T.T.Michael vs State Of Kerala
2021 Latest Caselaw 21720 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
                   THE HONOURABLE MR. JUSTICE P.SOMARAJAN
     TUESDAY, THE 2nd DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
                          FAO (RO) NO. 25 OF 2020
   AGAINST THE ORDER DATED 23.03.2020 IN AS 75/2018 OF ADDITIONAL
                        DISTRICT COURT-IV, ERNAKULAM
  AGAINST THE JUDGMENT DATED 22.03.2018 IN OS 41/2014 OF SUB COURT,
                                    ERNAKULAM
APPELLANT/APPELLANT/PLAINTIFF:

               T.T.MICHAEL, AGED 56 YEARS,
               S/o T.A. THOMAS, RESIDING AT THAZHATHEL HOUSE,
               INCHAKUNDU P.O., THRISSUR DISTRICT, PIN 680 312.

               BY ADV M.NARENDRA KUMAR


RESPONDENTS/RESPONDENTS/DEFENDANTS:

     1         STATE OF KERALA, REP. BY DISTRICT COLLECTOR,
               ERNAKULAM, OFFICE OF THE DISTRICT COLLECTOR,
               CIVIL STATION, KAKKANADU, KOCHI 682 030.

     2         SUPERINTENDING ENGINEER,
               OFFICE OF THE SUPERINTENDING ENGINEER,
               MINOR IRRIGATION, CENTRAL CIRCLE, ERNAKULAM, PIN 682 030.

     3         EXEUCTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER,
               MINOR IRRIGATION DIVISION, THRISSUR DIVISION,
               PIN 680 022.

               BY GOVERNMENT PLEADER SRI.DENNY DEVASSY


     THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR
HEARING   ON    02.11.2021,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 FAO (RO) No.25 of 2020                     2



                                      JUDGMENT

Against the order of remand, the appellant came up.

The order of remand was granted after entering into a

finding by the first appellate court that the contract will

stand frustrated due to supervening impossibility. The

said finding and the remand thereof is under challenge.

2. It is a suit for declaration and permanent

prohibitory injunction pertaining to a work assigned by the

Irrigation Department to the plaintiff to draw an

irrigation channel (flue) around 2 kms through a specified

area. The original estimate was for Rs.63,00,000/-.

Subsequently, it was revised to Rs.83,00,000/-. During the

course of construction, it was found that some portion is

covered by rocks and it is not possible to construct

irrigation channel through the rocky area without removing

the rocks. It is on that ground, the plaintiff unilaterally

terminated the assignment of work and the contract thereof

on the ground that the contract will stand frustrated by

the abovesaid supervening impossibility. Strange enough,

the plaintiff is the successful bidder to carry out the

work. Accordingly, it was assigned. The mere fact that

some portion is covered by rock cannot be termed as a

supervening impossibility so as to frustrate the contract.

The contention raised by the appellant that the estimate

was prepared treating the portion wherein irrigation

channel has to be drawn as soil filled earthern land and

not as a rocky area may not have much relevance when the

plaintiff had opted to bid the auction for the amount

specified. Hence, there is no much merit in the said

contention simply because the parties are governed by the

auction and the terms and conditions therein including the

cost of work.

3. It seems to be so strange that a conditional decree

of injunction was granted by the trial court after

rejecting the declaration sought. Further, the declaration

sought is not in compliance with the requirement under

Section 34 of the Specific Relief Act. But the first

appellate court instead of going into the merits and

demerits, remanded the matter back to the trial court by

finding that there is a supervening impossibility, which

would frustrate the very contract. The said finding of the

first appellate court cannot be sustained. Further, the

first appellate court is not expected to remand the matter

back to the trial court by answering one among the issues

involved in the suit, overlooking the mandate under Rule

23A and 24 of Order XLI C.P.C. and it is not permissible to

have a reverse driving without adhering to the dispute

involved. The legal position was very much settled by this

Court in Gopalakrishnan and Another v. Ponnappan and others

[2021 (5) KHC 548]. Hence, the order of remand will stand

set aside. The first appellate court shall consider all

issues on merits and dispose of the appeal within a period

of three months from the date of appearance of parties, for

which the parties shall appear before that court on

23/11/2021.

The appeal is allowed in part accordingly.

Sd/-

P.SOMARAJAN JUDGE DMR/-