State of Kerala vs Union of India (UOI)

K. John Mathew, J.—State of Kerala filed O.S. No. 161/82 before the Sub Court, Mavelikkara for recovery of an amount of Rs. 18,686.78 with future interest and; cost as damages for short delivery. Plaintiff was described as Superintending Engineer, Pamba Irrigation Project Circle, Chengannur for and on behalf of the State of Kerala. The Defendant was described as Union of India, represented by the General Manager, Southern Railway, Madras. Suit was filed on 8th December 1982. On the same date summons was ordered to the Defendant. It would appear from the order sheet that subsequently on 22nd June 1983 the Court ordered the suit to be posted for hearing on the question of maintainability and jurisdiction. The learned Government Pleader was heard on behalf of the Plaintiff. By order, dated 30th June 1983 the Court rejected the plaint under Order VII, Rule 11(d) Code of Civil Procedure. According to the learned Subordinate Judge who passed that order, the, rejection was made on two grounds. One was that the description of the Plaintiff was irregular. The Plaintiff should have been described as Kerala State, represented by Superintending Engineer, Project Circle, Chengannur. The second ground was that since the Defendant was Union of India and the Plaintiff was the State of Kerala, under Article 131(a) of the Constitution of India only the Supreme Court of India had jurisdiction to try the suit.

The Plaintiff filed a petition for reviewing that order. In that petition it was submitted that the lower court had jurisdiction to try the suit. It was also pointed out that Plaintiff was properly described and that the description of the Defendant as the Union of India, represented by the General Manager of Southern Railway was proper.

There was delay in filing the review petition. So the review petition was accompanied by an affidavit and petition explaining the reasons for condoning the delay. The petitions were filed on 9th April 1984. The lower court by the order challenged in this C.R.P., dismissed the review petition. The State is challenging that order in this C.R.P.

The order rejecting the plaint on the ground that a Civil Court has no jurisdiction to try a suit for damages between a State Government and the Central Government was illegal and unsustainable. Article 131(a) of the Constitution applies only in cases where legal rights in the context of the Constitution and federalism are involved. The controversy in this suit arises from a contract between a carrier and a consignee and as such that is not a 1egal right contemplated under Article 131(a) of the Constitution. See State of Bihar Vs. Union of India and Another, Para 11 and State of Karnataka v. South Central Railway AIR 1977 Karnataka 168.

Learned Counsel appearing for the Union of India fairly submitted that the order rejecting the plaint could not be supported. However, learned Counsel contended that there was no sufficient reason to condone the delay in filing the review petition. Under the peculiar circumstances of the case, I had directed that affidavits of the learned Government Pleader appearing for the revision Petitioner in the lower court and of the officer-in-charge of this suit further explaining the reasons for the delay in filing the review petition were to be filed in this C.R.P

Accordingly the Government Pleader appearing in the lower court and the Personal Assistant to the Superintending Engineer filed affidavits. The Legal Assistant attached to the Law Office of the Southern Railway Head Office at Madras filed a counter-affidavit controverting the averments in the affidavits. From the affidavits on behalf of the Plaintiff-Petitioner, it is seen that the order of the court was forwarded to the Law Officer at Thiruvananthapuram, who examined the case and gave his opinion, and after getting his opinion the review petition was filed. It is clear that the delay was caused purely due to administrative reasons and there was no negligence on the part of any of the officers and so there was sufficient reason to condone the delay.

However, a reading of the order of the lower court will show that the lower court did not at all consider the delay petition. The court observed as follows:

In the circumstance the Petitioner ought to have filed an application to condone the delay happened in filing this petition. Had it been so, this Court would have considered whether the delay happened was supported by reasons (sic). So I agree with the learned Counsel for the counter-Petitioner. The petition is barred by Article 122 of the Limitation Act, 1963.

Apparently, the court did not take into consideration the petition to condone the delay namely, I.A. 375/84.

The rejection of the plaint on the ground that the court had no jurisdiction to try the suit was clearly illegal. The rules relating to filing of suits by or against Government or Public Officers are contained in Order XXVII Code of Civil Procedure. In case the rules are not followed, the Defendant can raise such objections at appropriate stage. Plaintiff can either contradict those contentions or amend the plaint, if necessary. Thus there was no valid ground for the rejection of the plaint.

The petition to condone the delay in filing the review petition ought to have been allowed by the lower court. See the principles to be followed in disposing of such petitions; enunciated by the Supreme Court in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, . As noticed above, there were sufficient reasons to review the order rejecting the plaint.

However, the lower court failed to exercise its jurisdiction in dismissing the review petition without even considering the petition to condone the delay. The order under challenge, therefore, requires to be revised. Under these circumstances, the order of the lower court is set aside. I.A. Nos. 374 and 375 of 1984 are allowed. The order rejecting the plaint in O.S. No. 161/1982 of the Sub Court, Mavelikkara is set aside and that suit is restored to file. The lower court is directed to take back that suit to file and dispose it of on merits.