C.K. Chathu and others v. Thuneri Grama Panchayath

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 20TH DAY OF JUNE 2013/30TH JYAISHTA 1935 RSA.No. 339 of 2004 (F) -----------------------JUDGMENT IN AS 5/2000 of 1st ADDL.DISTRICT COURT, KOZHIKODE JUDGMENT IN OS 10/1998 of SUB COURT, VADAKARA ## APPELLANT/APPELLANT/PLAINTIFF: -------------------------------- C.K.CHATHU, S/O.KANARAN, P.W.D.CONTRACTOR, PUTHIYEDATH HOUSE, THRIPPANGATTUR AMSOM DESOM, KALLIKANDY.P.O., THALASSERY. (DIED - LEGAL REPRESENTATIVES IMPLEADED) ## ADDITIONAL APPELLANTS IMPLEADED : 2. SARADA, W/O.LATE CHATHU, PUTHIYEDATHU HOUSE, THRIPPANGOTTUR AMSOM DESOM, KALLIKANDY.P.O., THALASSERY. 3. RAJAN, S/O.LATE CHATHU, PUTHIYEDATHU HOUSE, THRIPPANGOTTUR AMSOM DESOM, KALLIKANDY.P.O., THALASSERY. 4. PREMARAJAN, S/O.LATE CHATHU, PUTHIYEDATHU HOUSE, THRIPPANGOTTUR AMSOM DESOM, KALLIKANDY.P.O., THALASSERY. 5. BEENA, D/O.LATE CHATHU, PUTHIYEDATHU HOUSE, THRIPPANGOTTUR AMSOM DESOM, KALLIKANDY.P.O., THALASSERY. 6. BINDU, D/O.LATE CHATHU, PUTHIYEDATHU HOUSE, THRIPPANGOTTUR AMSOM DESOM, KALLIKANDY.P.O., THALASSERY. 7. BIJU, S/O.LATE CHATHU, PUTHIYEDATHU HOUSE, THRIPPANGOTTUR AMSOM DESOM, KALLIKANDY.P.O., THALASSERY. (ADDL. APPELLANTS 2 TO 7 ARE IMPLEADED BEING THE LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT VIDE ORDER DT. 30.1.2012 IN I.A.1784/11) BY ADV.SRI. CIBI THOMAS RESPONDENT(S)/RESPONDENTS/DEFEDANTS: ----------------------------------------- 1. THUNERI GRAMA PANCHAYATH, REP. BY ITS PRESIDENT, THUNERI AMSOM DESOM. 2. THUNERI GRAMA PANCHAYATH, REP. BY - ITS SECRETARY, THUNERI AMSOM DESOM. R1 & R2 BY ADV. SRI.MOHANAN V.T.K. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-06-2013, THE COURT ON 20-06-2013 DELIVERED THE FOLLOWING: **M.L.JOSEPH FRANCIS, J. ----------------------------------------------R.S.A. No.339 of 2004 ----------------------------------------------Dated 20[th] June, 2013.** ## **J U D G M E N T** This Second Appeal is filed by the plaintiff in O.S.10/1998 on the file of the Sub Court, Vadakara, who was the appellant in A.S.5/2000 on the file of the 1[st] Additional District Court, Kozhikode. 2. O.S.No.10/1998 is a suit for money. The case of the appellant/plaintiff is briefly as follows : The appellant is a P.W.D. Contractor to whom the respondent Panchayat entrusted the work of Markkoth Mukku Koluvalluthil Mukku road for an amount of `1,64,000/-. The said work was under the United Funds Scheme for the year 1995 - 96. The quotation was accepted and the work was started and completed under the supervision of Panchayat authorities and Engineer. On the request of the appellant, the Secretary of the respondent Panchayat granted `95,000/- on 20.3.1996 as cost of materials. The appellant completed the work before 31.3.1996. The measurement was taken and bill for the payment was submitted. But, the respondent Panchayat did not care to make the payment. An amount of `69,000/- is due to the R.S.A. No.339 of 2004 2 appellant from the respondent. The appellant issued a suit notice in the month of January, 1997 to the respondent thereby claiming the amount. Even then, the respondent did not care to make the payment and hence the suit was filed. 3. The respondents/defendants filed written statement, contending as follows : It is false to state that the respondents entrusted the work to the appellant. The Scheme under the United Funds are not entrusted to to contractors, but are carried out by the Panchayat directly. There is no contract between the appellant and the respondent Panchayat. It is true that the then secretary of the respondent/Panchayat, viz., P.C.Ayyappan issued a cheque for `95,000/- to the appellant without the knowledge and consent of the Panchayat Board or President or Standing Committee Chairman. The said Ayyappan issued the cheque illegally in violation of the existing rules and regulations. He was proceeded against for cheating and misappropriation and corruption, and disciplinary proceedings were taken against him. The appellant received `95,000/- from the Panchayat through fraudulent means with R.S.A. No.339 of 2004 3 the connivance of the said Ayyappan. The appellant has no right to claim `69,000/- from the respondents. 4. In the Sub Court, PW1, PW2 and DW1 were examined and Exts.A1 to A4, B1, X1, X1(a) and X2 were marked. The learned Sub Judge, on considering the evidence on record, dismissed the suit on finding that the claim made by the plaintiff is without any basis. Against that judgment and decree, the plaintiff filed A.S.No.5/2000 before the 1[st] Additional District Court, Kozhikode, which was dismissed on the ground that the suit was filed after six months after the accrual of cause of action and therefore, the suit is barred by limitation, within the meaning of Section 249(b) of the Kerala Panchayat Raj Act. Against that judgment and decree, the appellant/ plaintiff filed this Second Appeal. During the pendency of this Second Appeal, the original appellant died and his legal heirs are impleaded as additional appellants 2 to 7. 5. Heard the learned counsel for the appellants and the learned counsel appearing for the respondents. 