Areacode Grama Panchayat v. Kannanthodi Manathanath Muhammed Haji and others

**CR** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` FRIDAY, THE 4[TH] DAY OF MARCH 2022 / 13TH PHALGUNA, 1943 RSA NO. 1161 OF 2009 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 31.03.2009 IN AS 23/2006 OF SUB COURT, MANJERI ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 14.12.2005 IN OS 123/2003 OF MUNSIFF COURT, MANJERI ``` ## **`APPELLANTS/RESPONDENT/DEFENDANT:`** - `1 KANNANTHODI MANATHANATH MUHAMMED HAJI, S/O. KUNHIPOKKER CHEEKKODE AMSOM, VAVOOR DESOM ERNAD TALUK. (DIED)` - `KHADEEJA, 62YEARS, W/O LATE MAHAMMAD HAJI,` - `*ADDL.A2 RESIDING AT MANATHANATH HOUSE, VAVOOR, CHEEKODE, CHERUVAYOOR, MALAPPURAM DISTRICT` - `MARIYUMMA, AGED 45 YEARS, D/O MAHAMMAD HAJI,` - `*ADDL.A3 RESIDING AT – DO -` - `AMINA, AGED 42 YEARS, D/O MAHAMMAD HAJI,` - `*ADDL.A4 RESIDING AT – DO -` - `FATIMA, AGED 40 YEARS, D/O MAHAMMAD HAJI,` - `*ADDL.A5 RESIDING AT – DO -` - `AYISHA, AGED 38 YEARS, D/O MAHAMMAD HAJI,` - `*ADDL.A6 RESIDING AT – DO -` - `MARIYUMMA, AGED 58 YEARS, W/O MAHAMMAD HAJI` - `*ADDL.A7 RESIDING AT – DO -` - `RUKHIA, AGED 40 YEARS, D/O MAHAMMAD HAJI,` - `*ADDL.A8 RESIDING AT – DO -` - `ABDUL JABBAR, AGED 38 YEARS, S/O MAHAMMED HAJI,` - `*ADDL.A9 RESIDING AT – DO -` ``` RSA Nos.1161 & 1257 of 2009 ``` ``` 2 ``` ``` *ADDL.A10SAJITHA, AGED 30 YEARS, D/O MAHAMMAD HAJI, RESIDING AT – DO - ``` ``` *LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 10 AS PER ORDER DATED 30.10.2015 IN IA NO.2754/2015. ``` ``` BY ADVS. SRI.M.KRISHNAKUMAR ``` ## **`RESPONDENT/APPELLANT/PLAINTIFF:`** ``` AREACODE GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, AREACODE AMSOM AND DESOM, ERNAD TALUK. ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 04.03.2022, ALONG WITH RSA.1257/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA Nos.1161 & 1257 of 2009 ``` ``` 3 ``` ## **CR** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 4[TH] DAY OF MARCH 2022 / 13TH PHALGUNA, 1943 ``` ``` RSA NO. 1257 OF 2009 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 18.07.2009 IN AS 3/2007 ``` ``` OF SUB COURT, MANJERI ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 29.11.2006 IN ``` ``` OS 122/2003 OF MUNSIFF COURT, MANJERI ``` ## **`APPELLANTS/RESPONDENT/DEFENDANT:`** - `KANNANTHODI MANATHANATH MUHAMMED HAJI` - `1 S/O.KUNHIPOKKER, CHEEKKODE AMSOM, VAVOOR DESOM ERNAD TALUK. (DIED)` - `*ADDL.A2 KHADEEJA, 62YEARS, W/O LATE MAHAMMAD HAJI, RESIDING AT MANATHANATH HOUSE, VAVOOR, CHEEKODE, CHERUVAYOOR, MALAPPURAM DISTRICT` - `*ADDL.A3 MARIYUMMA, AGED 45 YEARS, D/O MAHAMMAD HAJI, RESIDING AT – DO -` - `*ADDL.A4 AMINA, AGED 42 YEARS, D/O MAHAMMAD HAJI, RESIDING AT – DO -` - `*ADDL.A5 FATIMA, AGED 40 YEARS, D/O MAHAMMAD HAJI, RESIDING AT – DO -` - `*ADDL.A6 AYISHA, AGED 38 YEARS, D/O MAHAMMAD HAJI, RESIDING AT – DO -` - `*ADDL.A7 MARIYUMMA, AGED 58 YEARS, W/O MAHAMMAD HAJI RESIDING AT – DO -` - `*ADDL.A8 RUKHIA, AGED 40 YEARS, D/O MAHAMMAD HAJI, RESIDING AT – DO -` - `*ADDL.A9 ABDUL JABBAR, AGED 38 YEARS, S/O MAHAMMED HAJI,` ``` RSA Nos.1161 & 1257 of 2009 ``` ``` 4 ``` ``` RESIDING AT – DO - ``` ``` *ADDL.A10 SAJITHA, AGED 30 YEARS, D/O MAHAMMAD HAJI, RESIDING AT – DO - ``` ``` *LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 10 AS PER THE ORDER DATED 30.10.2015 IN IA NO.2758/2015. ``` ``` BY ADVS. SRI.M.KRISHNAKUMAR ``` ## **`RESPONDENT/APPELLANT/PLAINTIFF:`** ``` AREACODE GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, AREACODE AMSOM AND DESOM, ERNAD TALUK. ``` ``` BY ADVS. SRI.K.H.ANSAR SRI.LAL K.JOSEPH ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 04.03.2022, ALONG WITH RSA.1161/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA Nos.1161 & 1257 of 2009 ``` ``` 5 ``` ## **CR** ## **K.BABU, J.** ------------------------------------------- R.S.A. Nos.1161 and 1257 of 2009 --------------------------------------------- Dated this the 4[th] day of March, 2022 ## **JUDGMENT** The Regular Second Appeal No.1161/2009 arises from the judgment and decree dated 31.03.2009 in A.S.No.23/2006 passed by the Subordinate Judge's Court, Manjeri. The decree and judgment dated 18.07.2009 passed by the Subordinate Judge's Court, Manjeri in A.S.No.3 of 2007 are under challenge in the Regular Second Appeal No.1257/2009. A.S.No.23/2006 arose from the judgment and decree dated 14.12.2005 passed by the Munsiff's Court, Manjeri in O.S.No.123/2003. A.S.No.3/2007 arose from the judgment and decree passed by the Munsiff's Court, Manjeri in O.S.No.122/2003. 