# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`**
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TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944
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## **`CRP NO. 374 OF 2022`**
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AGAINST THE ORDER DATED 29.07.2022 IN I.A.NO.2/2022 IN OS 127/2018 OF II
ADDITIONAL MUNSIFF COURT ,TRIVANDRUM
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## **`REVISION PETITIONER/DEFENDANT:`**
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SARITHA,
AGED 34 YEARS,
D/O. RAJENDRAN, RESIDING AT IDAVARVEEDU,
MLA ROAD, ARAMADA P.O, THIRUMALA VILLAGE,
THIRUVANANTHAPURAM., PIN – 695032
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BY ADVS.SHAIJAN C.GEORGE
AJI GOPINATH
NEEBA A.B.
VINAI JOHN
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## **`RESPONDENT/PLAINTIFF:`**
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RAMANIAMMA.K,
AGED 60 YEARS,
W/O. RAVEENDRA KURUP, SHIVARADHAM, J.R.A 450/K, JAI
NAGAR,THIRUMALA P.O, THIRUVANANTHAPURAM., PIN – 695006
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BY ADVS.K.M SATHYANATHA MENON
P.ARUN KUMAR (MONCOMPU)(K/914/2005)
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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON
07.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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CRP NO. 374 OF 2022 2
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**Dated this the 7[th] day of February, 2023**
## **ORDER**
Confronted with the order passed in I.A.No.2/2022 in O.S.No.127/2018 by the Court of the Additional MunsiffII, Thiruvananthapuram, the defendant has filed the revision petition. The respondent is the plaintiff in the suit.
2. The concise case of the petitioner is that, she is the defendant in the suit, which is filed by the respondent, for a decree for a permanent prohibitory injunction. The petitioner has filed I.A. No.2/2022 challenging the maintainability of the suit, in the light of Section 563 of the Kerala Municipality Act, 1994 (in short ‘Act’). The respondent has deliberately not impleaded the Secretary of the Municipality in the party array with illegal motives. The respondent has alleged that the petitioner has made illegal construction violating the building rules. The respondent has an alternative and
## **`CRP NO. 374 OF 2022 3`**
efficacious remedy under the Act. The petitioner has not violated the respondent’s civil rights. The learned Munsiff has dismissed the application by the impugned order. The impugned order is illegal, improper and irregular. Hence, the revision petition.
3. Heard; Sri.Shaijan C. George, the learned counsel appearing for the revision petitioner and Sri.K.M.Sathyanatha Menon, the learned counsel appearing for the respondent, on admission.
4. The short question is, whether there is any illegality, impropriety or irregularity in the impugned order.
5. The suit has been filed by the respondent, against the revision petitioner, for a decree for a permanent prohibitory injunction, to restrain the revision petitioner from carrying out any construction near the northern boundary of the respondent’s property.
6. Admittedly, the suit was filed in the year 2018 and
the petitioner had filed her written statement in the suit.
## **`CRP NO. 374 OF 2022 4`**
7. In 2022, the petitioner filed I.A. No.2/2022, to hear the question of the maintainability of the suit as a preliminary issue on the ground that the suit is hit by Section 563 of the Act.
## 8. Section 563 of the Kerala Municipality Act, 1994 reads as follows:-
“Jurisdiction of Civil Courts barred.-- No Civil Court shall have jurisdiction to entertain any suit, application or petition challenging the legality or propriety of any action taken by or under the authority of the Secretary under any provisions comprised in Chap 17 Chap. 18 and Chap 19 or the rules and regulations, if any, made thereunder.”
