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Regular Second Appeal No.6 of 1967, decided on 22nd December, 1986.

---Ss.19, 20 & 99--Suit for damages--Cause of action partly arose at place 'M'--Cause of action having partly arisen at 'M', suit, held, was maintainable there--Option is given to plaintiff to file his suit at a place where part of cause of action had arisen--Plaintiff's choice of forum at ':M' where part of action had arisen could not be objected to--Decree passed against a defendant could not be reversed or varied, nor could suit be remanded on such choice of forum by plaintiff.

---S.100--Second appeal--Liability of defendant established on evidence--Effect--Where liability of defendant, for damages claimed by plaintiff, for malicious prosecution, was justified, on record by concurrent findings of Courts below, no case, held, was made out within contemplation of S.100, C.P.C.--Appeal was dismissed in circumstances.--[Malicious prosecution].

Muhammad Hanif Niazi for Appellant.

Rab Nawaz Khan Niazi for Respondent.

Date of hearing: 14th March, 1984.

This Second Appeal by a defendant, against the decree, dated 7-9-1966, passed by the learned District Judge, Mianwali to partly accept his appeal and modify by reducing to Rs.1500 the decree, dated 22-12-1965 passed against him by the Senior Civil Judge, Mianwali in a suit filed by the respondent for recovery of Rs.2000 as damages for malicious prosecution, has arisen out of the facts to be briefly stated as under:-

(a) Muhammad Khan, the plaintiff-respondent, a Lambardar was entrusted Dhal Bachh for collection of land revenue for the crops of 1961 wherein a sum of Rs.20.84 was shown as outstanding against the defendant and others with regard to the land devolved upon them by way of inheritance from his father Sher Ali Khan. In October, 1962, plaintiff went to the village of the defendant for realizing the demand, where he was not only declined to be paid the amount but was also assaulted and obstructed by show of force in the discharge of his official duty. On 9-10-1962 plaintiff filed a complaint under section 353, P.P.C. against the defendant s brothers Muhammad Akbar Khan and Sardar Khan in the Court of Ilaqa Magistrate, Mianwali. which was entrusted for trial to the Tehsildar who summoned the accused and in pursuance of the process Sardar Khan continued appearing in the Court but Muhammad Akbar Khan absented himself and the case was adjourned from time to time till 25-6-1963. The defendant, who was Foot, Constable in the Police Department, felt aggrieved on account of this case and, in order to avenge the humiliation caused thereby to his brothers, he instituted a complaint under sections 406/420 P.P.C. against the plaintiff in the Court of Magistrate Ist Class, Lyallpur, the station of his' posting at that time. Bailable warrants were therein issued against the plaintiff and served upon him in his village in district Mianwali whereafter he not only took his sureties and the Lambardar concerned to furnish bail bond in the Court at Lyallpur but also engaged a counsel to defend himself upon payment of his legal fees. The complaint had been fixed on a number of dates for evidence of the complainant and the plaintiff had been appearing as an accused but the complainant did not produce his evidence in the complaint which was ultimately dismissed for non-prosecution and soon thereafter, he filed another complaint against the plaintiff in another Court at Lyallpur on the same allegations and under the same sections. Therein also bailable warrants for the arrest of the plaintiff were issued and served upon him in his village in district Mianwali. The plaintiff again went through the process of arranging for grant of bail which was granted whereafter he had to go to Lyallpur on 8/9 occasions to attend in the complaint as an accused and had even to take one or two persons alongwith himself for personal safety out of fear of the defendant who was in a position there to harm him. This complaint was set. down for evidence of the complainant but he secured four adjournments to ultimately produce his evidence on 16-4-1964 whereafter the complaint was dismissed on merits and the accused (plaintiff) was discharged with the conclusion that the case was not proved against him and that the complaint was based on false allegations.

(b) For the mental agony thus suffered and the expenses incurred in attending the Courts at Lyallpur in the said complaints to defend himself, the plaintiff claimed damages of Rs.2,000 in this suit instituted on 30-7-1964 in the Court of Senior Civil Judge, Mianwali.

(c) Defendant contested the suit by denying the claim and asserting that the complaints were lodged by him on true facts and whereas he admitted that on 6--11-1963 he could not attend the Court and the complaint was dismissed and again he instituted the second complaint, which he urged, was competent but was, according to him, dismissed on some technical ground despite the allegations having been supported by the P.Ws. He denied that the plaintiff may have suffered any mental or financial loss or that the prosecution launched against the plaintiff may be based on malice. He also challenged the jurisdiction of the Court at Mianwali to try the suit.

(d) In result, the suit was set down to be tried on a total of seven issues including that of relief. Parties led the desired evidence, upon the consideration whereof learned trial Judge held that the civil Court at Mianwali was competent to try the suit and decided that the plaintiff had been prosecuted maliciously and without any reasonable or probable cause and in consequence decreed his claim by awarding Rs.2000 as damages.

2. The defendant assailed the trial Court's decree in his appeal before the learned District Budge, Mianwali on merits as also on the ground of jurisdiction. Learned District Judge decided the appeal, as mentioned already, on 7-9-1966 and, while affirming the trial Court's findings that the defendant had maliciously prosecuted the plaintiff without any just and probable cause in order only to avenge the action taken by him against his brothers, he repelled the contention raised for the appellant before him that the ""DOW", of damages assessed by the trial Court was excessive. But, ultimately, while upholding the sum of Rs.1000 as being liable to be recovered by the plaintiff on account of the expenses incurred by him, he reduced his claim for damages with regard to mental torture and loss of prestige from Rs.1000 to Rs.500 only and modified the trial Court's decree accordingly. The defendant has now come up to this Court.

3. Learned counsel only half-heartedly contested the defendant appellant's liability for payment of damages but urged that whereas issue No. l relating to the jurisdiction of the Court at Mianwali was agitated before the learned District Judge, he has not recorded any finding thereabout. I do not find substance in the objection with regard to jurisdiction be use the cause of action had, no doubt, arisen to the plaintiff at least in part in district Mianwali where he was served by the process and under section 20 of the C.P.C. his slit was maintainable there. Even by virtue of section 19 thereof the plaintiff had the option to file his suit in either of the Courts at Faisalabad or Mianwali. The forum chosen by him, at Mianwali is not open, to exception. Since then it is no prejudice shown to have been caused to the defendant in the suit being instituted and tried at Mianwali, therefore, by virtue of the section 99 of the C.P.C., the decree passed against him car nut he revised or varied, nor can the suit be remanded on this ground. Contention is accordingly repelled.

4. The decree passed in favour of the plaintiff with regard to the liability of the defendant is justified on the record and the award of damages thereunder can by no means be regarded as excessive.

5. This case stands really concluded by the concurrent findings of fact, justified on the record, recorded by the two Courts below.

6. There is no case made out within the contemplation of section 100 of the C.P.C. Hence, dismissed with costs.

A.A./M-136/L Appeal dismissed.

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