6. At the time of hearing, the learned counsel for the R.S.A. No.339 of 2004 4 appellants raised the following arguments : The lower appellate court should not have dismissed the appeal on technical grounds which were not agitated before the trial court. The lower appellate court went wrong in holding that the suit is barred by limitation within the meaning of Section 249(b) of the Kerala Panchayat Raj Act. The lower appellate court went wrong in holding that even though the question of limitation was not raised as defence in the written statement as per Section 3 of the Limitation Act the suit will be barred by limitation is incorrect. The mandate contained in Section 3 of the Limitation Act is applicable only to the provisions contained in the Limitation Act and not in any other special or local law. The learned counsel for the respondents supported the judgments of the courts below. 7. As per Section 249(b) of the Kerala Panchayat Raj Act, no suit against a Panchayat or against President, Vice President or any other member or employee thereof or against any other person acting under the direction of the Panchayat or any member or employee thereof for anything done or R.S.A. No.339 of 2004 5 purported to be done under this Act in its or his official capacity shall be instituted unless it is a suit for the recovery of immovable property or for the declaration of title thereto, otherwise than within six months next after the accrual of the alleged cause of action. In the plaint, it is alleged that the cause of action for the suit arose on 22.1.1997, when the defendant Panchayat refused to pay the claim amount. The plaint was presented on 23.1.1998. The lower appellate court found that the suit is barred by limitation, in view of Section 249(b) of the Kerala Panchayat Raj Act read with Section 29(2) and Section 3 of the Limitation Act, as the suit was instituted after six months after the accrual of cause of action. 8. The mandate of Section 3 of the Limitation Act is that it is the duty of the court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that the limitation has not been set up as a defence. Section 29 of the Limitation Act provides that where a special period of limitation different from one prescribed in the schedule to the Limitation Act is prescribed by any special law or local law for R.S.A. No.339 of 2004 6 the purpose of filing the suit, appeal or application, the bar contained under Section 3 of the Limitation Act shall apply and such suit or application is required to be dismissed as if such special limitation prescribed under the Schedule of the Limitation Act. Therefore, it is clear that the question of limitation can be considered by the court without a pleading in the written statement regarding limitation, if the special law or local law is applicable. 9. The learned counsel for the appellants invited my attention to the decision of this Court reported in **Kumbdaje Grama Panchayat v. Abdul Khader** (2001(1) KLT S.N.75 - Case No.91). That was a suit for recovery of money due as balance amount towards supply of materials for repairing a road belonging to the Panchayat. That suit was filed after six months after the expiry of one month's notice. In that decision, this Court considered the applicability of Section 249(b) of the Kerala Panchayat Raj Act and Section 29 of the Limitation Act. In that decision, it was held as follows : “For, normally a contractor like the respondent, unless a specific R.S.A. No.339 of 2004 7 recital is included in the agreement quoting the relevant provision of section in the Act, particularly with reference to the limitation, cannot be expected to know that for this transaction the general law of limitation shall not be applicable and a specific section in the Act is applicable. Nothing has been placed by the revision petitioner that the respondent was made understand at any point of time that in case of a controversy resulting in filing a suit, the limitation under S.249 of the Act is applicable. In view of the above circumstances, particularly the principles of law extracted, I am of the view that the claim is not barred by limitation.” 10. In view of the principles laid down in the above cited decision, I am of the view that the lower appellate court is not justified in finding that the suit is barred by limitation. Since the lower appellate court has not considered the merits of the appeal with regard to the other issues involved in the suit, I am of the view that in the interests of justice, the lower appellate court should be directed to dispose of the appeal on merits and for that purpose, the appeal has to be remanded to the lower appellate court for fresh disposal in accordance with law. Accordingly, this Second Appeal is allowed. The R.S.A. No.339 of 2004 8 judgment and decree in A.S.5/2000 on the file of the 1[st] Additional District Court, Kozhikode is set aside and that appeal is remanded to the 1[st] Additional District Court, Kozhikode for fresh disposal in accordance with law. The parties are directed to appear before the lower appellate court on 12.8.2013. Full court fee paid on the Second Appeal will be refunded to the appellants. There is no order as to costs. Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)