Holding

A regular suit for compensation is not barred by omission to proceed under Section 95 CPC, but an application under that section, if made and disposed of, bars a later suit; and damages for malicious legal process require proof of lack of reasonable cause and malice.

Summary

The plaintiffs, decree‑holders of a godown, obtained a decree for possession in Title Suit No. 77/59 and, after execution, were prevented from removing oil‑seed bags by injunctions obtained by the Bank of India and a partnership firm claiming pledgee rights under Order XXI Rules 100 and 101 CPC. The plaintiffs sued for compensation and mesne profits, alleging the injunctions were obtained on insufficient grounds and with malice. The issue was whether a regular suit for damages is barred by Section 95 of the CPC, which provides a summary remedy, and whether malice must be proved for a claim of malicious legal process. The Supreme Court held that a regular suit is not barred by the mere omission to invoke Section 95, but if an application under that section is made and disposed of, it bars a later suit; moreover, to recover damages for malicious legal process the plaintiff must show lack of reasonable cause and malice. Applying these principles, the Court found the injunctions were obtained on insufficient and improbable grounds, the defendants acted with malice, and the regular suit for compensation was maintainable. The appeals were dismissed, affirming the High Court’s order.

Issues considered

Whether a regular suit for compensation is barred by Section 95 CPC when an application under that section has not been filed or disposed of.
Whether the plaintiff must prove malice in addition to lack of reasonable cause to recover damages for malicious legal process.
Whether the Bank of India, as a pledgee, can be held liable for damages arising from the injunction restraining the decree‑holders.

Legislation cited

Code of Civil Procedure, 1908s. Order XXI Rules 100, s. Order XXI Rules 101, s. Section 95

Subjects

Section 95 CPCinjunctionmalicious legal processcompensationtortsummary remedypledgeepossessionmesne profitsdamagescivil procedure

Judgment

A BANK OF INDIA
v.
'·
LEKHIMONI DASS AND ORS.

MARCH 10, 2000

B [S. SAGHIR AHMAD ANDS, RAJENDRA BABU, JJ.]

Code of CiVil Procedure, 1908 :

S.95, Order 21, Rules JOO and JOI-Injunction obtained against decree
for possession for premises, on insufficient grounds-Remedy-Decree for
c possession of premises passed in favour of plaintiffs-Judgment-debtors and
their pledgee filing applicaJions under Order 21, Rules JOO and JOI and
obtaining injunction-Decree holder claiming compensation for loss suffered
due to non-delivery of possession of premises on account of injunction orders
obtained by judgment-debtors and their pledgee on insufficient grounds-
D Decree holder also filing a separate suit for damages-Held, a regular suit for
compensation is not barred by omission to proceed under summary procedure
provided under s.95, but if such an application is made and disposed of such
disposal would operate as a bar to regular suit-The manner in which the
defendants obtained injunction and prevented decree-holders from utilising
their premises, shows intention of defendants to deprive the plaintiffs of the
E
possession-:-lnjunction is obtained on insufficient and improbable grounds-
Even the pledgee Bank cannot absolve itself of malice arising in the case.

Practice and Procedure-Pleadings-Jn a case where the facts are writ
large and the parties go to trial on the basis that the claim of the other side is
F clearly known to them; lack of pleadings would not prejudice them.

The plaintiffs in Title Suit No. 77/59 filed the said suit against the
heir of the original lessee of the godown and the sub-lessees. The suit was
decreed against all the defendants including the sub-lessees. The plaintiffs
then filed an execution case for possession of the godown. Since oil seeds
G were stacked in several bags in the said godo\vn, and the stack could not be
removed immediately, the plaintiff obtained possession of the godown
alongwith the oil seeds. The oil seeds were kept in the custody of one 'SR',
· an employee of.the plaintiffs, by the court bailif. At this stage the appel-
lant-Bank of India filed an application under Order XXI Rule 101 CPC
claiming to be in possession of the godown as pledgee of the goods from
H
216
BANK OF INDIA v. LEKHIMONI DAS 217
Mis. 'BB' a partnership firm consisting of the sub-lessees as its partners. A
The said partnership firm also filed another application under Order
XXI, Rule 100 and 101 CPC claiming to be in possession of the godown on
the date of delivery of possession. The defendants filed two separate
applications restraining the decree holders from removing the stacks of oil
seeds from the godown. On an application, the Bank was granted liberty to
·B
remove the goods., but it applied for modification of the order. A revision
petition was filed in the High Court wherein the Bank withdrew the
petition for removal of the goods.