2. The parties in both the matters are the same. The common defendant in the suits is the appellant. The plaintiff, the Areacode Grama Panchayat, is the respondent. 3. The Areacode Grama Panchayat instituted both ``` RSA Nos.1161 & 1257 of 2009 ``` ``` 6 ``` the suits for realising the amount due to it from the defendant, who had obtained the right to receive fee for usage of two markets managed by the Grama Panchayat. 4. The facts in both the suits are similar except the amount involved. The substantial questions of law formulated by this Court in both the Regular Second Appeals are also similar. Therefore, this Court decided to dispose of both the Regular Second Appeals by way of a common judgment. 5. A public auction was conducted in the office of the Grama Panchayat on 20.02.1999 to auction the right to collect usage charges from the fish and meat market and weekly market for the period from 01.04.1999 to 31.03.2000. The defendant was the successful bidder. 6. On 01.04.1999, the defendant executed two agreements in favour of the plaintiff - Grama Panchayat (Ext.A1). As per Ext.A1 dated 01.04.1999 in O.S.No.122 of 2003 the defendant agreed to pay a total amount of Rs.1,01,100/- to the Panchayat for permitting to receive fee for usage of the fish and meat market for a period of one year from 01.04.1999 to 31.03.2000. As per Ext.A1 ``` RSA Nos.1161 & 1257 of 2009 ``` ``` 7 ``` agreement dated 01.04.1999 in O.S.No.123/2003, the defendant agreed to pay a total amount of Rs.58,500/- to the Panchayat as consideration for permitting him to receive fee for the usage of the weekly market for a period of one year from 01.04.1999 to 31.03.2000. In both the agreements, the defendant agreed to pay the amount in nine instalments starting from 01.04.1999 and ending on 31.12.1999. It was specifically agreed that if he committed default in paying the amount, the plaintiff - Grama Panchayat, was entitled to proceed against him. 7. The plaintiff - Grama Panchayat, pleaded in O.S.No.122/2003 that the defendant committed default, as he paid only an amount of Rs.30,835/- towards the fee for usage charges in respect of the fish and meat market. In O.S.No.123/2003, the Panchayat pleaded that he paid only an amount of Rs.34,125/- towards the fee for usage charges in respect of the weekly market. 8. The defendant resisted the suits, inter alia, contending that the suits were barred by limitation. The Trial Court, relying on Section 243 of the Kerala Panchayat Raj Act, 1994, held that the suits were barred by limitation. ``` RSA Nos.1161 & 1257 of 2009 ``` ``` 8 ``` 9. The plaintiff – Grama Panchayat, challenged the decree and judgment passed in both the suits filing A.S.Nos.3 of 2007 and 23/2006 respectively. The First Appellate Court reversed the decree and judgment of the Trial Court holding that the suits were filed within the period of limitation. 10. The defendant challenges the decree and judgment passed by the First Appellate Court in these Regular Second Appeals. This Court admitted these Regular Second Appeals on the following substantial questions of law:- “(1) Is the finding of the First Appellate Court that the suit is not barred by limitation legally correct in view of Section 243 of the Kerala Panchayath Raj Act, 1994? (2) Has not the First Appellate Court erred in invoking Section 18 of the Limitation Act to hold that there is an acknowledgment of the liability in view of Section 243 of the Kerala Panchayat Raj Act, 1994?” 11. Heard Sri.M.Krishna Kumar, the learned counsel appearing for the appellant/defendant and Sri.Lal K.Joseph, the learned Standing Counsel appearing for the ``` RSA Nos.1161 & 1257 of 2009 ``` ``` 9 ``` respondent/plaintiff- Grama Panchayat. 12. The following facts are not in dispute: (1) On 20.02.1999, in the public auction held at the office of the plaintiff, the defendant being the successful bidder, obtained the right to collect the usage charges from the fish and meat market, and weekly market run by the plaintiff - Grama Panchayat for a period from 01.04.1999 to 31.03.2000. (2)Agreements were executed on 01.04.1999 by the defendant in favour of the plaintiff - Grama Panchayat, whereby he had agreed that the amount due to the Panchayat would be remitted in nine monthly instalments starting from 01.04.1999 and ending on 31.12.1999. (3)The defendant committed default in paying the amount due to the plaintiff. (4) The Original Suits were instituted by the plaintiff on 31.03.2003. 