Madras High Court
T.Subramani vs State Of Tamil Nadu on 10 July, 2012
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 10.07.2012 Coram:- The Hon'ble Mr. Justice T.RAJA Second Appeal No.279 of 2006 T.Subramani ... Appellant vs. 1.State of Tamil Nadu, Rep. by the Chief Secretary to Government, Fort St. George, Chennai 9. 2.Daniel Gunanidhi I.A.S., Deputy Secretary to Government, Public Works Department, Fort St. George, Chennai 600 009. 3.M.Jayaraman, Inspector of Police, Katpadi, North Arcot District. ... Respondents Second Appeal filed under Section 100 CPC. as against the judgment and decree, dated 01.03.2005, passed by the Additional District Judge, Fast Track Court No.V, Chennai, in A.S.No.158 of 2003, reversing the judgment and decree, dated 11.10.2002, passed in O.S.No.7303 of 1996, by the II Assistant City Civil Judge, Chennai. For Appellant : Mr.V.Selvaraj For Respondents : Mr.S.Pattabiraman, GA (CS) for R1 & R2 No Appearance for R3 J U D G M E N T
The present second appeal has been filed by the plaintiff/appellant herein as against the judgment and decree passed by the learned first appellate Court in A.S.No.158 of 2003, dated 01.03.2005, whereby the judgment and decree passed by the learned trail Court in O.S.No.7303 of 1996, dated 11.10.2002, was reversed.
2. Brief facts leading to the filing of the second appeal are given as under:-
The suit was filed for having suffered a wrongful order of detention, ordering his detention as a goonda for one year in the Central Prison, Vellore on 19.10.1986 at Madras. Subsequently, when the order of detention was quashed by this Court in W.P.No.12087 of 1986, pursuant thereto, he issued a notice to the defendants calling upon them to pay Rs.5 lacs as damages to the plaintiff. Even after receiving the notice, no reply was given. Therefore, his further case is that when he was an agriculturist and belonging to a respectful family, he was elected as unopposed as a member of the Devalapuram Panchayat and he was also an Agent for the Peerles Insurance Company Limited and also a member of the Ambur Cooperative Marketing Society. That apart, he was also President of Vannior Sangam, Kammakrishna Palli Village, North Arcot District and he is also owning 15 acres of land in North Arcot District. Whileso, he opposed to conversion of poor Hindu Vanniyars to other religion by offer of money and other benefits. He further averred that he, being a President of Vanniar Sangam, Kammakrishna Palli, sent many complaints against the defendants 2 and 3, complaining that they failed to prevent forcible conversions. As a result of the complaints made against the defendants 2 and 3, they abused their official position and conspired to cause wrongful loss to the plaintiff, to the extent of foisting false cases against the plaintiff. Thereafter, the third defendant falsely charge sheeted the plaintiff under Section 307 IPC in S.C.No.120/87 on the file of the Assistant Sessions Judge, Tirupathur, North Arcot District, however, the case was ended in acquittal, whereby the Sessions Court categorically stated that the First Information Report was fabricated illegally to detain the plaintiff under Tamil Nadu Act 14 of 1982 and when he caused the arrest of the plaintiff in Cr.No.180/86 on the file of the Omerabad Police Station, the Court found that all these cases instituted by the third respondent against the plaintiff were false cases. It was also the case of the plaintiff that by creating false records, the third defendant had sworn to false affidavits to cause the detention of the plaintiff as goonda under the Tamil Nadu Act 14 of 1982, and the second defendant also on the basis of false documents created against the plaintiff passed an order of preventive detention, ordering his detention in Central Prison, Vellore, for one year treating him as a Goonda. However, when the order of detention passed against the plaintiff was questioned before this Court in W.P.No.12089 of 1986, a Division Bench of this Court, in its judgment dated 28.01.1987, allowed the writ petition by setting him at liberty. Therefore, the case of the plaintiff in the suit was, when the defendants 2 and 3 created the false records against the plaintiff as Goonda under the Tamil Nadu Act 14/82, even the first defendant-Chief Secretary to Government mechanically approved the detention order passed by the second defendant, without applying his mind and miserably failed to consider the representation made by the plaintiff and his wife and as a result, the plaintiff's reputation before the public was lowered and his business as an agent of the Peerless Insurance Company was also affected. Hence, it was prayed that the defendants are liable to pay the damages to the plaintiff jointly and severally for illegally detaining the plaintiff in Central Prison, Vellore, for 103 days.
