Holding

Under Order 41 Rule 22 CPC a respondent may, without filing cross‑objections, attack an adverse finding to sustain the dismissal of non‑pecuniary damages, and the High Court’s finding of absence of reasonable and probable cause was erroneous.

Summary

R.K. Sharma sued the State of Assam and two police officers for malicious prosecution, seeking pecuniary damages for rice and paddy seized and non‑pecuniary damages for pain and reputation. The trial court dismissed the suit; the Gauhati High Court allowed pecuniary damages but denied non‑pecuniary damages, finding no reasonable or probable cause for the prosecution. The respondents did not file an appeal or cross‑objection. The Supreme Court examined whether, under Order 41 Rule 22 of the CPC (as amended in 1976), a respondent can attack an adverse finding without filing cross‑objections, and whether the High Court’s finding of lack of reasonable cause was correct. The Court held that cross‑objection is optional and a respondent may attack the adverse finding to sustain the dismissal of non‑pecuniary damages, and that the High Court erred in concluding there was no reasonable and probable cause. Consequently, the appeal for non‑pecuniary damages was dismissed while the pecuniary damages decree remained.

Issues considered

Whether a respondent who has not filed an appeal or cross‑objection can attack an adverse finding under Order 41 Rule 22 CPC (post‑1976 amendment).
Whether the prosecution of the appellant was without reasonable and probable cause and was malicious, warranting non‑pecuniary damages.
Whether the lack of evidence on non‑pecuniary damages precludes a decree in that regard.

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rule 22 (as amended 1976)
Essential Commodities Act, 1955s. Section 3
Indian Evidence Act, 1872s. Section 81

Subjects

malicious prosecutionreasonable and probable causeOrder 41 Rule 22cross‑objectionpecuniary damagesnon‑pecuniary damagestortevidencenewspaper hearsayAssam Food Grains (Licensing and Control) Order 1961police abuse of power

Judgment

SHRI RA VIND ER KUMAR SHARMA A
v.
). THE STATE OF ASSAM AND ORS.

SEPTEMBER 14, 1999

[M. JAGANNADHA RAO AND M. SRINIVASAN JJ.] B

Torts-Malicious Prosecution-Appellant arrested by two Police Officers
after a search in his Rice Mill-Seized Rice and Paddy sold by the Officials-
Appellant discharged in Criminal prosecution-Suit by Appellant on the
ground there was no reasonable or probable cause/or arrest-For pecuniary C
and non-pecuniary damages-Dismissed by trial court-High court allowjng
appeal in part-Decreeing suit in respect of pecuniary damages-On the ,
finding of lack of reasonable and probable cause and malice-Dismissed the
claim for non-pecuniary damages-Arrest based on Assam Control Order-
Respondents acted under Government instructions-Heid, the finding the D
High Court that there was absence of reasonable and probable cause is
"L
erroneous.

Civil Procedure Code, 1908-As Amended in 1976--0rder XL/ Rule
22-Suit by Appellant for malicious prosecution-For pecuniary and non-
pecuniary damages-Dismissal by trial court-Appeal decreed in part by E
High Court in respect of pecuniary damages-Appeal by Appellant for non-
pecuniary damages-No appeal or cross-objections by Respondents-Whether
an adverse finding by the High Court can be relied on by Respondents to
sustain the dismissal of suit-Held-Yes-Filing of cross-objection by
Respondent is optional and not mandatory.
F
Section I I-Suit by appellant-Decreed in part by High Court-No
appeal or cross objections filed by Respondent-Appeal by Appel/an/-
Findings in respect of Partial decree can be relied on by Respondent to
sustain the dismissal of suit in part-Held, there is no res judicata.

Evidence Act 1872-Section 8l-Stat_em_e11;ts .in newspaper- G
as
Presumption of genuineness cannot be treated proof offacts stated therein
-Statements only hearsay.

The Appellant claimed that on 1.10.77 Respondents 2 & 3 the State
Police Officers entered his mill and seized Paddy and rice for violation of H
339 ·-
340 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A provisions of Assam Food Grains (Licensing and Control) Order, 1961. The
Appellant was arrested and later released. The Respondents sold the Paddy
and rice and realised the amount. The Appellant was discharged by the
Criminal Court on the ground that the Assam Control order of1961 was not
in force at the time of search, seizure and arrest of the Appellant and that
B it expired on 30.9.97.

