Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 10TH DAY OF FEBRUARY 2020 / 21ST MAGHA, 1941 AGAINST THE JUDGMENT AND DECREE IN AS.NO.25/2009 DATED 29-11-2011 OF IST ADDITIONAL DISTRICT COURT, ERNAKULAM AGAINST THE JUDGMENT AND DECREE IN OS.NO.810/2002 DATED 07-07-2008 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM APPELLANTS / APPELLANTS / PLAINTIFFS: 1 BENJAMIN SON OF JOSEPH, AGED 71 YEARS, PEACE COTTAGE, HOUSE NO.III/352, OPPOSITE TO PREMIER TYRES, NORTH KALAMASSERY, THRIKKAKARA NORTH VILLAGE. 2 SUSAMMA BENJAMIN WIFE OF BENJAMIN, AGED 62 YEARS, RESIDING AT PEACE COTTAGE, HOUSE NO.III/352, OPPOSITE TO PREMIER TYRES, NORTH KALAMASSERY, THRIKKAKARA NORTH VILLAGE. BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.SMITHA GEORGE SRI.K.G.RAJEESH SRI.S.M.PRASANTH RESPONDENTS / RESPONDENTS / DEFENDANTS: 1 T.M.IBRAHIM SON OF MOIDEEN, AGED 66 YEARS, THETTAYIL HOUSE, NJALAKAM, KALAMASSERY.P.O., 683104 2 KALAMASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, SOUTH 3 T.E.NOORJAHAN D/O.IBRAHIM, THETTAYIL HOUSE, NJALAKAM, 4 T.E.SAJITHA D/.OIBRAHIM, THETTAYIL HOUSE, NJALAKAM, R1 BY ADV. SRI.P.J.JOSEPH PANIKKASSERY R1-2 BY ADV. SRI.M.K.ABOOBACKER R1 BY ADV. SRI.V.THULASEEDHARAN PILLAI THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiffs, in a suit for mandatory and prohibitory injunction and for damages, are the appellants.
2. The courts below, as per the impugned judgment, held the suit to be barred under the provisions of the Kerala Municipality Act and Rules.
3. The property of the plaintiffs is on the western
side of the property of 1st defendant. According to the plaintiffs, there are public ways on the northern and southern sides of the 1st defendant's property. The allegation of the plaintiffs is that, the 1 st defendant started construction of a building in violation of the Kerala Municipality Building Rules and without leaving the necessary set backs. There is encroachment over the pathway by illegal construction of sun shades. It is further alleged that damages have been caused to the compound wall and staircase of the building of the
plaintiffs. The 1st defendant denied the allegations and contended that the construction is in accordance with a valid plan and permit obtained from the Municipality.
4. On the issue of maintainability, the courts
below held that the remedy of the plaintiffs is to approach the authorities under the Municipalities Act for redressal of grievances and that the suit is barred under its provisions. The claim for damages was held to be unsubstantiated.
5. The following substantial questions of law are
raised for consideration in the appeal: “Doesnot the Civil Courts have jurisdiciton to entertain a suit alleging construction in violation of the Kerala Building Rules?”
6. Heard the learned counsel on either sides on the substantial question of law.
7. The allegation of the plaintiffs is that the 1 st
defendant is attempting to make constructions in violation to the Kerala Building Rules. There is also a prayer for mandatory injunction to demolish certain constructions alleged to have been so made. This Court in Saina & Others v. Konderi & Others [1984 KLT 428] and Mariamma v. Thomas [2003 (1) KLT 245], has
held that a civil suit, alleging construction in violation of
the Building Rules, is maintainable. It is to be noted that the plaintiffs are not challenging any permit or order of exemption granted by the Municipality but has approached the Court alleging that constructions are being made by the 1st defendant in violation of the Building Rules. On the above, the suit is maintainable before a Civil Court.
8. Yet another claim made is for damages on
account of the alleged illegal activities of the 1st defendant. The remedy of the plaintiffs to claim damages for the alleged illegal acts lies before a Civil Court and not before the authorities constituted under the Municipalities Act. The substantial questions of law are thus answered infavour of the appellants - plaintiffs.
9. Having found that the suit is maintainable before the Civil Court, the matter needs be remanded back for fresh disposal after a full-fledged trial.
10. The claim for damages stems from the
allegation regarding the illegal acts of the 1 st defendant. Though the courts below have, considering the Commissioner's report, held that there is no evidence to find that any damages has resulted to the plaintiffs, as noticed, the claim being incidental to the main allegation raised, I deem it appropriate that the trial court considers the claim for damages also, afresh. In the result, the decree and judgment of the courts below are set aside. The matter is remanded back to the trial court for disposal denovo. The parties shall be afforded opportunity to adduce further evidence, if sought for. Parties to appear before the Principal Munsiff's Court, Ernakulam on 10/03/2020.
Sd/- SATHISH NINAN JUDGE rsr