JUDGMENT D.P. Uniyal, J.
1. This appeal by the defendants arises under the following circumstances.
2. The parties are owners of adjacent houses in the town of Dugadda. The appellants' house was a doublestoried one. In 1946 the respondent started constructing a second storey in his house. This was objected to by the appellants on the ground that the constructions of the respondent were likely to interfere with their right of easement of light and air. The respondent, however, continued with his constructions. When the walls of the second storey of the respondent's house had been raised to a certain height the appellants instituted a suit for injunction restraining the respondent from proceeding with the constructions. Bending the hearing of the suit they applied for and obtained an interlocutory order or injunction on 26-2-47. The order of injunction remained in force from 26-2-1947 to 15-7-1948 when it was vacated by the order of the lower appellate Court. The appellants suit was dismissed by the trial Court and the appeal also met the same fate.
3. During the operation of the injunction aforesaid one of the walls of the respondent's house collapsed and some timber of his deteriorated. He then brought the present suit for damages on the allegation that the order of injunction was obtained by the appellants maliciously and without reasonable and probable cause on account of which he suffered damage amounting to Rs. 700.
4. The suit was resisted by the appellants. They denied that injunction was obtained by them maliciously or without reasonable and probable cause.
5. The two Courts below decided the suit against the appellants and held that their allegation in the earlier suit that the second storey sought to be constructed by the respondent was likely to interfere with their easement rights was false and that the order of injunction was improperly obtained by them.
6. The main argument of the learned counsel before me was that the order of injunction passed in the earlier suit was a judicial act of the Court and even if it was erroneously made the appellants were not to be blamed for it. It was said that the respondent could be amply compensated for the damage caused to him by award of costs in the earlier suit. Distinction was sought to me made between a malicious prosecution founded on a false charge and a civil proceeding instituted on wrong allegations. While in the former case, so it was argued, a suit for damages would lie, no such right was available to party who suffered damage as a result of an order of the court in a civil proceeding.
7. In England an action for damages lies in respect of malicious prosecution instituted without reasonable and probable cause, but it is rarely and in exceptional cases that damages are awarded in respect of civil proceedings instituted maliciously and without reasonable and probable cause. The courts in England awarded damages in respect of civil proceedings only if it was proved that a man had been deprived of his property maliciously and without just and reasonable cause, or when his fair name and credit were injured.
8. In Quartz Hill Gold Mining Co. v. Eyre, (1883) 11 QBD 674, the court awarded a decree for damages in respect of a petition moved under the Companies Act to wind up a trading company on the ground that the application was made maliciously and without reasonable and probable cause and that from its very nature it was calculated to injure the credit of the company.
9. Similarly, in Clissold v. Cartchley, (1910) 2 KB 244, a Solicitor sued to have attachment levied on the plaintiff. The debt had in fact been paid, but neither the Solicitor nor his client Knew of the payment of debt. The plain-tiff's goods were attached in execution of the decree on account of which he suffered loss of credit. When the Solicitor was informed that the debt had been paid he withdrew the execution. It was held that the defendant was liable in trespass, but on the facts of that case it was found that there was no malice on the part of the Solicitor and his client in levying the execution and as such they were not liable.
10. The Privy Council in Kissory Mohan v. Harsook Das, 17 Cal 436 (PC), laid down that where there is wrongful attachment of the plaintiff's goods at the instance of the defendant, it is considered, according to the law and practice in India, the direct act of the party and not of the court. Warrants for attachment arc normally issued on the ex parte application of the creditor who is bound to specify the property which ho desires to attach. If he points out certain property as the property of the judgment-debtor the court or its officer has no discretion to exercise in the matter at the stage. It can, therefore, be said to be an act of the party and not an act of the court.
11. In India, it has been recognised that a civil proceeding instituted maliciously and without reasonable and probable cause will entitle the plaintiff to recover damages. In order to succeed the plaintiff has to show that the injunction was obtained on insufficient grounds, and further that the defendant knew them to be insufficient and acted from improper motive. (Vide Wilson v. Kanhya Sahu, (1869) 11 Suth WR 143; Raj Chunder Roy v. Sham a Soondari Debi 4 Cal 583; Bhushan Chandrapal v. Narendra Nath, AIR 1920 Cal 846).
12. It was held by the Judicial Committee in Ramanathan Chetty v. Mira Saibo Marikar, AIR 1931 PC 28, that if it is shown that the appellant was the cause of the respondent's property being damaged by intentionally making a false allegation in order to obtain the order of injunction, it would be reasonable to conclude that the appellant acted maliciously,
13. The courts have sometimes drawn a distinction between acts done without judicial sanction and acts done under judicial sanction improperly obtained. The present case falls in the latter category because here the appellants got an order of the court on false and baseless allegations and thereby caused injury to the respondent's property. Thus the injury suffered by the respondent was the direct and proximate result of the appellants action in obtaining the order of injunction on wholly improper and unjustifiable grounds.
14. I am, therefore, of the opinion that an action like the present was maintainable. The decree passed by the court below is, therefore, legally correct and must be upheld,
15. The appeal, therefore, fails and is dismissed with costs.