The plaintiffs claimed compensation for the loss suffered by th~m by
c
- way of rent as the defendants did not remove the· goods from the godown
and obtained order of injunction wrongfully. The plaintiff also filed a
separate suit for ascertaining the mesne profits, claiming damages for
wrongfully keeping the goods in the godown. In this suit the Bank was
impleaded as defendant No. 1 and the erstwhile sub-lessees were imp leaded
as defendant Nos. 2 to 4. The Bank contested the suit claiming to be in D
possession of the godown as pledgee. It denied to have any knowledge of
the earlier suit or execution proceedings. The other defendants pleaded
that the goods kept in the godown belonged to the firm; the Bank was the
pledgee of those goods; they did not conduct the business; and they did not
interfere with the execution of the decree. All the defendants contended
that the injunction was not obtained illegally, and, therefore, they were not E
liable to pay any compensation or damages. The trial court dismissed the
suit. The appellate court 1teld that the sub-tenants could not disown their
liability for damages sustained by the plaintiffs on account of the storage
of oil seeds belonging to defendant Nos. 2 to 4 who pledged the same with
defendant No. 1 as security for loans. The High Court, in second appeal, F
held that the oil seeds belonged to the partnership firm of which defendant
Nos. 2 to 4 were partners, Defendant No. 1, the Bank,, as pledgee of the
goods was in actual physical possession of the godown at the time of
execution of the decree, that defendant Nos. 2 to 4 were bound by the
,'
decree passed in Title Suit No. 77/59; that it were the defendants who
made applications under Order 21, Rules 100 and 101 CPC and restrained G
the plaintiffs-decree holders from removing the oil seeds; and by not
removing the oil seeds on their own, the defendants became liable to
damages. Aggrieved, the defendants filed the present appeals.

It was contended for the appellants that S.95 CPC, being a complete H:
-
218 SUPREME COURT REPORTS [2000] 2 S.C.R.

A code, no suit outside the said provision could be filed for compensation or
damag~s arising out of an order for temporary injunction obtained on
insufficient grounds and; that there could not be a suit simpliciter for
damage based on trespass because of an order made by the court and the
plaintiffs had to establish that the order was not only obtained on insuffi-
cient grounds but also with malice.
8
Dismissing the appeals, the Court

HELD 1.1. A regular suit for compensation is not barred by the
omission to proceed under summary procedure provided under section 95

-
of the Code of Civil Procedure, 1908, but if. an application is made and
c disposed of, such disposal would operate as a bar to regular suit whatever
may be the result of the application. There is, however, a difference
between conditions necessary for the maintainability of an application '
•
under section 95 CPC and those necessary to maintain a suit. The regular
suit 'is based on tort for abusing the process of court. Under the law of torts
in a suit for compensation for the tort the plaintiff must not only prove
D
want of reasonable or probable cause of obtaining injunction but also that
the defendant was attracted by malice which is an improper motive.
(228-D-F]

1.2. Section 95 CPC provides for a summary remedy to get compen-
sation where a temporary injunction has been granted if su~h injunction
E was applied for on insufficient grounds or there wer;.e/no -reasonable or _
probable grounds for instituting the claim for injunction. The remedy
under the Code is optional and an injured party can file a regular suit
against the applicant for injunction for compensation if he has not already
sought relief under the aforesaid provision. Thus this Section is an alterna-
F tive remedy in cases of wrongful obtainment of an injunction and it does
not in any way interfere with the principles regulating suits for damages
for tort of malicious legal process. [227-G-H; 228-A-B]
I.
Bhupendra Nath Chatterjee & Ors. v. Smt. Trinayani Devi, AIR (1944)
Calcutta 289; Inder Singh Nihal Singh v. Chief Commissioner; Delhi & Anr:,
G AIR (1963) Punjab 158; K Syamalambal v. N. Namberumal Chettiar, (1951)
1 Mad. L.J. 118; Albert Bonnan v. Imperial Tobacco Co. of India Ltd., AIR
(1929) Privy Council 22 and Basamma & Ors. v. Peerappa, AIR (1982)
Karnataka 9, referred to.