The Appellant filed a suit for damages for malicious prosecution against
the State and two Police Officers for recovery of amounts shown in the suit
schedules A to C by way of preliminary and non-preliminary damages.

In the Civil Suit filed by the Appellant, he contended that the search,
C seizure and arrest were unauthorised as the Central Government had removed
various restrictions and the views in that regard were published in the
newspapers on 29.9.77, that he had personally informed the Respondents 2
& 3 about the expiry of the Control Order that the Defendants 2 & 3 did
not pay heed and arrested the Appellant because their demand for a bag of
D rice was not complied with, that the Defendants 2 & j acted malafide that
the Appellant and the owners of the paddy/rice had permits for milling paddy
and the same were produced before the officers, that the sale of goods was
made in haste and that these facts showed that there was no reasonable or
probable cause for the prosecution.

E The Respondents contended that on 1.10.77 no order of Central
Government was published in the gazette, that even Appellant had no knowledge
of the said Order because no such fact was stated even in the bail petition
-
filed by hiin, that the State had issued instructions on 30.9.97 that enforcement
of Assam Control Order was in force and that the action in pursuance of
F Government instructions is bonafide. The Defendants denied the demand for
a bag of paddy and also contended that no permits were shown to them and
therefore there was reasonable and probable cause for the arrest and
prosecution.

The Trial Court dismissed the suit and held that there was reasonable
G and probable cause for the prosecution, that the action of the defendants was
based on the State Government's directive that the Assam Control Order
.. -
should be enforced, that the case of demand of rice bag was false and that
the entire claim was imaginary.

On appeal by the Appellant, the High Court granted a decree for
H pecuniary damages in Schedules B & C of the Suit but refused to grant non-
R.K. SHARMA v. STATE 341
pecuniary damages on the ground that the Appellant did not adduce any A
evidence with regard to damages in Schedule A. The High Court held that
the defendants 2 & 3 exceeded their authority inasmuch as the Assam
Control Order was not in force on 1.10.77, that the officers abused their
powers, that there was no material before the officers to have reasonable and
probable cause to launch prosecution. The High Court further held that
since the written Statement was filed only by Defendant No. I, it must be B
deemed that the allegation of demand for a bag of rice was not denied, that
the Appellant and owner of the paddy showed their permits but it went
unheeded and that the treatment meted out by the Defendants 2 and 3 to the
Appellate was most "atrocious and malicious".

In appeal to this Court by the Appellant with regard to non-pecuniary
c
damages, the Respondent contended that the finding of the High Court in
regard to the prosecution being without reasonable and probable cause or
that it was malicious etc., was not correct and that hence no decree can be
passed for non-pecuniary damages. The Appellant contended that the decree
for pecuniary damages were based on the same finding and that neither the D
decree for pecuniary damages, nor the adverse finding regarding absence of
reasonable and probable cause, malice etc., were challenged l:>y the Respondent
and that therefore the said findings could not be attacked by the Respondents
under Order 41 Rule 22 as amended in 1976, that the findings have become
final and operated as res judicata and alternatively that the findings were E
based on ample evidence as pointed out by the High Court and that the High
Court ought to have passed a decree for the non-pecuniary damages in 'A'
schedule also.

Dismissing the Appeal, the Court
F
HELD : I. The Respondent-Defendant in an appeal can, without filing
cross-objections, attack an adverse finding upon which a decree in part has
been passed against the Respondent, for the purpose of sustaining the decree
to the extent the lower Court had dismissed the suit against the Defendants-
Respondents. The filing of cross-objection after 1916 amendment is purely
optional and not mandatory. [350-G) G

Venkata Rao Ors. v. Satyanarayan Murthy and Anr,, AIR (1943) Madras
698 = ILR (1944) Madras 147 and Sri Chandra Prabhuji Jain Temple & Ors.
v. Hari Krishna & Anr.i (1973) 2 SCC 6~5 =AIR (1973)SC 256S, referred
to. H
342 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A Te) Kumar v. Purshottam. AIR (1981) MP 55 and Nishambu Jana v.
Sova Guha, (1982) 89 CWN 685, approved.

