Bavisetti Venkata Surya Rao vs Nandipati Muthayya on 14 June, 1963

Andhra High Court

Bavisetti Venkata Surya Rao vs Nandipati Muthayya on 14 June, 1963
Equivalent citations: AIR 1964 AP 382
Author: B Reddy
Bench: B Reddy, A Ayyar
JUDGMENT Basi Reddy, J.

1. This Second Appeal has been referred to a Bench by our learned brother, Seshachalapathi, J., on
the ground that it raises an important question regarding tortious liability.

2. The defendant, who is the Village Munsif of Panduru village, is the appellant in this Second
Appeal. The respondent, who is a well-to-do ryot of the same village, brought an action in tort
against the defendant alleging acts of assault, intimidation and insult, and claiming an amount of
Rs. 1000/- as damages. The Additional District Munsif, Kakinada, who tried the suit, held that the
plaintiff was not entitled to any damages and dismissed the suit with costs. On appeal by the
plaintiff, the Principal Subordinate Judge, Kakinada,, allowed the appeal in part, awarded Rs. 100/-
as damages and allowed proportionate costs. Hence this Second Appeal by the defendant.

3. It is common ground that at the material time the plaintiff had cultivated some poramboke land
and had been assessed to an encroachment fee of Rs. 11-6-0. Under Section 9 of the Madras Land
Encroachment Act, 1905, encroachment fees ere recoverable as arrears of land revenue under the
provisions of the Madras Revenue Recovery Act, 1864. The collection of land revenue is the primary
duty of a Village Munsif. On March 31, 1956 at about noon, the defendant, accompanied by the
Karnam of the village, approached the plaintiff when he and several others were seated on the pial of
the house of one Garaga Appanna and demanded the amount due by him.

4. As to what actually happened thereafter, there are two conflicting versions. The plaintiff's version
as spoken to by him as P. W. r and substantially supported by his witness Gundupalli Tatayya as P.
W. 2, is as follows:

On the demand being made, the plaintiff said that his wife had locked the house and go
the amount after she returned either that day of
the next day. The defendant, however, insisted
on the amount being paid that very day as it was

the last day for collection of the arrears of revenue for that year, and held out a threat that if the
plaintiff did not pay the amount, he (the defendant) had no alternative but to distrain the plaintiff's
moveable property.

The defendant then took the plaintiff's thumb impression on some paper but the plaintiff did not
know what was written on it. The defendant then said that he would distrain the earrings which the
plaintiff was wearing. The plaintiff defied him to do so, The defendant then sent word to the
goldsmith of the village. The gold-

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smith came. One of the persons present there, by name Bavisetti Antayya alias Tatayya (who was
examined as defence witness No. 2), apparently to avoid an unpleasant incident, borrowed Rs.
157-from one Veer Raju, handed over Rs. 11-6-0 out of it to the defendant towards the revenue
payable by the plaintiff and obtained a receipt for it from the defendant. The latter then went away.

5. In cross-examination the plaintiff admitted that he had to pay the revenue which was demanded
but he did not know that that was the last day for the payment of the revenue. He further admitted
that the defendant did not push "him or beat him or even touch him; the defendant did not abuse
him nor did he threaten him. When asked specifically what his reaction was, the plaintiff said:

"The defendant stated that he would remove my ear-rings and attach them in the presence of public
and this is the insult."

Similarly P. W. 2 stated even in chief-examination:

"We thought that if the money was not paid, the plaintiff would be insulted but it did

In cross-examination he said:
"After the payment of money, the defendant went away without a word".

6. The defendant's version on the other hand

as deposed to by him as D. W. 1, and corroborated by Bavisetti Antayya alias Tatayya (D. W. 2) and
the Kamam (D. W. 3), is to the following effect: When the defendant asked the plaintiff to pay the
arrears of land revenue due, the plaintiff replied that he did not have the money then and would pay
it four or five days later. The defendant pleaded with the plaintiff saying that that was the last day
for collection of arrears of revenue and that if he did not collect the amount, he would be taken to
task by his superior officers. The plaintiff, however, said that he had no money then and that he
would pay it some days later.

