IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 RSA.No. 487 of 2010 ---------------------------- [AS.NO.3/2009 OF SUB COURT, THIRUVALLA, OS.NO.647/2004 OF MUNSIFF'S COURT, THIRUVALLA] .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------------------ N.J.RAJAN, AZHENICKAL VEEDU, VALLAMKULAM KISHKKE MURY, ERAVIPEROOR VILLAGE, THIRUVALLA THALUK. BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR). RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, PATHANAMTHITTA. 2. GOVERNMENT OF KERALA, REPRESENTED BY DEPUTY THAHASILDAR (R.R), THALUK OFFICE, THIRUVALLA. 3. GOVERNMENT OF KERALA, REPRESENTED BY VILLAGE OFFICER, VILLGE OFFICE, KOIPURAM. 4. PURAMATTOM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PURAMATTOM GRAMA PANCHAYATH OFFICE, PURAMATTOM. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- RSA No.487 of 2010 ------------------------------------- Dated 1st June 2010 Judgment The plaintiff in OS No.647/04 before the Munsiff's Court, Thiruvalla, is the appellant. 2. The suit was one for injunction. The plaintiff, it is stated, was functioning as the Headmaster of the Government U.P.V.School, Kumbanadu, at the relevant time. In 2001, while he was working as a Teacher in Government U.P.School, Vattakottal, the fourth defendant Panchayat had sanctioned an amount of Rs.2,00,000/- (Rupees Two Lakhs only) for the construction of a new building for the school under the scheme of Janakeeya Asuthranam. A committee was constituted for the construction of the building, of which the plaintiff was the Convenor. Initially, a sum of Rs.46,000/- (Rupees Forty Thousand only) was released by the fourth defendant Panchayat. The plaintiff received the said amount on RSA 487/10 2 behalf of the committee. Thereafter, it is submitted, no funds were released by the Panchayat and therefore, the construction of the building could not be completed. 3. The plaintiff alleges that to his surprise, on 17.05.2004, he received a notice calling upon him to pay an amount of Rs.64,662/-towards the amount received by him from the fourth defendant, along with interest, immediately. The plaintiff submitted that the amount received from the fourth defendant was utilised for the construction of the building and that he has not misappropriated any amount. So, he submitted that he was not liable to pay any amount to the third defendant. The plaintiff came to understand that proceedings had been initiated against him for recovery of the amount, under the Revenue Recovery Act and therefore, he laid the suit. 4. The defendants entered appearance and resisted the suit. They denied the allegations in the plaint and pointed out that the suit was not maintainable in view of S.80 CPC. They disputed the allegation made by the RSA 487/10 3 plaintiff that the construction could not be completed due to paucity of funds. They also submitted that it was due to the inability of the committee constituted for the construction of the building that the construction could not be completed. It was also pointed out that on 03.08.2004, the Government had issued an order No.R6-37528/2002, by which the recovery of mobilization of advance under the scheme of Janakeeya Asuthranam, was excluded from the purview of the Revenue Recovery Act. 5. Based on the pleadings, the Trial Court raised necessary issues for consideration. It is seen that the plaintiff had produced proof of affidavit in tune with the allegations in the plaint. Documents were also produced by him. The defendants did not adduce any evidence. 6. It appears that before the Court below, the counsel on both sides agreed that the matter has become infructuous, in view of the Government Order mentioned above. In the Judgment of the Trial Court, it is observed as follows : RSA 487/10 4 “Heard both sides. In the light of the Order No.R6- 37528/2002, both sides agreed that the suit became infructuous and hence the issues are answered against the plaintiff.” 7. The suit was dismissed. The plaintiff preferred an appeal as AS No.3/2009 before the Sub Court, Thalassery. The Appellate Court disposed of the appeal by Judgment dated 23.02.2010, which reads as follows : “Heard. On a perusal of the Judgment, it is seen that the suit was dismissed since both sides agreed that the suit became infructuous in the light of Order No.R6- 37528/2002. Hence the appeal is also dismissed.” 8. The learned counsel for the appellant pointed out that the plaintiff had not submitted that the suit and the appeal had become infructuous and it was the duty of the Trial Court to try the issues raised in the suit. The learned counsel also pointed out that the Trial Court dismissed the suit, purely based on a representation made by the learned Government Pleader that the matter has become infructuous and that was not warranted. It was also RSA 487/10 5 contended that the lower Appellate Court was also not justified in accepting the plea made by the appellant and the Government Pleader and it ought to have independently considered the issues raised in the appeal. 9. It comes with little grace from the appellant to say that the courts below ought to have tried the issues. It was on the basis of the submission made by both sides that the Trial Court had dismissed the suit. If the plaintiff had a case that the statement recorded in the Judgment of the Trial Court was incorrect, the appropriate remedy for him was to seek review of the judgment and not to file an appeal against it. In the appellate stage also, very same stand was taken by the parties regarding the matter. Now, the plaintiff cannot be heard to say that both the court below ought to have tried the issues raised in the suit. The suit was dismissed based on the submissions made by both sides that the matter has become infructuous. 10. There is no merit in the Second Appeal and it is accordingly dismissed. However, if the appellant is so RSA 487/10 6 advised, he may seek review of the Judgment before the Trial Court. In that case, the said Court may dispose of the same in accordance with law. P.BHAVADASAN, JUDGE sta RSA 487/10 7