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2017 DIGILAW 854 (KAR)

State of Karnataka v. V. H. Agarkhed

2017-05-30

B.A.PATIL, B.V.NAGARATHNA

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JUDGMENT : B.A. Patil, J. This regular first appeal has been filed by State of Karnataka through Deputy Commissioner, Bidar, Superintending Engineer, Water Resources Department, IPC Circle, Bidar and the Executive Engineer, Water Resources Department, KPC Division No. 1, Bidar, assailing the judgment and decree passed in O.S.No.65/2011, dated 30.1.2013 by the learned Principal Senior Civil Judge and CJM., Bidar. 2. Though this appeal has been listed to consider the application filed to condone the delay in filing the appeal, we have nevertheless heard Sri R.V. Nadagouda, learned Additional Advocate General and the learned counsel for respondent No. 1 on the merits of the matter as it has been brought to our notice that a similar appeal has been disposed of by a Division Bench of this Court. 3. For the purpose of convenience, the parties are referred to, as they are referred to before the trial Court. 4. The brief facts are that appellant-plaintiffs filed the suit in O.S.No.65/2011 for recovery of a sum of Rs. 20.89 lakhs with interest from the defendant-respondent No. 1 herein. It is alleged that defendant was working as an Executive Engineer at IPC Division No. 4, Humnabad for the period from 7.10.1996 to 13.9.1998. During the said period, defendant failed to discharge his duties in accordance with law. He was responsible for purchasing the materials such as MS. Diversion Gate, V.Notches, MS plates, ME outlet gates, Sponge rubber, Micro polythene sheets and hand gloves, etc. for the purpose of Chalukinala Project. Defendant purchased excess material than the actual requirement at exorbitant rates without referring to SPD or KSIMC. It is further alleged that defendant thereby failed in discharging his duties and because of his negligence, the Government sustained loss to the tune of Rs. 20.89 lakhs. It is further alleged that the defendant placed the order without indent from the subordinate officers. He did not obtain the purchase orders from the competent authority before placing the orders and thereby violated the conduct Rules, Store Manuals and Departmental Procedure. It is further alleged that when plaintiff Nos. 2 and 3 requested the defendant to pay the said amount, defendant refused to pay the same on 27.8.2010 as such the suit came to be filed for recovery of the said amount with interest at the rate of 18% per annum. 5. It is further alleged that when plaintiff Nos. 2 and 3 requested the defendant to pay the said amount, defendant refused to pay the same on 27.8.2010 as such the suit came to be filed for recovery of the said amount with interest at the rate of 18% per annum. 5. The defendant, after service of summons, entered appearance and filed an application under Order 7, Rule 11(d) of CPC, seeking rejection of the plaint, alleging that he has retired from service after attaining superannuation on 31.7.2001, neither a departmental enquiry was initiated against him while he was in service nor the Government had passed an order to conduct departmental enquiry or judicial proceedings immediately within four years from the date of his retirement. He contended that as per Rule 214(3) read with Rule 214(6)(b)(ii) of the Karnataka Civil Services Rules ('KCSR' for short), the proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his reemployment, the said proceedings will be without jurisdiction. 6. The said application was resisted by the plaintiffs by contending that Rule 214(3) of KCSR deals only with conditions of services and not regarding recovery of loss caused by the employees while discharging their duties. It was contended that the suit was of a civil nature and the provisions of Code of Civil Procedure (CPC) were attracted. It was further contended that the suit was not barred by limitation since the period of limitation for the State for filing the suit for recovery of the amount is thirty years. 7. On the basis of the pleadings, the trial Court raised the following points for its consideration: 1. Whether the suit filed by the plaintiff is well within the period of limitation? 2. Whether the defendant has made out sufficient and reasonable grounds as required U/O 7 Rule 11(d) of CPC to reject the plaint filed by the plaintiffs? 8. After hearing both parties, the trial Court answered both points in the affirmative and thereafter, the impugned order was passed by which the plaint filed by the plaintiff came to be rejected. 9. We have heard learned Additional Advocate General for the appellants and the learned counsel for respondent No. 1 and perused the entire records. The points which arise for our consideration are as under: 1. 