Madras High Court
The Taluk Supply Officer vs Manickam on 9 December, 2021
S.A(MD)No.87 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.87 of 2020
and
C.M.P(MD) No.1319 of 2020
1.The Taluk Supply Officer,
Vilavancode Taluk,
at Kuzhithruai.
2.The District supply Officer,
Kanyakumari District,
Nagercoil.
3.State of Tamil Nadu,
Rep. by the District Collector,
Agestheeswaram Taluk,
Kanyakumari District,
at Nagercoil.
(Impleaded to file third appellant as per order
in I.A.No.165 of 2016 dated 17.03.2019)
... Appellants/Appellants/Defendants
Vs.
Manickam ... Respondent/ Respondent/Plaintiff
1/17
https://www.mhc.tn.gov.in/judis
S.A(MD)No.87 of 2020
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 01.10.2019 passed in
A.S.No.70 of 2014, on the file of the Subordinate Court, Kuzhithurai.
confirming the judgment and decree dated 13.03.2014 passed in O.S.
No.17 of 2012 on the file of the Principal District Munsif Court,
Kuzhithurai.
For Appellants : Mr.G.Suriya Anand
Additional Government Pleader
For Respondent : Mr.C.K.M.Appaji
JUDGMENT
The Second Appeal is directed against the Judgment and
Decree passed in A.S.No.18 of 2018, by the learned Subordinate Court,
Kuzhithurai, in confirming the Judgment and Decree in O.S.No.17 of
2012, passed by the learned Principal District Munsif Court,
Kuzhithurai.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.87 of 2020
2. For the sake of convenience, the parties are referred to
herein, as their own ranking as before the Trial Court.
3.The case of the plaintiff, as per the averments made in the
plaint, in short, is as follows :
The plaintiff being a senior citizen and permanently residing
in the plaint mentioned address with his family members. Land tax
assessments, electricity connection, telephone connection stands in the
name of the plaintiff to show that he is residing in the plaint address.
The plaintiff is having a family card issued by the defendants bearing
No.30/G/0063 and he obtained ration products from the PDS Shop. That
apart, the plaintiff was always residing in the said place and never gone
out. That being the case, the defendants without proper enquiry and
without notice, had cancelled the family card issued to the plaintiff with
effect from June 2010, based on the wrong reports of the Subordinate
Officers. When the plaintiff has approached the defendants seeking for
restoration of the family card by giving representations on 23.06.2010,
06.09.2010, 05.10.2010, 14.06.2011 and statutory notice was issued on
19.09.2011. Finally, a new family card was issued to the plaintiff on
https://www.mhc.tn.gov.in/judis
S.A(MD)No.87 of 2020
31.12.2010. In between period from June 2010 to December 2010, the
plaintiff was not able to get the ration products due to the wrong
cancellation of the family card. Hence, the plaintiff has filed a suit for
damages for the mental agony caused to him.
4.The second defendant adopted the written statement filed
by the first defendant contending interalia that the averments except
those are specifically admitted are denied as false. The Officials who
conducted the enquiry and visited the house of the plaintiff and on
enquiry, found that the plaintiff was not residing there permanently and
so the family card was cancelled. On application of the plaintiff, a new
family card was issued bearing No.30/G/0623074 on 31.12.2010. The
defendants have done their work in a legal manner after conducting
proper enquiry and in accordance with the report of the Subordinate
Officials. The defendants never refused to issue ration products to the
plaintiff. The defendants are not liable to pay any costs to the plaintiff
and hence, suit has to be dismissed with costs.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.87 of 2020
5. Before the trial Court, on the side of the plaintiff, the
plaintiff examined himself as P.W.1 and Exs.A1 to A14 were marked.
On the side of the defendants, one S.Murugeswari, was examined as
D.W.1 and Exs.B.1 and B.2 were marked.
6. On the basis of the rival pleadings made on either side,
the trial Court, after framing necessary issues and after evaluating both
the oral and documentary evidence, has decreed the suit in favour of the
plaintiff and directed the defendants to pay a sum of Rs.10,000/- within a
period of two months towards damages to the plaintiff.
7. Aggrieved by the Judgment and decree passed by the trial
Court, the defendants, as appellants, had filed an Appeal Suit in A.S.
No.70 of 2014 on the file of the learned Subordinate Court, Kuzhithurai.
The first appellate Court, after hearing both sides and upon reappraising
the evidence available on record, had dismissed the appeal and
confirmed the Judgment and decree passed by the trial Court.
Challenging the said concurrent Judgments and decrees passed by the
https://www.mhc.tn.gov.in/judis
S.A(MD)No.87 of 2020
Courts below, the present second appeal has been preferred at the
instance of the defendants, as appellants.
