Kerala High Court
State Of Kerala vs P.V.Mohammed Koya on 5 November, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 5TH DAY OF NOVEMBER 2012/14TH KARTHIKA 1934
RSA.NO. 517 OF 2007 ( )
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AS.1/2004 OF DISTRICT COURT, KALPETTA, WAYANAD
OS.38/1999 OF SUB COURT, SULTHAN BATHERY
APPELLANT(S)/APPELLANTS/APPELLANTS:
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1. STATE OF KERALA, REPRESENTED BY
SECRETARY, FOREST DEPARTMENT, THIRUVANANTHAPURAM.
2. CHIEF CONSERVATOR OF FORESTS,
THIRUVANANTHAPURAM.
3. WILDLIFE WARDEN, SULTHAN BATHERY.
BY SPECIAL GOVERNMENT PLEADER SHRI M.P. MADHAVANKUTTY
RESPONDENT/RESPONDENT/PLAINTIFF:
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P.V.MOHAMMED KOYA, S/O.ABDURAHMAN,
POOKKALAVALAPPIL, KUPPADY AMSOM AND DESOM, 3RD MILE
SULTHAN BATHERY, WAYANAD DISTRICT.
BY ADV. SRI.S.M.PRASANTH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
5.11.2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
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R.S.A. No. 517 of 2007
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Dated this the 05th day of November, 2012
J U D G M E N T
The Second Appeal arises from the judgment and decree of the District Court, Kalpetta, Wayanad in A.S. No.1 of 2004 confirming the decree for recovery of compensation passed by the Sub Court, Sulthanbathery in O.S. No.38 of 1999.
2. The following substantial questions of law are framed for a decision:
(i) Whether the State and its Officers can be held liable for the damage caused by a wild elephant and whether they are keepers of that animal?
(ii) Whether the courts below are justified in quantifying the damages caused, ignoring the report submitted by the commissioner by adopting capitalization method?
3. The case is that a wild elephant from the Kurichiyad Forest Range strayed into the agricultural land of the respondent, R.S.A. No.517 of 2007 -: 2 :- caused damage to the crops and thereby the respondent suffered damages. The respondent estimated the damages at Rs.2,00,000/- and filed O.S. No.38 of 1999. Since the respondent had not complied with the requirement of Section 80(1) of the Code of Civil Procedure (for short, "the Code") an application (I.A. No.382 of 1999) was filed under sub-sec.(2) of Sec.80 seeking leave of the court to institute the suit and exempt the respondent from complying with sub-sec.(1) of Sec.80. That application was allowed.
4. The appellants resisted the suit contending that the suit is bad for non-compliance of sub-sec.(1) of Sec.80. Various other contentions were also raised challenging the claim of the respondent.
5. The trial court granted a decree in favour of the respondent for recovery of Rs.52,200/- with interest at the rate of 6% per annum. That was confirmed by the first appellate court. Hence this Second Appeal with the substantial questions of law above framed.
6. The learned Special Government Pleader has raised only one contention in the Second Appeal (leaving other contentions open for consideration later) that the suit is bad R.S.A. No.517 of 2007 -: 3 :- under sub-sec.(1) of Sec.80 of the Code. It is pointed out that the question of the court granting leave to institute the suit without complying with sub-sec.(1) of Sec.80 of the Code arises only when the plaintiff has sought urgent or immediate relief in the suit. No such urgent or immediate relief is prayed for in the suit. Therefore the trial court had no authority to grant leave to the respondent to file the suit without complying with sub-sec.(1) of Sec.80 of the Code, it is argued.
7. The learned counsel for the respondent has submitted that in the suit there was an application for appointment of a Commissioner to ascertain the damages (allegedly) caused to the respondent and that can be treated as an urgent relief in the suit. It is pointed out by the learned counsel that since the property and crops of the respondent were damaged and it required the respondent to purchase another item of property, he was in dire need of money and hence there was urgency on the part of the respondent to get compensation from the appellant. Viewed in that line, it was within the power of trial court to exempt the respondent from the necessity to comply with sub-sec.(1) of Sec.80 of the Code, it is argued.
