R.Karmegam vs M.Hariharasudhan
2021 Latest Caselaw 12719 Mad

                                                                            AS.(MD)No.143 of 2018

                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
                                               DATED: 30.06.2021

                                                    CORAM:

                            THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                             A.S(MD)No.143 of 2018
                                                     and
                                           C.M.P.(MD)No.7708 of 2018


                   1.R.Karmegam
                   2.Nagamani
                   3.Muthupillai                            ... Appellants / Defendants
                                                     -Vs-


                   M.Hariharasudhan                         ... Respondent / Plaintiff


                   PRAYER: Appeal Suit is filed under Section 96 of the Civil Procedure
                   Code, against the Judgment and decree dated 03.04.2018 passed in O.S.No.
                   186 of 2016 on the file of the 1st Additional District Judge, Madurai.


                                       For Appellants       : Mr.S.Srinivasa Raghavan
                                        For Respondent      : Mr.S.Natesh Raja


                                                  JUDGMENT

The defendants in O.S.No.186 of 2016 on the file of the first

Additional District Judge, Madurai are the appellants in this appeal.

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AS.(MD)No.143 of 2018

2.The case of the plaintiff is that he is running a hotel in the name and

style of Hotel Gowri Krishna at Bye Pass Road, Madurai and that there

were certain civil disputes between him and the first defendant /

R.Karmegam. The first defendant caused damage to the hotel building on

two occasions ie., on 24.07.2015 at about 10.00 a.m., and again on

23.04.2016. Following the first occurrence, Crime No.681 of 2015 on the

file of the S.S.Colony Police Station was registered against the first

defendant. The first defendant was arrested and enlarged on bail on deposit

of Rs.1,00,000/-. The plaintiff incurred expenses to the tune of Rs.

2,27,065/- for effecting repairs. On 23.04.2016, the first defendant pelted

stones on the glass facade of the hotel. When this was questioned by the

hotel manager, the first defendant at the instigation of his wife (D2) and

grand mother (D3) drove his car right into the hotel and caused heavy

damage to the automatic glass door and the display counter. Three of the

hotel employees sustained grievous injuries. Crime No.485 of 2016 was

registered against the defendants and few others. The plaintiff spent more

than Rs.20,00,000/- for effecting repairs to restore the original position. To

recover damages from the defendants, O.S.No.186 of 2016 was filed.

3.The defendants filed their written statement denying the suit claim.

Based on the divergent pleadings, the learned trial Judge framed the https://www.mhc.tn.gov.in/judis

AS.(MD)No.143 of 2018

necessary issues. The plaintiff examined himself as P.W.1. Two of the

injured hotel employees were examined as P.W.2 & P.W.3. The hotel

manager was examined as P.W.4. Ex.A1 to Ex.A28 were marked. The first

defendant examined himself as D.W.1. Ex.B1 to Ex.B12 were marked.

After consideration of the evidence on record, the learned trial Judge by the

impugned judgment and decree dated 03.04.2018, partly decreed the suit

and directed the defendants to pay a sum of Rs.18,28,941/- together with

interest at the rate of 9% per annum from the date of suit till the date of

realization. Proportionate costs were also awarded. Challenging the same,

the defendants filed this appeal. It was allowed and the judgment and

decree passed by the trial Court were set aside and the suit itself came to be

dismissed. It was held that since a case under TNPPDL Act had been

registered against the defendants, the jurisdiction of the civil Court to award

compensation stood excluded. Challenging the judgment and decree dated

29.03.2019 passed by this Court, the plaintiff filed Civil Appeal No.8069 of

2019 before the Hon'ble Supreme Court of India. Vide judgment dated

17.10.2019, the Hon'ble Supreme Court held that the statutory scheme set

out in TNPPDL Act for compensation to the affected persons for damage

suffered by them will not oust the jurisdiction of the civil Court either

expressly or by necessary implication. The Hon'ble Supreme Court held

that the suit filed by the respondent herein was very much maintainable. https://www.mhc.tn.gov.in/judis

AS.(MD)No.143 of 2018

The Hon'ble Supreme Court also noted that the appeal before the High

Court filed under Section 96 of C.P.C., was decided only on the preliminary

point pertaining to the maintainability of the suit. In view of the finding

that the suit is maintainable, the matter was remitted to the High Court for

hearing the first appeal on merits.