8.Heard the learned Additional Government Pleader for the
appellants and the learned counsel appearing for the respondent and
perused the materials available on record.
9.The learned Additional Government Pleader appearing for
the appellants / defendants would submit that the Courts below without
considering the merits of the case, accepted the pleadings of the plaintiff
and without applying its judicial mind, had rejected the plea of the
defendants. The Trial Court ought to have found that the plaintiff who
claims damages has not issued any notice under Section 80 of Code of
Civil Procedure, prior to the filing of the suit and hence, prayed to allow
the Second Appeal.
10.The learned counsel appearing for the respondent/
plaintiff would vehemently oppose the Second Appeal by contending
that the well considered Judgments of the Courts below need not be
https://www.mhc.tn.gov.in/judis
S.A(MD)No.87 of 2020
interfered with, as there is no question of law involved in this Second
Appeal for consideration and prayed for dismissal of the Second Appeal.
11.In the Memorandum of Second Appeal, the appellants
sought to raise the following Substantial Questions of Law.
“1.Whether prior notice sent by the plaintiff
under Section 80 of the Code of Civil Procedure ?
2.Whether the plaintiff is entitled to get the
relief of damages ?
3.Whether the residential proof of the
property is established by the plaintiff ?"
12.This Court paid its anxious consideration to the rival
submissions made and also carefully perused the materials placed on
record.
13.In the appeal, the Government has pleaded that there
should be a notice issued under Section 80 of Code of Civil Procedure,
https://www.mhc.tn.gov.in/judis
S.A(MD)No.87 of 2020
sent by the plaintiff, that being the case filed against the Public Officer
concerned and claiming for damages, the relief has to be given only, if
they have informed the authorities in the said suit that they ought to have
sent notice under section 80 of Code of Civil Procedure, but the said
procedure has not been followed. It is further submitted that the Court
has not considered these aspects that it is not a right on the plaintiff to
seek for the ration card and further submitted that the Public Officers
have to strictly consider the provisions and they have noted that the
plaintiff has not complied with the provisions under Order 27 Rule 5A of
Code of Civil Procedure and further submitted that the cancellation of a
family card was done only based on the enquiry conducted, as he was not
permanently residing at that place.
14.On the side of the plaintiff, it was contended that he is
residing in the said address permanently and that is why ration card was
issued to him. The plaintiff produced the documents to show that the
land tax receipt, house tax receipt, land-line telephone bill and electricity
bill stands in his name to prove that he was residing in that place
permanently. Further, the defendants' side have not produced any
https://www.mhc.tn.gov.in/judis
S.A(MD)No.87 of 2020
evidence to show that the plaintiff is not residing in the said address and
the defendants have not proved their case by producing appropriate
documents to show that on what basis they have cancelled the family
card and the enquiry report issued by the Authorities was also not
submitted before the Court. This Court is of the view that no notice was
issued to the plaintiff for conducting a proper enquiry and for
cancellation of the said ration card. The defendants case was rejected.
Though a new ration card was issued to him in the month of December
2010, the defendants have caused mental agony to the plaintiff, is the
case of the plaintiff and based on the said submission the Courts below
have come to a conclusion that the plaintiff even though not included the
State Government as a party and no notice under Section 80 of the Code
of the Civil Procedure, was given and also the Civil Court has no
jurisdiction to try the suit and the plaintiff has to approach the consumer
forum to redress his grievances, but the same was not accepted and the
same was raised in the written statement. Further beyond the pleadings
the defendants cannot pursue the case.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.87 of 2020
15. Regarding the issuance of notice under Section 80 of the
Code of Civil Procedure, the Court also can sent a notice after filing of
the suit and that point also cannot be argued before this Court. As it is
not a fatal issue and the District Collector was not made as a party, but
the Taluk Supply Officer, Vilavancode Taluk and others are made as a
party, who are the District Supply Officers of the Taluk level. Further, he
submitted that defendants have cancelled 7626 family cards during that
period based on various grounds and these are also considered, but the
defendants statement is that there were only four Officers for the entire
area, who had conducted everything and therefore, there may be some
material error crept in, while passing the order for cancellation of the
plaintiff’s ration card.
16. The learned counsel for the respondent submitted that
the second appeal is not maintainable as per Section 102 of the Code of
Civil Procedure and prayed for dismissal the appeal.
17. At this juncture, it is worthwhile to refer Section 102 of
the Code of Civil Procedure, which reads as follows :
https://www.mhc.tn.gov.in/judis
S.A(MD)No.87 of 2020
"102. No second appeal in certain cases.—No
second appeal shall lie from any decree, when the
subject matter of the original suit is for recovery of
money not exceeding twenty-five thousand rupees."
