Madras High Court
The Tamil Nadu State vs Parvathi on 2 February, 2022
Author: R.Pongiappan
Bench: R.Pongiappan
S.A.No.1304 of 2010 &
M.P.No.1 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.02.2022
CORAM:
THE HON'BLE MR.JUSTICE R.PONGIAPPAN
S.A.No.1304 of 2010 and
M.P.No.1 of 2010
The Tamil Nadu State
rep. By District Collector,
Nagapatinam ... Appellant
Versus
Parvathi ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure to set aside the Judgment and Decree dated 02.02.2010
made in A.S.No.23 of 2009 on the file of the Subordinate Judge,
Nagapattinam confirming the Judgment and Decree dated 06.10.2007
made in O.S.No.441 of 2006 on the file of learned District Munsif,
Nagapattinam.
For Appellant : Mr.P.Harish, Govt., Advocate for
Mrs.Revathi
Spl. Government Pleader (CS)
For Respondent : Mr.K.Selvaraj
Page No.1 of 11
https://www.mhc.tn.gov.in/judis
S.A.No.1304 of 2010 &
M.P.No.1 of 2010
JUDGMENT
The Second Appeal is focused as against the Judgment and Decree dated 02.02.2010 passed in A.S.No.23 of 2009 by the learned Subordinate Judge, Nagapattinam confirming the Judgment and Decree dated 06.10.2007 passed in O.S.No.441 of 2006 by the learned District Munsif, Nagapattinam.
2. The appellant is the defendant and the respondent is the plaintiff. The parties, for the sake of convenience, are herein referred to according to their litigative status before the trial court. The suit is for declaration and for mandatory injunction directing the defendant to issue relief fund as per G.O.No.135 dated 25.05.2005.
3. The laconic averments found in the plaint filed by the plaintiff are as follows:-
The plaintiff is the illiterate widow, who knows only to affix her thumb impression. The plaintiff's father, Rammaiyan and her brother Kannan were doing tea and tiffin business through the push cart at Nagapattinam, Keechankuppam sea shore. On 26.12.2004, in the Page No.2 of 11 https://www.mhc.tn.gov.in/judis S.A.No.1304 of 2010 & M.P.No.1 of 2010 tsunami waves, both of them were dragged by the water and went missing. The plaintiff preferred complaints before Nagapattinam Town Police Station on 04.01.2005 and 06.01.2005 and based on that, different FIRs were registered in Crime Nos.101 and 232 of 2005. The plaintiff also preferred a complaint before the D.P.O. [Missing persons Cell] on 18.01.2005.
(ii) In view of the order passed by the Government dated 09.04.2005, plaintiff sworned an affidavit before Notary as she alone is the legal heir of the deceased persons. Later, she submitted the said sworn affidavit before the Tahsildar, through which, she is claiming Tsunami relief fund. Even after receipt of the application given by the plaintiff, the persons under the defendant's administration have not taken any action and so, on 07.01.2005 and 21.05.2005, the plaintiff preferred petitions directly before the defendant claiming tsunami relief fund.
(iii) On 21.03.2006, the plaintiff issued legal notice to the defendant for which the defendant gave reply notice stating that only direct legal heirs of the deceased persons are eligible for getting tsunami relief fund. Since already the plaintiff has submitted all the Page No.3 of 11 https://www.mhc.tn.gov.in/judis S.A.No.1304 of 2010 & M.P.No.1 of 2010 records before the Tahsildar, she has come forward with the suit and hence it was necessary to grant the decree of declaration that plaintiff's father Ramaiyan and her brother, Kannan were dragged in the tsunami waves on 26.12.2004 got missed and died and for a mandatory injunction directing the defendant to issue relief fund to the plaintiff as per G.O.No.135 dated 25.05.2005.