4.The learned counsel appearing for the appellants submitted that the

very institution of the suit for damages is premature. He would submit that

following the occurrences in question, criminal cases were registered

against the first defendant and others. As regards the first occurrence, the

trial is presently going on. As regards the second occurrence, the committal

proceedings are still pending. The stand of the learned counsel for the

appellants is that the plaintiff will have cause of action to institute the suit

for damages only after the successful conclusion of the prosecution against

the appellants herein and not before that. His second contention is that in

the criminal case, apart from the appellants herein, there are also other

accused. Therefore, the plaintiff ought to have impleaded all the accused

as defendants. The suit suffers from the vice of non-joinder of necessary

parties. His third contention is that the plaintiff has not at all proved the

exact damage or injury suffered by him. The plaintiff ought to have

assessed the loss by a licensed surveyor. The bills produced by the plaintiff https://www.mhc.tn.gov.in/judis

AS.(MD)No.143 of 2018

are towards the purchase of materials for repairing the damage. They

cannot be the basis for valuation. He also faulted the approach of the trial

Court for not framing proper issues in this regard.

5.The learned counsel also contended that Ex.A8 CD pertaining to

the occurrence was inadmissible in evidence. He drew my attention to

Section 65-B of the Indian Evidence Act, 1872 and submitted that the Court

below seriously erred in admitting the said CD. He further contended that

merely because the second and third defendants were also present in the

scene of occurrence and were inside the offending vehicle, that would not

automatically render them liable. The learned counsel submitted that the

impugned judgment and decree deserve to be set aside.

6.Per contra, the learned counsel appearing for the respondent /

plaintiff submitted that the impugned Judgment does not call for any

interference.

7.The points arising for my consideration are as under:-

1.Whether the suit is bad for non-joinder of necessary parties?

2.Whether the suit was prematurely instituted and whether the

plaintiff ought to have waited till the conclusion of the criminal https://www.mhc.tn.gov.in/judis

AS.(MD)No.143 of 2018

prosecution registered against the first defendant and others?

3.Whether Ex.A8 is inadmissible in law?

4.Whether the defendants 2 and 3 could have been made jointly

and severally liable along with the first defendant?

5.Whether the plaintiff had established his claim for damages?

8.As regards the first question, the answer obviously has to be in the

negative. As rightly contended by the learned counsel appearing for the

respondent, Order 1 Rule 13 of C.P.C., states that all objections on the

ground of non-joinder or mis-joinder of parties shall be taken at the earliest

possible opportunity and, in all the cases where issues are settled, at or

before such settlement, unless the ground of objection has subsequently

arisen, and any such objection not so taken shall be deemed to have been

waived. In the case on hand, in the written statement, the defendants have

nowhere taken the plea that the suit is bad for non-joinder of parties.

Applying the mandate set out in Order 1 Rule 13 of C.P.C., I hold that this

objection should be deemed to have been waived.

9.There is again no merit in the contention that the plaintiff should

have waited till the conclusion of the criminal prosecution. The learned

counsel appearing for the appellant posed a rhetorical question as to what https://www.mhc.tn.gov.in/judis

AS.(MD)No.143 of 2018

would happen if this impugned decree is allowed to stand but in the

criminal cases, the accused are acquitted. The answer lies in Iqbal Singh

Marwah Vs. Meenakshi Marwah [(2005) 4 SCC 370]. The Hon'ble

Supreme Court held that standard of proof obtaining in the criminal case is

“proof beyond reasonable doubt”, while in the civil proceedings, standard is

based on preponderance of probabilities. The Criminal Court as well as

Civil Court rest their respective findings based on the evidence adduced

before them. The findings given by one Court in one proceeding will not

have any bearing on the other Court. Therefore, the appellants need not

have any cause for worry on this account. Finding given in this appeal will

not have any bearing on the criminal prosecution. The Criminal Court will

decide the issue entirely on its own merits and based on the evidence

adduced before it.

10.There is yet another reason for answering this issue in favour of

the plaintiff. Limitation for instituting a suit for damages in a case of this

nature is governed by Article 113. Article 113 states that any suit, if no

period of limitation is provided elsewhere, will have to be filed within three

years from the date when right to sue accrues. The suit occurrences took

place on 24.07.2015 and 23.04.2016. Since the right to sue accrued on

those dates, limitation would start running from those two dates. We are https://www.mhc.tn.gov.in/judis

AS.(MD)No.143 of 2018

now in 2021. Even as on date, the criminal prosecution is still pending.