1.3. In justifying a claim for damages apart from Section 95 C.P.C.,
H a distinction has to be drawn between acts done without judicial sanction
<

BANK OF INDIA v. LEKHIMONI DAS 219
and the acts done under judicial sanction improperly obtained. Proof of A
malice is not necessary when the property to a stranger not a party to the
suit, is taken in execution but if the plaintiff bringing a suit for malicious
legal process is a party to a suit, proof of malice is necessary. The plaintiff
must prove special damage. The claim of the person for damage for
wrongful attachment of property can fall under two heads - (1) trespass
B
and (2) malicious legal process. Where property belonging to a person, not

- a party to the suit, is wrongly attached, the action is really one grounded
on trespass. But where the act of attachment complained of was done
under judicial sanction, though at the instance of a party, the remedy is an
action for malicious legal process. In the case of malicious legal process of
Court, the plaintiff has to prove absence of probable and reasonable cause. c
In cases of trespass the plaintiff has only to prove the trespass and it is for ·
the defendant to prove a good cause or excuse. In the former case plaintiff
has to prove malice on the part of the defendant while in the latter case it
is not necessary. [228-F-H; 229-A-B]

2.1. In the present case, the facts ascertained are absolutely clear that D
the godown had been let out and the firm or its partners could not establish
any title, right or interest in the said godown after the decree was passed in
the ejectment suit and, therefore, they had no right to possess the said
godown either actually or constructively by keeping their goods therein.
All the defendants were bound by the decree of the execution of which the E
recovery of possession was delivered to the plaintiffs-respondents by the
bailiff of the court. It is the defendants who made an application on the
very next day for an injunction and obtained the same. [229-C-F]

2.2. In the background in which the injunction was obtained and the
manner in which the defendants prevented the plaintiffs from utilising F
their premises, it is clear that the same had been obtained on insufficient
and improbable grounds. The intention of the parties is very clear that is
only to deprive the plaintiffs of the possession of the premises that such an
order was obtained1 The Bank was pledgee of the goods and could not
claim an independent right in respect of the said premises. The suit G
premises was not in their possession either under licence or by way of
lease. They should not only have ascertained whether the goods belong to
the pledgor but also should have known as to whether the premises where
the goods were kept belonged to them at the time they obtained the pledge.
In those circumstances, even the Bank cannot absolve itself of malice
arising in the case. [229-F-H; 230-A] H
I~

220 SUPREME COURT REPORTS (2000] 2 S.C.R.
A 3. Want of pleadings or raising an issue in a suit would arise where
any party is put to prejudice. In a case where the facts are writ large and
the parties go to trial on the basis that the claim of the other side is clearly
known to them, lack of pleadings would not prejudice them. (230-A-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 828of1986
B etc.

From the Judgment and Order dated 6.12.85 of the Calcutta High Court
in A.D. No. 1104 of 1979.

WITH
c From the Judgment and Order dated 6.12.85 of the Calcutta High Court
in A.D. No. 406 of 1985.

Subodh Markandey, S.B. Sanyal, S.C. Gupta, Amlan Ghosh, P.R.
Seetharaman, D.P. Mukherjee, Ms. Nandini Mukherjee, Bikaskar Gupta, G.S.
Chatterjee, Jaideep Gupta, S.K. Puri, U. Bannerjee, H.K. Puri, D.S.
n Bhattachary, Bawa A.L. Trehan and Adesh Kr. Gill for the appearing parties.

The Judgment of the Court was delivered by

RAJENDRA BABU, J. For purposes of convenience, we refer to the
parties as arrayed in the original suit out of which this appeal arises. Shital
E Chandra Das and Karmadhar Das filed Title Suit No. 71159 in the court of
Subordinate Judge at Alipore against Madhuri Choudhary, daughter-in-law of
.the original lessee of a godown bearing No. 103/lB Raja Dipendra ~treet,
Calcutta. The sub-tenants Brij Kishore Bhagat, Nawal Kishore Bhagat and
Durga Devi Bhagat were also impleaded in the_ said suit as defendants. The
F said suit was decreed on September 30, 1963 against all the defendants,
including Brij Kishore Bhagat, Nawal Kishore Bhagat and Durga Devi
Bhagat. The plaintiffs in that suit levied execution in Case No. 18/63 in
which warrant for delivery of possession of the disputed premises was issued.
In the disputed godown there were racks on which oil seeds were stacked.
Inasmuch as the said oil seeds could not be immediately removed, the
G
plaintiffs therein obtained delivery of possession of the godown along with
oil seeds stacked in several bags. The said oil seeds were kept in the custody
of Sitaram Roy, an officer of the plaintiffs by the process-servef of the court.
Thereafter the Bank of India, defendant No. 1 in the suit, filed an application
under Order XXI Rule 101 of the Civil Procedure Code (C.P.C.) claiming
H that the Bank was in possession of the godown as pledgee of the goods from
(