2. The Respondents are entitled to contend that the finding of the High
Court in regard to absence of reasonable and probable cause or malice (upon
which the decree for pecuniary damages in Band C schedules was based)
B can be attacked by the Respondents for the purpose of sustaining the decree
of the High Court refusing to pass a decree for non-pecuniary damages as
per the A Schedule. The filing of cross-objections against the adverse finding
was not obligatory. There is no res judicata. [351-BJ

C 3. The presumption of genuineness attached under Section 81 of
Evidence Act to newspaper reports cannot be treated as proof of the facts
stated therein. The statements of fact in newspapers are merely hearsay.
[352-C)
Laxmi Raj Setty v. State of TN., [1988] 3 SCC 819, referred to.
D 4. If the Defendants 2 and 3 as police officers of the Assam Government •,
acted upon the instructions of the Assam Government and proceeded to apply
Control Order even on 1.10.77, they cannot be said to be acting without
reasonable or probable cause. The question is not whether the Plaintiff was
ultimately found guilty but the question is whether the prosecutor acted
E honestly and believed that the Plaintiff was guilty. [352-C-E]

A.D.M Jabalpur v. Shivakcint Shukla, [1976]2 SCC 521 (579) and
Glinski v. Mc Iver [1962] A.C. 726 (766), referred to.

Winfield and Jolouriez on 'Tort', referred to.

F 5. The High Court was wrong in concluding that there was absence of
reasonable and probable cause because the action in view of the notification
of the Central Government, was unauthorised or illegal. Illegality does not
by itself lead to such a conclusion. [352~G]

6. There is no truth in the Appellant's case that at the time of seizure,
G he informed Defendant 2 and 3 about the Gazette notification. There. is no
-
pleading to the aspect that Appellant and the owners paddy showed permits
to the Defendants 2 and 3. No question put when 2nd Defendant was cross-
examined. The 3rd Defendant was asked and he denied the suggestion.
Therefore, the plea showing permits as not been properly substantiated.
H [352-Hl
R.K. SHARMA v. STATE [M. JAGANNADHA RAO, J.] 343

7. As regards demand of a bag of rice the evidence of the Appellant and A
his munim was rightly disbelieved by the Trial Court No such case was put
forward by the Appellant in the criminal case. [353-C]

8. The view of the High Court that Respondents 2 and 3 did not
personally sign the written statement appears to be too technical once the
issues were framed and evidence was led by both sides. There is no warrant B
for the use of the words "abuse of powers" or "atrocious" etc., by the High
Court [353-C]

9. The finding of the High Court regarding malice or the absence of
reasonable and probable cause cannot be accepted, notwithstanding the fact
that such a findjng was the basis for grating pecuniary damages in B & C C
Schedules which decree has become final. If that be so, the Respondent can
sustain the dismissal of the suit in regard to the non-pecuniary damages in
'A' Schedule. (353-D)

10. The Appeal filed by the Plaintiff seeking damages in respect of the
non-pecuniary damages in the A Schedule is dismissed and the decree of D
dismissal of the first Appeal in regard to the said 'A' Schedule is sustained
without going into the question of proof of damage due to pain or loss of
reputation etc. The decree for the pecuniary losses in B and C schedule
items remain. (353-F)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6036 of E
1990.

From the Judgment and Order dated 22.5.90 of the Gauhati High Court
in F.A. No. 89of1984.

N .R. Choudhary for the Appellant.
F
Vijay Hansaria, Sunil K. Jain and S. Borthakur for Mis. Jain Hansaria &
Co., for the Respondent No. 1.

S.R. Hegde, (NP) for the Respondent No. 2.

The Judgment of the Court ~as delivered by G
M. JAGANNADHA RAO, J. The appellant was the plaintiff in title Suit
No. 40of1978, on the file of the Assistant District Judge, Jorhat. He filed the
suit for damages for malicious prosecution against three defendants, the State
of Assam and two Poli.ce Officers for recovery of various amounts shown in
Schedules A, Band C. Schedul~ A of the suit was an amount of Rs. 2,53,425 H
344 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A claimed as damages towards mental pain, social and public humiliation, wrongful
confinement and expenses incurred for defending the criminal cases (For
convenience we shall describe them as non-pecuniary damages). Schedules
B and C comprised the value of paddy and rice of the appellant which was
seized and then sold by the police officers, defendants 2 and 3 (For convenience
we shall describe them as pecuniary damages). The trial Court dismissed the
B suit on 16. 7.84. But on appeal, the High Court while holding that the defendants
I to 3 were guilty of malicious prosecution, abuse of power and unauthorised
action, granted relief only in regard to pecuniary damages in the B and C
Schedules ( value of goods ) but dismissed the suit for non-pecuniary damages
in A Schedule items (pain, damage to reputation etc.) on the ground that the
C pleadings and evidence in respect of the said items were vague. The plaintiff
has filed this appeal for non-pecuniary damages covered by the A Schedule
items. The defendants I to 3 have not filed any appeal in regard to amount
decreed for pecuniary damages as per the B or C Schedules.