9. Interpreting Section 563 of the Act, the Division Bench of this Court in **Bernad Mani @ Roy and Others**
## **v. James and Others** [2012(1) KHC 377] has succinctly held as follows:-
“14. Going by the plaint averments as well as averments in the application for temporary injunction we are of the view that the Court below was not justified in holding that it was debarred by S.563 of the Kerala Municipality Act from going into the said question. If as a matter of fact the buildings have been constructed illegally or in violation of the Rules, then the plaintiffs will be justified in seeking the temporary injunction against the issuance of the aforementioned certificates and
## **`CRP NO. 374 OF 2022 5`**
allotment of number in respect of those buildings. The Court below by refusing to go into this question has abdicated its function as the Civil Court. We, therefore, set aside the impugned order so far as it relates to the above question and direct the Court below to go into that question untrammeled by any of the observations made therein or in this judgment. The order for status quo shall be in force till the matter is finally decided.”
10. In the light of the exposition of law in the aforecited decision, I have meticulously read the averments in the plaint, which was handed over in the open court by the learned counsel appearing for the revision petitioner. The respondent has pleaded in paragraph 5 and 6 of the plaint as follows:-
“5. It is to be noted that the defendant is now making construction of the residential building in such a way to touch the northern boundary wall of the plaint A scheduled property. The defendant is not ready to provide adequate free space as contemplated by law, rather she has been engaging man power to construct an open staircase in such a way to touch the northern boundary of the plaint A scheduled property. The construction is not at all legal, and the defendants never obtained any kinds of consents from the plaintiff prior to the construction. The defendant is not empowered to make such a construction in such a way to touch the boundary wall of the plaint A scheduled property.
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CRP NO. 374 OF 2022 6
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6. The acts and deeds and the defendant were challenged before the local body. The plaintiff obtained the knowledge of the construction only on 16.01.2018. On that day itself she filed an application before the Trivandrum Corporation, regarding the same. The officials from the corporation intervened and the defendant was provided with direction to abstain from illegal constructions. 19.1.2018 the defendant along with a group of 20 people, again arrived the place, and started the construction illegally and unlawfully, and they proclaimed that they would complete the construction whatever they intended to do as their wish, and they would go to any extent to achieve their illegal goals. The defendant is a person, having local support, and she is much influential politically and financially. The plaintiff bonafide apprehends that the defendant would construct the residential building, touching the boundary wall of the plaint A scheduled property, and without providing adequate free space between the boundary wall of the plaint A scheduled property and the residential building in the property of the defendant. Even after the interference of the local body the defendant has been in her active effort to complete the construction in an illegal and unlawful way, so that no open space is available in between the northern boundary wall of the plaint A scheduled property and the construction of the defendant. The plaintiff has no other remedy available other than to approach before this Hon'ble Court to get a mandatory injunction, directing the defendant to remove the B scheduled construction and her other portion of the building, which comes touching the northern boundary of the plaint A scheduled property. The plaintiff is further entitled to get a permanent prohibitory injunction, restraining the defendant from making any construction so
## **`CRP NO. 374 OF 2022 7`**
close to the northern boundary of the plaint A scheduled property, from doing anything which would be detrimental to the existence of the northern boundary of the plaint A scheduled property, and from doing anything causing obstruction to the peaceful enjoyment and possession of the plaintiff over the plaint A scheduled property.”
11. A reading of the assertions in paragraph 5 and 6 of the plaint, undoubtedly substantiates that the respondent has alleged that her civil rights have been infringed by the illegal action of the revision petitioner.
12. The respondent does not have a case against the Secretary of the Municipality or any allegation falling within the purview of Section 563 of the Act.
13. On a comprehensive consideration of the pleadings and materials on record, and the law on the point, I am of the definite view that the plaint does fall within the mischief of Section 563 of the Act. Moreover, the court below has rightly observed that the petitioner has come up with the contention of maintainability of the suit at the fag end, that too, without raising the said defence in the written statement. I do not find any error,
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CRP NO. 374 OF 2022 8
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illegality or impropriety in the impugned order, warranting interference by this Court under Section 115 of the Code of Civil Procedure.
The revision petition is meritless and is hence dismissed.
**Sd/-**
**C.S.DIAS, JUDGE**
rmm7/02/2023
