IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 AS.No. 2 of 1995(C) ------------------- OS.56/1989 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANT/PLAINTIFF(S): -------------- K.V.MOHAMMED ASHRAF, AGED 22 YEARS, S/O K.V.ALAVIKUTTY HAJI, PROP: M/S. K.V.TRANSPORT, ANDIYOORKUNNU POST, PULIKKAL, MALAPPURAM DISTRICT. BY ADV. SRI.T.G.RAJENDRAN SRI.KMS.MENON RESPONDENT(S)/DEFENDANTS: --------------- 1. P.SAHADEVAN S/O VICHUKUTTAN, PANAKKAL VEEDU, KASABA AMSOM DESOM, KOZHIKODE TALUK. 2. C.MUHAMMED ASHRAF S/O ALIKOYA, NAVAS MANZIL, POST KALLAI, CALICUT-3. 3. KANHIRAKANDAN MOHAMMADALI, S/O MOIDEEN, PANDIKAT POST, MANJERI. 4. P.C.CHANDRAN S/O KUNHAN, PALLIKKAL BAZAR. 5. KONNAKODAN USMAN S/O KUNJI MOIDEEN, IKKARAPADI PO., MALAPPURAM. 6. KANAPPA KUNHUMOHAMMED S/O UNNIMOHAMMED, IKKARAPPADI, PULIKKAL, MALAPPURAM. 7. SIVANANDAN, S/O PULAPARAMBIL GOPALAN, PULPARAMBIL HOUSE, CHERUKULATHUR POST, MEDICAL COLLEGE, KOZHIKODE. 8. P.MOIDEEN S/O PERUVAN KUZHIYIL SAIDALAVI, PANDIKKAD, MANJERI. ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAY FOR R1, R4 TO R7 0 SRI.TITUS MANI SRI.SAJI.T.H. FOR 0 SRI.M.P.PRAKASH FOR R3 & R8 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 26-6-2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- AS. No. 2 OF 1995 ----------------------------------------------- Dated this the 26th day of June, 2008 J U D G M E N T The unsuccessful plaintiff in a suit for recovery of money by way of damages is the appellant. Plaintiff's case in brief was that he is the registered owner and permit holder of stage carriage bus KLM 324 plying on the route Edavannapara – Kozhikode. The defendants are some of the employees of the plaintiff's father Sri.K.V.Alavikutty who is also a bus operator under the name and style K.V.Brothers. On 27-8- 88 as usual the bus KLM 324 belonging to the plaintiff was entrusted to the plaintiff's driver Beerankoya and conductor Saidalavi for operation. Defendants unlawfully and unauthorisedly with the intention of causing loss to the plaintiff stole the said bus from the possession of the above driver and conductor and brought it to near the Mofussil Bus Stand, Calicut. Knowing that the plaintiff filed petition under section 94 of the Criminal Procedure Code before the Chief Judicial Magistrate Court, Calicut for searching of the vehicle. As per the order in that petition issued by the Chief Judicial Magistrate the Kasaba Police recovered the vehicle from the possession of the defendants. The vehicle was thereafter entrusted with the plaintiff as per the direction of the Court. Defendants have no right to take unlawful possession of the vehicle. AS. N0. 2/95 -2- The vehicle if operated in the said route would have fetched Rs.500/- per day after meeting all the expenses. The bus was recovered on 4- 9-1988 and the plaintiff made an attempt to operate the vehicle in the respective route. This was obstructed by the defendants. So the plaintiff along with his father filed O.P. No. 7139 of 1988 before the High Court for police protection. Plaintiff could resume service only after the High Court's order was obtained. Under the above circumstances plaintiff caused a lawyer notice to the defendants claiming damages since there was no favourable response to the lawyer notice the suit has been instituted claiming recovery of Rs.37,000/- byway of damages due to non-operation of the bus KLM 324. 2. The defendants filed written statement contending that the bus owned by the plaintiff and the bus owned by his father Alavikutty are all managed by the plaintiff and his father jointly under the name and style K.V.Brothers. At the alleged time of stealing of the bus there were industrial disputes pending between his father and the defendants and also between the plaintiff and the trade union in which the defendants are members. Plaintiff denied employment to one A.Soman, who is the driver of bus KLM 324 by making false allegations AS. N0. 2/95 -3- against him. The defendants and Soman are members of the same trade union. On 27-8-1988 the defendants did nothing to bus No.KLM 324. The bus was lying idle at the Mofussil Bus Stand, Calicut following the strike of workers. The petition before the C.J.M. Court was filed without any bona fides. Driver Beerankoya and conductor Saidalavi mentioned in the plaint are people who are in inimical terms with the members of the trade union to which the defendants belong on political as well as personal grounds. The plaintiff deliberately kept away from five conciliation meetings convened by the labour authorities was only trying to create evidence for the industrial disputes against the union by filing petition before the C.J.M. Court. Bus KLM 324 was never recovered from the defendants as alleged in the plaint. Defendants have not taken possession of bus KLM 324 from the custody of the plaintiff. The allegations of obstruction caused by the defendants to the operation of the service after 4-9-1988 is denied. The writ petition was disposed of 30-1-1989 by the High Court with the direction to the authorities that police protection is to be given to the petitioner only if they are employing their regular employees whose names are shown in the pay rolls as pm 27-8-1988. Denial of employment to regular employees was the grievance of the defendants AS. N0. 