The facts in brief are as follows:
D
The defendants 2 and 3 entered the appellant's Mill towards dusk-time
on l.10.1977 and seized the paddy and rice and arrested the appellant for
alleged violation of the provisions of the Assam Food Grains (Licensing and
Control) Order, 1961. A criminal case was filed against the appellant. On
4.10.1977, the appellant was granted bail but he was released only on 5.10.1977.
E The paddy and rice were sold and an amount of Rs. 44,592.10 was realised.
This amount is shown in the B and C schedules. The appellant was discharged
by the Criminal Court on 12.4.78, on the ground that the Assam Control Order
of 1961 was not in force at the time of search, seizure and arrest of the
appellant on 1.10.1977 but that it had expired on 30.9.1977.

F The appellant contended in the courts below that the search, seizure
and arrest were unauthorised as the Central Government had, in fact, removed
various restrictions w.e.f. 1.10.1977 and that the news in that behalf was
published in various newspapers on 29. 9.1977. He also contended that he had
personally informed the respondents 2, 3(defendants 2 and 3) on l.10.1977 at
G the time of the search operation about the expiry of the Control Order, that
the defendants 2 and 3 did not pay any heed and went ahead and arrested
the appellant because their demand for a ~ag of rice was not complied with.
It was also contended that the defendants 2 and 3 acted malafide, that the
appellant and the owners of the.paddy/rice had permits for milling paddy and
the same were produced before these officers but they did not care even to
H look into them. The sale of goods was also made in haste. These facts,
R.K. SHARMA v. STATE [M. JAGANNADHA RAO, .I.] 345
=
A

-
according to the plaintiff, showed that there was no reasonable or probable
cause for the prosecution. Therefore, the defendants were liable for damages
as stated in plaint Schedules A, B and C.

The defence of the State and the police officers was that on 1.10.1977,
no order of the Central Government was published in the gazette, that even
appellant had no knowledge of the said order because no such fact was B
stated even in the bail petition filed later and that, in fact, the State of Assam
had issued instructions on 30.9.97 by wireless message to its officers that the
order of the Central Government would not come in the way of the enforcement
of the Assam Control Order of 1961. It was contended that the action of
search, seizure and arrest taken on 1.10.1977 pursuant to such instructions of C
the State Government issued on 30.9.77 was bona fide. The demand for a bag
of paddy was denied. It was also stated that no permits for milling paddy were
shown either by the appellant or by the owners of the paddy. There was,
therefore, reasonable and probable cause for the prosecution and hence the
suit was liable to be dismissed.
D
The trial court rejected the evidence of the appellant and held that the
action of the defendants was based upon the State Government's wireless
message dated 30.9.77 to the effect that the Control Order of Assam could
be enforced, that the case of demand of rice bag was false and that the entire
claim was imaginary. There was reasonable and probable cause for the E
prosecution. The suit was dismissed.

On appeal in FA 89/84, the High Court of Gauhati reversed the findings
and held that the defendants 2 and 3 exceeded their authority inasmuch as
the Assam Control Order of 1961 was not in force on 1.10.77 and that the
officers abused their powers, that there was no material before the said F
officers to have reasonable and probable cause to launch prosecution. It held
that the written statement having been signed by Sri D.K. Borthakur,
(Additional Dy. Commissioner, Sibasagar) on behalf of all defendants (and not
by defendants 2 and 3), it must be deemed that the allegation of demand for
a bag of rice was not denied, that the appellant and owners of the paddy G
showed their· permits to the officials but it went unheeded and that the
treatment meted out by the defendants 2 and 3 to the appellant was most
"atrocious and malicious". On those findings the High Court granted a decree
for the pecuniary damages in B and C Schedules i.e., value of paddy and rice
sold. However, the High Court refused to grant a decree for the A Schedule,
i.e., mental pain, loss of reputation, wrongful confinement etc., on the ground H
346 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A that the appellant "did not adduce any evidence with regard to damages in
Schedule A". The plaintiff has filed this appeal for the non-pecuniary damages
in A Schedule items. The defendants have, as already stated, accepted the
decree for the pecuniary damages in B and C Schedule items and have not
chosen to file any appeal in regard to the pecuniary damages in B and C
B schedules nor any cross-objections in regard to the adverse finding that there
was no reasonable or probable cause for the prosecution.

