IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 SA.No. 894 of 1996(F) --------------------- AS.33/1991 of SUB COURT, MUVATTUPUZHA OS.128/1988 of MINSIFF COURT, MUVATTUPUZHA .................... APPELLANTS IN SA./ RESPODENTS NOS.1 & 2 IN AS/ DEFENDANTS NOS. 1 & 2 IN O.S.: ---------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM. 2. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA. BY ADV. SENIOR GOVT.PLEADER. SRI.JAYAKRISHNAN P.R. RESPONDENT NO.1 IN S.A./APPELLANT IN A.S./PLAINTIFF IN OS. ------------------------------------------------------------------------------------------------ RESPONDENT NO.2 TO 5 IN SA/RESPONDENTS NO.3 TO 6 IN A.S./ RESPONDENTS NOS. 3 TO 6 IN O.S.: ------------------------------------------------------------------------------------------------ * 1. VARKEY JOSEPH, S/O.VARKEY AGED 68, KAKKANATTU HOUSE, MEKKADAMPU P.O., MEKKADAMPUKARA, VALAKOM VILLAGE, MUVATTUPUZHA (DIED) (LR'S IMPLEADED). 2. PAILY MATHEW, SON OF PAILY, AGED ABOUT 72, MUPPATHIYIL HOUSE, KUNNACKAL P.O., VALAKOM, MUVATTUPUZHA. 3. KESAVAN SANKARAN, S/O.KESAVAN, AGED ABOUT 38, PALLATHUMARIYIL, MEKKADAMPU, VALAKOM. 4. NARAYANAN RAGHAVAN, SON OF NARAYANAN, AGED ABOUT 38, EDAPPAKUNNATHU, MEKKADAMPU VALAKOM. 5. VARKEY PAULOSE, SON OF VARKEY, AGED 52, MANAYATHU, MEKKADAMPU, VALAKOM. SA.No. 894 of 1996(F) ------------------------------- ADDL. R6 TO 13 IMPLEADED ------------------------------------------ ADDL.R6. MARIAMMA JOSEPH, KAKKANATTU HOUSE, MEKKADAMBU P.O. PIN 682316. “ R7. K.J.BABY, KAKKANATTU HOUSE, MEKKADAMBU P.O. PIN 682316. “ R8. K.J.THANKACHAN, KAKKANATTU HOUSE, MEKKADAMBU P.O. PIN 682316. “ R9. K.J.KURIAKOSE, (K.J.THAMPI), KAKKANATTU HOUSE, MEKKADAMBU P.O. PIN 682316. “ R10.JOHNY JOSEPH, KAKKANATTU HOUSE, MEKKADAMBU P.O. PIN 682316. “ R11. LISSY JOSEPH, W/O.P.P.THANKACHAN, 11/119(1), PARANAYIL HOUSE, NELLIKKUNNUKARA ROAD, THRISSUR EAST - 680005. “ R12. BENNY JOSEPH, KAKKANATTU HOUSE, MEKKADAMBU P.O. PIN 682316. “ R13. JANCY JOSEPH, W/O/SOJAN P. GEORGE, VADAKKAN THURUTHEL HOUSE, MEKKADAMBU P.O., PI 682316. ADDL. R6 TO 13 ARE IMPLEADED AS THE LR'S OF DECEASED 1ST RESPONDENT VIDE ORDER DATED 29.11.10 IN IA. 2514/10 . THE ABATEMENT (AS PER ORDER DATED 9.710 ) AS AGAINST R1 IS SET ASIDE AS PER ORDER DATED 29.11.10 IN IA 2513/10) R2 TO R5 BY ADV. SRI.BIJU ABRAHAM R1 BY ADVS. SRI.M.C.CHERIAN SMT.ASHA CHERIAN ADDL.R6-13 BY ADVS. SRI.M.C.CHERIAN SRI.M.A.THOMAS KUTTY SMT.SARAMMA CHERIAN SMT.ASHA CHERIAN SRI.P.M.SANEER THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19.1.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 894 of 1996(F) ------------------------------- ORDER ON IA NOS. 2513 AND 2514.2010 AND CMP. NO.1947/1996 DISMISSED 19.01.2011 Sd/- P.BHAVADASAN, JUDGE / TRUE COPY / P.A. TO JUDGE VK P.BHAVADASAN, J. ---------------------------------- S.A.No. 894 of 1996 --------------------------------- Dated this the 19th day of January, 2011 JUDGMENT The short question that arises for consideration in the second appeal is regarding the question of application of relevant Article of the Limitation Act to the facts of the case. The second defendant demolished the concrete pillars and forcibly removed and took away the iron gate on 10.01.1985 with the help of police. 2. The facts necessary for the disposal of this case are as follows: The plaintiff was served with a notice under Section 133 of Cr.P.C. calling upon him not to obstruct the public pathway and to keep open the gate which had installed on concrete pillars. On issuance of notice, he entered appearance before second defendant on 09.01.1985. The second defendant inspected the property on 10.1.1985 and with the aid of police force pulled down the gate and demolished the pillars. According to the plaintiff, this was a highhanded action unwarranted by law and this is an illegal act committed by the second defendant. On the basis of these allegations, the suit was filed claiming damages to the tune of Rs.7000/-. 3. Defendants 1 and 2 resisted the suit on several grounds. It is S.A.No. 894 of 1996 2 pointed out that the suit is not maintenable. According to them, the plaintiff had refused to obey the direction issued by the second defendant to keep the gate open and that necessitated the action by the second defendant. It is also contended that even if the plaintiff had any grievance, he had to file the suit within one year from the date of the cause of action and hence the suit is barred by limitation. 