civil Court and got orders against him. If a person has suffered any damage or an injury consequent upon the institution of proceedings against him in the Civil Court, the appropriate way of compensating that person is by way of awarding cost in the said proceedings. In the instant case, the learned Judge failed to notice that in all the civil proceedings referred to above the plaintiff has failed and the said proceedings reached finality.
7. The Trial Court has also awarded damages towards the value of the scale seized from the plaintiff relying upon the receipt produced by the plaintiff for having purchased new scale. If the scale seized from the plaintiff is illegal, the appropriate prayer of the plaintiff is to ask for restoration of possession of the scale seized from him. In the case on hand the plaintiff has not made any such prayer for restoration of possession. When the scale seized is available with the defendants and in the event if it is proved that the said seizure is illegal, the plaintiff at best is entitled for restoration of possession and for damages only to the extent he was deprived of the use of the said scale. Before the Trial Court the plaintiff has not produced any evidence to show the value of the scale when it was seized from him and consequent upon the seizure how much loss he incurred. Under these circumstances, the Trial Court is not justified in awarding the market value of the new scale even assuming that the seizure of the scale is held to be bad. Therefore, for all these reasons I hold that the Trial Court was not right in decreeing the suit of the plaintiff.
8. In the result, I pass the following order.-
-(i) Appeal is allowed;
(ii) Judgment and decree passed by the Trial Court are set aside;
(iii) Parties to bear their own cost.