JUDGMENT Niamatullah, J.
1. This is an appeal from an order of remand passed by the learned civil Judge of Agra in an appeal from the decree of a Munsif of that district. The suit, which has given rise to the appeal was brought by the plaintiff-respondent for damages for malicious prosecution. Parties are neighbours and reside at Ferozabad, district Agra. They were complainants and accused in two cross cases in the criminal Court. Both the cases were dismissed. The defendant had prosecuted the plaintiff under Section 325, I.P.C. His story was that during his absence the plaintiff had so constructed a wall as to obstruct the flow of water from his (the defendant's) roof through certain spouts and that, on his return, he went to inspect his roof in the morning of 3rd March 1933 and was assaulted by the plaintiff. The plaintiff pleaded alibi, alleging that he was at Agra that morning and could not have caused any injury to the defendant. The trial Court correctly allocated the burden of proof and held that the plaintiff failed to establish the absence of reasonable and probable cause on the part of the defendant in prosecuting the plaintiff. The suit was accordingly dismissed. On appeal by the latter, the lower appellate Court threw the entire onus on the defendant and held that he failed to discharge it. On that finding it remanded the case for final disposal. The view which appealed to the lower appellate Court may be gathered from the following extracts taken from its judgment:
The criminal Court did not believe the story of the defendant and acquitted the plaintiff.... Under the law laid down in the case of Balabhaddar Singh v. Badri Sah A.I.R. 1926 P.C. 46 the plaintiff has only to prove that he was prosecuted by the defendant and that the prosecution ended in his acquittal. He is not required to prove that he is innocent of the charge upon which he was tried and I fear the learned Munsif by placing this burden on the plaintiff has not taken a correct view of the law. The acquittal of the plaintiff of a charge made against him is prima facie proof of his innocence tantamounting to a want of a reasonable and probable cause. This view has been persistently followed and emphasized by the Hon'ble High Court. The burden therefore lay heavily on the defendants to prove that the charge disbelieved by the criminal Court was true...I am inclined to think that defendant on whom the onus lay of proving the truth of his allegation, has failed to substantiate his plea. There is no valid ground to support the probability of the plaintiff being in Ferozabad on the day of occurrence.
2. The learned Judge refers only to one case in Balabhaddar Singh v. Badri Sah A.I.R. 1926 P.C. 46 in which it was laid down that:
In an action for malicious prosecution a plaintiff has to prove that he was prosecuted by the defendant; that the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating; that the prosecution was instituted against him without any reasonable and probable cause and that it was due to a malicious intention of the defendant and not with a mere intention of carrying the law into effect.
3. Far from supporting the view of the lower appellate Court, the rule laid down by their Lordships of the Privy Council is diametrically opposed to what has been applied by the learned Judge. The learned Judge says that this Court has "persistently" held what he thought to be the correct law, but he has not referred to a single case in support of his view. The law has always been taken to be what has been re-stated, by their Lordships of the Privy Council in the case referred to above. It is not quite an accurate way of putting the rule to say that the plaintiff should prove his innocence. Since the prosecution ended in his favour he may be taken to have been innocent : Pestonji Muncherji Mody v. Queen Insurance Co. (1901) 25 Bom. 332 at p. 335. This presumption will not however entitle the plaintiff to succeed. He must further establish that there was no reasonable or probable cause for the defendant to prosecute him (the plaintiff). If the facts alleged by the defendant in the criminal case are such as, from their nature, were necessarily true or false to his knowledge, the plaintiff must establish that the defendant's story was false; and if he proves that the defendant's story was false, he should be deemed to have proved that there was no reasonable and probable cause for the defendant to prosecute the plaintiff. But cases are easily conceivable in which the defendant's allegations were not true or false to his knowledge, for example, where the defendant prosecuted the plaintiff on information and belief. In such oases the issue is not so simple as that in the class of cases above referred to, and the plaintiff has to establish that the circumstances were such that a (sic)asonable and prudent man would not have acted on the supposition that the plaintiff was guilty of the offence with which he was charged. In all cases the plaintiff should also prove malice in the legal sense, i.e., indirect and improper motive. In certain oases malice may be inferred from the absence of reasonable and probable cause.
4. In the present case, the defendant alleged facts which were true or false to his own knowledge, unless the circumstances gave rise to the inference that the plaintiff was mistaken for someone else who was responsible for causing injuries to the defendant (assuming, of course, that the defendant's version was in other respects correct). It is not necessary, for the purpose of this appeal, to enter into a discussion of the merits of the case. In my opinion, the judgment of the lower appellate Court is vitiated by a mistaken view on the law of burden of proof. Accordingly I allow this appeal, set aside the order of remand passed by the lower appellate Court and remand the case to that Court for disposal according to law as herein indicated. Costs shall abide the result.