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Present: De Sampayo J. and Loos A.J.
SERAJUDEEN v. ALLAGAPPA CHETTY.
157—D. C. Nuwara EUya, 452.
Action based on false allegation of partnership—Summons not served—Seizure of goods—Action for damages for malicious institution ofcivil actionand for wrongful seizure of goods—Malice—Animas
The defendant sued on a promissory note granted to him hySawanna Sina Abdul Cader both Abdul Cader, the maker, and his brother,the plaintiff, falsely alleging that they were partners, obtained judgmentwithout service of summons on the plaintiff, and seized his shop goods inexecution.
The plaintiff on hearing of these proceedings took steps to getthe judgment' set aside, and thereafter instituted this action for damagesfor maliciousinstitutionof acivil actionand for malicious
seizure of goods.
Held, that in the circumstances the defendant’s conduct was malicious, andthat he was liable in damages.
Malice does not mean ill-will. tt has the import of mala fides,an intention to cause wrongful injury, or such reckless action thatthe party must be held responsible for the consequences. It itgenerally expressed aB animus injuriandi, but the intention need not beexpress.
E facts appear from the' judgment.
A. St. V. Jayawardene (with him Hayley and Sunderam), fordefendant, appellant.
Batoa, K.G. (with him Bartholomeusz), for plaintiff, respondent..
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October 15, 1919. Db Sampayo J.—
This is an action for damages for malicious institution of a civilaction for an alleged debt, and for malicious and wrongful seizure ofproperty in execution of a decree in the civil action. The plaintiffSerajudeen, is a trader at Nuwara Eliya, carrying on businessunder the vilaaatn or initials of Sawanna Sina. The defendantsued the plaintiff and his brother Mohamadu Abdul Cader in theaction No. 44,765 of the District Court of Colombo on a promissorynote signed by Mohamadu Abdul Cader with the said initialsSawanna Sina, alleging that the plaintiff was a partner of Mo-hamadu Abdul Cader. The District Judge has found that therewas no such partnership, and there is no reason to disagree withhim – on that point. The only facts which the defendant really hadto go upon in alleging the two men to be partners are that theywere brothers and used the same initials. The plaintiff says, andthere is no evidence to the contrary that the initials were those oftheir father’s name, and were common to all the brothers, includinga third brother named Omer Abdul Cader. These facts could notpossibly have induced a belief in the defendant that the' plaintiffand Mohamadu Abdul Cader were partners. The defendant wasapparently conscious of this weakness, for he called as his witnesshis kanakapulle or manager, who pretended that at the commence-ment of the defendant’s dealing with Mohamadu Abdul Cader theplaintiff had come and said that he was his partner, and askedthe defendant to deliver to Mohamadu Abdul Cader the goodsrepresented by the promissory note. This is manifestly false, and itmust'be taken that the defendant had no knowledge that the plaintiffwas partner of Mohamadu Abdul Cader, and the allegation to thateffect on which he joined the plaintiff as defendant in the actionNo. 44,765 was quite reckless. The proceedings in that action throwa further sinister light on- the defendant’s conduct in regard to theplaintiff. Both the plaintiff and his brother reside at Nuwara Eliya,and had no residence in Colombo, but in the plaint and the affidavitfiled with the plaint it was falsely alleged that they were residents ofThird Cross street, Colombo.The summons purportedto be served
on them in Colombo, andonthis false returnof service, for which
the defendant or his agent was responsible, a judgment by defaultwas entered in the case.Awrit was appliedfor andobtained for
execution of the judgment.The plaintiff’s caseis that,in pursuance
of the defendant’s design to recover from him a debt, which wasto. the defendant’s knowledge not due by him, the defendantmaliciously caused certain goods in the plaintiff's boutique atNuwara Eliya to be seized on Januaiy 19, and again on May 4, 1917.The fact of these seizures was put in issue by the defendant. TheDistrict Judge has found that there was a seizure on January 19.This finding was attacked, because the plaintiff had in an affidavit,filed in support of an application to open up judgment, stated
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that the defendant had “ threatened ” to effect a seizure, andcompelled his servant to pay Rs. 300 on acoount, and because inhis evidence in this case he only said that the defendant had“ intimidated ” his servant. The faot as appears from the evi-dence of' the Fiscal’s Marshal is that the officer went with thewrit to the plaintiffs boutique accompanied by the plaintiffsrepresentative and seized some things, but before he proceededfurther and seized other things the man in charge of the boutique,in order to prevent injury to his master’s name and business, paidRs. 300, whereupon the Fiscal’s officer and the defendant’srepresentative withdrew.
The plaintiff was then absent in India, and hearing of theseproceedings he came at once and made preparations to get thejudgment set aside. He took steps later and succeeded in provingthat summons was not served on him, that he was not a partnerof Mohamadu Abdul Cader, and that he was not indebted to thedefendant in the amount of the promissory note sued upon. TheDistrict Court then set aside the judgment and dismissed thedefendant’s action, with costs.
In the meantime the plaintiff says the defendant caused hisboutique goods to be seized again on May 4. I have no doubtwhatever as to the factof such aseizure.TheplaintifE,together
with a surety, executeda securitybondin favour of Mr.Wedder-
bum, the Deputy Fiscal of Nuwara Eliya, and had the goodsreleased from seizure. The only question as regard this seizureis whether the defendant was responsible for. it. It appearsthat the Deputy Fiscal acted upon a letter from one Periyanen,who purportedtobe thedefendant’s agent, and instructedthe
Deputy FiscaltoeSecttheseizure. It was stated forthe
defendant thatPeriyanenwasthe defendant’s agent some time
before this but not atthis time,andhadnoauthorityto give
the instructions to theDeputy Fiscal.As.theplaintifEwas not
in a positiontocontrovertthis statement by evidence,the
District Judge has held that the defendant had not authorizedthe seizure. We have to accept this finding, though for my parta suspicion cannot be avoided that Periyanen, who had no 'interestin or concern with the business personally, was the defendant’sagent for this purpose. However, it is sufficient to go upon theseizure of January 19.
As regards the element of malice, it is, of course, well knownthat it does not mean ill-will. It has the import of mala fides, anintention to cause wrongful injury, or such reckless action that theparty must be held responsible for the consequences. It is generallyexpressed as animus injuriandi, but the intention need not be express.De Villiers, on the Law of Injuries, p. 28 (note), says: “When aperson knows that an act 'of his is necessarily an injury unlesscertain modifying oircumsfanoes exist, the existence of which he
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has no right to assume, but is indifferent as to whether thesecircumstances exist or not, if he then commits the act and thecircumstances do not exist, he can hardly be heard to say in excusethat he had no knowledge of the non-existence of these modifyingcircumstances. A person is intentionally ignorant who knows thathis being ignorant will be the necessary consequence of his notascertaining whether facts exist which he may not presume to exist,and yet does not ascertain the facts. If eventually his act prove anunlawful one, then in the absence of such modifying circumstances,since both his act and his want of knowledge were intentional, animusinjuriandi may very well be held to have existed.”- In view of allthe circumstances connected with the institution of the action andthe subsequent proceedings, this description of malice fits thedefendant’s case, and, I think, he was liable in damages to theplaintiff. The seizure of a trader’s stock in trade in execution hasa serious effect on his credit and reputation, and I think the amountof damages awarded by the District Judge is not excessive.
In my opinion the appeal should be dismissed, with costs.
Loos A. J.—I am of the same opinion.