2/95 -4- and their union against the plaintiff and his father. The suit is only to be dismissed with costs. 3. On the above pleadings the learned Sub Judge formulated the following three issues. 1. Whether the bus KLM324 was stolen by these defendants on 27-8-88 and whether the operation of the bus in the route was stopped from 4-9-88 onwards due to the obstruction caused by the defendants as alleged in the plaint? 2. Whether the defendants are liable to pay an amount of Rs.37,000/- by way of damages for non-operation of the bus to the plaintiff as prayed for? 3. What is the proper order as to costs? Thereafter additional issue as to whether the suit is maintainable was also raised. At trial the evidence consisted of oral evidence of PW-1, PW-2 and Exts. A1 to A9 on the side of the plaintiff. On the side of the defendants it consisted of oral evidence of DW-1 alone. Appreciating the evidence the learned Sub Judge found under issued No.1 that the bus KLM 324 was not stolen by the defendants on 27-8- 88 and the operation of the bus in the route was not stopped from 4- 9-1988 due to the obstruction caused by the defendants as alleged in the plaint. Issue No.2 regarding the liability of the defendants to pay damages was not answered in view of the findings on issue No.1. AS. N0. 2/95 -5- Additional issue No.4 was considered in the context of section 18(1) of the Trade Union Act and it was found that the suit is not maintainable in view of that provision. 4. Sri.T.G.Rajendran, learned counsel for the appellant and Sri.Titus Mani, learned counsel for the respondents addressed me. It was very extensive submissions which were addressed by Sri.T.G.Rajendran who draw my attention to Exts.A1 certified copy of the petition filed before the C.J.M. Court, Ext.A2 seizure mahazar in respect of the bus, report submitted by the A.S.I. before the C.J.M. Court, Ext.A3 order of the Division Bench in the police protection case and also to oral evidence addressed before the court below by Pws.1 and 2 and DW-1. It cannot be said that the submissions of Mr.Rajendran assailing the correctness of the finding entered by the court below on issue Nos.1 and 2 were without any appeal. But at the same time I am of the view that it is a correct finding which was entered by the learned Subordinate Judge on additional issue No.4. Section 18(1) of the Trade Unions Act 1926 which is quoted by the learned Subordinate Judge in the judgment itself is a complete bar for suits and other legal proceedings in any civil court against any registered trade union or any office bearer or member of the trade AS. N0. 2/95 -6- union in respect of any act done in contemplation or furtherance of a trade dispute to which a member of the trade union is a party on the ground only that such act induces some other person to break a contract of employment or that t is in interference with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or of his labour as he wills. It is the definite case of the defendant that they are members of a registered trade union. The evidence will reveal that the alleged strike arose due to the denial of employment to a regular employee and member of the said trade union by name Soman. PW-2 himself submitted that after purchase of the bus the plaintiff has denied employment to some of the old employees and appointed new ones. Of course the argument of the plaintiff was that denial of employment and labour problem was regarding the bus operated by father of the plaintiff under the name and style K.V.Brothers and that the plaintiff is operating his business under the name and style K.V.Transport and that in the plaintiff's bus there was no labour problem and that defendants obstructed plying of bus by the plaintiff so that the labour dispute between plaintiff's father and his employees will come to an end. It is in evidence that the plaintiff has gone over to the labour AS. N0. 2/95 -7- officer at least five times. The disputes certainly involves a registered trade union and its members. I do not find any reason for varying the learned Subordinate Judge's finding that the suit is not maintainable. The finding of the court below on additional issue No.4 is confirmed. The appeal is dismissed on that reason without examining the merits of the findings entered by the court below on the other issues, since the same is unnecessary. Appeal is dismissed, but in the circumstances without any order as to costs. (PIUS C.KURIAKOSE, JUDGE) ksv/- AS. N0. 2/95 -8- PIUS C.KURIAKOSE, J. AS. No. 2 of 1995 J U D G M E N T 26th June, 2008.