9. We have heard learned Additional Advocate General for the appellants and the learned counsel for respondent No. 1 and perused the entire records. The points which arise for our consideration are as under: 1. Whether the suit was maintainable in view of bar as contemplated under Rule 214(3) of KCSR? 2. Whether the trial Court was right in rejecting the plaint? 3. Whether the impugned order suffers from any illegality or perversity so as to call for interference in this appeal? 10. It is not in dispute that defendant-Sri V.H. Agarkhed was working as an Executive Engineer at IPC Division.No.4 at Humnabad for the period from 7.10.1996 to 13.9.1998. It is also not in dispute that he retired on 31.7.2001 as a Superintendent Engineer on attaining superannuation. Further, it is also not in dispute that the suit came to be filed after his retirement in the year 2011. 11. The first and foremost contention of the appellants is that the trial Court has misconstrued Rule 214(3) of KCSR as the said provision is not applicable to suits for recovery of money. Learned Additional Advocate General appearing for the appellants contended by relying upon Article 112 of the Limitation Act ('Act' for short) that when a suit has to be filed by the Government, the period of limitation would be thirty years, as such Rule 214(3) of KCSR is not applicable and hence the impugned order is not sustainable in law. 12. For the purpose of immediate reference, we wish to quote Rule 214(3) of KCSR, which reads as under:- "(3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution" Rule 214(6)(b)(ii) reads as under: (b) judicial proceedings shall be deemed to be instituted- (i) xxx xxx xxx (ii) in the case of civil proceedings, on the date the plaint is presented in the Court. We also quote Article 112 of the Act which reads thus:- PART IX - SUITS RELATING TO MISCELLANEOUS MATTERS 112 Any suit (except a suit Before the Supreme Court in the exercise of its original jurisdiction) by or on behalf of the Central Government or any State Government including the Government of the State of Jammu and Kashmir. thirty years when the period of limitation would begin to run Under this Act against a like suit by a private person. On going through the above provisions of law, it is clear that no judicial proceeding if not instituted while the Government servant was in service, whether before his retirement or during his re-employment shall be instituted in respect of any cause of action which arose or in respect of an event which took place, more than four years before such institution. As per Rule 214(6)(b)(ii) of KCSR judicial proceeding shall be deemed to be instituted in the case of a civil proceeding on the date the plaint was presented in the Court. In the instant case, the plaint was filed after lapse of nine years one month of retirement of the defendant and after lapse of twelve years from when the event took place. Therefore, if we consider 13.9.1998 as the starting point of the limitation period, then the judicial proceeding for recovery of Rs. 20.89 lakhs by way of the suit ought to have been instituted within four years from 13.9.1998 as per Rule 214(3) of KCSR. Thus, it ought to have been filed by 13.9.2002. But in the instant case the suit has been instituted in the year 2011 though the defendant retired on 31.7.2001, i.e., nearly after nine years one month of defendant's retirement. Though during the course of arguments, it is contended by the Additional Advocate General that the said provision is applicable as a condition of service but not for recovery of loss caused by the employees as the suit is civil in nature, on going through the provisions of Rule 214 of KCSR, it is clear that no judicial proceeding can be initiated after four years of retirement of a Government servant. Rule 214(6)(b)(ii) of KCSR specifically refers to judicial proceeding of a civil nature. 13. This legal point was in issue in the case of State of Karnataka v. Sangappa B. Derad, in RFA.No. 200057/2016. Rule 214(6)(b)(ii) of KCSR specifically refers to judicial proceeding of a civil nature. 13. This legal point was in issue in the case of State of Karnataka v. Sangappa B. Derad, in RFA.No. 200057/2016. A Co-ordinate Bench of this Court of which one of us was also a member (B.V. Nagarathna, J.,) has held that as per the terms of Rule 214(3) of the KCSR no suit can be instituted, if not instituted while the Government servant was in service or during his re-employment in respect of a cause of action which arose or in respect of any event which took place more than four years before such institution. This proposition of law has also been interpreted in the case of B.V. Savanda Setty v. State of Mysore, reported in 1973 Mysore Law Journal 41 S.N. Item No. 87, wherein it is held as under:- "Rule 214(b)(ii) - Proceedings shall not be initiated in respect of any event which took place more than 4 years before. Rule 214 empowers the initiation of proceedings, subject to the conditions enumerated in the proviso to the said Rule. One of the conditions is that the proceedings shall not be in respect of any event which took place more than 4 years before such institution. The proceedings of the Government, show that the alleged misconduct relates to the month of May, 1965. Though the petitioner has specifically averred in paragraph 3 of his affidavit that the event took place more than 4 years before the institution of the proceedings, that has not been controverted. Therefore, held that the Government had no jurisdiction to invoke their powers under Rule 214 of the M.C.S. Rules." 