3. The defendants 1 to 3 filed their written statement denying the representation made by the plaintiff and his wife addressed to the first defendant and the Central Government, complaining that they failed to prevent the forcible conversions. It was also pleaded in the written statement that in the year 1984, due to harassment of plaintiff, 32 persons, who were originally Hindus, got converted into Islam out of their own free will and volition. One Rani @ Razia belongs to Kamma Krishnapalli, converted to Islam from Hinduism and married one Yusuff, son of Abdul Rahim of Ambur, and that Yusuff has a land adjacent to Kamma Krishnapalli Village and a Canal, that has been in existence, irrigates Yusuff's land. But, due to ill-feeling developed in pursuance of the religious conversion, the people in the Village destroyed the Canal cement pipe. Subsequently, on 13.08.1985, the house of Mani @ Akbar Basha, son of Munusamy Gounder, was set on fire and the family member of the said Rani was assaulted by the plaintiff and 3 others and thereafter, on the complaint placed placed by the said Mani, the case was registered in Omerabad Police Station in Crime No.122/85 against the plaintiff and 4 others. When conversion took place according to their will and volition, the question of not preventing the conversion by the defendants 2 and 3 will not arise and also the question of abusing their official position and conspired to cause wrongful loss to the plaintiff also will not arise, because there was no necessity for the third defendant to foist false case. Further, it was also pleaded that there was no malafide intention to the second defendant to pass the detention order and with due care and attention in the course of discharging his duties, it was passed in good faith. Subsequently, the Advisory Board constituted under Section 9 of the Tamil Nadu Act 14/82 unanimously opined after perusing the documents and hearing oral and written submissions that there was sufficient cause for the detention of the plaintiff. Thereafter, the order was confirmed by the Government. But, so far as the writ petition in W.P.No.12089 of 1986 was concerned, the writ petition was allowed by the High Court on the ground of non-application of mind by the second defendant and not on the merits. Further, the first defendant was not impleaded in the said writ petition. Finally, it was pleaded that Section 16 of Tamil Nadu Act 14/82 gives protection to any officer for anything done in good faith or intended to be in pursuance of the Act. Therefore, the defendants are not liable to pay the damages.
4. On the side of the plaintiff, the plaintiff himself was examined as P.W.1 and 12 exhibits were marked as Exs.A1 to A12. On the side of the defendants, three defendants were examined as D.W.1 to D.W.3 and 14 exhibits were marked as Exs.B1 to 14. On the pleadings and the materials placed, the learned trial Judge framed the following issues:
i. Whether the plaintiff is entitled to get compensation as prayed for against the defendants?
ii. Whether the suit is bad for wrongful joinder of parties?
iii. To what relief the plaintiff is entitled?
5. The learned trail Judge, on appreciation of evidence produced by both sides, came to the conclusion that the second defendant did not apply his mind in passing the order of detention and that the defendants 2 and 3 have not placed any evidence to show that their action was bonafide and on that basis, the suit was decreed as prayed for. Aggrieved by the same, when an appeal was filed, the learned first appellate Court reversed the judgment and decree passed by the learned trial Court holding that the suit is barred by limitation under Article 73 of the Limitation Act, 1963. As against that, the present second appeal has been filed by the plaintiff.
6. This Court, at the time of entertaining the second appeal, framed the following substantial questions of law:-
a) Whether the Lower Appellate Court is right in holding that the suit is only for damages for false imprisonment and not for damages for malicious prosecution?
b) Whether the Lower Appellate Court is right in holding that the acquittal in Ex.A3 is due to the reason the guilt being not proved beyond reasonable doubt and not an Hon'ble acquittal?
c) Whether the Lower Appellate Court is right in holding that the order in Ex.A1 is a bonafide order, when the oral evidence of P.W.2 and P.W.3 is in conflict with the opinion of handwriting expert in Ex.X1?
d) Whether the Lower Appellate Court is right in holding that the order in Ex.A1 was passed with a bonafide intention to prevent breach of peace?
e) Whether the Lower Appellate Court is right in holding that the suit is barred by limitation when no such plea was taken by the respondents before the trial Court?
