IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932 AS.No. 24 of 2002(E) ------------------------- OS.1052/1995 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): /DEFENDANTS IN THE O.S. -------------------------------------------------- STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI.SANIL KUMAR RESPONDENT(S): /PLAINTIFFS IN THE O.S. --------------------------------------------------- 1. N.GIRIJAKUMARI, W/O.LATE SURENDRAN, AGAED 37, RESIDING AT PUTHUVAL PUTHEN VEEDU, TC.NO.43/1389,KAMALESWARAM WARD,MUTTATHARA VILLAGE THIRUVANANTHAPURAM. 2. G.SALINI, D/O.C.SURENDRAN, TC.43/1389, KAMALESWARAM, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. 3. S.SYAMKUMAR, S/O.SURENDRAN, TC.43/1389, KAMALESWARAM, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. * 4. B.PONNAMMA, M/O. SURENDRAN, TC.43/1389, KAMALESWARAM, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM.(DIED. LR'S 5 TO 9 IMPLEADED) * ADDL. R5 TO R9 IMPLEADED 5. C.VIJAYAN, T.C. NO.43/1424, THUMBODU HOUSE, MUTTATHARA, VALLKADAVU P.O., THIRUVANANTHAPURAM. svs ........2/-... ...2... 6. C.ASHOKAN, T.C. NO.43/1424, THUMBODU HOUSE, MUTTATHARA, VALLKADAVU P.O., THIRUVANANTHAPURAM. 7. GIRISSAN,T.C. NO.43/1423/3, MUTTATHARA, VALLKADAVU P.O., THIRUVANANTHAPURAM. 8. NANDHINI, M.R.A.B - 17, ELANGAM HOUSE, CHOVALLOOR, PULIYARAKAONNAM P.O., THIRUVANANTHAPURAM. 9. SATHIKUMARI, T.C. NO.43/1424, THUMBODU HOUSE, MUTTATHARA, VALLKADAVU P.O., THIRUVANANTHAPURAM. * LEGAL REPRESTENTATIVES OF THE DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 5 TO 9 AS PER ORDER DATED01/11/2010 ON I.A. 3768/2010. R1 & R4 BY ADV. SRI.PREMJIT NAGENDRAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON I.A. NO. 1663/2004 IN A.S. NO. 24/2002 DISMISSED 14/01/2011 SD/- M.N.KRISHNAN, JUDGE SD/- P.S.GOPINATHAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs M.N. KRISHNAN & P.S. GOPINATHAN, JJ. ........................................... A.S.NO.24 OF 2002 ............................................. Dated this the 14th day of January, 2011. J U D G M E N T Krishnan, J: This is an appeal preferred against the judgment and decree of the Additional Sub Judge, Trivandrum in O.S.No.1052/1995. In an unfortunate incident the husband of the first plaintiff was shot dead and it is claiming compensation for the death of the husband, the wife and other legal representatives have filed the suit. 2. The brief facts of the case would reveal that on 20.7.1992 at 4.15 p.m at Muttathara there was firing resorted to by the police which resulted in the death of Surendran, the husband of the first plaintiff. The State gave Rs.25,000/= through the local MLA and thereafter notice under Section 80 of CPC was issued on 15.11.1993 and the suit had been filed. 3. The defendant filed a written statement contending that due to the religious riots and unwarranted situation prevailed in the area of Trivandrum, the District Magistrate : 2 : A.S.NO.24 OF 2002 has declared Section 144 prohibitory order and ignoring the same, husband of the plaintiff and about 2000 people had indulged in the act of violence and also attacked the police party and when situation reached beyond the control, the Deputy Commissioner ordered PC 4723 to fire as per the directions of his higher authorities and thus one such shot had hit the husband of the first plaintiff which resulted in his death. A crime was registered as 88/1992 under Sections 143,144,145,146,147,148,149,152,153(a),158,332 and 307 IPC read with Sections 3 and 5 of the Explosive Substance Act and Section 27 of the Arms Act. So it is submitted that the plaintiff is not entitled to any relief. There is also a plea regarding non joinder. 4. The trial court after consideration of the materials negatived the plea of non joinder on the ground that legal representatives of Surendran have already been brought on record and thereafter proceeded to dispose of the matter and granted a decree. It is against that decision, the State has come up in appeal. 5. Heard the learned counsel for the appellant as well : 3 : A.S.NO.24 OF 2002 as the respondents. The learned Government Pleader would strongly contend before us that the suit is bad for non joinder of parties on the ground that the alleged tortfeasor is not made a party to the suit. It is true that the State is vicariously liable for the act of its servant. In order to arrive at a finding, it is necessary to have the alleged tortfeasor on the party array. It is specifically stated in the written statement that the Deputy Commissioner of Police had directed PC 4723 to fire out. 6. The defence set up by the State is that deceased Surendran was inciting the people who have gathered there to create problems and was also inspiring them to attack police with deadly weapons and explosives. It is under those circumstances it is contended by the department that it became inevitable for them to open firing which has resulted in the death of Surendran. 7. So we feel that in order to have a proper adjudication of the matter, the police department which is alleged to be the tortfeasor and more specifically the persons mentioned in the written statement have to be made parties for proper : 4 : A.S.NO.24 OF 2002 adjudication of the case. Ext.B2 is the charge sheet which also throws light on the subject how the incident had taken place. How far it is correct or not is a matter that could be adjudicated only after impleading the parties before the court. 7. Therefore, we are not going into the merits of the case for the reason that any observation made without the tortfeasor in the party array may affect one of the parties. Therefore, we set aside the judgment and decree of the trial court and remit the case back to the trial court with a direction to the plaintiff to implead the tortfeasor and thereafter permit both sides to adduce both documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Since the firing had taken place in the year 1992, priority may be given for an early disposal of the case and it shall be disposed of within six months' from the date of first appearance of the parties before the trial court. An impleading petition has to be filed within two weeks from the date of first appearance of the parties. The State is directed to : 5 : A.S.NO.24 OF 2002 furnish particulars for the purpose of impleadment. Parties are directed to appear before the trial court on 14.2.2011. Disposed of accordingly. M.N. KRISHNAN, JUDGE. P.S. GOPINATHAN, JUDGE. cl : 6 : A.S.NO.24 OF 2002 M.N. KRISHNAN, & P.S. GOPINATHAN, JJ. ........................................... A.S.NO. 24 OF 2002 ............................................. 14th January, 2011. J U D G M E N T