Kerala High Court
O.G.Aravindakshan vs K.S.Sukumaran Nair on 31 July, 2008
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 568 of 2008()
1. O.G.ARAVINDAKSHAN, OOLIPARAMBIL HOUSE,
... Petitioner
Vs
1. K.S.SUKUMARAN NAIR, SUB INSPECTOR OF
... Respondent
2. STATE OF KERALA, REP. BY
For Petitioner :SRI.P.N.PURUSHOTHAMA KAIMAL
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :31/07/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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C.R.P.No.568 of 2008
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Dated this the 31st July, 2008.
O R D E R
Plaintiff in O.S.No.601 of 1987, on the file of Munsiff Court, Ernakulam, is the petitioner. Respondents are the defendants. The suit was filed for realisation of Rs.7500/= as damages, contending that petitioner is an autorickshaw driver and he purchased autorickshaw, KEF 1301, and is plying the same at Thripunithura. On 9.8.1985, while he was plying the autorickshaw, first respondent who was the then Assistant Sub Inspector of Police seized the vehicle, arrested him and autorickshaw was kept in custody illegally for 8 days and only after filing a petition before the Magistrate, the vehicle was released, and thereby, petitioner sustained mental agony and financial loss, which is claimed as damages. It was contended that first respondent's close friend, K.A.Narayanan Nair, Assistant Sub Inspector of Police, was residing on the eastern side of the house of the petitioner and he has a daughter by name 'Shylaja' and he asked petitioner to remove the name of 'Shylaja', which is the name of the autorickshaw and as petitioner was not amenable for the same, he CRP.No.568 of 2008 2 threatened petitioner that he will be detained and the autorickshaw will be seized. It is contended that at the instigation of said Narayanan Nair, first respondent also threatened petitioner and he was therefore compelled to institute O.S.No.801 of 1985 seeking a decree for injunction restraining first respondent from seizing the vehicle. An order of temporary injunction was passed and it is violating that order the autorickshaw was seized without bonafides, and in such circumstances, first respondent is liable for damages.
2. First respondent resisted the suit disputing the allegations and contending that he was only discharging his official duties and did not violate any order and did not cause any damages, and hence, petitioner is not entitled to the damages sought for. Learned Munsiff, on the evidence of Pws. 1 and 2, DW.1 and Exts.A1 to A10, upholding the case of the petitioner, granted a decree for realisation of Rs.7500/= with interest as damages from the first respondent, exonerating second respondent. First respondent challenged the judgment before Sub Court, Ernakulam, as A.S.NO.66 of 1994. Learned Sub Judge on re-appreciation of the evidence set aside the finding of learned Munsiff and dismissed the suit, allowing the appeal.
CRP.No.568 of 2008 3
3. Petitioner originally filed R.S.A.No.261 of 2008 challenging the judgment. Finally, finding that as the claim was only Rs.7500/= and second appeal will not lie, a petition was filed to convert the second appeal to Civil Revision Petition, which was allowed by the court.
4. The learned counsel appearing for the petitioner was heard.
5. The argument of the learned counsel is that learned Sub Judge did not properly appreciate the facts and the evidence and, therefore, judgment of the learned Sub Judge is illegal and irregular, and is to be set aside. He further argued that the fact that petitioner instituted a suit and obtained an order of temporary injunction against first respondent and the vehicle was seized during subsistance of the order of injunction, was not properly appreciated by learned Sub Judge and when the evidence establish that there was personal enmity and the autorickshaw was seized after an order of injunction was passed by the court establish that first respondent was not discharging his official duty, and in such circumstances, petitioner is entitled to the decree granted by the trial court. CRP.No.568 of 2008 4
6. On hearing the learned counsel, I do not find any illegality or irregularity warranting interference in the judgment of the First Appellate Court. Though petitioner instituted a suit and obtained an order of injunction against first respondent, first respondent being the Sub Inspector, cannot be prevented from taking action authorised by the Criminal Procedure Code. Therefore, for the fact that first respondent has seized the vehicle and detained the petitioner, it cannot be a ground to grant damages as sought for. He was only discharging his official duties. Learned Sub Judge rightly appreciated the facts and found that petitioner is not entitled to the decree. I do not find any illegality to interfere with that findings. In such circumstances, the revision petition is dismissed.
M.SASIDHARAN NAMBIAR, JUDGE nj.