In this appeal, the learned counsel for the respondents-defendants
contended before us that the finding of the High Court in regard to the
prosecution being without reasonable and probable cause or that_ it was
C malicious etc., was not correct and that hence no decree could be passed for
the non-pecuniary damages in A Schedule. On the other hand, the appellant-
plaintiff contended that the decree for pecuniary damages in B and C Schedules
was based on the same finding and that neither the decree for pecuniary
damages in B & C schedules nor the adverse findings regarding absence of
reasonable and probable cause, malice etc. were questioned by.the respondents
D by way of an appeal or by cross-objections and that therefore the said
findings could not be attacked by the respondents under Order 41 Rule 22
as amended in 1976. The findings on which decree for pecuniary damages in
B and C Schedules was based had become final-and operated as res judicata.
Alternatively, the appellant-plaintiff contended that the findings regarding
E absence of reasonable and probable cause malice etc., were based on ample
evidence as pointed out by the High Court and that the High Court ought
to have passed a decree for the non-pecuniary damages in A Schedule also.

On the above pleas, the following points arise for consideration:

F (I) Whether the respondents, not having filed an appeal or cross-
objection in regard to the pecuniary damages in B and C schedules could be
permitted to rely on Order 41 Rule 22 CPC (as amended in 1976) and to
contend that the findings relating to malice, absence of reasonable and
probable cause was not correct and whether the respondents could be permitted
to support the dismissal of the suit by the High Court so far as the non-
G pecuniary damages in A schedule were concerned, on that basis?
(2) Whether, in case the respondents are held entitled to attack the said
adverse findings under Order 41 Rule 22 CPC, the said findings as to the
existence of reasonable and probable cause malice etc., are liable to be set
H aside?
R.K. SHARMA v. STATE [M. JAGANNADHA RAO, J.] 347

Point 1: A
Under this point, the scope and effect of Order 41 Rule 22 CPC as
amended in 1976 falls for consideration. We shall first refer to the position of
the law in regard to Order 41 Rule 22(1) CPC as it stood before the 1976
Amendment. Thereafter, we shall refer to the 1976 Amendment and its effect.
Order 41Rule22 (1), as it stood before the 1976 Amendment, stood as follows: B
"Order 41 Rule 22(1): Any respondent, though he may not have
appealed from any part of the decree, may not only support the
decree, on any of the grounds decided agsinst him in the Court below,

-
but take any cross-objection to the decree which he could have taken
' by way of appeal, provided he has filed such objection in the Appellate C
Court within one month from the date of service on him or his pleader
of notice of the day fixed for hearing the appeal or within such further
time as the Appellate Court may see fit to allow."

The Rule is in two parts. The first part deals with what the respondent can
do by way of attack of an adverse finding even if he has not filed any appeal D
)
or cross-objection. The second part deals with what the respondent has to
do if he wants to file cross-objection.

To give a very simple example, let us take this very case of a plea of
malicious prosecution where damages are sought for pecuniary loss (B & C E
schedules loss of paddy etc.) and also damages for non-pecuniary loss (A
schedule, pain, anguish, loss of reputation). The· High Court held that there
was malice etc., on the part of the defendants and granted a decree for
pecuniary losses in B and C schedules but did not grant any decree for non-
pecuniary losses, as no proper evidence was adduced in that behalf. The
plaintiff has appealed before this Court for damages seeking a decree for non- F
pecuniary loss in A schedule. Can the respondent-defendant, even though
he has not filed any appeal or cross-objection in regard to the adverse finding
as to malice and against the decree for pecuniary loss in plaint B & C
schedules, attack the finding as to malice etc., and support the decree of
dismissal of suit so far as the A schedule non-pecuniary losses are concerned? G

Though in certain earlier cases in the Madras High Court, a view was
taken that the defendant-respondent in such situations could not attack such
a finding, a Full Bench of the Madras High Court in Venkata Rao and Ors.
v. Satyanarayana Murthy and Anr., AIR (1943) Madras 698 = ILR 1944
Madras 147, set the controversy at rest by holding that the respondent could H
348 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A attack a finding upon which, part of the decree against him was based, for
the purpose of supportin~ the other part of the decree which was not against
him. In that case, Leach, C.J accepted the view of the referring Judges
Wadsworth, J. and Patanjali Sastri, J. (as he then was) to the following effect:
"Under Order 41 Rule 22, it is open to a defendant-respondent who has not
taken any cross-objection to the partial decree passed against him, to urge
B in opposition to the appeal of the plaintiff, a contention which if accepted by
the trial Court, would have necessitated the total dismissal of the suit".

