IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 SA.No. 938 of 1998(C) -------------------------- AS.66/1995 of D.C.& SESSIONS COURT,THODUPUZHA OS.269/1992 of MUNI-MAGI.COURT,THODUPUZHA .................... APPELLANT(S):RESPONDENTS IN A.S./DEFENDANTS IN O.S. ----------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE CHIEF CONSERVATOR OF FORESTS, VAZHUTHAKKAD, THIRUVANANTHAPURAM. 3. THE DIVISIONAL FOEST OFFICER, KOTHAMANGALAM. 4. DEPUTY TAHSILDAR (R.R.), TALUK OFFICE, KOTHAMANGALAM. BY GOVT. PLEADER SRI.M.P.PRAKASH, FORESTS RESPONDENT(S): APPELLANT IN A.S./PLAINTIFF IN O.S. ------------------------------------------------------------------- ANTO, S/O. ANTONY, AGED 35 YEARS, KOTTAM HOUSE, ELAMGAVAMKARA, VARAPPETTY VILLAGE, KOTHAMANGALAM TALUK. ADVS. SMT.O.V.BINDU SRI.O.V.MANIPRASAD THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ P.BHAVADASAN, J. ------------------------------------- SA No.938 of 1998 ------------------------------------- Dated this the 5th day of January 2011 Judgment The defendants, who suffered a decree at the hands of the lower Appellate Court, are the appellants. The facts and parties are hereinafter referred to, as they are available before the trial court. 2. The suit was one for injunction. According to the defendants, the plaintiff had participated in an auction of firewood trees and they would say that he was the highest bidder. On his failure to remove the firewood within the time stipulated, they had to re-auction the work and in that process, they had to suffer considerable loss. They sought to recover an amount of Rs.97,575.80 from the plaintiff. 3. According to the plaintiff, he was not the highest bidder in the auction concerned and he had nothing to do with the transport of the firewood as alleged SA 938/1998 2 by the defendants. He would say that for the misdeeds committed by some forest officials, fraud has been played and he is sought to be made liable for thE SAME. Pointing out that he had no obligation to remove the firewood and also pointing out that he was not liable for any loss, if at all sustained by the State, the suit was laid for injunction, restraining recovery of the amount by resorting to revenue recovery proceedings. 4. The defendants resisted the suit by pointing out that the bid was confirmed in favour of the plaintiff, who was the highest bidder and he had failed to discharge the obligation under the terms of the tender notification and also the agreement. They, therefore, had to re-auction the work and in that process, sustain loss. Disputing the allegation in the plaint, they prayed for dismissal of the suit. 5. Based on the above pleadings, the trial court raised necessary issues for consideration. The evidence consists of the testimony of the plaintiff as PW1 and documents marked as Exts.A1 to A4 from the side of the SA 938/1998 3 plaintiff. The defendants examined DWs 1 and 2 and had Exts.B1 to B1(c) marked. The trial court, after an elaborate consideration of the evidence, found the case put forward by the plaintiff to be quite untrue and false and dismissed the suit. 6. The plaintiff took up the matter in appeal as AS No.66/95 before the District Court, Thodupuzha. The lower Appellate Court merely based on a comparison of signatures in the various documents produced by the defendants, came to the conclusion that those signatures said to belong to the plaintiff differs from the admitted signature and reversed the findings of the trial court and decreed the suit as prayed for. It is the said judgment and decree that is assailed in this second appeal. 7. The following questions of law are seen raised in this second appeal : “i. As per the ratio laid down by the Full Bench of this Hon'ble Court reported in 1988(2) KLT and 1980 KLT 462, is not the Government SA 938/1998 4 entitled to proceed under the R.R.Act against the respondent for breach of contract ? ii. The burden of proof is wrongly cast by the lower appellate court and on the basis of the same finding is arrived at materially affecting the rights of the State. iii. Are not the findings completely against the weight of evidence, without the support of any materials and are perverse and on wrong understanding of the legal provision, contained in Ss.101 and 114 of the Indian Evidence Act (vide 1982(2) KLT 486). iv. Is not the finding of the lower appellate court against S.72 of the Kerala Revenue Recovery Act, 1986 ? v. Is not the finding of the lower appellate court unjust as the suit is barred by limitation ?” 8. The learned Government Pleader points out that the lower appellate court has erred both in law and on SA 938/1998 5 facts in decreeing the suit. The approach made by the lower appellate court cannot be justified in law. The learned counsel drew attention of this court to the fact that the sole basis on which the decree has been granted is due to the difference seen in the signatures said to have been put by the plaintiff in various documents, from his admitted signature. Various other facts which were sufficient to non- suit the plaintiff were not at all considered by the lower appellate court. Emphasis was laid on the fact that the trial court had categorically found that the suit is barred by limitation. The lower appellate court has not adverted to this aspect at all. The inconsistencies and incongruities in the evidence furnished by the plaintiff are also not appreciated in the proper perspective and it has resulted in an erroneous judgment and decree, it is contended. 9. The learned counsel for the respondent, on the other hand, pointed out that the lower appellate court had evaluated the evidence independently and had come to the conclusion that the claim made by the defendants SA 938/1998 6 that the plaintiff was the highest bidder, was not established. The lower appellate court also found that the signatures on the documents, which the defendants relied on to show that the plaintiff was the highest bidder, differed considerably from his admitted signature. The learned counsel also pointed out that there was a vigilance enquiry in the matter and some forest officials were found liable. According to the learned counsel, for the misdeeds committed by the forest officials, the plaintiff was sought to be made liable. The learned counsel also contended that there is nothing to show that there was any agreement between the State and the plaintiff whereby he had undertaken to remove the firewood as is now contended by the defendants in the suit. There is nothing to indicate, according to the learned counsel, that the plaintiff was declared the highest bidder