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2004 DIGILAW 335 (KER)

University of Kerala v. Kumari Molly Francis

2004-07-21

R.BHASKARAN

body2004
Judgment :- This appeal is filed by the University of Kerala represented by its Registrar. The suit was for damages. The plaintiff was a student of Alphonsa Women’s College, Palai during the year 1981-1984 for B.A. Decree Course. She wrote her final B.A. examination in April, 1984 and she was declared failed in subsidiary subject “Indian History”. The plaintiff applied for revaluation and after the revaluation she was declared passed as she secured 36 marks. The result was not declared before the September examination in which she obtained 55 marks in Indian History. The result of the revaluation was published only in June, 1985. According to the plaintiff she suffered serious loss and mental agony by reason of the failure of the defendant in not publishing the result before the September examination and she lost one year on account of the default of the University. She therefore claimed damages to the extent of Rs.33,000/-. Since the university refused to pay the amount even after notice the suit was filed. 2. To the written statement filed by the defendant it was stated that the averment in the plaint that revaluation has to be done within 45 days is not correct. Rule 22 of Chapter 7 of Kerala University First Ordinance 1978 permitted the students to apply for revaluation. It is contended that on the reverse page of the application which contained the instructions to candidates it is stated that university can never set in any case a time limit for the issue of the results of revaluation. Hence the university cannot be held to be liable for the delay in issuing the results. There is no Rule which prescribes any specific time within which revaluation of answer papers should be completed and results intimated to the candidates. The claim for compensation is per se unsustainable and illusory and it is not admissible under any provision of law. It is also contended that there is no deliberate action on the part of the defendant in delaying the publication of the result. The allegation that the plaintiff suffered loss and mental agony is also denied. The opportunity for revaluation is granted as a matter of grace. 3. After framing necessary issues the trial court decreed the suit awarding an amount of Rs.14,000/- with interest at the rate of 6% as damages. The allegation that the plaintiff suffered loss and mental agony is also denied. The opportunity for revaluation is granted as a matter of grace. 3. After framing necessary issues the trial court decreed the suit awarding an amount of Rs.14,000/- with interest at the rate of 6% as damages. The trial court found that the university took 8 months in conducting the process of revaluation and informing the results to the candidate. It was found that a wrong valuation is a wrong done to the candidate and when the candidate seeks revaluation and the publication of the result of revaluation is unduly delayed it will lead to loss of one precious academic year and therefore the plaintiff is entitled to realize compensation from the university. The trial court awarded Rs.10,000/- for mental agony. For loss of one year and for preparation and writing of September examination the trial court awarded Rs.3,000/- and Rs.1,000/- respectively. 4. In this appeal it is contended that the suit was barred by limitation. It is also contended that under the instructions to the candidates it was made clear that university will not be liable for loss sustained by the candidates on account of delay in issuing the result of revaluation. It is also contended that there was nothing to show that the plaintiff approached the concerned authorities to expedite revaluation. Merely because another examiner has given more marks in the revaluation it does not mean that the first valuation was not proper. The quantum of damages awarded is also questioned in this appeal. 5. When this appeal came up for hearing learned counsel for the appellant mainly stressed the plea of limitation. It is also contended that the plaintiff did not suffer any damage on account of the delay in publication of the result. On the other hand the plaintiff could appear for the September examination and obtain higher marks which enabled her to get admission for the M.A. Degree Course. Therefore there is no case made out for award of damages. 6. The points for consideration in this appeal are: i) Whether the suit was barred by limitation? ii) Whether the damages awarded is proper or not? Point-(i): 7. In the written statement there is no plea of limitation. Learned counsel for the appellant contended that this being a pure question of law it can be agitated even in appeal. 6. The points for consideration in this appeal are: i) Whether the suit was barred by limitation? ii) Whether the damages awarded is proper or not? Point-(i): 7. In the written statement there is no plea of limitation. Learned counsel for the appellant contended that this being a pure question of law it can be agitated even in appeal. It is also contended that the trial court should have dismissed the suit even in the absence of a plea of limitation finding that the suit was filed beyond the period of limitation. 