13. The case of the defendant is that both the suits were barred by limitation as the suits were instituted after the expiry of the period of three years stipulated under Section 243 of the Panchayat Raj Act,1994. The challenge of the plaintiff is that the cause of action for instituting the suits arose only on the expiry of the contract period, that is, ``` RSA Nos.1161 & 1257 of 2009 ``` ``` 10 ``` on 31.03.2000. The learned counsel for the plaintiff, at the time of argument, raised a contention that even if it is found that the cause of action for the suits arose immediately after 31.12.1999, the suits are within time as the plaintiff is entitled to get the benefit under Section 18 of the Limitation Act since the defendant had acknowledged the liability as per Ext.B7 dated 20.01.2001. So it is contended that the limitation got extended for a further period of three years from 20.01.2001. 14. Section 243 of the Kerala Panchayat Raj Act, 1994, (for short ‘the Act’) prescribes the period of limitation for recovery of dues. 15. Section 243 of the Act, 1994 reads thus: ## **“243. Limitation for recovery of dues-** (1) No distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any tax or other sum due to a Panchayat under this Act or any rule or bye-law, or order made under it after the expiration of a period of three years from the date on which the distraint might first have been made, a suit might frst have been instituted or the prosecution might first have been commenced, as the case may be, in respect of such tax or sum. xxx xxx xxx” (emphasis supplied) ``` RSA Nos.1161 & 1257 of 2009 ``` ``` 11 ``` 16. The learned counsel for the appellant/defendant contended that the present suits might first have been instituted by the plaintiff - Grama Panchayat, on 01.01.2000 as provided in Section 243 of the Act and, therefore, limitation would start from 01.01.2000. 17. Per contra, the learned counsel for the plaintiff contended that as the limitation would start from the date on which the period of contract expired, that is on 31.03.2000, and as the suits had been instituted on 31.03.2003, they were filed in time. 18. On a plain reading of Section 243 of the Act, it is abundantly clear that a suit shall be instituted within a period of three years from the date on which the suit might first have been instituted by the plaintiff, Panchayat. It is trite that the words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning unless that leads to some absurdity or unless there is something in the context or in the object of the statute to suggest the contrary. Therefore, only literal construction of Section 243 is required. ``` RSA Nos.1161 & 1257 of 2009 ``` ``` 12 ``` 19. In the present fact situation, the agreements executed by the defendant in favour of the plaintiff - Grama Panchayat, make it clear that he had to pay the amount due to the Panchayat in nine instalments on or before 31.12.1999. Therefore, the amount due to the Panchayat fell due on 01.01.2000. It is specially recited in the agreements that if the defendant committed any default in making the payment as prescribed, that is, on or before 31.12.1999, the plaintiff - Grama Panchayat was entitled to institute or initiate legal proceedings. 'The date on which a suit might frst have been instituted' as provided in Section 243 of the Act means the date on which the amount in question fell due. The necessary conclusion is that the limitation would start from the date on which the amount covered by the agreement fell due. This view is fortified by the decision of the Andhra Pradesh High Court, the **Nandyal Municipal Council v. N.M.D. Ismail (MANU/AP/1244/2001).