4. Based on the above plea, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A4 from the side of the plaintiff. The defendants examined DWs 1 and 2 and documents marked as Exts.B1 to B5. 5. The trial court on an evaluation of the evidence in the case found that Article 72 of the Limitation Act, applies to the case on hand and the suit having been filed out of time was barred by limitation. Hence dismissed the suit. Plaintiff carried the matter in appeal as A.S.No.33/1991 before the Sub Court, Muvattupuzha. 6. The lower appellate court opined that the highhanded act committed by the second defendant cannot get protection of law and it was an unauthorized and illegal act, for which statutory protection was available. Therefore, the court below took the view that as Article 72 is not applicable and Article 113 is the relevant Article applicable to the case. Accordingly, the lower appellate court reversed the finding S.A.No. 894 of 1996 3 of the trial court and decreed the suit. Hence this second appeal. 7. Notice has been issued on the following substantial questions of law: A. Has not the Lower Appellate Court gone wrong in law in ignoring the statutory power to entertaining or continuance of Civil Suits against a Judge acting in discharge of his official or judicial duty under Section 3 of the Judges(Protection) Act, 1985? B. Has not the Lower Appellate Court erred substantially in law in finding that the Suit is not barred by limitation, by applying Article 113 of the Limitation Act ? C. Has not the Lower Appellate Court gone wrong in law in failing to see that the proper article which governs the instant case is Article 72 of the Limitation Act ? D. Has not the Lower Appellate Court erred in decreeing the Suit on the facts and materials available in the case ? 8. It is very vehementally contended by the learned Government Pleader that the lower appellate court is not correct in applying Article 113 to the facts of this case. Attention was drawn to the fact that the second defendant was shown in his official capacity and it is also admitted by the plaintiff that under Section 80 of the CPC notice was served on the defendants. These two facts are sufficient to show that S.A.No. 894 of 1996 4 the second defendant was acting in his official capacity. If that be so, according to the learned Government Pleader, the action is done in the course of his official duty and then Article 72 of the Limitation Act alone can apply. 9. In reply, it is contended by the learned counsel for the respondent that under the cover of official action, second defendant took the law into his hands and has committed an unauthorised and illegal act. No such contingency had arisen which compelled the second respondent to resort to the acts, which were unauthorised and illegal. It is contended that by no stretch of imagination it can be said that the second defendant was acting in his official capacity and such unauthorized, illegal and highhanded actions have no protection of law. Therefore, the lower appellate court applied Article 113 of the Limitation Act and found that the suit is within time. 10. The second defendant cannot be said to have acted in his official capacity. Two courts found that the action was quite uncalled for, unauthorized and not sanctioned by law. The finding of the lower appellate court seems to be based on the evidence on record and does not appear to be perverse or unwarranted or unjustified in law or on facts. The lower appellate court was fully justified in finding that it is Article 113 of the Limitation Act that applies to the facts of the case. S.A.No. 894 of 1996 5 11. As far as the quantum of damages granted, it appears to be quite reasonable. 12. There is nothing to show that the finding of the lower appellate court is ether perverse or unjustified going by the evidence in the case. The second appeal is devoid of merits and is accordingly dismissed. No order as to costs. P.BHAVADASAN, JUDGE. ln