Section 102 pertains to the suit filed for recovery of money, wherein, no
second appeal shall lie from any decree, when the subject matter of the
original suit for recovery of money is not exceeding Rs.25,000/-. It has
been clearly established that no second appeal shall lie in money suits
where the value of the subject matter of the suit does not exceed
Rs.25,000/- and in respect of the Second Appeal filed under section 100
of the Code of Civil Procedure, it is made clear that nothing in this sub-
section shall be deemed to take away or abridge the power of the Court
to hear, for reasons to be recorded, the appeal or any other substantial
question of law, not formulated by him, if it is satisfied that the case
involves such question.
18.Here is the case, where the substantial question of law is
raised regarding Section 80 of the Code of Civil Procedure. As per
section 80 of the Code of Civil Procedure, no suit shall be save as
https://www.mhc.tn.gov.in/judis
S.A(MD)No.87 of 2020
otherwise provided in sub-section (2), no suit shall be instituted against
the Government or against a public officer in respect of any any act
purporting to be done by such officer in his official capacity, until the
expiration of two months next after notice in writing has been delivered
to, or left at the office of. In the case of a suit against any other State
Government, a Secretary to that Government or the Collector of the said
District.
19.Here is the case, where the Government or the Collector
has not been made as a party and only the Taluk Public Distribution
Officer has been made as a party. The plaintiff has not sent any notice to
the defendants. The Court shall not grant any relief in the suit, whether
interim or otherwise, except after giving to the Government or public
officer, as the case may be, a reasonable opportunity of showing cause in
respect of the relief prayed for in the suit. That being the case, the
Collector has not been made as a party, who is the District head and this
Court is of the view that the District Collector has not been made as a
party and on this ground also, the Second Appeal is to be considered.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.87 of 2020
20.It is seen that the plaintiff's ration card is based on
Government policy decision of providing supply of food materials to the
general public and it is seen from the memo filed by the
appellants/defendants that the following ration goods were issued for the
family card holders for the past six months, which reads as follows :
Sl. Ration Goods Quantity Price Period of Total
No. Months Amount
1. Rice 20 Kg. Rs.1 6 months 20*6 = 120
2. Palmoil 1 Ltr. Rs.25 6 months 25*6 = 150
3. Sugar 2 Kg. Rs.13.50 6 months 27*6 = 162
4. Gram Dall 1 Kg. Rs.30 6 months 30*6 = 180
5. Urad Dall 1 Kg. Rs.30 6 months 30*6 = 180
6. Kerosene 5 Ltr. Rs.7.10 6 months 35.5*6 = 213
The total amount for six months for ration goods = Rs.1,005/-
After conducting spot inspection, some of the family cards were
cancelled. One among them is the plaintiff namely, Manickam. As per
the same, the total value of ration goods issued for six months is
Rs.1,005/- only. The plaintiff would have purchased only this much of
material and the Government has provided free rice, palmoil, sugar, gram
dall, urad dall and kerosene for the general public /family card holders.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.87 of 2020
21.That being the case, the value of the said material is only
Rs.1,005/-. When the Courts below had held that when there is no proof
filed before the Court to show that the plaintiff had mental agony, which
has not been proved by him by producing appropriate evidence and this
Court come to the conclusion that due to the cancellation, the plaintiff
would have approached the appropriate authorities now and then and
only after efforts put in finally, he got the ration card within a period of
six months.
22. This Court is of the view that awarding of Rs.10,000/-
towards damages is on the higher side and this Court is inclined to
reduce the same to Rs.5,000/- as costs and allow the claim made by the
plaintiff only on the basis that this should be a lesson to the Government
Officials who had conducted an oral survey, without really conducting a
proper survey, when the Government schemes are introduced. The duty
is cast upon the State Government employees to implement the schemes,
which has been introduced by the Government, should be acted upon by
the employees on behalf of the Government, who should be in a position
to conduct survey with minute details with utmost care and conscience.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.87 of 2020
23.With the above modifications, the Second Appeal is
partly allowed by reducing the damages from Rs.10,000/- to Rs.5,000/-.
This amount is awarded only as a costs as the Government Officials were
not vigilant. Time for payment of this cost is four months from the date
of receipt of a copy of this judgment. However, there shall be no order
as to costs. Consequently, connected miscellaneous petition is closed.
09.12.2021
Index : Yes/No
Internet : Yes/No
rm
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.87 of 2020
To
1.The Subordinate Court,
Kuzhithurai.
2.The Principal District Munsif Court,
Kuzhithurai.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.87 of 2020
V.BHAVANI SUBBAROYAN, J.
rm
Judgment made in
S.A(MD)No.87 of 2020
09.12.2021
https://www.mhc.tn.gov.in/judis
