JUDGMENT :

B. VEERAPPA, J.

This Regular First Appeal is filed by the plaintiff-Executive Engineer, No.4, Hemavathi Left Bank Canal, Turuvekere, against the judgment and decree dated 16.02.2013 made in O.S.No.48/2007 on the file of the Senior Civil Judge and JMFC, Tiptur whereby, the suit of the plaintiff filed for recovery of damages of Rs.84,16,284/- together with interest at the rate of 6% per annum came to be dismissed based on Preliminary Issue Nos.4 and 5 holding that the suit filed by the plaintiff is barred by limitation and the suit is not maintainable.

2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.

3. The facts in nutshell are that the appellant/plaintiff filed the suit for recovery of damages contending that the defendant/respondent is a retired Assistant Executive Engineer who had worked from March 96 to March 98 as Assistant Executive Engineer, at No.1, Hemavathi Channel, Enquiry Sub-Division, Hedagarahalli. During his tenure, he was entrusted with supervision of CC lining work, Tumkur Distributor Channel from 23 to 27 Kms. lane, but he did not discharge his duty promptly and there are lapses and deficient in the service on his part and has shown dereliction of duty. Due to the said act, the State Government has suffered a loss to the tune of Rs.84,16,284/. After issuing legal notice to the defendant, since the defendant gave untenable reply, the suit came to be filed for the relief sought for.

4. The defendant filed the written statement and denied all the plaint averments including deficiency or lapses on his part as alleged. He contended that he has discharged his duty not in his individual capacity rather in the official capacity as Assistant Executive Engineer as such, he has not committed any breach or caused loss to the State. The suit filed by the plaintiff is barred by limitation and the suit is not maintainable. He further contended that the deficiency as alleged is not due to the lapse on the part of the supervisor or in the work or the material supplied by the Contractor, but it is due to not maintaining the CC lining work. He further contended that the suits filed against only a few Engineers leaving apart several Executive Engineers evidences the mala fide intention on the part of the plaintiff and denied that the Assistant Executive Engineer at No.1, Hemavathi Channel, Enquiry Sub-Division, Hedagarahalli and all the work done by him in official capacity was sanctioned by the Chief Engineer, Hemavathi Channel Zone, Tumkur, after calling for tender. The channel work has been done during 1986-87. Only a portion of the work was done during his tenure. The final bills were also accepted after fulfillment of all the obligations by the contractor as per the tender agreement. He further contended that during 1999, there was heavy rain fall in the canal area as such, the rain water rushed into the canal and formed cavities in the sides of the canal since the soil is a black cotton soil which will cause damages to the CC line and it is nothing but a natural calamity and called as act of God which cannot be controlled or curtailed in any canal work. It is further contended that the natural disaster is beyond control of any of the Engineers including the defendant. The defendant denied all the allegations made against him and sought to dismiss the suit.

5. Based on the aforesaid pleadings, the Trial Court framed the following issues for consideration:

“(i) Whether the plaintiff proves that it is sustained loss to the tune of Rs.84,16,284/on account of dereliction of duty of defendant in cement concrete lining from 23rd to 27th K.m. of Hemavathi SubCanal?

(ii) Whether the plaintiff proves that it is entitled for interest at the rate of 6% p.a.?

(iii) Whether the defendant proves that alleged substandard work has not occurred during his period and the maintenance of canal work no way concerned to them?

(iv) Whether the defendant proves that the suit is barre