4. The brief averments stated in the written statement filed by the defendant is as follows:-
(i)The plaintiff only has to prove that her father and brother died in tsunami. Earlier, in view of the fact that the petitioner preferred a complaints before the police station, on 04.01.2005 and 06.01.2005, FIRs have been registered and due to the same, in the missing persons list, the name of the plaintiff's father, Rammayan and plaintiff's brother, Kannan were included as they are missed persons. After formation of committee for selecting the beneficiary, in the enquiry conducted by them, it came to know that Ramaiyan and Kannan went missing and Ramaiyan's wife, namely, Kunjayee died 15 years back and plaintiff got married and Malar and Kannan are the legal heirs of Ramaiyan and Page No.4 of 11 https://www.mhc.tn.gov.in/judis S.A.No.1304 of 2010 & M.P.No.1 of 2010 among them, Kannan is in the missing list. The Keechankuppam Nattar Narayanasamy gave certificate that Kannan went missing in Tsunami.
But in the enquiry it came to know that the name of Ramaiyan's father is Vadivel, but, in the affidavit, plaintiff has stated that Ramaiyan's father is Raju, therefore, being the reason that there was difference in the name of the father of the missing person, the committee refused to grant the relief, hence the suit filed by the plaintiff is not maintainable.
5. Based on the above averments, the trial court framed necessary issues and tried the issue. On the side of the plaintiff, she herself examined as P.W.1 and marked seven documents as Ex.A.1 to A.7. On the side of the defendant, one Anandaraj was examined as D.W.1. Since after filing the proof affidavit, he has not appeared before court for recording cross examination, by order dated 30.07.2007, the trial court eschewed the evidence given by D.W.1 and accordingly, it has to be decided that none examined on the side of the defendant.
6. Having considered the materials placed before him, the learned Principal District Munsif, Nagapattinam came to the conclusion that the plaintiff is entitled to the relief as prayed for. In the appeal preferred by the defendant, the lower appellate court confirmed the findings arrived at Page No.5 of 11 https://www.mhc.tn.gov.in/judis S.A.No.1304 of 2010 & M.P.No.1 of 2010 by the trial court and dismissed the appeal. Feeling aggrieved over the same, the defendant is before this Court with this second Appeal. At the time of admission, this Court has formulated the following Substantial Questions of Law for consideration:-
“1. Is not it is the responsibility of the respondent to prove the case?
2. Whether the Lower Court is correct in coming to the conclusion that the missing person's father's name is immaterial?
3. Whether the Lower Appellate court's Judgment is sustainable in law in the absence of evidence?”
7. Heard the learned counsels appearing on either side and perused the documents placed on record.
8. It is the submission made by Mr.Harish, learned Government Advocate, appearing for the appellant / defendant that only due to the reason father's name of the missing person, for example, Ramaiyan, who is the father of the plaintiff, the committee for distributing the tsunami relief refused to consider the application submitted by the plaintiff. It is the further submission that the plaintiff has not produced the relevant documents to show that father name of the Ramaiyan is only Raju. Accordingly, he prayed to allow this Appeal. Page No.6 of 11 https://www.mhc.tn.gov.in/judis S.A.No.1304 of 2010 & M.P.No.1 of 2010
9. Per contra, it is submission made by the learned counsel appearing for the respondent / plaintiff that in the written statement filed by the defendant, it was admitted that the father of the plaintiff, Ramaiyan and her brother, Kannan are all washed away in the tsunami wave. In this regard, after admitting that those persons are missing refusing to grant relief to the legal heir of the missing persons (Plaintiff), is unsustainable and cannot be tolerated.
