Kerala High Court

Ezhupunna Panchayath vs Alex Abraham on 7 February, 2025

                                            2025:KER:10218
AS Nos.898/1998 & 138/1999
                             1

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

         THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

 FRIDAY, THE 7TH DAY OF FEBRUARY 2025 / 18TH MAGHA, 1946

                     AS NO. 898 OF 1998

        AGAINST THE DECREE AND JUDGMENT DATED IN OS NO.174

              OF 1992 OF SUB COURT, CHERTHALA

APPELLANTS/PLAINTIFF:

    1     ALEX ABRAHAM
          S/O.ABRAHAM, THATTARUPARAMBIL, EZHUPUNNA,
          THEKKUM MURI, KODAMTHURUTH VILLAGE. (DIED)

 ADDL A2 THERESA ALEX
         AGED 65 YEARS
         WIFE OF LATE ALEX ABRAHAM,
         THATTARUPARAMBIL HOUSE, EZHUPUNNA
         NOW RESIDING AT THATTARUPARAMBIL HOUSE,
         C.M.C 25, KOOTTALA ROAD CHERTHALA 688524,
         CHERTHALA TALUK, ALAPPUZHA DISTRICT.

 ADDL A3 NAVYA ELIZABETH JACOB
         AGED 40 YEARS
         DAUGHTER OF LATE ALEX ABRAHAM,
         THATTARUPARAMBIL HOUSE, EZHUPUNNA
         NOW RESIDING AT THATTARUPARAMBIL HOUSE,
         C.M.C 25, KOOTTALA ROAD CHERTHALA 688524,
         CHERTHALA TALUK, ALAPPUZHA DISTRICT.

 ADDL A4 NIYA ANN LIJO
         AGED 35 YEARS
         DAUGHTER OF LATE ALEX ABRAHAM,
         THATTARUPARAMBIL HOUSE, EZHUPUNNA
         NOW RESIDING AT THATTARUPARAMBIL HOUSE,
         C.M.C 25, KOOTTALA ROAD CHERTHALA 688524,
         CHERTHALA TALUK, ALAPPUZHA DISTRICT.
         APPELLANTS 2 AND 3 ARE REPRESENTED BY POWER OF
                                           2025:KER:10218
AS Nos.898/1998 & 138/1999
                             2

         ATTORNEY HOLDER THERESA ALEX (2ND APPELLANT)
         THE LEGAL HEIRS OF DECEASED 1ST APPELLANT ARE
         IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 VIDE
         ORDER DATED 24/9/2019 IN I.A.1/2019.


         BY ADV JOHN JOSEPH VETTIKAD

RESPONDENTS/DEFENDANTS:

    1    EZHUPUNNA PANCHAYATH,
         PANCHAYATH OFFICE, ERAMALLOOR P.O.,
         REPRESENTED BY THE EXECUTIVE OFFICER,
         EZHUPUNNA PANCHAYATH, ERAMALLOOR.

    2    K.MURALEEDHARAN
         S/O.V.S.KRISHNAN,
         WORKING AS THE SECOND GRADE EXECUTIVE OFFICER,
         EZHUPUNNA PANCHAYATH,
         ERMALLOOR P.O.

         BY ADV P.R.VENKATESH - FOR R1

     THIS APPEAL SUITS HAVING BEEN FINALLY HEARD      ON
29.01.2025   ALONG  WITH   AS.138/1999, THE COURT     ON
07.02.2025 DELIVERED THE FOLLOWING:
                                             2025:KER:10218
AS Nos.898/1998 & 138/1999
                             3


          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

         THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

 FRIDAY, THE 7TH DAY OF FEBRUARY 2025 / 18TH MAGHA, 1946

                     AS NO. 138 OF 1999

        AGAINST THE DECREE AND JUDGMENT DATED 07.03.1998

        IN OS NO.174 OF 1992 OF SUB COURT, CHERTHALA

APPELLANT/DEFENDANT NO.1:

          EZHUPUNNA PANCHAYATH
          PANCHAYATH OFFICE, ERAMALLOOR P.O.,
          REPRESENTED BY ITS EXECUTIVE OFFICER,
          EZHUPUNNA PANCHAYATH, ERAMALLOOR.


