IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 AS.No. 339 of 2001(B) --------------------- OS.784/1995 of ADDL.SUB COURT,PARAVUR .................... PLAINTIFF/APPELLANT: ------------------------------------ VINOD, S/O.NANDANAN, THOTTUNGAL HOUSE, AYYAMPILLY,KUZHUPPILLY BY ADV. SRI.A.VIJAYAKUMAR DEFENDANTS/ RESPONDENT(S): ----------------------------------------------- 1.KERALA STATE REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION,KAKKANADU. 2.TAHSILDAR,KUNNATHUNADU, PERUMBAVOOR. 3.DISTRICT EXECUTIVE OFFICER, MOTOR THOZHILALI WELFARE BOARD, PALARIVATTOM. 4.SUNNY.V.PAUL,S/O.PAULOSE, VALAYIL HOUSE, IRAPURAM. GOVERNMENT PLEADER SHRI.P.K.BABU FOR R1 & R2 SRI.V.RAJENDRAN (PERUMBAVOOR) FOR R4 SRI.GEORGE VARGHESE KIZHAKKAMBALAM FOR R4 SRI.P.RAMAKRISHNAN FOR R3 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29 /06 /2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ====================== A.S. No.339 OF 2001 ====================== Dated this the 29th day of June, 2010. JUDGMENT This appeal is preferred against the judgment and decree of the Subordinate Judge's Court, North Paravoor in O.S.No.784/1995. It is a suit filed by the plaintiff for injunction as well as for damages. According to him he is the registered owner of the vehicle and there has been no assessment against him and no order is passed against him under Kerala Motor Transport Workers Welfare Fund Act. But the 4th defendant had forcibly taken away the vehicle from his possession and it is proceeded against by defendants 2 and 3 for the realisation of some amount due from somebody. Therefore, he has moved a suit for injunction and damages. 2. The 3rd defendant would contend that the workers welfare fund is due from the 4th defendant and therefore proceeding is initiated and there is no bar in proceeding under Section 72 of the Revenue Recovery Act. Section 23 A.S. No.339 OF 2001 2 of the Kerala Motor Transport Workers Welfare Fund bars jurisdiction of civil Court to entertain such a pleading. 4th defendant would contend that he is not the owner and he has nothing to do by taking away the vehicle and therefore no action is called for. From the provisions of Revenue Recovery Act and the Motor Transport Workers Welfare Fund Act it is very clear that when the amount is due from a person or he has defaulted, that amount is to be recovered in accordance with Section 10 of the Motor Transport Workers Welfare Fund Act as it is an arrears of public revenue on the amount. So if any amount is due under the Act there is a bar of jurisdiction for the civil Court to entertain the case. But here the facts of the case would reveal that there is no assessment made against the plaintiff and the plaintiff is the registered owner of the vehicle. The 4th defendant would wash of his hands and would contend he has not taken the vehicle and he was not the owner of the vehicle. So, how the matter has to be proceeded with certainly will depend upon the facts and circumstances of the case. So, this is not a primary issue that could have been decided by the Court without looking into the factual A.S. No.339 OF 2001 3 aspect of the case. I am not expressing any opinion on the jurisdiction of the civil court to entertain the matter for the reason that it is a mixed question of fact and law. If there is an assessment with respect to the bus and no amount is due from any of the parties and if they have nothing to do with the arrears the plaintiff may be entitled to get a relief. If on the other hand it is found that the amount is due from the owner of the bus who had kept the arrears and the bus was his property question of ouster of jurisdiction may have to be considered. Therefore, I set aside the judgment and decree of court below and direct the court below to consider the whole matter afresh including the question of jurisdiction of civil court after permitting the parties to adduce evidence in the whole case and then decide it in accordance with law. Parties are directed to appear on cross appeal on 27.7.2010. M.N.KRISHNAN, JUDGE. mns