8. It is true that plea of limitation being a question of law can be advanced even at the appellate stage. But such a plea should be on the admitted facts of the case. According to the learned counsel for the appellant it is Art.72 of the Limitation Act which is applicable and under that Article it is only one year from the date of the arising of the cause of action. Since the suit was filed admittedly after one year the suit was liable to be dismissed. Article 72 reads as follows: 9. According to the learned counsel for the respondent what is contemplated under Art.72 is suit for compensation for doing or omitting to do an act alleged to be in pursuance of any enactment in force. According to the learned counsel the very contention in the written statement is that the university is not bound to announce the result within any specified period and there is no violation of any Statute. The contention of the university is that revaluation is done as a matter of grace. In such a case it cannot be said that the cause of action arose out of omission or commission of any act in pursuance of an enactment. Learned counsel for the appellant on the other hand contended that revaluation is made only under Rule 27 of Chapter 7 and if the results are not announced within a reasonable time it will attract Art.72 of the Limitation Act. 10. It is in the above context that the question whether it is a pure question of law on the admitted fact or whether it involves necessary pleadings to be taken by the respective parties and the question whether it is an omission or commission on the part of the university in pursuance of any enactment has to be considered. 10. It is in the above context that the question whether it is a pure question of law on the admitted fact or whether it involves necessary pleadings to be taken by the respective parties and the question whether it is an omission or commission on the part of the university in pursuance of any enactment has to be considered. Since no such contention was taken in the written statement and the contention on the contrary was that there was no statutory liability for the university to publish result within a reasonable time, I am of opinion that it cannot be treated as a pure question of law which can be considered in the appeal for the time without necessary pleadings. 11. In view of the fact that this question is of general important and may arise in various cases I requested Advocate Sri. Chidambaresh to help the court and he has helped the court by bringing to my notice the decision of the Himachal Pradesh High Court reported in Jugal Kishore Vs. State of Himachal Pradesh (AIR 1995 Himachal Pradesh 8) and some their decisions. The High Court has considered the question whether in a similar situation whether it is Article 72 or 113 which will apply and it is held as follows: “Prior to the coming into force of the Act, the corresponding provision in Limitation Act 1908 was Art.2. A bare reading of this Article would show that it relates to a suit for compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force in the territories to which this act extends and provides a period of limitation of one year from the time the Act or omission takes place. Prima facie, this Article cannot apply to cases where the act or omission complained of is not alleged to be in pursuance of statutory authority. The defendants have nowhere pleaded that the act of omission is complained by the plaintiff is in pursuance of a statutory authority. Article 72, in fact, is meant to provide for cases where a public official or a public authority does not act injurious or possibly injurious to another under powers conferred or honestly believed to be conferred by some Act of the Legislature. Article 72, in fact, is meant to provide for cases where a public official or a public authority does not act injurious or possibly injurious to another under powers conferred or honestly believed to be conferred by some Act of the Legislature. It does not apply to a case where the damages arise not from the doing of the act or the omission to do it, but from doing it in an improper manner out of malice or carelessness. Such like cases under the Limitation Act 1963 (1908) were governed by Art.36, for which now there is no corresponding Article in the Act and thus they will now be governed by the residuary Article 113, for which period of limitation is three years from the date of accrual of cause of action.” The learned Judge followed the decision of the Supreme Court reported in State of Punjab Vs. M/s. Modern Cultivators (AIR 1965 SC 17) and found that act or omission which can claim statutory protection or is alleged to be in pursuance of a statutory command may attract Art.2 (old Act). But the act or omission must be one which can be said to be in pursuance of an enactment. The learned Judge also followed the Full Bench decision of the Lahore High