BANK OF INDIA v. LEKHJMONI DAS [RAJENDRA BABU, J.] 221
an alleged partnership film, namely, Mis Bansidhar Baijnath and Brij Kishore A
Bhagat, Durga Devi Bhagat and Nawal Kishore Bhagat, who are stated to
be the partners of the said firm. M/s Bansidhar Baijnath, the firm, also filed
an application under Order XXI Rules 100 and 101 C.P.C. claiming to be in
possession of the godown on the date of the delivery of the possession. These
applications were registered as Miscellaneous Case No. 1172 and Miscella-
B
neous Case No. 3172 in the court of Subordinate Judge, Alipo're. The
plaintiffs contended that the present defendants were bound by the decree and
the claim of possession of Mis Bansidhar Baijnath or the Bank as pledgee
were all baseless. It was also contended that Bhagat group were in possession
of the godown on the date of the delivery of the possession. The defendants
filed two separate applications in those two miscellaneous cases for restrain- c
ing the decree holders from removing the stacks of oil seeds from the
god.own. The ad-interim injunction was made absolute on the understanding
that the miscellaneous cases would be expeditiously disposed of and an
inventory of the oil seeds was made by a Commissioner appointed by the
court. Miscellaneous Case No. 1172 was filed seeking for a direction upon
D
the defendant No. 1, the Bank, to remove the said oil seeds on the ground
that the plaintiffs were suffering substantial loss daily and the goods were
perishable. The Subordinate Judge, Alipore, granted leave to the ·Bank to
remove the said goods. Defendant No. I-Bank, however, applied for modi-
fication of the order dated June 27, 1972. A revision petition was filed in
the High Court. Before the High Court defendant No. 1 withdrew the petition E
for removal of the said goods and the on.lcr of the Subordinat~ Judge passed
on June 27, 1972 was set aside. In view of the indifference by the defendants.
the plaintiffs had suffered loss by way of rent and by not delivering the
vacant possession to the Bank by obtaining an order of injunction wrongfully
and by not removing the goods in spite of the offers made by the plaintiffs F
and having kept the goods in spite of the offers made by the plaintiffs, the
defendants have become liable to pay compensation. A separate suit was also
filed for ascertaining the mesne profits and in the suit out of which these
proceedings arise, the plaintiffs claimed damages for wrongfully keeping the
said alleged oil seeds from January 15, 1972.
G
Defendant No. 1-Bank, contested the suit. It is pleaded that Mis
Bansidhar Baijnath is a partnership film and a constituent of the Bank which
carried on the business of ~ale and purchase of oil .seeds and had its godown
in the premises aforesaid. Defendant No. 1 as pledgee had taken possession
of the godown together with the goods laying thereon. There were a stock H
222 SUPREME COURT REPORTS [2000] 2 S.C.R.
A of 3409 bags of Kusum oil seeds· in the said godown pledged in favour of
defendant No. l. TI1e godown was kept locked by defendant No. 1 with the
locks of superior quality put upon the doors of the said godown with the
name of the defendant No. 1 engraved thereon and defendant No. 1 had also
affixed a name plate and sign board on the said godown. On January 14, 1972
at about 4 p.m. an employee of the Bank was infmmed through telephone
B
that padlocks were being broken upon and certain locks were being placed
thereon. The agent of the defendant-Bank went to the spot to find that the
padlocks fixed to the godown had been removed and they had been replaced
by other locks. The name plates of the defendant also had been removed. The
agent of the Bank was prevented from entering into the godown and making
c inspection of the pledged goods. A report was also made to the- police station
on January 14, 1972. It is claimed that defendant No. 1 as pledge had
absolute physical and peaceful possession of the pledged goods in the said
godown within the full knowledge of the plaintiffs and thereafter they filed
an application under Order XXI Rules 100 and 101 C.P.C. for ascertaining
of its legal rights and restoration of possession. The defendant-Bank also
D
claimed no knowledge of the decree in the Title Suit No. 77/59 nor of the
proceedings in the Execution Case No. 18/63. Order dated June 27, 1972 in
Miscellaneous Case No. 1172 was made subject to the condition that rights
of M/s Bansidl1ar Baijnath to be restituted to their original position at the cost
of the Bank. In view of the said onerous condition and the said order was
E likely to create complication leading to multiplicity of proceedings, an
application was filed for reconsideration of the said order and on a revision
petition being filed against the said order the same was set aside and it is
claimed that revision petition had not been withdrawn by the defendant and
they had not obtained any order of injunction wrongfully or illegally and so ·
F the plaintiffs were not entitled to any damages or compensation. The other
defendants admitted that the plaintiffs had obtained khas possession of the
godown and tl1e goods along with oil seeds which were kept by the bailiff
of the court in the custody of the Sitaram Roy, an officer of the plaintiffs.
Those oil seeds b~longed to the firm Mis Bansidhar Baijnath and the
defendants Nos. 1 to 4 did not conduct business and, therefore, they were
G not liable to remove the goods which did not belong to them and the Bank
is tl1e pledgee of those goods. The defendants did not act for those persons
and they did not interfere with tl1e execution of tl1e decree at all. The order
of injunction was not obtained illegally. The defendants never prevented the
plaintiffs from utilising the godowns and, therefore, they were not liable to
'H pay compensation or damages at all. The plaintiffs having retained the goods
BANK OF INDIA v. LEKHIMONI DAS [RAJENDRA BABU, J.] 223