The above judgment of the Full Bench was approved by this Court in
Chandre Prabhuji's case [1973] 2 SCC 665 =AIR 1973 SC 2565 by Mathew,
C J. speaking on behalf of the Bench.

That means that under Order 41 Rule 22 CPC, before the 1976 Amendment,
it was open to the defendant-respondent who had not taken any cross-
objection to the partial decree passed against him, to urge, in opposition to
the appeal of the plaintiff, a contention which if accepted by the trial court
D would have resulted in the total dismissal of the suit. This was the legal
position under the unamended Order 41 Rule 22 as accepted by the Madras
Full Bench in Venkata Rao 's case and as accepted by this Court in Chandre
Prabhuji's case.

E The next question is as to whether, the law as stated above has been
modified by the 1976 Amendment of Order 41 Rule 22. It will be noticed that
the Amendment has firstly deleted the words "on any of the grounds decided
against him in the Court below, but take any cross-objections" in the main
part of Order 41 Rule 22 CPC and added the words "but may also state that
the finding against him in the Court below in respect of any issue ought to
F have been in his favour" in the main part.

The main part of Order 41 Rule 22( 1) CPC, (after the 1976 Amendment)
reads as follows:

"0.41 R.22(1): Any respondent, though he may not have appealed
G from any part of the decree, may not only support the decree but may
also state that the finding against him in the Court below in respect
of any issue ought to have been in his favour; and may also take any
cross-objection to the decree which he could have taken by way of
appeal, provided he has filed such objection in the appellate court
H within one month from the date of service on him or his pleader of
R.K. SHARMA v. STATE [M. JAGANNADHA RAO, J.] 349
notice of the day fixed for hearing the appeal, or within such further A

- time as the Appellate Court_may see fit to allow."

The 1976 Amendment has also added an Explanation below Order 41
Rule 22, as follows:

"Explanation: A respondent aggrieved by a finding of the court B

.. in the judgment on which the decree appealed against is based may,
under this rule, file cross objection in respect of the decree in so far
as it is based on that finding, notwithstanding that by reason of the
decision of the Court on any other finding which is sufficient for the
decision of the suit, the decree is, wholly or in part, in favour of that C
respondent".

In connection with Order 41 Rule 22, CPC after the 1976 Amendment,
we may first refer to the judgment of the Calcutta High Court in Nishambhu
Jana v. Sova Guha, (1982) 89 CWN 685. In that case, Mookerjee,J. referred
to the 54th report of the Law Commission (at p.295) (para 41.70) to the effect D
that Order 41 Rule 22 gave two distinct rights to the respondent in the appeal.
The first was the right to uphold the decree of the court of first instance on
any of the grounds which that court decided against him. In that case the
finding can be questioned by the respondent without filing cross-objections.
The Law Commission had accepted the correctness of the Full Bench of the
Madras High Court in Venkata Rao 's case. The Commission had also accepted E
the view of the Calcutta High Court in Nrisi~gha Prosad Rakshit v. The
Commissioners of Bhadreswar Muncipality that a cross-objection was wholly
unnecessary in case the adverse finding was to be attacked. The Commission
observed that the words "support the decree ... " appeared to be strange and
"what is meant is that he may support it by asserting that the ground decided F
against him should have been decided in his favour. It is desirable to make
this clear". That is why the main part of Order 41 Rule 22 was amended to
reflect the principle in Venkata Rao 's case as accepted in Chandre Prabhuji 's
case.

So far as the Explanation was concerned, the Law Commission stated G
(page 298) that it was necessary to "empower" the respondent to file cross:
objection against the adverse finding. That would mean that a right to file
cross-objections was given but it was not obligatory to file cross-objections.
That was why the word 'may' was used. That meant that the provision for
filing cross-objections against a finding was only an enabling provision. H
350 SUPREME COURT REPORTS (1999] SUPP. 2 S.C.R.