Court reported in Mohammad Sadat Ali Khan Vs. Administrator, Corporation of City of Lahore (AIR 1945 Lahore 324). Abdur Rahman, J. held that one must struggle against an unreasonable construction as far as possible where two interpretations are possible. It was held that if two constructions are without straining the language of the article permissible, that one which leads to undesirable or unexpected results or is liable to cause hardship must be avoided as not having been intended by the Legislature. Mahajan, J. did not agree with this view entirely. In that case the contention was that water system was to be maintained under the Punjab Municipal Act by the municipal committee and since municipal committee failed to maintain the system and damage was caused to the plaintiff, the plaintiff was entitled for compensation. Mahajan, J. did not agree with this view entirely. In that case the contention was that water system was to be maintained under the Punjab Municipal Act by the municipal committee and since municipal committee failed to maintain the system and damage was caused to the plaintiff, the plaintiff was entitled for compensation. It was found that if the municipal committee did not repair the leaking pipe in time it cannot be said that it is an omission to do an act in pursuance of the Act and such an omission would be covered by Article 36 of the Limitation Act and not by Article 2. 12. One of the purposes of revaluation of the paper in which the candidate has failed is to enable the candidate to decide whether he or she has to appear for the next examination. If the result of revaluation is published long after the next examination there is no purpose by such revaluation at all. In this case the final examination for B.A. was conducted in April, 1984 and the revaluation results published in June 1985. Before that the results of September examination was published in the first week of January, 1985. Therefore it is clear case where no purpose was served by such revaluation and the plaintiff lost precious one year on account of the delay caused by the university. In the decision reported in University of Kerala Vs. Sandhya P. Pai (1991 (1) KLT 812) a Division Bench of this court held that when the university was bound to declare revalued results in 45 days and it was declared after eight months and the student declared passed the student is entitled to get damages. Apparently it was thereafter that the time limit of 45 days was removed from the Rules. But even then the university has a duty to publish the result of revaluation before the next examination starts. 13. Learned counsel for the appellant relied on the decision of the Supreme Court reported in Rabindra Nath Ghosal Vs. University of Calcutta and Ors. (JT 2002 (7) SC 490). That was a case where the Supreme Court considered the question as to when damages can be claimed under Articles 226 and 32 of the Constitution of India. 13. Learned counsel for the appellant relied on the decision of the Supreme Court reported in Rabindra Nath Ghosal Vs. University of Calcutta and Ors. (JT 2002 (7) SC 490). That was a case where the Supreme Court considered the question as to when damages can be claimed under Articles 226 and 32 of the Constitution of India. It was held by the Supreme Court that before exemplary damages could be awarded it must be shown that some fundamental right under Article 21 has been infringed by arbitrary or capricious action on the part of public functionaries and that the suffers was a helpless victim of that act. The Supreme Court was obviously referring to the invoking of powers under Article 226 and 32 of the Constitution of India and limiting it to the cases where thee is infringement of Article 21 in cases where damages are claimed against public authorities. 14. The result of the above discussion is that in the absence of a plea in the written statement bringing the case under Article 72 of the Limitation Act, and in the light of the definite plea that there is no statutory duty to declare the result within any specified time and it is done as a matter of grace the plea of limitation based on Article 72 of the Limitation Act is unsustainable. 15. The only other point to be considered is whether the quantum of damages awarded is proper or not. According to the learned counsel for the appellant the amount of Rs.10,000/- for mental agony is exorbitant. There is no yardstick to exactly measure the damages suffered on account of mental agony. The question is whether the amount awarded is exorbitant or not. Since the amount awarded is only Rs.10,000/-. I do not think that it is exorbitant considering the failure of the university to publish the results in time. That finding is confirmed. The other two amounts are only expenses for appearing next examination and for loss of one year. They are only Rs.1,000/- and Rs.3,000/- respectively which cannot be said to be in any way excessive. Before concluding I express my thanks to Advocate Sri. V. Chidambaresh for helping the court with the relevant decision. In the result the appeal is dismissed with costs.