Remanded

State of Kerala v. M.M. Yacob

Kerala HC4 Sept 2012RFA/78/2012

Case brief

AI extract

What is this about?

In this regular first appeal, the High Court of Kerala allowed the condonation of delay. The Court observed that the trial court erred in passing a decree for damages without quantifying the amount and remitted the specific issue of quantum for de novo determination.

What did the court decide?

Impugned decree vacated regarding quantum of damages; suit remitted for de novo decision on that issue alone.

State of Kerala Vs M.M. Yacob — Civil Procedure and Limitation | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN &

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THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

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TUESDAY, THE 4TH DAY OF SEPTEMBER 2012/13TH BHADRA 1934

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RFA.No. 78 of 2012 (B)

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OS.153/2001 of II ADDL. SUB COURT, TRIVANDRUM

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APPELLANT(S):

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1. STATE OF KERALA

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REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT OF KERALA SECRETARIAT,THIRUVANANTHAPURAM

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2. THE SE CRETARY TO GOVERNMENT PUBLIC WORKS DEPARTMENT,SECRETARIAT THIRUVANANTHAPURAM

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3. THE EXECUTIVE ENGINEER ROADS DIVISIONS,PWD,NEAR PMG JUNCTION THIRUVANANTHAPURAM

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4. THE ASSISTANT EXECUTIVE ENGINEER ROADS SUB DIVISION,PWD,NEAR PMG JUNCTION THIRUVANANTHAPURAM

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5. THE ASSISTNAT ENGINEER CITY ROADS SECTION NO.II PMG JUNCTION THIRUVANANTHAPURAM

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6. THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICES,THIRUVANANTHAPURAM

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7. THE DISTRICT COLLECTOR, COLLECTORATE,THIRUVANANTHAPURAM

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BY SR. GOVERNMENT PLEADER SRI. C.R. SYAM KUMAR

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DCS

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RFA.No. 78 of 2012 (B)

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RESPONDENT(S):

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1. M.M. YACOB S/O.MOHAMMED IBRAHIM, RESIDING AT TC 43/771 KALLATTUMUKKU, THIRUVANANTHAPURAM PIN - 695 001

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2. THE SECRETARY CORPORATION OF THIRUVANANTHAPURAM, MUSEUM JUNCTION THIRUVANANTHAPURAM PIN - 695 001

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R1 BY ADV. SRI. R. S. KALKURA R2 BY ADVS. SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR SRI.M.S.KALESH SMT.A.V.PRIYA SRI.HARISH GOPINATH

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DCS

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THOTTATHIL B.RADHAKRISHNAN & A.V.RAMAKRISHNA PILLAI, JJ.

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C.M.Appln.132 of 2012 & R.F.A.No.78 of 2012 -----------------------------------Dated this the 4^th day of September, 2012

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JUDGMENT

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Thottathil B.Radhakrishnan, J.

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1.This appeal by the State of Kerala, with an application for condonation of delay of 1261 days, is against the decree awarding damages for alleged acts of government servants in relation to removal of the bunk shop of the plaintiff, the first respondent. We have heard learned Government Pleader, the learned counsel for the plaintiffs and the learned counsel for the corporation in extenso on the merits of the appeal and on the plea that the delay is to be condoned.

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2.Opposing the application for condonation of delay, the plaintiff has filed counter affidavit pointing out, among other things, that he who sued as an indigent was proceeded against under the Revenue Recovery Act for realisation of the court fee payable in the suit and such action having been

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RFA.78/12

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taken, the Government officials cannot plead ignorance of the judgment of the trial court. This plea is taken in opposition to the stand of the Government that the certified copy of the judgment was not available in time with the officers to enable the filing of the appeal within the period prescribed. Having bestowed our anxious consideration on that aspect of the matter, we are satisfied that there is sufficient cause to condone the delay in institution of this appeal. However, we thought it fit to examine whether there is any merit in the appeal, having also due regard to the delay.

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3.The court below held that the officers are responsible for the alleged illegal acts and the State is vicariously responsible. However, the decree directing payment of damages is passed without quantifying the amount that may be payable, if at all. There is no adjudication, reflected in the impugned judgment, as to the quantum of damages payable. The judicial function in such a litigation should necessarily be to ultimately find out as to whether any amount is payable as

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RFA.78/12

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damages; and if so, what is the quantum to be fixed. Such exercise has not been carried out at all, in the impugned judgment. This is a serious and inexcusable error. The court below ought to have quantified the damages and only then could it have passed a decree in favour of the plaintiff. For this sole reason, we are of the view that the quantification of damages is required to be done by affording further opportunity to the appellant State and the first respondent plaintiff to adduce further evidence, if any, in this regard. It is rightly pointed out on behalf of the plaintiff that a time limit may be fixed for that, so that the suit of 2001 need not linger longer.

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4.For the reasons stated above, this RFA and C.M.application are ordered as follows:

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(1)C.M.application is allowed on condition that the appellant pays the first respondent an amount of Rs.2,500/- as costs, payable to the counsel appearing

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RFA.78/12

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for the first respondent in this appeal within a period of three weeks from now.

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(2)The impugned decree is vacated in so far as it relates to the quantum of damages and the suit is remitted to be decided de novo on that issue, and on that issue alone, after affording opportunity to the parties to adduce further evidence.

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(3)The parties are directed to mark appearance before the court below on 27.9.2012. The court below will make an endeavour to dispose of the matter at the earliest, at any rate before 31.1.2013.

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(4)No court fee is payable on this appeal.

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Sd/-

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THOTTATHIL B.RADHAKRISHNAN Judge.

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Sd/-

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A.V.RAMAKRISHNA PILLAI Judge.

kkb.5/9.

RFA.78/12

In compliance with the direction in the judgment dated 04.09.2012 in R.F.A.No.78/2012, the appellants paid an amount of `2,500/- towards costs, to the counsel appearing for the first respondent in the appeal on 25.09.2012, within the time stipulated.

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vide memo dated 19.02.2015 filed on 03.03.2015 in c.f.No.1965/2015.

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Sd/Registrar (Judicial)

State of Kerala v. M.M. Yacob

Case brief

What is this about?

What did the court decide?

State of Kerala v. M.M. Yacob

Case brief

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What did the court decide?

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