Independent suit for damages remains maintainable despite Section 95 CPC, and wrongful occupation can support relief without separate malice pleading.

Section 95 of the Code of Civil Procedure, 1908 provides only a summary and optional remedy for compensation after a temporary injunction is wrongly obtained, and it does not bar an independent civil suit for damages. On the facts, the defendants had no independent right in the godown, the injunction was obtained after possession had been delivered, and the plaintiffs were prevented from using the premises; the Court treated the absence of a separate pleading of malice as non-prejudicial in context and sustained damages for wrongful use and occupation.

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Issues: (i) whether a regular suit for damages was maintainable apart from the summary remedy under Section 95 of the Code of Civil Procedure, 1908 for an injunction obtained on insufficient grounds; (ii) whether, on the facts, the plaintiffs were required to plead and prove malice before recovering damages for wrongful use and occupation of the godown.

Issue (i): Whether a regular suit for damages was maintainable apart from the summary remedy under Section 95 of the Code of Civil Procedure, 1908 for an injunction obtained on insufficient grounds.

Analysis: Section 95 provides only a summary and optional remedy for compensation where a temporary injunction is obtained without reasonable or probable cause. It does not exclude a regular civil action for damages. Election of the summary remedy may bar a later suit after disposal of that application, but omission to invoke Section 95 does not bar an independent suit for compensation where the facts otherwise support such a claim.

Conclusion: A regular suit for damages was maintainable and was not barred by Section 95 of the Code of Civil Procedure, 1908.

Issue (ii): Whether, on the facts, the plaintiffs were required to plead and prove malice before recovering damages for wrongful use and occupation of the godown.

Analysis: A distinction must be drawn between trespass and malicious legal process. Where the act complained of is done under judicial sanction improperly obtained, malice is relevant in an action for malicious legal process. On the facts, the defendants had no independent right in the premises, the injunction was obtained immediately after delivery of possession, and the plaintiffs were prevented from using the godown. The Court held that the circumstances showed want of reasonable and probable cause and that the absence of a separate pleading of malice caused no prejudice in the context of the trial.

Conclusion: Malice was not a bar to relief on the facts, and the plaintiffs were entitled to damages for wrongful use and occupation.

Final Conclusion: The appeals failed, and the decree awarding damages in favour of the plaintiffs was sustained.

Ratio Decidendi: Section 95 of the Code of Civil Procedure, 1908 furnishes only a summary optional remedy and does not oust an independent suit for damages where wrongful occupation or abuse of judicial process is established on the evidence.

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