in their custody through their officer cannot claim or charge against these A
defendants any damage. The defendants are, therefore, not, in any way, liable
for damages and the claim for compensation made is also highly inflated and
the suit deserves to fail.

On these pleadings 12 issues were raised by the trial court. The trial
court came to the conclusion the suit was not bad for mi.s-joi.nder and non-
B
joi.nder of parties and the suit was within period of limitation and the
plaintiffs had obtained delivery of the disputed godown through court and
there was overwhelming material to that effect. On the question as to who
was in possession of the goods and oil seeds in godown kept by the bailiff
of the court in the custody of Sitaram Roy after obtaining the aforesaid
c
deli.very of possession of the godown by the plaintiffs, the trial court
answered the same in favour of the plaintiffs to the effect that there can be
no dispute on the point that goods and the oil seeds in the godown were kept
by the bailiff of the court in custody of Sitaram Roy, an officer of the
'plaintiffs, at the time of delivery of possession of the godown. On the D
question whether these oil seeds belonged to Mis Bansi.dhar Baijnath and the
partners of the firm, it is held that the goods had been hypothecated to the
Bank by Mis Bansidhar Baijnath which is a partnership firm consisting of
partners Brij Ki.shore Bhagat and Smt. Durga Devi Bhagat and the goods
belonged to the Bank of India as holder of security and pledged through the E
ownership whi.ch remained wiih rhe parinership firm. 'The Bank of India as
pledgee cannot have any claim on the pledged articles more than money
advanced by it. TI1erefore, the trial court came to the conclusion that the
pledged articles belonged to the partnership firm Mis Bansi.dhar Baijnath and
the Bank of India is a mere pledgee of those articles. On the question F
whether the defendants interfered with the plaintiffs' possession of the
disputed godown, the conclusion reached by the trial comt is that the goods
were continued to be kept inside the godown and though the plaintiffs
obtained possession in the execution proceedings and the goods had been
given to the custody of Si.taram Roy and, therefore, by no stretch of G
imagination it can be said that at ~y point of time defendants interfered
with the possession of the plaintiffs of the disputed godown. The applica-
tion filed for injunction for removing the goods, etc. were precautionary
measures taken by the defendants so that the goods were not wasted or
damaged and when the injunction was subsequently vacated, they let out
H
224 SUPREME COURT REPORTS [2000] 2 S.C.R.
A the godown to somebody else. Thus the possession of the plaintiffs in the
disputed godown was never inte1fered with by the defendants. The trial
court on these findings came to the conclusion that the suit filed by the
plaintiffs could not be maintained at all and it also noticed that the plaintiffs
consented to the order of injunction being made absolute preventing the
B defendants from removing the goods from their godown, it is not open to .-
the plaintiffs to claim damage for use and occupation of the godown by
the defendants. Compensation in the fmm of damage can be allowed if it
appears that the injunction was made on insufficient ground and, therefore,
the plaintiffs are not entitled to any damage as the defendants obtained an
C injunction order against them in the miscellaneous cases. Compensation in
the form of damage can also be allowed if the suit fails on the ground that
there was no reason.able and probable cause for it. From the Judgment
Exhibit 10, it cannot be stated that tlie said suit had been filed without any
reasonable and probable cause. On tliat basis the suit was dismissed with
D __ costs.

The matter was carried in appeal to the Court of the Additional
District Judge, Alipore. The learned Additional District Judge found that
there was no dispute tliat the plaintiffs were the owners of the godown in
question and they obtained a decree for khas possession of the same against
E defendant Nos. 2 fo 4 and others pursuant to decree in Title Suit No. 77/
79 and Execution Case No. 18/63 filed thereof the plaintiffs obtained
possession of the godown through court on January 14, 1972 and the
problems started because of stocking of a large number of bags containing
oil seeds in the said godown and those oil seeds actually belonged to the
F partnership firm Mis Bansidhar Baijnath which was a sub-lessee of the said
firm. The plaintiffs had impleaded the partners of the said firm in the said
suit and those partners are defendant Nos. 2 to 4 in the present suit and
they were bound by the decree passed in Title Suit No. 77/59. Their
contention that they were not the partners of the said firm had been rejected
G . and they had not come forward to challenge that finding. Though the
plaintiffs took khas possession of the godown there were oil seeds in the
godown at the time of delivery of possession, the plaintiffs were hardly
given any time for the purpose of disposal of the oil seeds because on
January 15, 1972, the very next day after the delivery of the possession
H Mis. Bansidhar Baijnath filed an application under Order XXI Rule 100
BANK OF INDIA v. LEKHIMONI DAS [RAJENDRA BABU, J.] 225