          BY ADVS.
          SRI.P.R.VENKATESH
          SMT.ASHA P.KURIAKOSE


RESPONDENTS/PLAINTIFF AND DEFENDANT NO.2:

    1     ALEX ABRAHAM (DIED)
          S/O ABRAHAM TATTARUPARAMBIL
          EZHUPUNNA TEKKUM MURI, KODAMTHURUTHU VILLAGE

    2     K.MURALEEDHARAN
          S/O V.S.KRISHNAN,
          PSESENTLY WORKING AS SECRETARY,
          THANNEERMUKKOM PANCHAYATH, THANNEERMUKKOM

 ADDL R3 THERESA ALEX
         AGED 71 YEARS,
         W/O. LATE ALEX ABRAHAM,
         THATTARUPARAMBIL HOUSE, EZHUPUNNA,
                                           2025:KER:10218
AS Nos.898/1998 & 138/1999
                             4

         NOW RESIDING AT THATTARUPARAMBIL HOUSE,
         CMC 25, KOOTTALA ROAD, CHERTHALA-688524,
         CHERTHALA TALUK, ALAPPUZHA DISTRICT

 ADDL R4 NAVYA ELIZABETH JACOB, AGED 45 YEARS
         D/O. LATE ALEX ABRAHAM, THATTARUPARAMBIL HOUSE,
         EZHUPUNNA, NOW RESIDING AT THATTARUPARAMBIL
         HOUSE, CMC 25, KOOTTALA ROAD, CHERTHALA-688524
         CHERTHALA TALUK, ALAPPUZHA DISTRICT.

 ADDL R5 NIYA ANN LIJI, AGED 40 YEARS
         D/O. LATE ALEX ABRAHAM, THATTARUPARAMBIL HOUSE,
         EZHUPUNNA, NOW RESIDING AT THATTARUPARAMBIL
         HOUSE, CMC 25, KOOTTALA ROAD, CHERTHALA-688524,
         CHERTHALA TALUK, ALAPPUZHA DISTRICT
         LEGAL REPRESENTATIVES OF DECEASED RESPONDENT
         NO.1 ARE IMPLEADED AS ADDITIONAL RESPONDENTS
         NOS, 3 TO 5 VIDE ORDER DATED 29/11/2024 IN IA
         NO.1/2024 IN AS NO.138/1999.


         BY ADV SRI.JOHN JOSEPH VETTIKAD FOR R1

     THIS APPEAL SUITS HAVING BEEN FINALLY HEARD      ON
29.01.2025, ALONG WITH AS.898/1998, THE COURT         ON
07.02.2025 DELIVERED THE FOLLOWING:
                                                    2025:KER:10218
AS Nos.898/1998 & 138/1999
                                  5

                                                                CR
                     COMMON JUDGMENT

AS Nos.898/1998 & 138/1999

Dated this the 7th day of February, 2025

A.S.No.138/1999 has been filed under Section 96

r/w Order XLI Rule 1 of the Code of Civil Procedure, 1908,

(hereinafter referred to as 'CPC' for short) by the first

defendant in O.S.No.174/1992 on the files of the Sub Court,

Cherthala, challenging decree and judgment therein dated

07.03.1998. The respondents in this appeal are plaintiff and

the 2nd defendant.

2. A.S.No.898/1998 is at the instance of the

plaintiff in the above suit, challenging the same decree and

judgment wherein the defendants are the respondents.

3. Heard the learned counsel for the

appellants in both appeals and the contesting respondents.

2025:KER:10218 AS Nos.898/1998 & 138/1999

Perused the verdict under challenge and the trial court

records.

4. The parties in these appeals shall be

referred as 'plaintiff', '1st defendant', '2nd defendant' and

'defendants' with reference to their status before the trial

court for easy reference.

5. The short facts:

The plaintiff filed this suit for damages and

mandatory injunction on the allegation that while he was

occupying a shop room in Ward No.VI of Ezhupunna

Panchayath, owned by Ezhupunna Panchayath, as a tenant,

on the strength of tenancy arrangement started on

01.04.1986, on 02.04.1992, the 2nd defendant, as per the

decision of the 1st defendant, forcefully and illegally evicted

the plaintiff from the shop room and also taken away and

destroyed the business articles kept at the shop. Accordingly, 2025:KER:10218 AS Nos.898/1998 & 138/1999

the plaintiff claimed damages to the tune of Rs.1,00,000/- for

the value of the said articles and Rs.9,050/- towards loss of

profit, Rs.150/- towards notice charge and Rs.50/- per day till

re-possession of the shop room.

6. 1st and 2nd defendants jointly filed written

statement contending that the 1st defendant decided not to

renew the period of lease of the plaintiff, which expired on

31.03.1992. The decision was taken on 18.03.1992. The

decision of the committee was known to the plaintiff also.

That apart, notice of the decision dated 18.03.1992 also was

attempted to be served to the plaintiff, but he refused to

accept the notice and the said notice was effected by

affixture on 21.03.92. There was no contract entered

between the plaintiff and the defendants to give the shop

room at an enhanced rate of rent for the period 1992-93.

