IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 SA.No. 709 of 1994(A) --------------------- AS.139/1992 of DISTRICT COURT, THRISSUR OS.23/1989 of MUNSIFF COURT, KODUNGALLUR .................... APPELLANT(S)/RESPONDENTS 1 TO 3/PLAINTIFFS 1 TO 3: ------------------------------------------------------------------------------- 1. RAMAN, S/O. KOVIL THEKKEVALAPPIL CHATHU, CHAMAKKALA DESOM, EDATHIRUTHI VILLAGE, KODUNGALLUR TALUK. (DIED) 2. GOPALAKRISHNAN, S/O. KOCHIKKATT APPU, -DO- -DO- 3. KOMALA, W/O. KOCHIKKATT SUBRAMANIAN, -DO- -DO- BY ADV. SRI.P.R. VENKATESH RESPONDENT(S)/APPELLANTS 1 & 2 & 4TH RESPONDENT/ DEFENDANTS 1, 2 & 5: ---------------------------------------------------------------------------------- 1. DEPUTY DIRECTOR OF FISHERIES, THRISSUR. 2. DEPUTY TAHSILDAR (R.R.), KODUNGALLUR. 3. SUBRAMANIAN, S/O. KOCHIKKATT APPU, CHAMAKKALA DESOM, EDATHIRUTHY VILLAGE, KODUNGALLUR TALUK. ADDL. R4 TO R9 IMPLEADED. 4. AMMINI, W/O. RAMAN, KOVILTHEKKEVALAPPIL, CHAMAKKALA P.O., KODUNGALLUR. 5. LAXMANAN, S/O. RAMAN, -DO- -DO- 6. BALAN, S/O. RAMAN, -DO- -DO- 7. REGHU, -DO- -DO- 8. GOPI, -DO- -DO- -DO- -DO- 9. BABU RAJ, -DO- -DO- -DO- -DO- ADDL.R4 TO R9 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 1ST APPELLANT AS PER THE ORDER DATED 1.4.2005 AND 25.9.2006 IN I.A. NO. 2384/2004. GOVERNMENT PLEADER SRI. RAVIKRISHNAN P.K. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 709 of 1994 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of August, 2011. JUDGMENT The plaintiffs, who were non-suited by the lower appellate court are the appellants before this court. 2. According to the plaintiffs, under the orders of the first defendant, the second defendant had given a fishing boat to the first plaintiff. Even when it was received, it was in a damaged condition and they could not carry on fishing operations using the fishing boat. Finally, the boat was auctioned for a sum of Rs.30,500/-. Some how, it is alleged that the third defendant had issued notice under the Revenue Recovery Act for recovery of a sum of Rs.28,690.71 with interest and penal interest. An appeal preferred against the proceedings ended in dismissal of the same. Thereafter, the defendants took further revenue recovery S.A.709/21994. 2 proceedings. It is pointed out that during the period when the boat was kept under repair, the plaintiffs and the fifth defendant are not liable to pay any amount to the department. They also say that they were never in a position to use the boat and they are not liable to pay the amount. On the basis of the above allegations, they laid the suit. 3. Defendants 1 to 4 resisted the suit. They pointed out that the boat was entrusted to the plaintiffs and fifth defendant as per the orders of defendants 1 and 2. On 27.7.1980 a back engine was also given to the plaintiffs and fifth defendant for a sum of Rs.21,077.96. While receiving the boat and engine, they executed an agreement in favour of the department. The claim of the plaintiffs and the fifth defendant that they were not able to use the boat is false and contrary to facts. Since they wilfully defaulted payment of the amount, the boat was seized and sold in auction for a sum of Rs.30,500/-. Amounts are still due from the plaintiffs and the fifth defendant. No suit lies against the revenue S.A.709/21994. 3 recovery proceedings as there is a prohibition under the Act. On the basis of these contentions, they prayed for a dismissal of the suit. 4. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A24 from the side of the plaintiffs. Defendants had Exts. B1 to B7 marked. The trial court, on a consideration of the evidence in the case, found in favour of the plaintiffs and granted a decree. 5. The first defendant carried the matter in appeal as A.S.139 of 1992. The appellate court found that the suit is barred under Section 72 of the Revenue Recovery Act and that there was no evidence to show that the boat was under repair. The appellate court found itself unable to agree with the findings of the trial court and accordingly reversed the judgment and dismissed the suit. 6. Notice is seen issued on the following questions of law: S.A.709/21994. 4 “(1) When specific allegations of fraud are made in the plaint regarding giving of a boat which is unworthy of user and is not capable of being used for fishing, will Section 72 of the Revenue Recovery Act bar the suit? (2) Do not the allegations in paragraph 4, sub paragraphs therein make out a case of fraud as far as the Revenue Recovery proceedings are concerned? (3) Is not the suit saved under Section 81 of the Kerala Revenue Recovery Act? (4) Was not the first appellate court bound to consider the pleadings and evidence in the case and evaluate them independently before reversing the findings of the trial court? (5) When defendant has admitted that the demand notice is not for amounts really due but is for excess amount and that credit has not been given for all amounts realise, can the demand notice be sustained? (6) When excessive and unfounded demand is made, may not the plaintiffs ask for declaration of its invalidity and for injunction restraining implementation thereof? S.A.709/21994. 5 (7) When there is no case in the first appeal memorandum of regarding the bar under Section 72, was the court justified in considering the applicability of Section 72 of the Revenue Recovery Act?” 7. Learned counsel appearing for the appellants pointed out that the lower appellate court was not justified in dismissing the suit reversing the finding of the trial court. The trial court has given cogent and convincing reasons for granting a decree in favour of the plaintiffs. The reasons given by the lower appellate court cannot get support in law and facts. 8. Learned Government Pleader appearing for the respondents pointed out that the lower appellate court has considered the law on the point and facts and circumstances of the case and found that the plaintiffs are not entitled to any relief. 9. After going through the records and hearing counsel on both sides, it is felt that the learned Government Pleader is justified in his submission that no grounds are S.A.709/21994. 6 made out to interfere with the judgment and decree of the lower appellate court. As rightly noticed by the lower appellate court, there is no allegation of fraud and therefore the suit is clearly barred under Section 72 of the Revenue Recovery Act. The lower appellate court has also noticed that there was absolutely no attempt from the side of the plaintiffs to show that the boat was under repair and they are not liable to pay the amounts during the period. The lower appellate court has also noticed that if the boat was under repair for a brief period, that exonerates the liability of the plaintiffs from paying the amount due for that period only and not for the entire amount. The lower appellate court had also noticed that 30% of the total wages payable to the department have also not been paid by the plaintiffs. It was held that the revenue recovery proceedings was rightly initiated. 10. The finding of the lower appellate court is based on the evidence in the case and no grounds are made out to interfere with the judgment and decree. S.A.709/21994. 7 11. At this point of time, learned counsel pointed out that the plaintiffs have preferred a petition before the department seeking relief under the relevant Act and Rules and that has not been disposed of so far. It is therefore prayed that until that petition is disposed of, revenue recovery proceedings may not be continued. 12. It has already been found that there is no merit in this appeal and it is only to be dismissed. I do so. However. it is directed that until the petition said to have been filed by the plaintiffs before the Fishermen Debt Relief Commission is disposed of, revenue recovery proceedings initiated shall not be continued till then. With this direction, the appeal is dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.