The defendant then said that be had to attach the plaintiff's moveable property. The plaintiff replied
that he bad no moveable property that could be attached as his house was locked and that if he (the
defendant) wished, he might attach the ear-rings that the plaintiff was wearing. Thereupon the
defendant served a demand notice on the plaintiff and took tbe latter's thumb-impression on it. The
defendant then sent for the village goldsmith. The latter came there. At that stage D. W. ?., to saye
further trouble, borrowed some money from Veer Raju and paid it to the defendant on behalf of the
plaintiff and obtained a receipt for it. The defendant then went away quietly. Later in the course of
the same day, the amount was remitted to the treasury at Kakinada.

7. The defendant asserted in cross-examination that he had the authority to distrain moveable
property on the person of the defaulter even without his consent. He further stated that the demand
notice, was served on the plaintiff and his thumb-impression was taken on it; but as the revenue had
been collected, the demand notice had been destroyed. He asserted that he had sent word to the
goldsmith with a view to get the plaintiff's ear-rings valued but not for the purpose of removing

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them.

8. As pointed out already, D. Ws. 2 and 3 corroborated the defendant on all material particulars. D.
W. 2, who prevented the actual distraint by his timely intervention, stated that it was the plaintiff
himself who had suggested that the ear-rings might be attached as he had no other property. He
added that after he (the witness) had paid the money and obtained a receipt, there was no further
trouble. He was emphatic that the defendant did not abuse or use violence to the plaintiff. Similarly,
the Karnam (D. W. 3) deposed that the defendant did not abuse or assault the plaintiff throughout
the entire incident.

9. On a consideration of the factual and legal issues arising in the case, the trial Court reached the
following conclusions:

(1) That the defendant as Village Munsif was authorised to issue a distraint warrant and he had the
authority to distrain moveable property including the ear-rings which were on the person of the
defendant Section 8 of the Madras Revenue Recovery Act. read with Collector's Standing Order No.
48 of the East Godavari District, empowers the Village Munsifs in all the taluks of the East Godavari
District to issue a distraint warrant which is otherwise known as Demand Notice No. 1. In the
instant case, the defendant had actually served a demand notice and his explanation that he had not
produced it in court because he had destroyed it as the revenue had been paid, was acceptable. The
plaintiff's story that he had put his thumb-impression on a piece of paper without knowing its
contents, was incredible.

(2) If the defendant had the authority to distrain the ear-rings on the person of the plaintiff, the
defendant's action was within his legal authority and no action would lie against him. But even
assuming that lie had no such authority to attach the ear-rings on the person, the acts alleged did
not constitute assault, insult or intimidation. In this view, the trial court; non-suited the plaintiff.

10. The lower appellate Court, however, took a different view of the law and the facts. On the
question whether a distraint warrant had actually been, served by the defendant on the plaintiff, the
learned appellate Judge was of the view that it tad not in fact been served. He reached that
conclusion mainly because the distraint warrant was not produced and the explanation of the
defendant as D. W. 1 that it had been destroyed as no distraint was actually effected was
unacceptable.

11. On the legal aspect, the learned Subordinate Judge was of the view that the Collector's Standing
Order No. 48, whereby the Village Mun-"ifs in that area, have been authorised to issue Demand
Notice No. 1 within the limits of their jurisdiction, is ultra vires of Section 8 of the Madras Revenue
Recovery Act and B. B. O. No. 41, and secondly even if the defendant was armed with a valid
distraint warrant, he could not lawfully distrain and get removed the car-rings of the plaintiff from
his ears. The learned Subordinate Judge stated his yicw in the following words:

"The learned counsel for the respondent (defendant) has not drawn my attention to any authority in
this respect viz., that for the purpose of attachment, ornaments worn by a male can be forcibly