A These recommendations of the Law Commission are reflected in the
Statement of Objections and Reasons for the Amendment. They read as
follows:

"Rule 22(i.e.,as it stood before 1976) gives two distinct rights to the
respondent in appeal. The first is the right of upholding the decree
B of the Court of first instance on any of the grounds on which that
court decided against him; and the second right is that of taking any
cross-objection to the decree which the respondent might have taken
by way of appeal. In the first case, the respondent supports the
decree and in the second case, he attacks the decree. The language
c of the rule, however, requires some modifications because a person
cannot support a decree on a ground decided against him. What is
meant is that he may support the decree by asserting that the matters
decided against him should have been decided in his favour. The
rule is being amended to make it clear. An Explanation is also being
added to Rule 22 empowering the respondent to file cross- objection
D in respect to a finding adverse to him notwithstanding that the ultimate
decision is wholly or partly in his favour."

Mookerjee, J. observed in Nishambhu Jana's case (see p.689) that "the
amended Rule 22 of Order 41 of the .Code has not brought any substantial
E change in the settled principles of law" (i.e., as accepted in Venkata Rao 's
case) and clarified (p.691) that "it would be incorrect to hold that the
Explanation now inserted by Act I 04 of 1976 has made it obligatory to file
cross-objections even when the respondent supports the decree by stating
that the findings against him in the court below in respect of any issue ought
to have been in his favour".
F
A similar view was expressed by U.N. Bachawat, J. in Tej Kumar v.
Purshottam, AIR (1981) MP 55 that after the 1976 Amendment, it was not
obligatory to file cross- objection against an adverse finding. The Explanation
merely empowered the respondent to file cross-objections.
G
In our view, th~ opinion expressed by Mookerjee, J. of the Calcutµt
High Court on behalf of the Division Bench in Nishambhu Jena's case and .
the view expressed by U.N Bachawat, J. in Tej Kumar's case in the Madhya
Pradesh High Court reflect the correct legal position after the 1976 Amendment.
We hold that the respondent-defendant in an appeal can, without filing cross-
H objections attack an adverse finding upon which a decree in part has been

~,
R.K. SHARMA v. STATE [M. JAGANNADHA RAO, J.] 351
passed against the respondent, for the purpose sustaining the decree to the A
extent the lower court had dismissed the suit against the defendants-
respondents. The filing of cross-objection, after the 1976 Amendment is
purely optional and not mandatory. In other words, the law as stated in
Venkata Rao 's case by the Madras Full Bench and Chandre Prabhuji's case
by this Court is merely clarified by the 1976 Amendment and there is no B
change in the law after the Amendment.

The respondents before us are, therefore, entitled to contend that the
finding of the High Court in regard to absence of reasonable and probable
cause or malice - (upon which the decree for pecuniary damages in B and C
schedules was based) can be attacked by the respondents for the purpose C
of sustaining the decree of the High Court refusing to pass a decree for non-
pecuniary damages as per the A schedule. The filing of cross-objections
against the adverse finding was not obligatory. There is no res judicata. Point
1 is decided accordingly in favour of respondents-defendants.

Point 2: D
The question here is whether there is proof of malice and proof of
absence of reasonable and probable cause for the search, seizure and arrest
of the appellant and for his prosecution. We have been taken through the oral
and documentary evidence adduced in the case by both sides. The notification
of the Central Government dated 30.9.77 (N.S.O. 696(E)), Ministry of Agriculture E
& Irrigation (Gazette Part II-Sec.3(II)) dated 30.9.77 (at pp. 2639-40) no doubt
states that "in exercise of power conferred by Section 3 of the Essential
Commodities Act, 1955 (Act I 0/55), the Central Government hereby rescinded
the Assam Food Grains (Licensing and Control) Order, 1961 w.e.f. 1.10.77". It
was on 1.10.77 that the respondents 2 and 3 conducted the search, seizure p
and arrest operations. But, as noticed by the trial court, the Assam Government
had issued a wireless message 363773 dated 30.9.77 to all Dy.Commissioners
and SDOs that the Government of India's procurement policy dated 29.9.77
did not state that the existing restriction on movement of paddy/rice was
withdrawn w.e.f. l.10.77 as reported in the Press. Moreover, Assam Food
Grains (Licensing & Control) Order, 1961 had not been repealed and the new G
procurement policy would commence from 1.11.77. The message stated:

" ... please, therefore, ensure that the provisions of the aforesaid Assam
Food Grains (Licensing and Control) Order, 1961, are enforced even
after I st October, 1977, pending further instructions from the
Government." H
352 SUPREME COURT REPORTS (1999] SUPP. 2 S.C.R.

A The record also shows that this was communicated to officers lower down
on 3.10.77. This aspect was not given due importance by the High Court.