· C.P.C. for adjudication of their claim to the oil seeds and on the very same A
day they obtained an injunction restraining the plaintiffs from removing the
oil seeds from the godown in question and that interim iajunction was made
absolute aud thus the plaintiffs were prevented from disposing of the oil
seeds. Thereafter, a lot of litigation started. In such contest the plaintiffs'
claim for damages on account of use or occupation of the godown by the B
defendants could not be resisted. The plaintiffs could not let out the godown
to others and this was on account of acts of defendant Nos. 1 to 4 and,
therefore, they cannot disown their liability for the damages sustained by
the plaintiffs on account of the storage of oil seeds belonging to defendant
Nos. 2 to 4 who pledged the same with the defendant No. 1 as security C
of loans. The learned Judge took the view that the plaintiffs could claim
damages from the Bank as well as other defendants for making good the
loss sustained by the plaintiffs on account of occupation of their respective
extent of liability. He, therefore, set aside the judgment and decreed the suit
and further made it clear that the assessment of damages had not been made
D
for the purpose and for that purpose the matter was remanded.

The matter was carried in the second appeal in the High Court. In the
High Court the view taken is that no independent title has been found in favour
of Mis Bansidhar Baijnath and/or its partners, that is, defendant No. 2 to 4,
in respect of the said godown by the courts below and apart from Section 95 E
C.P.C. the plaintiffs are entitled to bring an action for recovery of damages for
wrongful use and occupation of the godown by the defendants Nos. 1 to 4.
The High Court is of tl1e view that defendant No. 1, Bank of India, was only
a pledgee of the goods, namely tl1e oil seeds stored in the godown in question
and the same belonged to the finn Mis Bansidhar Baijnath of which firm F
defendant Nos. 2 to 4 are partners being pledgee of tl1e said goods. The
defendant- Bank possessed the said goods and as such was in actual physical
possession of the godown at the time of execution of the decree passed in Title
Suit No. 77159. Excepting a claim on the oil seeds as a pledgee, tl1e defendant-
Bank had no other right in respect of tl1e said godown and tlte Bank had also G
not claimed any right of tenancy or license in respect of tlte said godown. The
. fom M/s Bansidhar Baijnatlt and/or its partners could not establish any right,
title or interest in tlte said godown and as such the defendants had no right
to possess tl1e said godown eitlter actually or constructively by keeping tlteir
goods therein. In the Title Suit No. 77159 Mis Bhagat Oil Mills was impleaded H
226 SUPREME COURT REPORTS [2000J 2 S.C.R.
A as defendant No. 3 being sub-lessee of the disputed premises and Baijnath
Bhagat appeared in the said suit as Proprietor of Mis Bhagat Oil Mills and
during the pendency of the said suit, Baijnath Bhagat having died, the
defendant·Nos. 3 and 4 were substituted in place of the said Baijnath Bhagat.
The ~~cree for recovery of possession of the disputed premises was passed
,B in that suit. In those circumstances, defendant Nos. 2 to 4 were bound by the
decree of the execution of which the recovery of possession was delivered
to the plaintiffs-respondents by the bailiff of the court. Defendant Nos. 2 to
4 could not claim any right independent of Banshidhar Baijnath and even
apart from Section 95 C.P.C. the plaintiffs are entitled to bring an action for
C recovery of damages for wrongful use and occupation of the godown in
question by defendants No. 1 to 4. Section 95 C.P.C. is a specific provision
to meet the situation stated therein and it is open to a party to institute an
independent suit for damages for unlawful use and occupation of an
immovable property· if the concerned party can establish such unlawful
D action of another resulting loss and damages. The scope and ambit of such
suit for damages are necessarily wider than the limited scope envisaged by
Section 95(1) C.P.C. In the instant case, defendant Nos. 2 to 4 were owners
of the said oil seeds and defendant-Bank was only a pledgee of the same.
The decree holder plaintiffs had no claim whatsoever over the said oil seeds
nor did they make any claim at any stage, It is defendants who made an
E
application under Order XXI Rules 100 and 101 C.P.C. restraining the
plaintiffs from removing the oil seeds and sought for pennission of access
to the said oil seeds under the custody of Sitaram Roy, which was also
granted by the court. In those circumstances, it is a quite apparent that by
virtue of the said interim orders obtained by the defendants, the plaintiffs and
F Sitaram Roy could not remove the said oil seeds from the said godown and
the interim orders were made absolute in the presence of the parties and it
was appeared to have been passed with the consent of the parties. Defendant
Nos. 1 to 4 were not restricted to remove the oil seeds in respect of which
no claim had ever been made by the plaintiffs at no point of time. Defendants
G were not the custodian of the goods, The goods were kept in the custody of
Sitaram Roy, an employee of the plaintiffs. In the facts of the case, therefore,
the High Court took the view that the plaintiffs obtained possession of the
godown in execution of the decree not in a vacant condition but with the oil
seeds stored therein and the bailiff made the employee of the plaintiffs
H decree-holders, custodian of the said goods. By restraining the plaintiffs
BANK OF INDIA v. LEKHIMONI DAS [RAJENDRA BABU, J.] 227