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removed from his person. I, therefore, hold that even if the defendant had a valid attachment
warrant with him, his action in trying to get the ear-rings of the plantiff removed from his person
against his consent through the agency of the goldsmith for the purpose of attaching the same for
arrears of land revenue, is unwarranted and illegal. "

12. On the next question as to whether the acts alleged by the plaintiff amounted to assault or
intimidation or insult, the learned appellate Judge was of the view that all those wrongs had been
committed, that they were actionable and that the plaintiff was entitled to recover damages. On the
question of assault, the learned appellate; Judge expressed the following view:

"It is reasonable to expect that if D. W. 2 bad not come to the rescue of the plaintiff, the intended
action of the defendant to get the ear-rings of the plaintiff removed from his" person through the
agency of the goldsmith, would have ensued immediately. Thus to my mind there is no doubt that
the plaintiff was put to the fear of the imminent removal of his ear-rings from his person and that
thereby there was loss of reputation oJ the plaintiff and he (plaintiff) fell in the estimation of the
others present."

13. The learned Judge then referred to the definition of the offence of assault a contained in Section
351, Indian Penal Code and referred to Illustration (b) to that sectioni which runs as follows ;

(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he
may thereby cause 2 to believe that he is about to cause the dog to attack 2. A has committed an
assault upon Z."

The learned Judge then went en:

"In the instant case before us the presence of the goldsmith after the threat to remove the earrings of
the plaintiff is sufficient, in my opinion, to cause the apprehension in the mind of the plaintiff that
his ear-rings were about to be removed by force by the goldsmith at the instance of the defendant. I
am, therefore, of opinion that the defendant caused the offence of assault to the plaintiff."

14. On the question whether the acts alleged constituted insult and intimidation, the learned
Subordinate Judge disposed of the question in one sentence thus:

"I am further of opinion that the action of the defendant in trying to remove the ear-rings of the
plaintiff in the circumstances stated above amounts to the offences of criminal intimidation and
insult also within the meaning of the Indian Penal Code."

15. In this Second Appeal, Mr. Ananta Babu, the learned advocate for the defendant-appellant, has
raised two main contentions: first, that on the facts found by the lower appellate Court none of the
alleged torts, viz., assault, insult or intimidation is made out; and secondly, even if the acts
attributed to the defendant constitute in law one or the other of the aforesaid actionable wrongs, the
defendant is nevertheless, protected, in that what he had don'.' was in the lawful and propel
discharge of his official duty. It was urged that no actual distraint had been effected and even if the

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finding of the lower appellate Court that no distraint warrant had been served on the plaintiff is
accepted, the defendant had done nothing more than take a step towards levying the distress by
sending for the goldsmith as he had the power to collect the revenue through coercive process by
virtue of the authorisation by the Collector acting under Section 8 of the Madras Revenue Recovery
Act.

It was also pointed out that the defendant had neither abused his authority nor acted in a
highhanded or unreasonable manner because the moment the amount was paid by D. W. 2, he
passed a receipt and went away without causing any further trouble to the plaintiff, and took care to
remit the amount to the Government treasury that very day. It was urged that a threat to effect a
purpose which is in itself lawful, cannot be regarded as wrongful and gives no right of action to the
person thereby injured. It was submitted that the defendant had not committed or threatened to
commit any wrong against the plaintiff and consequently the action should fail.

16. We will first consider the question whether, on the facts found by the lower appellate Court, any
of the three torts alleged viz., insult intimidation or assault, is established.

17. The case as found by the lower appellate Court may be put in a nutshell. The plaintiff was in
arrear of land revenue. The defendant in his capacity of Village Munsif was under a duty to collect it.
For that Fasli 31st March, 1956, was the last date for collection. The defendant demanded payment.
The plaintiff pleaded his inability or unwillingness on the ostensible ground that his wife had locked
the house and, gone away. The defendant insisted on immediate payment and told the plaintiff that
he had no alternative but to distrain the defendant's ear-rings if no other movables were readily
available. The plaintiff told the defendant to do what he liked. The defendant sent for the village
goldsmith and the latter arrived there. At that stage to prevent the situation from taking an ugly
turn, one of those present paid off the amount by borrowing it from another person. The defendant
gave a receipt for the amount and quietly left the place. Later the same day he remitted the amount
to the treasury. Do these facts constitute insult or intimidation 01 assault, for which an action for
damages would lie?