14. When there is a specific reference with regard to applicability of Rule 214 of KCSR to suits, then under such circumstances the contention of the learned Additional Advocate General in the context of Article 112 of the Act cannot be accepted. 15. Further, the learned Additional Advocate General referring to Article 112 of the Act has contended that in case of suits for recovery of money the period of limitation is thirty years and the provisions of Rule 214 of the KCSR are not applicable. The said Article 112 of the Act has to be read along with Section 29(2) of the Act. Section 29(2) of the Act reads as under:- "29.(1) xxx xxx xxx xxx xxx. The said Article 112 of the Act has to be read along with Section 29(2) of the Act. Section 29(2) of the Act reads as under:- "29.(1) xxx xxx xxx xxx xxx. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law. 16. On going through the above provision of law, and Article 112 of the Act, it becomes clear that if a different period is fixed by a special or a local law such period must apply in preference to the period laid down in Sections or Articles in the Schedule to the Act unless it is not expressly excluded in such special or local law. This proposition of law has also been laid down in the case of Secretary of State v. Municipality of Karachi, reported in AIR 1931 SIND 55. On going through the dictum laid down in the above case, it becomes clear that the period of limitation fixed by the special or local law has to be taken into consideration for the purpose of counting the limitation. Admittedly, KCSR are special Rules while the Act is a general law on limitation and in that background the limitation for recovery of loss caused by the employees while discharging their duties is four years. Admittedly in the instant case the suit has been filed after a lapse of nine years and one month. Therefore, the contention raised by the Additional Advocate General is not acceptable. It is also a well established principle of law that once limitation starts to run, it will never stop but by subsequent conduct as stipulated under the Act it can only extended. Keeping in view the aforesaid facts and circumstances, the trial Court has rightly held that the provisions of Rule 214 of KCSR are applicable to the facts of the case. 17. Keeping in view the aforesaid facts and circumstances, the trial Court has rightly held that the provisions of Rule 214 of KCSR are applicable to the facts of the case. 17. The next contention raised by the learned Additional Advocate General is that while passing the impugned order, the trial Court has not answered all the Issues and thereby irregularity has crept in while passing the impugned order. For the purpose of answering that contention, we quote Order 7 Rule 11 of CPC which reads as under:- "Order VII-plaint. xxx xxx xxx xxx xxx xxx xxx xxx 11. Rejection of plaint The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of Rule 9; Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff." 18. By a plain reading of the aforesaid provision, it becomes clear that plaint can be rejected at any stage of the suit if the ingredients of Order 7, Rule 11 of CPC are made out. The Court can exercise the power under Order 7, Rule 11 of CPC not only on the threshold of the proceeding but at any stage of the proceedings. Hence, it is not necessary to answer all the Issues when the plaint is rejected on the threshold of the proceeding. That is the intent and spirit of the said provision. The Court can exercise the power under Order 7, Rule 11 of CPC not only on the threshold of the proceeding but at any stage of the proceedings. Hence, it is not necessary to answer all the Issues when the plaint is rejected on the threshold of the proceeding. That is the intent and spirit of the said provision. In light of the aforesaid discussion, we are of the considered opinion that this contention is also not acceptable. That the trial Court was right in rejecting the plaint. 19. In view of the discussion made above, appeal is dismissed being devoid of merits. 20. Though we have heard the Additional Advocate General on I.A. No. 1/2016 which has been filed for condonation of delay of 1141 days in filing the appeal, since we have heard the main matter on merits at length and the same is dismissed by this judgment, we do not find it necessary to pass separate order on the said application. In view of the dismissal of the appeal on merits, I.A. No. 1/2016 is also dismissed.