and he was under an obligation to remove the firewood. Accordingly, it is contended that no grounds are made out to interfere with the judgment and decree of the lower appellate court. SA 938/1998 7 10. One may at once notice that the judgment and decree of the lower appellate court is very unsatisfactory and cannot be sustained, either in law or on facts. The sole basis for the decision of the lower appellate court is that the lower appellate court noticed difference in the signatures of the plaintiff in the documents produced by the defendants from the admitted signature of the plaintiff. That, according to the lower appellate court, was sufficient to grant a decree in favour of the plaintiff. Obviously, the lower appellate court has overlooked many other vital aspects in the case which would clearly show that the plaintiff is not entitled to any reliefs in the suit. 11. It is not in dispute that the plaintiff was served with Ext.B1(c) notice. That clearly stipulated the obligation on the part of the plaintiff to make good the loss sustained by the State. The plaintiff, who has been examined as PW1, has admitted that he has received the said notice. His explanation is that on receipt of the said notice, he went and met the Forest Range Officers, who SA 938/1998 8 promised him that no action would be taken and it was issued only as a formality. It is an explanation, too difficult to believe. 12. In paragraph 2 of the plaint, what is stated is that since the bid amounts were very high and since the plaintiff could not match the other bidders, he gave up the chase. Therefore, he did not participate in the auction at all. This reason is conspicuously absent either in the evidence or in the notice which preceded the suit. At the time of evidence, his case was that since he found that the logs offered were not teakwood, he did not participate in the auction. This shows that the plaintiff has no consistent case regarding the act of bidding in the auction. 13. It is too difficult to believe that the defendants would venture to fabricate documents and forge the signatures of the plaintiff for no reason at all. Obviously, there must have been a bidder, in case the plaintiff was not the higher bidder. For his default, it is too difficult to believe that the forest officials will forge the SA 938/1998 9 documents against him. There is no reason as to why they should pick and choose the plaintiff to make good the loss sustained by the State. The explanation offered by the plaintiff does not stand to common sense and reason. 14. Going by the averments in the plaint, the plaintiff had participated in the auction. That means, he must have paid the earnest money. As already noticed, his case is quite different at the time of evidence. There is no case for him that he had received the earnest money back since he had not either not bid in the auction or that he was not the higher bidder. Of course, in the cross examination, he does say that he received the amount back, but, it is significant to notice that there is no such averment in the plaint or in the notice preceding the suit. This also goes against the plaintiff. These vital aspects have not been noticed by the lower appellate court, since it was guided only by the difference in the signature on the various documents produced by the defendants from the admitted signature of the plaintiff. It shut its eyes to the other vital SA 938/1998 10 aspects which will throw light to the fact that the plaintiff had come up with a false case, as rightly noticed by the trial court. 15. Apart from the above facts, the trial court has categorically found that the suit is obviously barred by limitation. In paragraph 16 of the trial court judgment, the trial court has discussed the matter in considerable detail and finds that the suit is barred by limitation and is only to be thrown out. Surprisingly enough, there is no consideration of this aspect by the lower appellate court at all. 16. Admittedly, the plaintiff received Ext.A1 dated 24.04.1985 and Ext.A2 dated 15.5.1985. Those two documents clearly sought to fasten liability on the plaintiff for the amount due to the defendants which, according to them, was the loss sustained by them in re-auctioning the work of removal of firewood. It is significant to notice that the plaintiff sent a notice namely Ext.A3 dated 22.05.1985, pointing out that he had no liability to pay any amount to SA 938/1998 11 the State and that he was not a defaulter as sought to be labelled by the defendants. A reply was furnished by the defendants by Ext.A4 dated 22.07.1985, in which they had clearly asserted that the plaintiff was the highest bidder and that he had defaulted in performing his duties as per the agreement between the parties. It is very evident that as per Ext.A4, the defendants had asserted that it was the plaintiff, who was liable for the amount he had to pay the amount within the stipulated period. 17. One may now refer to the plaint. Paragraph 12 of the plaint shows that the cause of action arose on 24.12.1985 and thereafter. One fails to understand as to what the plaintiff meant by the word 'thereafter'. No explanation is forthcoming for that word in the plaint or in the evidence. The suit is filed in 1992. The trial court had observed that the period for filing of the suit, at best, could be three years as per the residuary article in the Limitation Act going by the facts of the case. Based on that, the trial court found that the suit is barred by limitation. There is SA 938/1998 12 nothing in the plaint to show that the suit could be saved from the plea of limitation. That was also noticed by the trial court. There is nothing to indicate that there was any subsequent incident or action from the part of the defendants, which gave a further cause of action to the plaintiff. At any rate, there is no pleading in the plaint and there is no evidence to that effect. Therefore, the time begins to run from 1985 i.e, from the date of Ext.A4. Therefore, the trial court was perfectly justified in holding that the suit is hopelessly barred by limitation. 18. For the above reasons, this court is unable to sustain the judgment and decree of the lower appellate court. It is clear that the plaintiff has not come forward with clean hands and he has come up with a false case, as rightly noticed by the trial court. The result is that this appeal is allowed. The judgment and decree of the lower appellate court is set SA 938/1998 13 aside and that of the trial court is restored. There will be no order as to costs. P.Bhavadasan, Judge sta SA 938/1998 14