7. Learned counsel appearing for the appellant submitted that when the defendants did not raise any plea of limitation either in the written statement or at the time of argument before the trial Court, the learned first appellate Court was not right in holding that the suit is barred by limitation. Further, when the trial Court has given a clear cut finding that the defendants are liable to pay damages to the plaintiff by holding that the order of detention is without application of mind, the learned first appellate Court seriously erred in holding that the suit is only for damages for false imprisonment and not for malicious. Further, this Court in its judgment dated 28.01.1987, has given an unambiguous finding that the order of detention was wrongly passed and the defendants 2 and 3 have deliberately conspired in passing the detention order, therefore, it is not open to the first appellate Court to hold that the order of detention was a bonafide order. In any event, the cause of action for filing a suit is not as per Article 73 of the Limitation Act, as the case of the plaintiff is covered in Article 113 of the Limitation Act. As per Article 113, any suit for which no period of limitation is provided elsewhere in the schedule, then three years is the period of limitation to file a suit, as the case against the plaintiff is not only a false one, but also an act of misfeasance. Therefore, Article 113 will squarely apply. Section 16 of the Tamil Nadu Act also will not apply to this case. Hence, from the above, it was submitted that the learned first appellate Court has wrongly reversed the judgment and decree passed by the learned trial Court, without application of mind, as against Article 113 of the Limitation Act, therefore, the impugned judgment is liable to be set aside.
8. Learned Government Advocate appearing for the respondents 1 and 2 submitted that the first appellate Court has rightly appreciated the question of law as well as question of fact, by properly going into the maintainability of the suit. Since the trial Court has not raised any issue on the question of limitation, the first appellate Court, which is duty bound to consider the maintainability of the suit, whether it is barred by limitation or not, by rightly considering the Article 73 and by relying upon Section 3 of the Limitation Act, which requires the Court to examine the question of limitation suo moto even if parties do not plead it, held against the plaintiff that the suit is not maintainable. Hence, the plaintiff/appellant herein claiming cause of action for his false imprisonment should have filed a suit within one year, as mandated by Article 73 of the Limitation Act, for, as per Article 73, for compensation for false imprisonment, the suit should be filed within a period of one year from the date of imprisonment ends. But, in this case, the suit has been filed beyond one year i.e., the suit was filed on 09.07.1988, but the detention order was quashed by this Court in its judgment dated 28.01.1987, passed in W.P.No.12089 of 1986. Therefore, from these two dates, it is clear that the suit is barred by limitation under Article 73 of the Limitation Act, hence, he pleaded for dismissal of the second appeal.
9. Heard the learned counsel appearing on either side and perused the materials available on record.
10. It is relevant to refer to Section 16 of Tamil Nadu Act 14/82 to find out whether this provision bars the suit filed by the plaintiff against the State Government or officer or person for anything done in good faith or intended to be done in pursuance of the Act. Section 16 of the said Act shows that it limits the protection of action under the act only when they are done in good faith. In other words, any action taken bonafide is protected, therefore, the burden is on the defendants to prove that the order of detention was passed in good faith. But, when the validity of the detention passed by the second defendant as approved by the first defendant was challenged before this Court, a Division Bench of this Court in W.P.No.12089 of 1986, dated 28.01.1987, passed the following observation, which is extracted hereunder:-
"From the above averments made in the counter, it is seen that the second respondent totally denied knowledge of the involvement of the detenu in Crime No.194/86 of Omerabad Police Station and also about his arrest on 06.10.86. It may be pointed out here that the Inspector of Police, the fourth respondent filed his affidavit only on 19.10.86 on which date the second respondent had passed the impugned order. On perusing the grounds of detention and the affidavit of the Inspector of Police (R4) we are surprised to find that two pages of the affidavit of the Inspector are simply copied and incorporated in the grounds of detention inclusive of the above extracted averments in the grounds of detention. It is further surprising to note that the affidavit of the Inspector of Police was signed before the second respondent himself. At the fact of the affidavit filed by the Inspector of Police, the fourth respondent, the following oath of affirmation is found:
"I solemnly affirm that this 19th day of October 1986, Thiru M.Jayaraman, Inspector of Police, Ambur Circle, L&O North Arcot District filed the above affidavit before me and signed his name in my presence.
