IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 AS.No. 255 of 1995(D) --------------------- OS.10/1992 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANTS/DEFENDANTS 1 TO 3: ------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ALAPPUZHA. 2. THE DEPUTY DIRECTOR OF FISHERIES, KOLLAM. 3. THE DEPUTY DIRECTOR OF FISHERIES, ALAPPUZHA. GOVERNMENT PLEADER. RESPONDENT/PLAINTIFF & 4TH DEFENDANT --------------- 1. L.ALPHONSE, S/O.LAZAR, 16/72, PORT STREET, KOLACHAL P.O, KANIYAKUMARI DISTRICT, TAMIL NADU 2. P.A.UNNIKRISHNAN, PROPOGANA, ASSISTANT, DIRECTOR OF FISHERIES, THIRUVANANTHAPURAM. ADV. M.C.SEN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 24/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.M.P.Nos.490/1995 & 3707/1995 DISMISSED. SD/- THOTTATHIL B. RADHAKRISHNAN, JUDGE 24.6.2011 SD/- P.S.GOPINATHAN, JUDGE //TRUE COPY// PA TO JUDGE THOTTATHIL B. RADHAKRISHNAN & P.S.GOPINATHAN, JJ. -------------------------------------- C.M.P.No.3707 OF 1995 & A.S.No.255 OF 1995 -------------------------------------- Dated this the 24th day of June, 2011 J U D G M E N T ~~~~~~~~~~~ Thottathil B. Radhakrishnan, J. C.M.P.No.3707 OF 1995: This application is by the 4th defendant in a suit decreed against him and defendants 1 to 3, including the State of Kerala. Those defendants have filed this appeal. There is no appeal by the 4th defendant. 2. The court below found that the 4th defendant, who is the petitioner herein, was personally liable to satisfy the decree, however that, the other defendants are also liable and the decree holder could levy execution against the State only in the event of the decree becoming not executable, practically, as against the 4th defendant. 3. If the 4th defendant had intended to institute an appeal and was aggrieved by the impugned decree, he ought to A.S.No.255/1995 2 have filed an appeal. Not having done so, he has applied for being transposed as an additional appellant in an appeal filed by the State of Kerala and the other two official defendants. That appeal stands without any payment of court fee by way of the exemption under Act 1 of 1960. If we are to allow the transposition of the 4th defendant against whom there is a personal decree, he ought to pay court fee on the entire amount in dispute in the appeal. 4. Yet, we are inclined to think that it is a case where, if the 4th defendant were aggrieved, he ought to have instituted a separate appeal and could not have joined the appeal of the other three because, the 4th defendant had grounds of appeal independent and even as against the other defendants, as regards the liability as it exists in terms of the impugned decree. 5. We, therefore, find no ground to order transposition of the 4th respondent in this appeal as an additional appellant. C.M.P.No.3707/1995 is therefore dismissed, without prejudice to the applicant enjoying the benefit, if any, of the decree that may be passed in the appeal. A.S.No.255/1995 3 A.S.No.255/1995: 6. This appeal is by the State of Kerala and two of its officers, who were defendants 1 to 3 in the suit. The 4th defendant is the 2nd respondent in the appeal. 7. The 1st respondent sued on the ground that the 4th defendant, in purported exercise of power under the Kerala Marine Fisheries Regulation Act, seized and impounded a mechanised boat belonging to the plaintiff on 5.1.1985 and tugged it off to a place Kangiramchira, such transmission being against the provisions of the aforesaid Act; and on 7.1.1985 the said boat was allegedly lost to the waggeries of nature in having been swept ashore and damaged irretrievably. 8. Whatever be the merits of the contentions on the basis of the evidence on record, we find formidable support to the appeal by the learned counsel for the Government arguing for the position that the suit was barred by limitation, for reasons which we record hereunder. A.S.No.255/1995 4 9. The relevant factors which would be relevant for the issue of limitation can be noted as follows: a) The boat is allegedly seized by the 4th defendant on 5.1.1985 and moored in Kangiramchira. The alleged incident in which the boat was lost is on 7.1.1985. b) The suit is filed only on 9.1.1992. c) The period of limitation, according to the learned Government Pleader, would be governed by Article 72 of the Schedule to the Limitation Act, which applies to suits for compensation for doing or omitting to do an act alleged to be in pursuance of any enactment in force for the time being in the territories to which the Limitation Act extends. The period so prescribed is one year from the date on which the act or omission takes place. We may, even think that it could be a suit for compensation for wrongfully taking or injuring or wrongfully detaining any specific movable property not falling within clause (a) of Article 91 and therefore falling under clause (b) of that Article. If that were so, the period of limitation would be three years and the time would run from when the property is wrongfully taken or injury committed, or when the detainer's possession becomes unlawful. Even if we adopt 91(b) as the A.S.No.255/1995 5 Article that would apply, the period of limitation would start running, in the case in hand, at least from 8.1.1985, which means that the suit ought to have been filed before 9.1.1988. 10. The explanation given by the plaintiff is that immediately after the incident, he had filed a Writ Petition before this Court seeking intervention and award of compensation and that Writ Petition was ordered as per Ext.A11 on 24.11.1989, directing, among other things, that if the plaintiff institutes the suit, the competent civil court will consider giving him the benefit of Section 14 of the Limitation Act. 11. We have already noted that the time prescribed by the Limitation Act even in terms of Article 91(b) would run out by 9.1.1988. The Writ Petition was instituted in 1985 itself. It was decided on 24.11.1989 as per Ext.A11, that is, after the period for filing the suit had expired. If that were so, the exclusion of the period of the pendency of the Writ Petition would result only in the exclusion of the period till 24.11.1989. This means that, the suit ought to have been filed, at any rate on 25.11.1989, unless that was a public holiday, in which event, it ought to have A.S.No.255/1995 6 been filed on the next day. However, the suit is filed only on 9.1.1992. Obviously, the suit is barred by limitation. 12. Under Section 3 of the Limitation Act, the court is obliged to consider the part of limitation, though limitation has not been set up as a defence, we note this only in the context of the fact that the trial court had noted that the ground of limitation was not specifically pleaded in the written statement, but it was raised only at hearing by the learned Additional Government Pleader, on the basis of which the court below framed additional issue No.4. That issue ought to have been answered in favour of the defendants. In the result, the appeal succeeds. The impugned decree is set aside and the suit is dismissed. The parties will suffer their respective costs. (THOTTATHIL B. RADHAKRISHNAN, JUDGE) (P.S.GOPINATHAN, JUDGE) ps/25/6