Thamarassery Grama Panchayath v. A.K. Abdulla and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **TUESDAY, THE 1ST DAY OF JANUARY 2013/11TH POUSHA 1934** ## **CRP.No. 579 of 2008 ( )** **----------------------AS.283/2004 OF I ADDITIONAL DISTRICT COURT, KOZHIKODE. OS.107/2000 OF PRINCIPAL MUNSIFF COURT-I, KOZHIKODE .** **...............** ## **REVISION PETITIONER/APPELLANTS IN AS/1ST DEFENDANT IN OS :** **----------------------------------------------------------------------------------------------------** **THE THAMARASSERY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, POST THAMARASSERY, THAMARASSERY AMSOM AND DESOM OF KOZHIKODE TALUK.** **BY ADVS. SRI.V.V.SURENDRAN, SRI.P.M.PADMANABHAN, SRI.P.A.HARISH, SMT.SANIKA.V.S.** ## **RESPONDENTS/RESPONDENTS IN AS/PLAINTIFF AND DEFENDANTS 2 TO 9 IN OS:** **--------------------------------------------------------------------------------------------------------------------------** **1. A.K. ABDULLA, S/O.ATHRUMAN, RESIDING AT KUNHAMPALL HOUSE, POST THAMARASSERY, THAMARASSERY AMSOM AND DESOM OF KOZHIKODE TALUK.** **2. THEKKETHODIKAYIL USSAIN, RESIDNG AT THEKKETHODIKAYIL HOUSE, RAROTH AMSOM DESOM, KOZHIKODE TALUK.** **3. NEROTH USMAN, S/O.AYAMMED, RESIDNG AT NEROTH HOUSE, RAROTH AMSOM DESOM, KOZHIKODE TALUK.** **4. KUMHAMBALLY MOHAMMED, S/O.KATHIRI, RESIDNG AT KUMHAMBALLY HOUSE, RAROTH AMSOM DESOM, KOZHIKODE TALUK.** **5. THEKKETHODIKAYIL ATHRUMAN, S/O.KUNHAMU, RESIDNG AT THEKKETHODIKAYIL HOUSE, RAROTH AMSOM DESOM, KOZHIKODE TALUK.** ## **CRP.No. 579 of 2008** **6. VADAKKEPATT BALAKRISHNAN,** - **S/O.GOPALAN NAIR, RESIDNG AT VADAKKEPATT HOUSE, RAROTH AMSOM DESOM, KOZHIKODE TALUK.** **7. THEKKETHODIKAYIL MOOSA, S/O.KUNHAMU, RESIDING AT THEKKETHODIKAYIL HOUSE, RAROTH AMSOM DESOM, KOZHIKODE TALUK.** **8. NEROTH IMBICHI MOYI, AYAMMED,** - **RESIDNG AT NEROTH HOUSE, RAROTH AMSOM DESOM, KOZHIKODE TALUK.** **9. MOOLATH MANNIL ABDUL LATHEEF, S/O.KOYAMOIDEEN, RESIDNG AT MOOLATH MANNIL HOUSE, RAROTH AMSOM DESOM, KOZHIKODE TALUK.** **R1 BY ADV. SRI.K.A.SALIL NARAYANAN.** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **S.S.SATHEESACHANDRAN, J.** ## **------------------------------C.R.P.NO.579 OF 2008 (D) ----------------------------------Dated this the 1[st] day of January, 2013** ## **O R D E R** The 1[st] defendant in a suit for money has filed the above revision challenging the decree and judgment upholding the claim of the plaintiff, passed by the trial court and affirmed in appeal by the lower appellate court. 2. Revision petitioner is a local authority – a Panchayat. Plaintiff in auction purchased the right to collect sand from a kadavu in the Panchayat for a period of three months. He executed an agreement and deposited the sum fixed, payable to the Panchayat. In view of the obstruction caused by some labourers, who were later impleaded as defendants 2 to 9 in the suit, and failure of Panchayat to render assistance to him in removing such obstruction despite demand, he could not remove sand for the entire period and thereby suffered loss of the sum claimed as damages in the suit was his case. The Panchayat separately, and additional defendants 2 to **C.R.P.NO.579/2008** **2** 9 together, filed a written statements resisting the claim. On the materials placed, the trial court accepted the case of the plaintiff to grant him a decree for a sum of Rs.16,900/- with 12% interest per annum as damages realisable from all the defendants jointly and severally. Panchayat alone preferred an appeal. After reappreciating the evidence on record, the lower appellate court concurring with the finding of the trial Judge affirmed that decree. As against the concurrent decision rendered in favour of the plaintiff awarding him damages from the defendants in the suit, the 1[st] defendant Panchayat has filed this revision. 3. Learned counsel for revision petitioner assailed the decree granted in favour of the plaintiff on two grounds. There was no proper notice as contemplated under Section 249 of the Kerala Panchayat Raj Act, 1994, for short, the 'Act', and as such, the suit claim for damages raised was not entertainable and the decree granted overlooking the want of such statutory notice is liable to be set aside. The next ground of attack is that plaintiff at any rate could claim compensation only against defendants 2 to 9 and not against the Panchayat when obstruction had been **C.R.P.NO.579/2008** **3** caused not by the Panchayat but by those defendants. Learned counsel contended that if at all damages had been caused to the plaintiff by the obstruction caused by defendants 2 to 9 he should first of all take recourse to legal action against those defendants for removing obstruction and that having not been done he was not entitled to sue or claim damages from the Panchayat - the other contracting party. For the loss alleged to have been caused by the obstruction of defendants 2 to 9. Panchayat cannot be made liable and the decree has to be set aside, is the submission of the counsel placing reliance on **State of Kerala v. Mohammed (1990 (1) KLT 336)** . 