decree~holders and the said custodian from removing the oil seeds and by not A
removing the oil seeds on their own, the defendants became liable to
damages. On that account the plaintiffs have not been able to utilise the said
godown effectively in a gainful manner and, therefore, the plaintiffs' case for
damages on account of storage of the oil seeds in the said godown against
the defe,ndants can be decided without considering the case of malice of the B
defendants in obtaining the said orders of injunction. Hence the question of
specific pleading of malice by evidence by the plaintiffs is not ge1mane for
disposing of the suit for damages claimed by the plaintiffs if the plaintiffs
can establish that the defendants had no lawful right to use and occupy the
said godown and store the oil seeds therein and for such storage of the oil
seeds, the plaintiffs have suffered pecuniary loss and damages. After c
distinguishing the decisions in Bhupendra Nath Chatterjee & Ors. v. Smt.
Trinayani Devi, AIR (1944) Calcutta 289, and Albe11 Bannan v. Imperial
Tobacco Co. of India Ltd., AIR 1929 Privy Council 222, the High Court
agreed with the view expressed by the Karnataka High Court in Basamma
& Ors. v. Peerappa, AIR 1982 Karnataka 9. On that basis the appeals were D
dismissed. Hence these appeals - one by the Bank and the other by the
original 1essee of the sub-tenant of the premises in question who were
defendants in the original suit.

Two contentions are put forth before us; firstly that Section 95 CPC
is a complete code and no suit outside tlle said provision could be filed for E
claiming compensation or damages arising out of an order for temporaiy
injunction obtained on insufficient grow1ds. The second ground urged is that
if the claim of the plaintiff in the suit is based on a cause of action for trespass
that inasmuch as the defendants were clothed with a decree of the court the
plaintiff had to plead and prove malice and unless the same is established he
F
_could not get any relief. It is elaborated that there cannot be a suit simplicitor
for damages based on trespass because of an order made by the court when
the defendants had obtained an order of the court it must be presumed that the
court is not an agent acting on their behalf and, therefore, the plaintiff had to
establish that such an order was not only obtained on insufficient grounds but
with malice. G

Section 95 CPC provides for a summary remedy to get compensation
where a temporary injunction has been granted if such injunction was applied
for on insufficient grounds or there were no reasonable or probable grounds
for instituting the claim for injunction. The defendant in such a proceeding is
simply to present a petitiol}. to the court and the court subject to its pecuniary H
228 SUPREME COURT REPORTS [2000] 2 S.C.R.
A jurisdiction can give compensation upto Rs.1,000/-. The remedy under the
Code is optional and an injured party can file a regular suit against the
applicant for injunction for compensation.if he has not already sought relief
under the aforesaid provision. Thus this section is an alternative remedy in
cases of wrongful obtainment of an injunction and it does not in any way
interfere with the principles regulating suits for damages for tort of malicious
B
legal process. There has been a series of decisions which have explained this
position. It is sufficient if we refer to five decisions for the present purpose
: Bhupendra Nath Chatterjee & Ors. v. Smt. Trinayani Devi [supra]; lnder
Singh Nihal Singh v. Chief Commissione1; Delhi & Anr., AIR (1963) Punjab
158; K. Syamalambal v. N Namberumal Chettiar, (1957) I Mad. L.J. 118;
c Albe11 Bonnan v. Imperial Tobacco Co. of India Ltd. (supra] and Basamma &
Ors. v. Peerappa [supra].