Another contention is that again notice was issued to the 2025:KER:10218 AS Nos.898/1998 & 138/1999

plaintiff on 01.04.1992 intimating him that he would be

removed from the room unless he failed to show cause within

24 hours and the said notice also was refused by the plaintiff.

It was affixed on the door of the shop room in question.

Therefore, following procedure, the Panchayat took

possession of the shop room, and the action of the

Panchayath is not illegal or against the provisions of any act

or rules. The 2nd defendant did not demand the plaintiff to pay

any illegal gratification. The defendants are not liable for any

of the damages claimed in the suit. The goods taken from

the shop room are in the safe custody of the 1 st defendant -

Panchayath. That apart, the plaintiff filed a frivolous suit for

injunction before the Munsiff's Court, Cherthala. An ex parte

order of temporary injunction was obtained though the interim

order was subsequently vacated. The said order became

final and therefore, the present suit is barred by res judicata.

2025:KER:10218 AS Nos.898/1998 & 138/1999

After evicting the plaintiff from the shop room, the same was

given on rent. The plaintiff is not entitled to get the reliefs

sought for. Hence, the defendants sought dismissal of the

suit with costs.

7. The trial court raised necessary issues and

tried the matter. PW1 and PW2 were examined and Exts.A1

to A21 were marked on the side of the plaintiff. DW1 to DW3

were examined and Exts.B1 to B12 were marked on the side

of the defendants.

8. On hearing both sides and on appreciating

the evidence, the trial court decreed the suit as under:

"In the result, the suit is partly decreed on the following terms that the defendants do pay the plaintiff a sum of Rs.20,809/- (Rs.Twenty thousand Eight hundred and nine) as damages with interest @ 6% p.a. from the date of institution of the suit till realisation and with proportionate cost. Panchayat is directed to 2025:KER:10218 AS Nos.898/1998 & 138/1999

return the goods mentioned in the mahazar to the plaintiff."

9. The learned counsel for the plaintiff argued

that as per Ext.A7 commission report, the Commissioner

reported that the total value of the articles seized by the

Panchayath would come to Rs.89,048/- and the

Commissioner also found that the articles forcefully taken

away by the defendants at the time of illegal eviction are

glass, mica, plywood, etc. Therefore, the trial court ought to

have granted the said amount as such, instead of granting its

value to the extent of 20% alone. However, the learned

counsel for the plaintiff further submitted that in the appeal

memorandum, the plaintiff limited his claim to the tune of

50% of the value claimed in the plaint. Accordingly, the

learned counsel for the plaintiff sought interference in the

verdict of the trial court so as to enhance the amount of 2025:KER:10218 AS Nos.898/1998 & 138/1999

damages as claimed in the appeal memorandum.

10. Zealously opposing the contentions at the

instance of the learned counsel for the plaintiff and seeking

interference in the trial court verdict, the learned counsel for

the 1st defendant argued that in the instant case, the plaintiff

was evicted after issuance of notice and on termination of the

lease arrangement. Therefore, the eviction is legal and no

damages is entitled by the plaintiff. It is argued further that if

at all the eviction at the instance of the defendants is found to

be illegal, then also, the plaintiff is not entitled to get any

damages since the defendants have been ready to return the

articles at the very inception. According to him, even though

the suit was filed as on 01.10.1992 and the eviction was on

02.04.1992, the plaintiff did not seek relief to get back the

articles either as a main relief or as an interim relief. This is

the context in which the trial court reduced the amount to 2025:KER:10218 AS Nos.898/1998 & 138/1999

20% of the value assessed by the commissioner as per

Ext.A7 commission report, coming to the tune of Rs.17,809/-

along with Rs.3000/- towards loss of profit. It is argued that

since there is laches on the part of the plaintiff in getting back

the articles seized, he is not entitled to get any amount

towards damages, or in the alternative, this Court may

confine the relief, as granted by the trial court, and dismiss

both appeals.

11. Maneuvering the rival submissions, the

points arise for consideration are :-

1. Whether the trial court is right in holding that the suit is not barred by res judicata or under Order II Rule 2 of CPC or by the principle of estoppel?

2. Whether the trial court is justified in holding that the eviction of the plaintiff from the shop room owned by the 1st defendant is illegal?

3. Whether the trial court is justified in granting damages by limiting the same to Rs.17,809/- in 2025:KER:10218 AS Nos.898/1998 & 138/1999

a case where the commissioner assessed the same to the tune of Rs.89,408/-?