Sd/-. E.S.DANIEL GUNAIDHI, Collector and District Magistrate, North Arcot District Vellore."
A perusal of the affidavit of the Inspector of Police, the grounds of detention and the order of detention shows that the affidavit was filed before the Collector by the Inspector on 19.10.1986, on which date itself the second respondent, the Collector, drew his subjective satisfaction and passed the impugned order of detention for the reasons set out in the grounds of detention which were also prepared on the same day. Though the Inspector of Police has arrested this detenu and other in connection with Crime No.194/1986 on 06.10.1986, he has not brought that fact to the notice of the second respondent, despite the fact that he filed the affidavit on 19.10.1986. In other words, there is a suppression of the material fact of the arrest of the detenu on 06.10.1986 in connection with Crime No.194/86 and the subsequent release of the detenue on bail, and above all a misleading version has been given as if the detenu has been absconding after the registration of the case in Crime No.180/1986.
In paragraph 16 of the counter, the second respondent, except denying his knowledge of the involvement of the detenu in Crime No.194/1986 and also of his arrest would not state whether the detenu was arrested in connection with Crime No.194/1986 either before the order of detention was passed or after the order of detention was passed. It is not in dispute now, and on the other hand, it is the admitted case of the prosecution itself, that the detenu and others were arrested even on 06.10.1986 in Crime No.194/86. Thus, it is clear that all the relevant materials were not placed before the second respondent and the second respondent also has not applied his mind to the entire facts of the case. Hence, the order is vitiated by reason of the non-application of the mind by the second respondent.
5. As we have come to the conclusion that the order of detention has to be set aside on this grounds, we are not inclined to examine the other grounds raised in the affidavit filed in support of the writ petition.
6. In the result, the order of detention is set aside, and the detenu is directed to be set at liberty forthwith. The writ petition is allowed."
11. A close reading of the above order goes to show that there is a suppression of material fact of the arrest of the detenu on 06.10.1986 in connection with Crime No.194/86 and the subsequent release of the detenu on bail and above all, a misleading version has been given as if the detenu has been absconding after the registration of the case in Crime No.180/1986. Further, the above judgment says that it is clear that all the relevant materials were not placed before the second respondent and the second respondent also has not applied his mind to the entire facts of the case. Hence, the order of detention was vitiated by reason of the non-application of the mind by the second respondent, and on the basis of above observation, this Court set aside the order of detention, by setting at liberty the plaintiff.
12. Under these circumstances, a vital fact is required to be borne in mind, inasmuch as the trial Court has decreed the suit holding that the defendants are liable to pay the damages to the plaintiff, as the order of detention was passed without application of mind. But, the learned first appellate Court by giving a favourable finding for the plaintiff that the impunity claimed by the first defendant is not available for the reason that the suit against the other defendants is only in their personal capacity, hence, the suit is maintainable against all the defendants, however, by erroneously going into the records produced before the Advisory Board, concluded that the findings of the learned trial Court that the defendants 1 to 3 had caused the detention to the plaintiff was not a bonafide one and in my considered view, it is not acceptable for the reason that such a finding is completely going against the reasonings given by the High Court in its judgment dated 28.01.1987, passed in W.P.No.12089 of 1986, wherein it was held, while allowing the writ petition challenging the detention order, that the order of detention was vitiated by reason of the non-application of mind by the second respondent.
13. Further, in the given the facts and circumstances of the case, it is appropriate to consider what is misfeasance in public office. In this regard, the Apex Court in Lucknow Development Authority v. M.K.Gupta (AIR 1994 SCC 787) held thus in paragraph 10;
"10. .......Misfeasance in public office is explained by Wade in his book on dministrative Law thus:
Even where there is no ministerial duty as above, and even where no recognised tort such as trespass, nuisance, or negligence is committed, public authorities or officers may be liable in damages for malicious, deliberate or injurious wrong-doing. There is thus a tort which has been called misfeasance in public office, and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury."
