K.T.Sankaran, J.

1. The Regular Second Appeal as well as the First Appeal against Order arise out of the same judgment and decree, dated 19.11.2004, in A.S.No.166of 2003, on the file of the Court of the Additional District Judge, North Paravur. Since the appellate court has rendered a finding that the plaintiff is entitled to get damages and also that the second defendant is liable to pay the damages, by way of abundant caution, the appellant/second defendant has filed the Second Appeal though the appellate court had remanded the case to the trial court for fresh consideration in respect of quantum of damages. Since a remand was made, the appellant/second defendant has filed F.A.O.No. 308 of 2004. Notice was ordered on the substantial questions of law formulated in the Memorandum of Regular Second Appeal. The same questions of law as raised in the R.S.A. have been raised in the F.A.O. as well.

2. The appellant is the second defendant in O.S. 274 of 2000, on the file of the court of the Munsiff, Aluva, filed by the first respondent O.V. Joseph. Defendants 1 and 3 are State of Kerala and Bar Council of Kerala respectively. The suit was filed by O.V. Joseph, who is an advocate practicing at Aluva and a member of the Aluva Bar Association, claiming a sum of Rs. One lakh as damages from the second defendant N. Sugunan, who at the relevant time was the Judicial Magistrate of the First Class. The compensation was claimed by the plaintiff on the ground that in the election to the Bar Council of Kerala held on 29.3.2000, he was denied his right to vote and the second defendant, who acted as the polling officer, was responsible for the denial of his right to vote. Though the Bar Council of Kerala was impleaded as party to the suit, there was no claim by the plaintiff against the Bar Council of Kerala and he has made it clear when he was examined as P.W. 1.

3. The case of the plaintiff is that he is a member of the Bar Association, Aluva. He was enrolled as an advocate in the year 1962. In the election to the Bar Council of Kerala, held on 29.03.2000, the second defendant was the polling officer. He was deputed as a polling officer on the basis of the request made by the Advocate General of Kerala to the Honourable Chief Justice of Kerala for deputing judicial officers all throughout the State to act as polling officers in the election to the Bar Council of Kerala. The second defendant at the relevant time was the Judicial Magistrate of the First Class-ll, Aluva. The plaintiff alleged in the plaint thus:

"4. When the plaintiff came to the polling hall on 29.3.2000 at 10.30 a.m to cast his vote the second defendant polling officer refused to give him the Ballot Paper stating that the name of the plaintiff is not seen in the final list of members of Aluva Bar issued to him. When the plaintiff requested to the second defendant that the provisional list of members of Aluva Bar and the list of voters of Kerala Bar Council issued from the Bar Council office by the third defendant the name of the plaintiff is there with roll number as a member of Aluva Bar Association."

It is also stated in the plaint that the plaintiff requested the second defendant to verify the identity card issued to the plaintiff by the Bar Council of Kerala. The voters list contains all the relevant material particulars. It is admitted in the plaint that there is a mistake in the initials of the plaintiff as entered in the voters list and that instead of O.V. Joseph, his name was shown as C.V Joseph in the voters list. It was further alleged that the second defendant committed a very grave dereliction of duty and thereby caused very serious mental pain and injury to the plaintiff. The plaintiff was insulted, humiliated, ridiculed and sent back by the second defendant in the presence of many senior and respectable members of the Bar. A sum of Rs. One lakh was claimed in the plaint for loss of reputation and mental pain. Para 10 of the plaint reads as follows:

"10. Plaint