18. Now, the law of torts is one of the few branches of law that have not yet been codified in our
country. Therefore in the case of torts, the Indian Courts have always adopted the English common
law in so far as it is consonant to justice, equity and good conscience. They have departed from the
English law only when a particular rule appeared unsuitable to local conditions. (See Satish Chandra
Chakravarti v. Rain Dayal, ILR 48 Cal 388 : (AIR 1921 Cal 1) and Surendra Kumar v. District Board,
Nadia, AIR 1943 Cal

360).

19. We will first consider whether in the present case, the plaintiff has succeeded in making out
insult or intimidation as understood in the English law. Apropos the question whether insult
constitutes a specific tort, the following passage occurs in Salmond on Torts, Eleventh Edition at p.
423:

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"Mere insult or vulgar abuse does not amount to defamation. Defamation is a false statement or
suggestion of fact to the prejudice of a man's reputation; insult consists in words or conduct
offensive to a man's dignity. Insult in itself seems to be no cause of action by the law of England,
though particular forms of insult are actionable because accompanied by other facts which confer a
right of action. Assault, false imprisonment, and certain kinds of wilful and wanton trespasses to
property amount to insults, as being attacks upon the dignity of the plaintiff as well as upon his
person or property; and vindictive damages may accordingly he obtained for them. Insulting threats
not amounting to assault are apparently not actionable at all."

20. IT would, 'therefore, seem that insult per

se is not actionable. A3 noticed already, in the
I present case, according to the plaintiff, the alleg-
1 ed insult consisted in the defendant saying in the

presence of a number of villagers that be would have the plaintiff's ear-rings r

21. As regards intimidation as a head of tort, the following passage occurring at page

"The wrong of intimidation includes all those cases in which harm is inflicted by the use of unlawful
threats whereby the lawful liberty of other to do as they please is interfered with. This wrong is of
two distinct kinds, for the liberty of action so interfered with may be either that of the plaintiff
himself, or that of other persons with, resulting damage to the plaintiff. In other words the
defendant may either intimidate the plaintiff himself, and so compel him to act to Ms own hurt or he
may intimidate other persons, and BO compel them to act to the hurt of the plaintiff."

22. Thus, according to this learned author, It would be an actionable wrong intentionally to compel
a person, by means of a threat of an illegal act, to do some act whereby loss accrues to him; for
example, an action will doubtless lie at the suit of a trader who has been compelled to discontinue
his business by means of threats at personal violence made against him by the defendant with that
intention. The learned another goes on to say that in such a case, however, the threat complained of
must be a threat to do an act which is in itself illegal.

In the instant case, it is difficult to see how the acts alleged against the defendant can at all
constitute the wrong of intimidation as understood in the English law. It was not the plaintiff case
that by means of threats he had been compelled to do something to his own detriment or that
someone else had been forced to do harm to him. So that the essential ingredients of the wrong of
intimidation, as undertood in tbe English law, are wanting in this case.

23. The lower appellate Court has, however. held that the acts of the defendant in threatening to
distrain the plaintiff's ear-rings and hi taking steps to get them removed by a goldsmith, are
actionable wrongs because they amount to offences of intentional insult and criminal intimidation
within the meaning of the Indian Penal Code. Now, Section 504, I. P. C. deals with the offence of
intentional insult and provides:

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"Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing
it to be likely that such provocation will cause him to break the public peace, or to commit any other
offence shall be punished with imprisonment of either description a term which may extend to two
years, or with fine, or with both."

24. Section 503, I. P. C. defines criminal intimidation thus:

"Whoever threatens another with any injury to his person reputation or property, or to the person or
reputation of any one in whom that person is interested, with intent to cause alarm to that person,
or to cause that person to do any act which he is not legally bound to do, or to omit, to do any act
which that person is legally entitled to do, as the means of avoiding the execution of such threat,
commits criminal intimidation."