4. Per contra, learned counsel for the 1[st] respondent/plaintiff contended that there is no merit in the revision and both the courts below after meticulous consideration of the facts and circumstances and evidence concurrently upheld the claim of plaintiff for damages. Damages awarded had already been discharged by the Panchayat depositing the sum before the court is the further submission of the counsel to submit that no interference with the decree at this **C.R.P.NO.579/2008** **4** stage in exercise of revisional jurisdiction is called for. 5. I do not find any merit in the challenge raised against the decree passed upholding the claim of the plaintiff concurrently by the two courts below on the premise that no notice under Section 249 of the Act had been issued before instituting the suit for damages. No such challenge, it is seen, had been raised in the written statement filed by the 1[st] defendant, nor canvassed before the two courts below. Panchayat was proceeded against with the obstructers by the plaintiff for its inaction and failure to remove the obstruction caused to the performance of the contract by him in removing sand from the kadavu after depositing the sum fixed to the Panchayat in terms of the contract. That was resisted by the Panchayat contending that it had taken such steps as are necessary for removal of the obstruction. Before the steps taken by it materialised the plaintiff filed the suit was the defence projected. That defence was found meritless on the evidence tendered by the trial Judge and also the lower appellate court. Notice was issued before filing of the suit by the plaintiff, but in **C.R.P.NO.579/2008** **5** that notice, in the alternative he had asked for extension of time for performance of the contract. Before the lower appellate court, as seen from the judgment of that court, the counsel for the appellant Panchayat had impeached such notice contending a notice under Section 80 of the Code of Civil Procedure, for short, the 'Code' should have been issued. No notice under that Section of the Code to institute a suit against the Panchayat is called for. Now in revision, the challenge is that there was no notice under Section 249 of the Panchayat Raj Act, which has no merit. Issuing notice to the Panchayat imputing inaction on its part in removing the obstruction, and after waiting for a period of four months, it is seen, the suit was instituted. Contract period was three months, and the Panchayat has no case that it has extended that period in view of the obstruction caused by third parties preventing the plaintiff from performing the contract. When such be the case, there is no merit in the challenge canvassed that the suit is bad for notice under Section 249 of the Act. Similarly, reliance placed on **Mohammed's case** referred to above by the learned counsel for revision petitioner to contend that the Panchayat is not liable for the loss caused to **C.R.P.NO.579/2008** **6** the plaintiff on account of the obstruction by the third parties is meriless. That decision dealt with the principles governing the grant of damages under Section 73 of the Contract Act. To claim damages a party who is entitled thereto must show that he has taken steps for mitigating the damages. In that reported case, claim for damages from the other contracting party for the obstruction caused to the performance of the contract at the instance of third parties was found against for the reason that the plaintiff who could have taken steps for removal of the obstruction did not take such steps and therefore he was not entitled to claim damages from the other contracting party. Panchayat has no case that the plaintiff in the present case on his own could have removed the obstruction caused by third parties - defendants 2 to 9. The evidence in the case would show that he was not only obstructed from removing sand but also assaulted by the osbtructers. Criminal cases were registered by the police against one another, and despite so the demand made by him to Panchayat to remove the obstruction with police assistance was not heeded was his case to claim damages. Inaction and failure on the part of the Panchayat to remove the **C.R.P.NO.579/2008** **7** obstruction despite demand from the plaintiff causing loss to the plaintiff and preventing him from performing his part of the contract was established on the materials placed by the trial court which, after re-appreciation, was approved by the lower appellate court also. When that be so, it was not a case of failure of plaintiff to take action against the obstructers before proceeding against the Panchayat but on the contrary a clear case showing joint culpability of all defendants causing of damages to the plaintiff. Decree granted in favour of the plaintiff upholding his claim for damages against all the defendants jointly and severally by the trial court, which has been affirmed by the lower appellate court, is unassailable. Revision lacks merit, and it is dismissed. ## **S.S.SATHEESACHANDRAN JUDGE** prp