4. Whether the decree and judgment would require interference?

5. Reliefs and costs.

12. Point No.1 :

In this matter, admittedly, another suit, viz.,

O.S.No.349/92 was filed by the plaintiff for injunction against

the Panchayat and subsequently, the said suit was not

pressed and dismissed. In this context, the defendants raised

contention that the suit is barred by res judicata as well as

under Order II Rule 2 of CPC. The trial court addressed the

said issue in paragraph No.21 and found in favour of the

plaintiff, holding that the suit is not barred by the principles of

res judicata or the bar under Order II Rule 2 of CPC. It was

also found by the trial court that the plaintiff is not estopped

from instituting the present suit.

2025:KER:10218 AS Nos.898/1998 & 138/1999

13. In the instant case, earlier suit as

O.S.No.349/1992 was filed for injunction to restrain the

Panchayat from putting strangers in the shop room where

from the plaintiff was illegally evicted. Later, the room was

put in possession of another tenant and at this juncture, the

suit was not pressed and dismissed. In this context, the

essentials to find res judicata need reference. The essentials

are as under:

(a) Parties must be the same or they are litigating under the same title in both suits:

The parties in the subsequent suit and the parties in the previous suit are either same persons or they are litigating under the same title in both suits.

(b) Cause of action shall be the same: The cause of action in the subsequent suit must be the cause of action in the previous suit.

2025:KER:10218 AS Nos.898/1998 & 138/1999

(d) There must be a final decision: The matter in issue in the previous suit must have been heard and finally decided and the said issue again to be raised in the subsequent suit.

14. Assimilating the ingredients to constitute the

bar of res judicata as extracted hereinabove, in fact, in the

instant case, even though the parties are same, no final

decision on merits with regard to legality of eviction or claim

for damages was delivered in the previous suit. Therefore,

the principles of res judicata would not apply in the instant

case.

15. Coming to the essentials to find the bar

under Order II Rule 2 of CPC, the following must be

established.

2025:KER:10218 AS Nos.898/1998 & 138/1999

(a) Same Cause of Action:

The most crucial factor is that the second suit must be based on the exact same cause of action as the first suit.

(b) Entitled to All Reliefs:

The plaintiff must have been legally entitled to claim all the reliefs related to the cause of action in the first suit.

(c) Omission without permission:

The plaintiff must have omitted to claim a part of the relief in the first suit without seeking permission from the court.

(d) Burden of proof:

The defendant bears the burden of proving that the bar under Order 2 Rule 2 applies by demonstrating that the cause of action in both suits is the same.

16. In this case, initially a simple suit for

injunction had been filed when the plaintiff apprehended

induction of strangers in the shop room where from the 2025:KER:10218 AS Nos.898/1998 & 138/1999

plaintiff was evicted. The cause of action in the previous suit

is apprehension of induction of strangers and at the time of

filing the previous suit (O.S.No.349/1992), the cause of

action for claiming damages was not available as the same is

a subsequent cause of action when the plaintiff was not given

back the articles. Therefore, the bar under Order II Rule 2 of

CPC would not apply and thus the plaintiff is not estopped

from filing the present suit. Therefore, the trial court rightly

found that the suit is not barred by res judicata or under

Order II Rule 2 of CPC and the plaintiff is not estopped from

instituting the present suit. Holding so, the said finding is

upheld.

17. Point No.2:

In this matter, Exts.A1 to A3 are the registered

letters issued by the Panchayath to the plaintiff on 2025:KER:10218 AS Nos.898/1998 & 138/1999

24.02.1992, 11.03.1992 and 26.03.1992. Earlier, the plaintiff

was permitted to occupy and continue possession of the

shop room as a tenant with effect from 01.04.1986. Later, the

Panchayath committee passed a resolution allowing the 2 nd

defendant to take necessary action to evict the plaintiff from

the building on expiry of the period of lease. According to the

defendants, Ext.A1 notice was issued to the plaintiff on

31.03.1992 intimating that the plaintiff could continue the

possession of the building upto midnight on 31.03.1992 and

with direction to vacate the building thereafter. The said

notice was served upon the plaintiff at 5 pm on 31.03.1992

by affixture. On perusal of Ext.A1, the same would depict that

issuance of Ext.A1 notice was to vacate the building even

without providing a breathing time. Anyhow, after issuing

Ext.A1 notice at 5 pm on 31.03.1992, the defendant issued

Ext.B5 notice directing the plaintiff to give vacant possession 2025:KER:10218 AS Nos.898/1998 & 138/1999

of the shop room on 01.04.1992 and subsequently, on the

next day, he was forcefully evicted and the articles were

removed by the Panchayat. Going by the above evidence

and the evidence given by DW1 - the 2nd defendant, the

plaintiff was evicted at 8.30 pm on 02.04.1992. In this

connection, it is relevant to note that nobody including the

Local Self Government Institutions is allowed to take law at

hands and on termination of tenancy, legal procedures

should be followed to evict a tenant. Any high handed

activities by force to send out a tenant from the demised

premises is nothing but an illegality. Be it so, without much

ado, it has to be held that the eviction of the plaintiff from the

shop room in the instant case is illegal. Therefore, the trial

court rightly found so.