It will thus be seen that the gist of the offence of intentional insult as well as criminal intimidation is
the intention of the offender. In the case of an intentional insult, there must be proof ol intent to
provoke a breach of the peace or the commission of an offence, and in the case of criminal
intimidation the intent should be to cause alarm to the person intimidated or to cause a person to do
something which he is not legally bound to do, or omit to do something which he is legally entitled
to do. In the present case, the defendant was not actuated by any such intention. His sole aim and
purpose was to collect the arrear of land revenue lest he himself should be taken to task by his
superior officers. We are clearly of opinion that the lower appellate Court was in error in holding
that the defendant was guilty of insult and intimidation, actionable in law.

25. There remains the head of assault. In the English law of torts, assault is regarded as a form of
trespass to the person. In Halsbury's Laws of England, Third Edition Volume 37 at page 121, the
matter is put succinctly thus:

"The offer of force or violence to the person of another without lawful excuse is an assault and, if
force is actually applied, the assault is a battery; assault and battery are both criminal offences and
actionable torts......"

26. In Volume 10 of the same series at p. 740, the question is dealt with more elaborately thus:

"Assault. An assault is an otfer or attempt to apply force or violence to the person of another in art
angry or hostile manner; and if force is actually applied, directly or indirectly either illegally or
without the consent of the person assaulted, and in an angry, rude, revengeful, or violent manner,
the assault becomes a battery, however slight the force may be. Every battery includes an assault."

"Mere words can never amount to an assault. There must be some act indicating an intention of
assaulting, or which an ordinary person might reasonably construe as indicating such an intention,
or some act amounting to an attempt."

27. Then occurs a passage, which is particularly germane for purposes of the present case.

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"If no actual violence is used, there must, to constitute an assault, be some threatening act sufficient
to raise in the mind of the person threatened a fear of immediate violence; therefore, if an offer is
made to strike a person with the fist, at such a distance as to make it impossible for a blow to reach,
there is no assault; so, too, where a pistol is presented at a range to which the ball cannot by any
possibility carry."

28. The same ingredients are enunciated in Salmond on Torts, Eleventh Edition, at page 368, under
the head "Assault and Battery";

"The application of force to the person of another without lawful justification amounts to the wrong
of battery........"

"The act of putting another person in reasonable fear of an immediate battery by means of an act
amounting to an attempt or threat to commit a battery amounts to an actionable assault. Mere
words do not constitute an assault however, insulting or even menacing; the intent to do violence
must be expressed in threatening acts, not merely in threatening speech. Even threatening acts do
not constitute an assault unless they are of such a nature as to put the plaintiff in fear of immediate
violence."

29. To the same effect is the principle enunciated in Winfield on Tort, 6th Edition, page 252, under
the head "Assault and Battery".

"Battery is the intentional application of force to another person."

"Assault is an act of the defendant which causes to the plaintiff reasonable apprehension of the
infliction of a battery on him by the defendant."

Then at page 254, what is meant by" "act" is stated:

"The 'act' which is essential in assault involves some bodily movement in the common sense of that
term. Thus mere words are not an assault."

The learned author goes on to point out that threats of personal violence which are purely oral
unaccompanied by any menacing gesture are not an assault. Assault involves reasonable
apprehension of impact of something on one's body.

30. It may be pointed out that "battery" in the English law of tort corresponds to "criminal force" as
denned by Section 350, Indian Penal Code, and ' 'assault'' in the English law corresponds to the
definition of that term in Section 35 Indian Penal Code. Section 351, I. P. C. reads:

"Whoever makes any gesture, or any preparation intending or knowing it to be likely that such
gesture or preparation will cause any person present to apprehend that he who makes that gesture
or preparation is about to use criminal force to that person, is said to commit an assault."