As a general principle where two remedies are available under law one
of them should not be taken as operating in derogation of the other. A regular
suit will not be barred by a summary and a concurrent remedy being also
D provided therefor, but if a party has elected to pursue one remedy he is bound
by it and cannot on his failing therein proceed under another provision. A
regular suit for compensation is not barred by the omission to proceed under
summary procedure provided under Section 95 C.P.C., but if an application is
made and disposed of, such disposal would operate as a bar to regular suit
E whatever may be the result of the application. There is, however, a difference
between conditions necessary for the maintainability of an application under
Section 95 C.P.C. and those necessary to maintain a suit. 'lbe regular suit is
based on tort for abusing the process of court. Under the law of torts in a suit
for compensation for the tort the plaintiff must not only prove want of
reasonable or probable cause of obtaining injunction but also that the defend-
F
ant was attracted by malice which is an improper motive.

In justil'ying a claim for damages apart from Section 95 C.P.C., a
distinction has to be drawn between acts done without judicial sanction and
the acts done under judicial sanction improperly obtained. Proof of malice is
G not necessary when the property to a stranger, not a party to the suit, is taken
in execution but if the plaintiff bringing a suit for malicious legal process is
a party to a suit, proof of malice is necessary. The plaintiff must prove special
damage. The claim of a person for damages for wrongful attachment of
property can fall under two heads - (1) trespass and (2) malicious legal
process. Where property belonging to a person, not a party to the suit, is
H wrongly attached, the action is really one grounded on trespass. But where the

0
BANK OF INDIA v. LEKHIMONI DAS [RAJENDRA BABU, J.] 229

act of attachment complained of was done under judicial sanction, though at A
the instance of a party, the remedy is an action for malicious legal process.
In the case of malicious legal process of Court, the plaintiff has to prove
absence of probable and reasonable cause. In cases of trespass the plaintiff
has only to prove the trespass and it is for the defendant to prove a good
cause or excuse. In the former case plaintiff has to prove malice on the part
B
of the defendant while in the latter case it is not necessary. This position has
been succinctly brought out by the decision in K. Syamalambal v. N.
Namberumal Chettiar [supra].

In the present case, the facts ascertained are absolutely clear that the
godown had been let out and the firm Mis Bansidhar Baijnath or its partners ·c
could not establish any title, right or interest in the said godown after the
decree was passed in the ejectrnent suit and, therefore, they had no right to
possess the said godown either actually or constructively by keeping their
goods therein. Mis Bhagat Oil Mills which was impleaded as a defendant in
the suit was the sub-lessee of the disputed premises and Baijnath Bhagat had
appeared in the said suit as proprietor and on his death other defendants were D
substituted in his place. In those circumstances, all defendants were bound by
the decree of the execution of which the recovery of possession was delivered
to the plaintiffs-respondents by the bailiff of the court. Defendant Nos. 2 to
4 could not claim any right independent of Banshidhar Baijnath and, therefore,
even apart from Section 95 C.P.C. the plaintiffs could institute an independent E
suit for damages for wrongful use and occupation of the godown in question
by defendant Nos. 1 to 4. The decree-holders plaintiffs had no claim
whatsoever over the said oil seeds nor did they make any claim at any stage.
There was no dispute regarding the fact that the bailiff had kept the goods in
the custody of one of the employees of the plaintiffs and it is the defendants
who had made an application on the very next day for an injunction and
F
I.•
obtained the same.

In the background in which the injunction was obtained and the manner
in which the defendants prevented the plaintiffs from utilising their premises,
it is clear that the same had been obtained on insufficient and improbable G
grounds. The intention of the parties is very clear that it is only to deprive
the plaintiffs of the possession of the premises that such an order was
obtained. The Bank was pledgee of the goods and could not claim an
independent right in respect of the said premises. The suit premises was not
in their possession either under licence or by way of lease. They should not
only have ascertained whether the goods belong to the pledgor but also H
!

230 SUPREME COURT REPORTS [2000) 2 S.C.R.
A should }}ave known as to whether the premises where the goods were kept
belonged to them at the time they obtained the pledge. In those circum-
stances, even the Bank cannot absolve itself of malice arising in the case.
Want of pleadings or raising an issue in a suit would arise where any party
is put to prejudice.In a case where the facts are writ large and the parties go
to trial on the basis that the claim of the other side is clearly known to them,
B
we fail to understand as to how lack of pleadings would prejudice them.

In that view of the matter, we think that the High Court was justified
in dismissing the appeals. We, therefore, affirm the order made by the High
Court and dismiss these appeals with costs throughout.
c R.P. Appeals dismissed