If the plaintiff had waited as suggested by the learned counsel for the

appellants, the suit would have become time barred long ago. The

defendants want the plaintiff to be like “Ilavu Kaatha Kili”. Waiting would

have turned about to be not merely futile but fatal.

11.The learned counsel appearing for the respondents drew my

attention to the decision reported in 2015 (3) CTC 1 (Ranganathan Vs.

Narayanan), in which, it was held as follows:-

“11.The next question is as to whether the period of limitation will commence from the date of Judgment of the Criminal Court or from the date of the occurrence. Indisputably, the limitation in respect of the suits relating to tort is dealt with in Part VII, Schedule II of the Limitation Act in Article 72 to 91. But the present suit does not fall under any one of these Articles. It squarely falls within Article 113. As per Article 113, the period of limitation is 3 years ie., from the date when the right to sue accrues. Here in this case, admittedly, the right to sue accrues, on the date, when the injuries were caused to the appellant on 06.10.1997. Therefore, the suit should have been filed on or before 05.10.2000. But admittedly, it was filed only in the year 2004. Thus, it is clearly barred by limitation.

12. I hold that the limitation period commences from the date on which the injuries were caused and not from the date of Judgment by the Criminal Court. This can also be explained in the following manner. The crucial date, according to the Limitation Act, is the date on https://www.mhc.tn.gov.in/judis

AS.(MD)No.143 of 2018

which the right to sue accrues. In the present case, the claim for compensation is made, not on the basis of the Judgment of the Criminal case, but, on the basis of the injuries sustained in the occurrence. Thus, the right to sue in the present case accrues on the date of occurrence itself in which he sustained injuries and not on the date of final Judgment of the Criminal Court. Suppose in a given case, there is an allegation of malicious prosecution, the case ends in conviction before the trial Court and the matter goes up to the Supreme Court and finally, the Supreme Court acquits him holding that the prosecution is malicious, in that case, the right to sue accrues for the accused, only on the date, when the judgment is given by the Criminal Court. Therefore, in such a case, the limitation period will start from the date of Judgment and not from the date of occurrence. This distinction will make the issue in the present suit very clear that the right to sue accrues, not on the date of judgment by the criminal Court, but on the date when the appellant sustained injuries in the occurrence.”

The ratio laid down above squarely applies to the case on hand. I hold

that the plaintiff rightly instituted the suit for damages without waiting for

the conclusion of the criminal prosecution.

12.The learned counsel appearing for the appellant would submit that

Ex.A8 is inadmissible in evidence. Ex.A8 is a Compact Disc containing a

video recording of the occurrence. This electronic evidence was admitted

though the certificate contemplated under Section 65-B of the Indian https://www.mhc.tn.gov.in/judis

AS.(MD)No.143 of 2018

Evidence Act was not furnished. The Hon'ble Supreme Court in the

decision reported in (2020) 7 SCC 1 (Arjun Panditrao Khotkar Vs.

Kailash Kushanrao Gorantyal and others) had held that furnishing of

certificate as contemplated under Section 65-B of the Evidence Act is

mandatory. The learned counsel for the appellants is right in his contention

that Ex.A8 is therefore inadmissible. But then, the case of the plaintiff does

not rest solely on the electronic evidence adduced by him. The plaintiff had

examined himself and also two of the injured persons as witnesses. The

hotel manager was examined as P.W.4. FIRs registered in this connection

(Ex.A3 and Ex.A6) were also marked. The defendant was specifically

confronted with a number of photographs. The defendants, in fact, virtually

admitted his presence during the occurrence in question.

13.Even if Ex.A8 is eschewed, still, there is more than sufficient

evidence available on the record to sustain the finding of the Court below

that the suit occurrence had actually taken place and that it was the first

defendant who drove the offending vehicle and caused damage.