The jurisdiction and power of the courts to indemnify a citizen for injury suffered due to abuse of power by public authorities is founded as observed by Lord Hailsham in Cassell & Co. Ltd. v. Broome13 on the principle that, an award of exemplary damages can serve a useful purpose in vindicating the strength of law'. An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law. It acts as a check on arbitrary and capricious exercise of power. In Rookes v. Barnard14 it was observed by Lord Devlin, 'the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service'. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it. Compensation or damage as explained earlier may arise even when the officer discharges his duty honestly and bona fide. But when it arises due to arbitrary or capricious behaviour then it loses its individual character and assumes social significance. Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous.
.......... An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it. Therefore the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil. It may result in improving the work culture and help in changing the outlook. Wade in his book Administrative Law has observed that it is to the credit of public authorities that there are simply few reported English decisions on this form of malpractice, namely, misfeasance in public offices which includes malicious use of power, deliberate maladministration and perhaps also other unlawful acts causing injury. One of the reasons for this appears to be development of law which, apart, from other factors succeeded in keeping a salutary check on the functioning in the government or semi-govemment offices by holding the officers personally responsible for their capricious or even ultra vires action resulting in injury or loss to a citizen by awarding damages against them."
14. Further, in the above judgment, it is held that what is malice is nothing but simply acting for a reason and purpose knowingly foreign to the administration. The Apex Court in Lucknow Development Authority's case (cited supra) by referring to Farrington v. Thomas (1959 VR 286) has held thus;
".......... In Farrington v. Thomson1 the Supreme Court of Victoria awarded damages for exercising a power the authorities knew they did not possess. A licensing inspector and a police officer ordered the plaintiff to close his hotel and cease supplying liquor. He obeyed and filed a suit for the resultant loss. The Court observed:
"Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequence of that is an injury to an individual, an action may be maintained against such public officer." In Wood v. Blair (The Times, 3, 4, 5 July 1957) a dairy farmer's manageress contracted typhoid fever and the local authority served notices forbidding him to sell milk, except under certain conditions. These notices were void, and the farmer was awarded damages on the ground that the notices were invalid and that the plaintiff was entitled to damages for misfeasance. This was done even though the finding was that the officers had acted from the best motives"
15. A mere reading of all these above judgments clearly go to show that even if the officers have acted with best motives, an action for damages might proceed for having caused injury to the person concerned. That apart, when this Court, in its judgment dated 28.01.1987, passed in W.P.No.12089 of 1986 has held that there is a suppression of the material fact of the arrest of the detenu on 06.10.1986 in connection with Crime No.194/86 and above all a misleading version has been given as if the detenu has been absconding after the registration of the case in Crime No.180/1986, the defendants are not entitled to have the benefit of Section 16 of the Tamil Nadu Act 14/82. Accordingly, the substantial questions of law C and D are answered against the defendants.
16. Going back to the other substantial questions of law, whether the suit is only for damages of false imprisonment and not for damages for malicious prosecution, as it is already found earlier, the Apex Court has held that misfeasance in public offices which includes malicious use of power, deliberate mal-administration and perhaps also other unlawful acts causing injury and as already found by this Court in W.P.No.12089/1986 that the defendants 2 and 3 being public functionary, it cannot be a exercise of power, but is a abuse. In that note, Articles 73 and 113 of Limitation Act are extracted as under:-
Description of Suit Period of Limitation Time from which period begins to run 73 For compensation for false imprisonment One year When the imprisonment ends.113
Any suit for which no period of limitation is provided elsewhere in this schedule Three years When the right to sue accrues
17. From the above, it can be seen that Article 73 prescribes one year period of limitation for filing a suit for compensation for false imprisonment, whereas Article 113 prescribes three years period for filing a suit, for which no period of limitation is provided elsewhere in the schedule. As discussed above, though the case of the plaintiff/appellant herein is constituted misfeasance and wrongful exercise and misuse of power, resultantly, he suffered false imprisonment, therefore, Article 73 prescribing one year period of limitation alone will apply, hence, the suit filed beyond one year from the date of quashing the detention order is not well within the limitation. Therefore, the suit is not maintainable. Accordingly, the judgment and decree passed by the learned first appellate Court in A.S.No.158 of 2003, dated 01.03.2005, is hereby confirmed.
18. In fine, the second appeal is dismissed. No Costs.
rkm To
1. The Additional District Judge, Fast Track Court No.V, Chennai.
2. The II Assistant City Civil Judge, Chennai