State of Kerala v. F. Zacharia & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** ## **THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932** **SA.No. 153 of 1996()** **--------------------** **AS.82/1995 of DISTRICT COURT, KOLLAM OS.190/1990 of ADDL.MUNSIFF COURT, KOLLAM** **....................** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** **---------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** **3. DISTRICT EDUCATIONAL OFFICER, KOLLAM.** **BY GOVT. PLEADER MR.T.K. SAJEEV.** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** **------------------------------------------------------------------** **1. F. ZACHARIA, CHITTOOR HOUSE, KOTTAKKAKOM WARD, KOLLAM.** **2. TONY ZACHARIA (MINOR) -DO-** **3. ABEY ZACHARIA (MINOR) -DO-** **4. RANY ZACHARIA (MINOR) -DO-** **5. PINKEY ZACHARIA (MINOR) -DO-** **BY ADV. SRI.V.BHASKARAN PILLAI** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2010, THE COURT ON 28/10/2010 DELIVERED THE FOLLOWING:** **rs.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 153 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of October, 2010. ## **JUDGMENT** The State, aggrieved by the decree of the trial court, directing it to pay Rs.11,850/- by way of damages with interest at 12% per annum from the date of suit till the date of decree and thereafter interest at the rate of 6% per annum till the date of recovery on the principal sum of Rs.10,580/-, is the appellant. 2. The parties and facts are hereinafter referred to as they are available before the trial court. 3. Mrs. Lillykutty was the Physical Education teacher at St. Antony's U.P. School, Vaddy, Kollam. She died in harness. Her service benefits were due. The allegation is that inspite of several demands made by the plaintiffs, the defendants concerned were delaying the payment under one pretext or another. Ultimately, the benefits were disbursed only on 1.7.1988. By the S.A.153/1996. 2 delayed payment, the plaintiffs have been affected. Therefore, they sued for damages and interest. 4. The State resisted the suit by pointing out that the suit is barred by limitation and there is no cause of action for the plaintiffs. The State also pointed out that the plaintiffs had filed two Original Petitions before this court claiming interest, and both were dismissed declining the reliefs prayed for. Therefore, they contended that the suit is barred by constructive res judicata and res judicata. They therefore prayed for a dismissal of the suit. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A8. The defendants examined D.W.1 and had Exts.B1 to B1(b) marked. Holding that the State and its officers had no justification in delaying the payment, the suit was decreed. 6. The State took up the matter in appeal. As there was delay in filing the appeal, I.A. 2064 of 1995 was filed to condone the delay of 239 days in filing A.S. 82 of S.A.153/1996. 3 1995. The lower appellate court was not impressed by the reasons shown for the delay caused in filing the appeal and accordingly dismissed that petition. Consequently, the appeal also stood dismissed. Hence the Second Appeal. 7. The following questions of law have been raised in this Second Appeal: _“(i) The plaintiffs/respondents are estopped from claiming interest by way of damages by filing the suit in view of the dismissal of the O.P. No.1168/88and 7865/88 which were filed for nearly the very same relief and the suit is barred by the principles of res juducata._ _(ii) The plaintiffs/respondents right to claim interest is waived by the court and the O.P. happened to be dismissed.”_ 8. At the outset itself, it may be said that the lower appellate court was not justified in dismissing the appeal filed by the State on refusing to condone the delay. On going through the records, it is felt that the State had given sufficient reasons for condonation of delay and that ought to have been accepted. The lower appellate court 4 S.A.153/1996. should have borne in mind that it is the public money, that is being dealt with and it should have been more careful in its approach in dealing with the matter. Whatever that be, being an appeal of the year 1995, it may not be proper for this court to remand the matter to the lower appellate court for fresh consideration. 9. The main contention raised by the learned Government Pleader is that the claim of the plaintiffs is barred by res judicata and constructive res judicata. Attention was drawn to two Original Petitions filed, i.e. O.P.1168 of 1988 and O.P. 7865 of 1988, in which specific claim was made for damages and cost. Both the reliefs were not granted. Accordingly, the learned Government Pleader contended that the plea of the State is barred by res judicata, estoppel, waiver etc. 10. Before this court, the State has sought to produce additional documents as per Order 41 Rule 27 of the Code of Civil Procedure. It is pointed out that the documents now sought to be produced were not produced S.A.153/1996. 