·Newspaper reports regarding the Central Government decision could
not be any basis for the respondents to stop action under the Assam Control
Order of 1961. The paper reports do not specifically refer to the Assam
B Control Order, 1961. In fact, Government of Assam itself was not prepared to
act on the newspaper reports, as stated in its wireless message. Section 81
of the Evidence Act was relied upon for the appellant, in this behalf, to say
that the newspaper reports were evidence and conveyed the necessary
information to one and all !Jicluding the respondents 2 and 3. But the
C presumption of genuineness attached under section 81 to newspaper reports
cannot be treated as proof of the facts stated therein. The statements of fact
in newspapers are merely hearsay Laxmi Raj Setty v. State of Tamil Nadu,
[1988] 3 sec 319.

Now if the defendants 2 and 3 as police officers of the Assam
D Government acted upon the instructions of the Assam Government and
proceeded to apply Control order even on 1.10.77, they cannot, in our opinion,
be said to be acting without reasonable or probable cause. The remedy of suit
for damages for false imprisonment is part of the law of torts in our country
A.D.M Jabalpur v. Shivakant Shukla, [1976] 2 SCC 521(at579)). In Glinski
E v. Mc!ver, (1962) A.C. 726 at 776, Lord Devlin stated:

"The defendant can claim to be judged not of the real facts but of
those which· he honestly, and however erroneously, believes; if he
acts honestly upon fiction, he can c;.laim to be judged on that."

The question is not whether the plaintiff was ultimately found guilty but
F the question is whether the prosecutor acted honestly and believed that the
plaintiff was guilty. As pointed out by Winfield and Jolowicz on Tort (15th
Ed., 1998, p.685) in prosecutions initiated by police officers, the fact that they
did so upon advice or instruction of sup~rior officers is one of the relevant
facts unless it is proved that the particular police officer did not himself
G honestly believe that the plaintiff was guilty of an offen.ce.

The High Court was, in our opinion, wrong in concluding that there was
absence of reasonable and probable cause because the action, in view of the
notification of the Central Government, was unauthor_ised or illegal. Illegality
does not by itself lead to such a conclusion. Further there is no truth in the
H appellant's case that on 1.10 .1977 at the time of seizure, he informed the
R.K. SHARMA v. STATE [M. JAGANNADHA RAO, J.] 353

defendants 2 and 3 about the Gazette notification. The point is that such an A
assertion was not made even in the bail application moved after arrest. As
to the contention that the appellant and the owners of paddy showed permits
to the defendants 2 and 3, we do not find sufficient pleading on this aspect.
In any case we find that no question was put when 2nd defendant was cross~
examined. As pointed out by Sarkar on Evidence (15th Ed., 1999, Vol.2, p.2179) B
in the context of section 138 of Evidence Act,

"generally speaking, when cross-examining, a party's counsel should
put to each of his opponent's witnesses, in tunf, so much of his own
case as concerns that particular witness or in which he had a share."

The 3rd defendant was asked and he denied the suggestion. Therefore, C
the plea showing permits has not been properly substantiated. The other
allegation is that the defendants 2 and 3 entered the Mill and demanded a bag
of rice. We are of the view that the evidence of the appellant and his munim
was rightly disbelieved by the trial court. No such case was put forward by
the appellant in the criminal case. The view of the High Court that the D
respondents 2 and 3 did not personally sign the written statement appears
to us to be too technical once the issues were framed and evidence was led
by both sides. We do not also find any warrant for the use of the words
"abuse of powers" or "atrocious" etc., by the High Court.

For the aforesaid reasons, we are of the view that the finding of the E
High Court regarding malice or the absence of reasonable and probable cause
cannot be accepted, notwithstanding the fact that such a finding was the
basis for granting pecuniary damages in B & C schedules which decree has
become final. If that be so, the respondents can sustain the dismissal of the
suit in regard to the non- pecuniary damages in A schedule. We hold in
favour of the respondents and against the plaintiff appellant on the Point 2. F
For the aforesaid reasons, the appeal filed by the plaintiff seeking
damages in respect of the non-pecuniary damages in the A schedule is
dismissed and the decree of dismissal of the first appeal in regard to the said
A schedule is sustained without going into the question of proof of damage G
due to pain or loss of reputation etc. The decree for the pecuniary losses in
B and C schedule items remains. The appeal is, accordingly, dismissed but in
the circumstances without costs.

V.M. Appeal dismissed.