10. Now, on considering the submissions made by the counsels appearing on either side, it is true that in the written statement filed by the defendant, they admitted the case of plaintiff that in the tsunami wave, father of the plaintiff and brother of the plaintiff are washed away. In this occasion, before the trial court, in order to prove his case, the plaintiff gave evidence as P.W.1, and marked the following seven documents as Ex.A.1 to A.7:-
th/rh/M/1 – 06/01/2005 thjp. ehfg;gl;odk;. fhty; epiyaj;jpy;
g[fhh; bfhLj;jjw;fhd urPjpd; g[ifg;gl efy; th/rh/M/2 – 07/01/2005 thjp. ehfg;gl;odk;.
khtl;l Ml;rpaUf;F mDg;gpa kDtpd;
mYtyf efy; (g[ifg;l efy;) th/rh/M/3 – 21/03/2005 thjp. ehfg;gl;odk;.
khtl;l Ml;rpaUf;F mDg;gpa kDtpd; g[ifg;gl efy;
th/rh/M/4 – 06/01/2005 Kjy; jfty; mwpf;ifapd; g[ifg;gl efy; Page No.7 of 11 https://www.mhc.tn.gov.in/judis S.A.No.1304 of 2010 & M.P.No.1 of 2010 fz;zd;
fhzhky; nghdjw;fhd g[fhh; bfhLj;j / jd;
nghpy;
Vw;gLj;jg;gl;lJ/ th/rh/M/5 – 18/01/2005 uhikad; fhzhky; nghdjw;fhd g[fhh;
bfhLj;j
jd;nghpy; Vw;gLj;jg;gl;l Kjy; jfty;
mwpf;ifapd;
g[ifg;gl efy;
th/rh/M/6 – 21/03/2006 thjp tHf;Fiu"h;. gpujpthjpf;Fk;. rhh;
Ml;rpah;
kw;Wk; tl;lhl;rpaUf;F mDg;gpa
mwptpg;gpd;
g[ifg;gl efy;/
th/rh/M/7 – 17/04/2006 ehfg;gl;odk; tUtha; nfhl;l mYtyh;.
thjp
tHf;fiu"Uf;F mDg;gpa mwptpg;gpd; (mry;)
11. Accordingly, the evidence given by P.W.1 and the entire averments narrated in the above referred exhibits, would go to show that in the tsunami wave, plaintiff's father and brother were missing, therefore, it cannot be said that the plaintiff has not proved his case as her father and brother were missing, obviously, the plaint averment shows that the plaintiff and her relations are residing in Kuppam, which is situated near to the sea. All are aware that due to the tsunami, sea water went in the interior part of Nagapattinam and number of persons Page No.8 of 11 https://www.mhc.tn.gov.in/judis S.A.No.1304 of 2010 & M.P.No.1 of 2010 are missing, in the said circumstances, it could be possible that the documents which are all possessed by the plaintiff should also washed away along with her father and brother. In the said situation, after lodging the complaint before the appropriate immediately, after the occurrence, it is unnecessary for the defendants to ask further particulars from the plaintiff. In this regard, the Lower Appellate Court has correctly held that after admitting the fact that the father and brother of the plaintiff are missing in the tsunami, the contradiction found in Ramaiyan's father name is immaterial.
12. Here it is a case after admitting the case of the plaintiff in the written statement the defendant has not come forward for giving evidence. Therefore, in the absence of any material evidence from the defendant, it cannot be said the plaintiff's father, Ramaiyan has not washed way in the tsunami. The courts below travelled in the same line and came to the conclusion that the plaintiff is entitled to the relief as prayed for. The Substantial Questions of Law are all answered as above.
Page No.9 of 11 https://www.mhc.tn.gov.in/judis S.A.No.1304 of 2010 & M.P.No.1 of 2010 In the result, the Second Appeal is dismissed. Consequently, connected miscellaneous petition is closed. No costs.
02.02.2022 Index: Yes/No Internet: Yes/No R.PONGIAPPAN, J.
ssd To
1. The Subordinate Judge, Nagapattinam
2. The District Munsif, Nagapattinam.
Page No.10 of 11 https://www.mhc.tn.gov.in/judis S.A.No.1304 of 2010 & M.P.No.1 of 2010 S.A.No.1304 of 2010 and M.P.No.1 of 2010 02.02.2022 Page No.11 of 11 https://www.mhc.tn.gov.in/judis