14.The learned counsel appearing for the appellants would raise a

further contention that the suit filed by the plaintiff in his individual

capacity is not maintainable. According to him, the hotel is a partnership https://www.mhc.tn.gov.in/judis

AS.(MD)No.143 of 2018

firm and that, therefore, the respondent Thiru.Hariharasudhan could not

have filed the suit in his own name. I do not find any merit in this

submission. The specific stand of the plaintiff is that even though the

immovable property is in joint names, it is he who is actually running the

business. In any event, the plaintiff's so-called partner has not contested

his right to maintain this suit. It is not for the defendant to raise this plea

regarding maintainability. Hence, I find this point also against the

appellants.

15.However, I find considerable merit in the contention of the

appellant's counsel that the second and third defendants could not have

made liable along with the first defendant. The second defendant Nagamani

is the wife of Karmegam. The third defendant Muthupillai is the grand

mother of Karmegam. The second occurrence was caused by driving a car

into the hotel premises. It is true that Nagamani and Muthupillai were

present inside the car. But their physical presence would not by itself make

them liable. It is true that the plaintiff specifically pleaded that D2 and D3

(wife and grandmother) instigated Karmegam to commit the offence in

question. But I do not find any evidence in support of this allegation of

instigation. It was the first defendant who actually drove the offending

vehicle. D2 and D3 were just occupants. They could not have anticipated https://www.mhc.tn.gov.in/judis

AS.(MD)No.143 of 2018

that the first defendant would venture to the extent he did. The plaintiff

alleged that D2 and D3 were actively supporting the first defendant. D2 is

D1's wife, while D3 is his grandmother. They could not have done much in

that situation. I am of the view that the second and third defendants cannot

be made liable. The civil liability has to be fastened exclusively on the first

defendant. It is for the criminal Court to decide whether Nagamani and

Muthupillai are parties to the conspiracy.

16.The learned counsel appearing for the appellants would point out

that the plaintiff failed to have the damage assessed immediately after the

occurrence by a licensed surveyor. It is true that as a result, the best

evidence could not be produced. It is equally true that the plaintiff only

produced the bills evidencing purchase of materials and payments made

towards effecting repairs. The endeavor of the learned counsel appearing

for the appellants is that the court below failed to take note of the aspect of

depreciation. The hotel was put up some time in the year 2012. The

occurrence took place in April 2016. If the appellants are found liable, even

then, they can only be made to pay the original value of the articles minus

depreciation.

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AS.(MD)No.143 of 2018

17.No doubt, these submissions are attractive. But we are not dealing

with a claim for damages based on a breach of contract. Only in such cases,

the endeavor of the Court will be to put the affected party in the original

position. Cause of action for filing the present suit is not a contractual

breach but commission of tort. In the case on hand, the first appellant had

committed criminal trespass. He drove his vehicle right into the hotel run

by the respondent. A number of articles belonging to the respondent

suffered total damage. Therefore, the full value of the damaged articles can

be recovered from the first appellant. In this case, some of the employees

also suffered injuries. The court below rightly directed reimbursement of

the expenses incurred by the plaintiff towards repair and purchase of

articles. The plaintiff had adduced enough evidence not only by examining

himself but also marking the bills in this regard. The plaintiff's testimony

remains unshaken. In fact, this Court can enhance the damages also. The

first appellant is not a private individual. He is a practising lawyer. Such a

person ought to abide by law.

18.It is true that the articles which were originally purchased or

installed would have suffered some loss of value. But then, on account of

the conduct of the first appellant, the plaintiff was constrained to purchase

new article towards replacement. If the occurrence had not taken place, the https://www.mhc.tn.gov.in/judis

AS.(MD)No.143 of 2018

plaintiff would have deferred their replacement. Of-course, in the very

nature of things, the measurement of damages cannot be mathematically

arrived at and an element of guesswork is inevitable. In this case, the court

below had awarded a sum of Rs.18,28,941/- with interest at the rate of 9%

per annum. Taking into account the overall facts and circumstances, the

first defendant is directed to pay a sum of Rs.15,00,000/- to the plaintiff

with interest at the rate of 6% per annum from the date of this Judgment till

the date of payment. The impugned judgment and decree are accordingly

modified. This second appeal is partly allowed. No costs.

30.06.2021

Internet : Yes/No Index : Yes/No rmi

To

1.The 1st Additional District Judge, Madurai.

2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis

AS.(MD)No.143 of 2018

G.R.SWAMINATHAN, J.

rmi

Judgment made in AS(MD)No.143 of 2018

30.06.2021

https://www.mhc.tn.gov.in/judis