IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 SA.No. 700 of 2000(G) --------------------------- AS.121/1994 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.435/1991 of PRINCIPAL SUB COURT, NORTH PARAVUR .................... APPELLANT(S):1ST RESPONDENT/PLAINTIFF ----------------------------------------------------- P.S.KALLIANAKRISHNAN, ENGINEER, SREEVILASAM, ALANGAD BY ADVS. SMT.B.KRISHNA MANI SRI. V.PREMCHAND SRI. SUBASH CHANDRA BOSE RESPONDENT(S):APPELLANTS & 2ND RESPONDENT/DEFENDANTS ----------------------------------------------------------------------------- 1. T.K.SEBASTIAN, S/O.KURIAN,THEKKADATH VEEDU, OOTHAKKUPNA, EAST MARADY, MUVATTUPUZHA. 2. K.A. ABDUL SAMAD, S/O.M.K.AHAMMED, ASST. EXECUTIVE ENGINEER, BUILDING SUB DIVISION, THIRUVANANTHAPURAM. 3. P.O.SAMSAN, ASST.EXECUTIVE ENGINEER, P.W.D.N.H. (A D B) SUB DIVISION, PALARIVATTOM. KOCHI - 25. R1 & R2 BY ADVS. SRI.KKM.SHERIF SRI.LAL K.JOSEPH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P.BHAVADASAN, J. ------------------------------------- SA No.700 of 2000-G ------------------------------------- Dated this the 2nd day of June 2011 Judgment The plaintiff, who succeeded before the trial court, but who was non-suited by the lower appellate court, is the appellant. The brief facts of the case are as follows : 2. The plaintiff, at the relevant time, was working as the Assistant Engineer in the Public Works Department and he was attached to Alangad Block under the District Rural Development Agency, Ernakulam. The first defendant was the Project Officer, authorised for monitoring the works for creating rural employment under the District Rural Development Agency. Defendants 2 and 3 are Assistant Executive Engineers working on deputation under DRDA. The short case of the plaintiff is that even though he submitted proper estimates and plan for the construction of bridges and other projects, the defendants rejected the proposals under one pretext or the other with SA 700/00 2 ulterior motives. When he enquired about the same, the plaintiff came to know that he was characterised as an inefficient incompetent person, who had no knowledge about the relevant rules and norms. This, according to the plaintiff, constitutes defamation and therefore, the suit was laid. 3. The defendants resisted the suit. The first defendant filed a written statement, stating that the suit is defective for want of notice under Section 80 CPC. He also pointed out that he only acted in his official capacity and he has not done any act so as to cause any injury to the plaintiff. The plans and schemes produced by the plaintiff were not sanctioned due to the fact that they were not in accordance with the prescribed norms and rules. 4. The second defendant also filed a written statement almost on similar lines. The written statement filed by the third defendant clarified the position and pointed out the reason for rejection of the schemes and plans submitted by the plaintiff. He also explained as to SA 700/00 3 how the plans and schemes submitted by others were happened to be sanctioned. 5. On the basis of the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 5 and Exts.A1 to A12 from the side of the plaintiff. The defendants had Dws 1 and 2 examined and Exts.B1 to B3 marked. Exts.X1 to X5(a) are third party exhibits. 6. The trial court, on an evaluation of the evidence, found in favour of the plaintiff and decreed the suit directing defendants 1 and 2 to pay a sum of Rs.15,000/- as costs. Defendants 1 and 2 carried the matter in appeal as AS No.121/94. The lower appellate court, on an independent consideration of the evidence, found the suit to be defective at its very inception and also found that there were no merits in the complaint voiced by the plaintiff. Accordingly, the judgment and decree of the trial court was reversed and the suit was dismissed. Hence the second appeal. SA 700/00 4 7. Notice is seen issued on the following questions of law raised in the second appeal : 1.When the defendants have been arrayed in the suit in their individual capacity, is the suit hit by Order 27 Rule 5A of the CPC ? 2.Is the suit bad for Section 80 notice in view of Ext.A8 notice ? 3.When the evidence on record amply proves that the defendants had injured the reputation of plaintiff, were the lower appellate court was justified in reversing the finding of the trial court ? 8. The learned counsel for the appellant pointed out that the lower appellate court was not justified in interfering with the judgment and decree of the trial court, which was based on evidence on record. The lower appellate court was not justified in holding that there was no proper notice in view of the documents produced by the plaintiff. The lower appellate court was equally at fault in holding that the entire burden was on the plaintiff and he SA 700/00 5 had failed to show that the words alleged constituted defamation. Accordingly, it was contended that the judgment and decree of the lower appellate court is really unsustainable both on facts and in law. 9. Though the arguments may look very attractive at the first blush, on a closer scrutiny, it can be seen that they are without any substance whatsoever. The lower appellate court has found that the notice issued was defective and Ext.A8 is addressed to the District Collector, calling upon him to realise a sum of Rs.25,000/- from the appellants and the second defendant. Even though copy of the notice is sent to the defendants also, it does not satisfy the requirement of Section 80 as far as they are concerned. In such cases, if the plaintiff seeks to proceed against the defendants in their official capacity, going by Order 27 Rule 5A CPC, it is mandatory that the Government should be made a party to the suit. Admittedly, in the case on hand, the State is not a party. A reading of the plaint leaves one in no doubt that defendants 1 to 3 SA 700/00 6 were acting in their official capacity. The suit is defective in that sense also. It is seen that the trial court was convinced by the case put forward by the plaintiff and found in favour of the plaintiff. The lower appellate court has re-evaluated the evidence on record and found that the evidence furnished by PWs 2 and 3 are not reliable for cogent and convincing reasons. 10. The view of the trial court that the burden was on the defendants to show that they had rejected the schemes submitted by the defendants lawfully, as rightly found by the lower appellate court, is unfounded. The burden is on the plaintiff to show that the plans and schemes were rejected for untenable grounds and with ulterior motives. Apart from the above facts, the burden was on the plaintiff to show that the words said to have been uttered by defendants 1 and 2 were of such nature so as to defame him. There is absolutely no evidence in this regard. The lower appellate has also given reasons as to why PWs 2 and 3 cannot be believed in this regard. The SA 700/00 7 stand of the defendants is that the plans and estimates submitted by the plaintiff were not in accordance with the prescribed norms and rules. Even assuming that the defendants characterised the plaintiff and inefficient and incompetent, how far those words can be treated as defamatory is open to serious doubts. One has to notice that the plaintiff could have approached the superior officers for redressal of his grievances. 11. The lower appellate court has given very convincing reasons as to why it had to interfere with the trial court decree, apart from the legal aspects of facts also. The lower appellate court was justified in holding against the plaintiff. The result is that this appeal is without any merits and it is accordingly dismissed. However, there will be no order as to costs. P.Bhavadasan, Judge sta SA 700/00 8 SA 700/00 9