PROVINCE OF MADRAS Vs. JAITHOON BIBI

JUDGEMENT

(1.) THIS appeal is against the judgment and decree of the subordinate Judge of Madurai in O. S. 331 of 1971. The 1st defendant-State of Tamil Nadu is the appellant.

(2.) THIS is a suit for damages. The 1st defendant is the state of Tamil Nadu represented by the Collector of Madurai. The 2nd defendant is the Assistant Engineer and the 3rd defendant is the Junior engineer, serving under the 1st defendant. The 4th defendant is the Contractor. It may be mentioned here and now that defendants 2 to 4 have been impleaded subsequently. The plaintiff is the owner of the property bearing door No. 25, Obla Kobla Padithurai Road in T. S. No. 1215 in Ward No. 4 in Madurai Town . Immediately north of the plaintiff's property runs the Panaiyur irrigation channel. The northern wall of the plaintiff's property abutting the channel is a puck a one constructed with rubble stones, cement and lime mortar to prevent erosion by the waters of the channel. The 1st defendant started construction of a regulator and other masonry structures in the said channel north of the plaintiff's northern boundary wall. The construction operations were carried on by the 4th defendant as the contractor under the immediate supervision of defendants 2 and 3. Due to the haphazard and negligent manner in which the digging operations were done by the 4th defendant for putting up the basement for the regulator on 10. 8. 1968 the plaintiff's northern wall lost its lateral and vertical support and fell down to a length of 33-1/2 feet and a height of 26-'feet. The remaining portion of the wall developed cracks. On 12. 8. 1968, the plaintiff issued a notice to the 4th defendant calling upon him to restore the plaintiff's wall to its original condition. Defendants 2 and 3 inspected the site and agreed to restore the wall at the cost of the Government. At the instance of the 2nd defendant, the 3rd defendant suggested to the plaintiff's power- ofattorney agent that the restoration of the wall might be done at the expense of the plaintiff herself in the first instance and the amount would be paid by the Government. He gave two letters calculating the rates for the different items of work to be carried out and for the cost of materials and labour. The -plaintiff carried out the construction of the wall and completed it at a cost of Rs. 11736-73. She then sent a report on 24. 11. 1969 to the defendants 2 and 3 requesting payment. There was no response-Consequently, the plaintiff issued a notice under Sec. 80 of the Code of Civil Procedure to the 1st defendant with copies to defendants 2 and 3 claiming payment with interest at 6 per cent per annum. As the plaintiff's claim has been rejected, the plaintiff is constrained to institute this suit.

(3.) THE learned Subordinate Judge held that the plaintiff's northern wall measuring 33-'feet long, 25 feet high and 1-'feet thick fell down on 10. 8. 1968 due to the negligence of the 4th defendant carrying out the construction work in Panaiyur channel and that the. plaintiff would not be entitled to claim anything more than Rs. 2,000. THE Court below also held that defendants 2 to 4 were not liable for the damages and that the claim against them was barred by time as they were impleade d as parties only on 14. 7. 1977. It was further held that the letter given by the 3rd defendant is binding on the Government and the Government are therefore liable to pay the damage of Rs. 2 ,000 to the plaintiff. THE plea of immunity on the ground of exercise of sovereign functions claimed by the 1st defendant was rejected, and in the result, the suit was decreed directing the 1st defendant to pay a sum of Rs. 2 ,000 with proportionate costs to the plaintiff with interest thereon at 6 per cent per annum from the date of plaint till realisation. THE suit was dismissed as against defendants 2 to 4. Aggrieved by the decree, the 1st defendant has come in appeal. THE plaintiff has not filed any cross-objection or cross-appeal against defendants 2 to 4.