8. No doubt, there was an application for the R.S.A. No.517 of 2007 -: 4 :- appointment of an emergent commission, that was allowed and the Advocate Commissioner submitted a report. That, I am not inclined to think is an urgent or immediate relief prayed for in the suit against the appellant. It is relevant to note that in sub- sec.(2) of Sec.80 of the Code what is stated is that "a suit to obtain an urgent or immediate relief against the Government...." alone could be filed without serving notice as required by sub-sec.
(1) of Sec.80 of the Code and on obtaining leave of the court.
The proviso to sub-sec.(2) of Sec.80 says that if the court is satisfied that no urgent or immediate relief need be granted in the suit, it shall return the plaint for presentation to it after complying with the requirements of sub-sec.(1) of Sec.80 of the Code.
9. I am not inclined to think that either the application for appointment of an urgent commission or that respondent was in urgent need of money for whatever reason it be, would save the situation. For, the suit must be to obtain an urgent or immediate relief against the Government, etc. In this case the relief sought for in the plaint is recovery of damages. Whatever be was the urgency on the part of the respondent to get money, a suit for recovery of damages cannot be described as a suit to obtain an urgent or immediate relief as contemplated by sub-sec. R.S.A. No.517 of 2007 -: 5 :- (2) of Sec.80 of the Code. Nor can an interlocutory application filed in the course of the proceeding be treated as saving the situation. For, if such an interpretation as done by the first appellate court is taken, the provision of sub-sec.(1) of Sec.80 of the Code could be easily defeated even in suits where no urgent or immediate relief is sought by making an application like appointment of an emergent Commissioner or inspection of document, etc. That is not what is contemplated in sub-sec.(2) of Sec.80 of the Code.
10. It is pointed out by the learned counsel for the respondent that in the trial court, no plea based on sub-sec.(1) of Sec.80 of the Code was raised by the appellants and no request was also made before the court below to hear the question of maintainability. But that is no ground to say that the suit, if it does not comply with sub-sec.(1) of Sec.80 of the Code is maintainable on the face of statutory provisions I have referred to above. It follows that the suit filed without complying with the provisions of sub-sec.(2) of Sec.80 of the Code is not maintainable.
11. The consequence is that the proviso to sub-sec.(2) of Sec.80 of the Code should apply and the trial court ought to R.S.A. No.517 of 2007 -: 6 :- have returned the plaint for presentation to it after complying with the requirement of sub-sec.(1) of Sec.80(1) of the Code.
12. In the light of the above it is not necessary to go into the other contentions appellants have raised.
13. It follows that in view of my finding on substantial question of law No.2, all other findings entered by the trial court and confirmed by the first appellate court will stand vacated.
14. The learned counsel for the respondent has raised an apprehension that since this court found that the suit is not maintainable it may affect the acceptability of the report of the Advocate Commissioner. It is made clear that in case the plaint is represented by him on complying with sub-sec.(1) of Sec.80 of the Code, it is open to the respondent to produce certified copy of the report of the Advocate Commissioner in that case, examine the Advocate Commissioner and prove his report as provided under law.
Resultantly, the Second Appeal is disposed of as under:
(i) The judgment and decree of the District Court, Kalpetta, Wayanad in A.S. No.1 of 2004 and that of the Sub Court, Sulthanbathery in O.S. No.38 of 1999 are set aside. R.S.A. No.517 of 2007 -: 7 :-
(ii) The learned Sub Judge is directed to return the plaint to the respondent for representation after complying with sub-sec. (1) of Sec.80 of the Code.
(iii) Parties shall suffer their costs in this Appeal.
All pending Interlocutory Applications will stand dismissed.
THOMAS P. JOSEPH, JUDGE.
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