18. Coming to the quantum of compensation,

the trial court disallowed the compensation claimed under the 2025:KER:10218 AS Nos.898/1998 & 138/1999

heads 'mental pain', 'loss of reputation' etc. and the learned

counsel for the plaintiff not pressed for the same herein also.

The relief granted by the trial court in this matter is confined

to grant of Rs.17,809/- being 20% of the amount assessed by

the commissioner as per Ext.A7 commission report coming to

the tune of Rs.89,048/- and also Rs.3,000/- towards loss of

business profit due to the illegal eviction.

19. Once it is found that the eviction is illegal

and the articles belonging to the plaintiff/tenant were taken

possession of by the landlord, the defendant who in fact has

no legal right to possess the articles, then the landlord is

answerable for the same. It is true that in the instant case,

even though the suit was filed on 01.10.1992, the plaintiff

also did not move in any way to get back articles seized.

However, the plaintiff filed this suit claiming damages for the

value of articles and accordingly, commissioner was 2025:KER:10218 AS Nos.898/1998 & 138/1999

appointed and Ext.A7 report was obtained.

20. Anyhow, as per Ext.A7, the commissioner

assessed the value of goods at Rs.89,048/- and according to

the commissioner, the articles are glass, mica, ply woods etc.

The fact remains is that the defendants did not take any

steps to return the articles to the plaintiff, so also the plaintiff.

The trial court while considering the assessment as per

Ext.A7 found that the plaintiff is entitled to get back the goods

taken by the defendant and also he can claim damages of

the difference between the value of the goods on the date of

the suit and the value of the goods prevailing at the time of

seizure. But no evidence available to determine the

difference in the value of goods. In this matter, it is evident

that there was illegal eviction and seizure of goods kept at

the premise by the defendant. As per Ext.A7, the

commissioner assessed the same to the tune of Rs.89,048/-.

2025:KER:10218 AS Nos.898/1998 & 138/1999

But the trial court granted 20% of the amount assessed by

the commissioner. Now, the plaintiff seeks 50% of the

amount assessed by the commissioner.

21. Point No.3:

Now the question poses for consideration is whether

grant of Rs.17,850/- alone as the value of the articles seized

is justifiable in the facts of the case? In this matter, as

already found, the eviction of the plaintiff from the shop room

is found to be illegal and when the plaintiff approached the

Government, the Government also held the eviction as

illegal. It is true that the plaintiff not made any claim before

the Panchayath to get back the articles soon after its

recovery. Similarly, the defendants also not taken any

positive steps to return the articles to the plaintiff. No doubt,

the articles were illegally taken possession of by the 2025:KER:10218 AS Nos.898/1998 & 138/1999

defendants. Ext.A7 would suggest that the articles are glass,

mica, plywood etc. These are articles which can easily be

subjected to destruction on their exposure. As per Ext.A7

commission report the value of the articles wold come to

Rs.89,048/- and the said report was not seriously challenged

by the defendants. Anyhow absolute negligence on the part

of the plaintiff who is the sufferer (victim) of an illegal eviction

could not be found from the facts of the case in the matter of

getting back the articles seized. At this juncture, it is relevant

to note that in the appeal memorandum in A.S.No.898/1998

the plaintiff reduced the claim towards value of articles at

Rs.44,526/-. In the instant case, there is no justification in

granting 20% alone towards the value of the articles where

evidently the plaintiff lost the entire articles, and accordingly, 2025:KER:10218 AS Nos.898/1998 & 138/1999

it is held that the trial court is not justified in limiting the

damages to the tune of Rs.17,809/- In fact, when there is

illegal eviction of a tenant by the landlord, the tenant is

entitled to get damages, that would cover the financial losses

incurred due to the eviction, including costs of moving,

temporary housing, damages to the personal property and in

some cases compensation for emotional distress or emotional

suffering depending on the severity of the situation and

attending circumstances. In such view of the matter, the plaintiff

is entitled to get 50% of the value of articles he lost in the

instant case. Therefore, I am of the view that Rs.44,524/-

rounded to Rs.44,600/- is liable to be granted under the head

'loss of articles' being 50% of the amount assessed by the

Commissioner. Point No.3 is answered thus.