5 before the court below, since those documents were not available with the counsel appearing for the State at the time of adducing evidence, and that there was no laches on the part of the State. They also contend that these are material documents, which have a bearing on the issue, that is sought to be determined in the suit. 11. On going through the affidavit filed in support of the petition for receiving the documents, it is found that the State has been able to give justifiable grounds for entertaining the documents. The documents sought to be produced are copy of O.P. 1168 of 1988 and the judgment therein and copy of O.P. 7865 of 1988 and the judgment therein. 12. It may be noticed that before the trial court there was no issue regarding the plea of res judicata or limitation. One cannot omit to note that in the written statement it was specifically contended that the suit was barred by limitation and so also res judicata. The State has specifically mentioned about the filing of O.P.1168 of 1988 S.A.153/1996. 6 and the judgment therein. It is true that the State did not produce the judgment in those two original petitions. But that does not mean that the trial court ought not to have raised issues in that regard. 13. The claim made by the plaintiffs is that due to the delayed payment, they had suffered damages and they claimed interest on the amount which were paid to them. The question is whether the claim is justifiable and can be allowed. 14. In O.P.1168 of 1988, the main grievance of the petitioner was that the respondents therein were deliberately delaying the payment of service benefits of the deceased person and they prayed that appropriate direction be issued. One of the reliefs sought for in the said original petition reads as follows _“To issue a writ of mandamus directing the respondents to pay the petitioner interest at the rate of 12% for the amounts due to him from 14.3.1984 till the arrears is paid off.”_ S.A.153/1996. 7 The said original petition was disposed of by judgment dated 18.3.1988. After noting that as per communication No.PA319821/88/DPI dated 5.3.1988 the benefits have given to the petitioner and therefore nothing more survives, the original petition was disposed of. What is significant is that the claim for interest was not granted by this court even though it was specifically claimed in the original petition. 15. Thereafter, the first plaintiff filed O.P.7865 of 1988. One of the prayers in the said original petition reads as follows: _“To issue a writ of mandamus or any other writ, order or direction directing the respondents to pay the petitioner interest at the rate of 12% for the amount due to him till the same is paid.”_ The said original petition was disposed of by judgment dated 21.2.1989, wherein this court had occasion to observe that the said original petition ought not to have been filed at all and that due to compelling reasons the court was not imposing costs. Holding so, the petition was dismissed. S.A.153/1996. 8 16. It is therefore clear from the above two judgments that the claim for interest on delayed payment was not granted by this court in both the original petitions. 17. In the decision reported in **Gulab Chand Chotalal Parikh v. State of Gujarat** (AIR 1965 SC 1153) it was held that the issue decided in a writ petition cannot be the subject matter of a subsequent suit at all. The issue decided in the original petition operates as res judicata. In the decisions reported in **Union of India v. Nanak Singh** (AIR 1968 SC 1370) and **State of Punjab v. B.D. Kaushal** (AIR 1971 SC 1676) it was held that the principle of constructive res judicata also applies in such cases. 18. If that be so, the claim made in the plaint is barred by the principle of res judicata. 19. True, the lower court did not try the issue probably because the appellants herein did not produce copy of the original petitions and the judgments in the original petitions. The lower appellate court had no occasion to deal with the matter, since the appeal was not considered 9 on merits at all. Whatever that be, the fact remains that the plaintiffs in the suit were not entitled to claim interest for the delayed payment, nor they entitled to claim damages based on the principle of res judicata and constructive res judicata. The claims are certainly barred by law. In the result, the judgment and decree of the lower appellate court shall stand set aside and the suit shall stand dismissed. There will be no order as to costs. **P. BHAVADASAN, JUDGE** sb.