** 20. The learned counsel for the respondent/plaintiff relied on **Sreenivasan Nair v. Priyasenan [1989 (1) KLT 361]** to contend that the suits were instituted within the period of limitation. In **Sreenivasan Nair v. Priyasenan** ``` RSA Nos.1161 & 1257 of 2009 ``` ``` 13 ``` **(supra)** while dealing with Section 387 of the Kerala Municipality Act, 1960, a provision pari materia with Section 243 of the Kerala Panchayat Raj Act, 1994, it was held that a civil suit for realisation of the amount will not be barred by limitation unless after the expiry of three years from the date on which the Municipal Council obtained the right to realise the same. In the above mentioned case, 'the date on which the Municipal Council obtained the right to realise the amount' is necessarily the date on which the amount fell due. 21. Therefore, the ratio in **Sreenivasan Nair v. Priyasenan (supra)** will in no way help the plaintiff to contend that the suits were instituted within the period of limitation. 22. The learned counsel for the respondent also relied on **Elezabeth v. Thuravoor Grama Panchayath [2021 (4) KLT 574]** to substantiate his contentions. In **Elezabeth v. Thuravoor Grama Panchayath (supra),** this Court was dealing with a case in which the amount due was on account of the audit for the period 2000-2001 and 2001- 2002. On the above facts, this Court held that the Pachayat ``` RSA Nos.1161 & 1257 of 2009 ``` ``` 14 ``` had at the most a period of three years from the date on which notice for initiating the recovery was issued. In that case, the cause of action arose from the date on which the Panchayat issued notice for initiating recovery, when it was found in the Statutory audit that the amount in question was due. The ratio in **Elezabeth v. Thuravoor Grama Panchayath (supra),** is distinguishable on facts. 23. The resultant conclusion is that in the present cases, the plaintiff – Grama Panchayat might have first instituted the suit on 01.01.2000, the date on which the amount fell due. As per Section 243 of the Act, no suit shall be instituted after the expiry of a period of three years from the date on which the suit might first have been instituted. Therefore, the suits filed on 31.03.2003 were beyond the period of limitation. 24. The First Appellate Court recorded that the cause of action to institute the suits arose only on 31.03.2000 on the ground that the period of contract expired on that date. The finding of the First Appellate Court cannot be sustained, as the date of expiry of the contract has no relevance on the question of limitation in view of the Statutory Mandate. ``` RSA Nos.1161 & 1257 of 2009 ``` ``` 15 ``` 25. The First Appellate Court, relying on Ext.B7 dated 20.01.2001, the letter stated to have been issued by the defendant to the Panchayat narrating his grievances that led to his committing default and praying for time to make payment, concluded that the period of limitation was extended as the defendant acknowledged the liability as per Ext.B7, letter. In the plaints, absolutely, there are no pleadings as to the acknowledgment. This Court in **Craft Centre and others v. The Koncherry Coir Factories [1990 KHC 477],** held that an acknowledgment not pleaded in the plaint, at least by way of amendment, cannot be relied upon. The ratio in **Craft Centre and others v. The Koncherry Coir Factories (supra)** was reiterated by this Court in **Sreedevi v. Appu [1990 KHC 396].** As the plaintiff failed to plead the acknowledgment, there cannot be any reliance on it. As per Order VII Rule 6 of the Code of Civil Procedure, where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed. The plaintiff has not pleaded in the plaint for the benefit of Section 18 of the Limitation Act. ``` RSA Nos.1161 & 1257 of 2009 ``` ``` 16 ``` 26. The resultant conclusion is that the suits were instituted beyond the period of limitation. The substantial questions of law are answered in favour of the appellants. Hence, (A) the Regular Second Appeal No.1161/2009 is allowed as follows:- (1) The judgment and decree dated 31.03.2009 passed by the Subordinate Judge's Court, Manjeri in A.S.No. 23/2006 are set aside. (2) The judgment and decree dated 14.12.2005 passed by the Munsiff Court, Manjeri in O.S.No. 123/2003 are restored. (B) the Regular Second Appeal No.1257/2009 is allowed as follows:- (1) The judgment and decree dated 18.07.2009 passed by the Subordinate Judge's Court, Manjeri in A.S.No. 3/2007 are set aside. (2) The judgment and decree dated 29.11.2006 passed by the Munsiff Court, Manjeri in O.S.No. 122/2003 are restored. ``` RSA Nos.1161 & 1257 of 2009 ``` ``` 17 ``` The parties are directed to bear their respective costs in these Regular Second Appeals. Pending interlocutory applications, if any, stand closed. ``` Sd/- K.BABU JUDGE ``` VPK