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31. It is clear, therefore, that whether judged from the standpoint of the alleged wrongdoer or the
wronged, immediacy and imminence of the use of force, is the true test.

32. In this case, can it be said that the act of the defendant in sending for the goldsmith with a view
to distrain the ear-rings of the plaintiff, constituted assault? In other words, did the arrival of the
goldsmith amount to a threatening act sufficient to raise in the mind of the plaintiff a fear of
immediate violence? To put it in another form, did the defendant intend doing immediate harm to
the plaintiff through the agency of the goldsmith, and could the plaintiff have had a reasonable
apprehension of any such immediate harm? Did the act of the defendant in sending for the
goldsmith put the plaintiff in fear of instant use of force, or in the words of Section 351, I. P. C-, did
it cause the plaintiff to apprehend that the defendant was about to use criminal force to him through
the agency of the goldsmith?

This was not a case of the plaintiff himself wanting to use criminal force and if at all he intended to
commit an assault on the plaintiff, it was through the instrumentality of the goldsmith. The
goldsmith had been sent for and he had just come. After he arrived, the defendant said nothing and
did nothing. The goldsmith was not even told by the defendant why he had been sent for and what
he had to do; but the moment he arrived, 'D. W. 2 paid off the money and the matter ended there. If
force had to be used to remove the earrings from the ears of the plaintiff, the co-operation of the
goldsmith was necessary. But the goldsmith was not even told what he had to do and even if he had
been told, it is highly improbable that he would have manhandled an elderly and respectable person
like the plaintiff and forcibly removed the ear-rings from his ears in the presence of a number of
villagers. The threat of the use of force to the plaintiff was too remote a possibility to have put the
plaintiff in fear of immediate or instant violence. Therefore it cannot be said that the goldsmith was
about to use criminal force to the plaintiff nor could the plaintiff have reasonably apprehended that
the goldsmith was about to use criminal force to him. Indeed, in the entire deposition of the plaintiff
or iii that of his witness, P. W. 2, there is not a whisper that the plaintiff apprehended immediate
violence at the hands of the goldsmith.

33. The Learned appellate judge has, however, relied on Illustration (b) to Section 351 Indian Penal
Code to hold the defendant liable for assault. That illustration, as noticed already, runs thus:

"A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he may
thereby cause Z to believe that he is about to cause the dog to attack Z. A has committed an assault
upon Z."

In our opinion, the above illustration is most inapt and cannot be applied to the facts of the present
case. A village goldsmith can scarely be compared to a ferocious dog. While it is in the nature of a
ferocious dog to bite whenever it is let loose or otherwise gets a chance, village goldsmiths do not
instinctively or habitually go about stripping respectable villagers of the ornaments on their person.
It is not as if the defendant gave any directions to the goldsmith after he arrived on the scene, nor
did the goldsmith do anything to give rise to a reasonable apprehension that he was going to remove
the earrings of the plaintiff by use of force.

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On the contrary D. W. 2, who was obviously interested in the plaintiff and did not want him to be
insulted 'in public arid so borrowed the amount and paid it off, swore that as soon as the goldsmith
came, he (D. W. 2) told him that the matter was settled and the goldsmith went away. Thus there is
every indication in this case that there was no immediate or imminent threat of use of force so as to
make the act of the defendant an actionable wrong. We are therefore of the view-that the lower
appellate Court was in error in holding that the defendant had committed the tort of assault. It
follows that the defendant's con-duct does not fall under the rubric of insult, intimidation and
assault.

34. Since we are satisfied that the acts attributed to the defendant do not in law amount to any
actionable wrong, we do not think it necessary to express our opinion on the alternative contention
raised by the learned advocate for the appellant, namely, that in any event, the defendant was acting
within the bounds of his lawful authority as a Village Munsif seeking to recover an arrear of land
revenue and as such, his conduct was not wrongful and could not give rise to tortious liability.

35. In the result, the Second Appeal is allowed with costs throughout and the suit is dismissed. In
view of our decision in the main appeal the memorandum of objections is dismissed but with-out
costs.

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