IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 SA.No. 411 of 1999(G) -------------------- AS.181/1996 OF SUB COURT, NEDUMANGAD OS.466/1988 OF ADDL.MUNSIFF COURT, NEDUMANGAD ................... APPELLANT : DEFENDANT -------------------------------------- G. MANOHARAN, AGED 53, MANI BHAVAN, CHANDRAMANGALAM, VETTAMPALLY MURI, ANAD VILLAGE. BY ADVS. SRI.K.SUDHAKARAN, SENIOR ADVOCATE SRI.S.PRAKASAM RESPONDENT : PLAINTIFF -------------------------------------- S. NATARAJANACHARI, S/O. SUBBAYYAN ACHARI, AGED ABOUT 47, BEENA BHAVAN, CHANTHAVILA, VADAKKUMKARA MURI, KARIPOOR VILLAGE, NEDUMANGAD TALUK. BY ADV. SRI.R.S.KALKURA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- SA.No. 411 of 1999(G) -2- ORDER ON C.M.P. NO. 330/2000 IN SA. NO. 411/1999 DISMISSED 12/11/2010 SD/- HARUN-UL-RASHID, JUDGE //TRUE COPY// P.S. TO JUDGE Mn HARUN-UL-RASHID, J. ------------------------ S.A.No.411 Of 1999 ---------------------- Dated this the 12th day of November, 2010. J U D G M E N T The following substantial questions of law are formulated at the time of admission. i) When it is admitted that the State had occupied the area and demarcated by stones the area to be used by the contractor, will the contractor be liable for any damage for any demolition within the said area. ii) When the Government enters into an area and encloses that area by demarcating the boundary and makes it available to the Government contractor for widening the road, will the contractor be liable to any one other than the Government for demolition of anything within the boundary. iii) Is the suit maintainable without the State which is in occupation of the land and had surrendered it to the contractor being made a party. iv) When the cause of action is trespass, is there any liability without proving trespass. 2. The defendant in O.S.No.466 of 1988 on the file of the II Additional Munsiff Court, Nedumangad is the appellant. The appeal is directed against the decree and judgment in A.S.No.181 S.A.No.411 Of 1999 ::2:: of 1996 on the file of the Sub Court, Nedumangad. Suit was originally filed for injunction simplicitor and subsequently, a prayer for damages was also inserted by amendment. The trial court granted a decree in favour of the plaintiff to realise Rs.8,435/- from the defendant towards damages. The decree and judgment passed by the trial court was confirmed in A.S.No.181 of 1996. Parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit. 3. The appellant/defendant is a Government contractor engaged by the Public Works Department, Government of Kerala for construction of the road in question. It is the plaintiff's case that he surrendered 2 cents of land for widening the Nedumangad-Pulippara Anad Road and after surrendering the said extent he had constructed a granite boundary wall with the permission of the Municipality spending more than Rs.10,000/- on the western side of the plaint schedule property. It is the plaintiff's case that the defendant demanded to surrender a portion of the plaint schedule property for the purpose of widening the road. Plaintiff was not willing to surrender any portion of his land. Suit for injunction was filed apprehending S.A.No.411 Of 1999 ::3:: that the defendant and his men may at any time commit trespass into the plaint schedule property and demolish the granite wall. The plaint was amended alleging that the defendant demolished the western granite wall on the western side and widened the road and thereby caused a loss of Rs.12,000/- to the plaintiff. 4. The defendant denied the plaint allegations and contended that he had done the work as directed by the PWD within the peg marked area. In the written statement it is stated that a portion, where the granite wall was constructed, has already been acquired by the Municipality for constructing the road. It is also stated that the plaintiff has obstructed the work and therefore the work has been continued excluding the portion claimed by the plaintiff. It is also contended that due to the obstruction caused by the plaintiff no construction had been effected in front of the plaintiff's property. He categorically denied the allegation that he had demolished the granite wall on the western side of the plaint schedule property. It is further contended that the suit is bad for non joinder of necessary parties. It is pleaded that the defendant is only a contractor who was doing work for widening the Nedumangad-Pulippara Anad S.A.No.411 Of 1999 ::4:: Road and that the defendant had done the work only under the directions of the Assistant Executive Engineer, PWD. Thus it is contended that the defendant is only an agent of PWD, therefore the PWD is also a necessary party to the suit. Both courts held that PWD is not a necessary party and therefore held that the suit is not bad for non joinder of necessary party. 5. During the course of hearing, I have perused the oral evidence tendered by PWD Engineer as DW1. DW1 testified before the court that the contractor had done the work only in the area earmarked for the work. According to him the contractor had only done the work in the peg marked area. It is stated by him that the maintenance work and widening work were done by the contractor only in the area surrendered by the people on either side. He also testified before the court that the contractor has done the work in accordance with the directions of the PWD and that the PWD has direct control over the work entrusted to the contractor. In the light of the testimony of DW1, the contentions raised by the respective parties can be adjudicated effectively only in the presence of the Public Works Department. The reasons stated by the courts below stating that S.A.No.411 Of 1999 ::5:: the PWD is not a necessary party and therefore the suit is not bad for non joinder of necessary party have to be vacated in the facts and circumstances of the case. The defendant contractor admittedly had done the work in terms of the agreement executed by him in favour of the department. The officer of the department as DW1 testified that the contractor has done the work in the area peg marked by the department. So the question relevant for consideration also is what is that exact area peg marked for the work to be carried out, is it includes the disputed portion of the property belonging to the plaintiff etc. It is also important to enquire as to whether the plaintiff had surrendered any portion of the property for the purpose of widening the road. All these questions can be answered only in the presence of the department. Therefore, I am of the view that the Department also shall be a party to the suit. In view of the above said stand taken, this Court is not going into the merits of the contentions of the parties regarding the entitlement of the plaintiff to realise the amount granted by the decree. The plaintiff shall implead the Superintending Engineer and the Assistant Engineer concerned of the PWD, Bridges and Roads Division, Thiruvananthapuram as S.A.No.411 Of 1999 ::6:: additional defendants 2 & 3 in the suit. The application shall be made within a period of two weeks from the date of appearance of the parties before the court below so that the court can expedite the trial of the suit. In the result, the appeal is allowed. The judgment and decree passed by the courts below are set aside. The case is remanded for fresh consideration after affording an opportunity to the persons sought to be impleaded as additional defendants. Parties shall appear before the court below on 29.11.2010. The court below shall try and dispose of the case, as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment. There will be no order as to costs. HARUN-UL-RASHID, Judge. bkn/-