Kerala High Court
Muhammed Refeeq @ Moidu vs V.G. Rajesh on 23 November, 2006
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 691 of 2006()
1. MUHAMMED REFEEQ @ MOIDU, AGED 36 YEARS,
... Petitioner
Vs
1. V.G. RAJESH, AGED 34 YEARS,
... Respondent
2. V.G. RENJITH, AGED 30 YEARS,
3. THE PERUMBAVOOR MUNICIPALITY,
For Petitioner :SRI.G.RAJAGOPAL
For Respondent :SRI.V.M.KURIAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :23/11/2006
O R D E R
M.SASIDHARAN NAMBIAR, J.
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C.R.P.NO.691 OF 2006 (F)
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Dated this the 23 rd day of November, 2006.
ORDER
Petitioner is the first defendant and first respondent is plaintiff in O.S.301/04 on the file of Munsiff Court, Perumbavoor. Petitioner is challenging order dated 2.8.06 in I.A.1139/06, where under the petition filed by him under Order VII Rule 11(d) of Code of Civil Procedure was dismissed. First respondent instituted the suit seeking a decree for permanent prohibitory injunction restraining petitioner from constructing any structures in the B schedule property, against the provisions of Kerala Municipalities Act and Kerala Building Rules. A decree for mandatory injunction against second defendant Municipality to take action against petitioner for constructing pillars in violation of the Building Rules was also sought. Petitioner filed I.A.1139/06, contending that suit is barred under section 563 of Kerala Municipalities act and therefore the plaint is to be rejected as provided under Order VII Rule 11(d). After hearing petitioner and respondent 1 and 2, learned Munsiff found that suit is not barred under Section 563 of the Municipalities Act and dismissed the application. The contention of petitioner is that the relief sought for is indirectly with regard on an action taken under the provisions of the Act and hence the suit is barred under section 563 of Kerala Municipalities Act.
C.R.P.NO.691 OF 2006 (F) 2
2. Learned counsel appearing for petitioner and respondents were heard.
3. Arguments of learned counsel appearing for petitioner is that though respondent 1 and 2 directly did not seek a decree challenging the action by or under authority of the Secretary of Municipality, indirectly the decree sought for is against the action of the authorities by or under the Municipality, as action also take in inaction on the part of Municipality and therefore the suit is barred under Section 563 of Municipalities Act and impugned order is to be set aside. Relying on the decision of learned single Judge of this court in C orporation of Trivandrum v. Aboobacker Thajudheen 2004 (1) KLT 14 it was argued that suit is barred and should have been rejected under Order VII Rule 11(d). Learned counsel appearing for respondents 1 and 2 relied decision of this court in Karam by v. Indira (2006 (3) KLT 784) and argued that in order to qualify to be an act, such omission must be an illegal culpable omission and respondents 1 and 2 did not seek any decree against the order passed by or under the authorities of the Municipality and therefore the suit is not barred under Section 563 of the Act.
4. Section 563 of the Kerala Municipalities Act reads as follows:-
"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 C.R.P.NO.691 OF 2006 (F) 3 under any provisions comprised in Chapters XVII, XVIII and XIX or the rules and regulations, if any, made thereunder".
Rule 11(d) of Order VII provides for rejection of a plaint, when the suit appears from the statement in the plaint to be barred by any law. To attract Rule 11 (d) of Order VII, it must appear to the court from the statement in the plaint that it is barred by any law. A reading of the plaint does not show that the plaintiffs are challenging the legality or propriety or any action taken by or under the authority of the Secretary under any provisions comprised in Chapter XVII, XVIII,XIX or the rules and regulations if any made there under. Learned counsel appearing for petitioner submitted that it is specifically contended by the plaintiffs that they have sent a letter to the Municipality to take action against petitioner for constructing pillars in violation of the Building Rules and it was alleged that the Municipality did not take any action and therefore it would amount to an inaction which is an action as provided under 563 of the Act. As held by the learned single Judge in Karamby v.Indira (supra) it is not every omission which could be termed an inaction amounting to an action so as to attract the bar provided under 563 of the Act. In order to qualify the omission to act must be an illegal culpable omission. As held by the Apex Court in Amalgamated Electricity Company (Belgaum) Ltd v.Municipal Committee, Ajmer (AIR 1969 SC 227) "failure on the part of the Municipality to discharge its liabilities will not ordinarily become illegal omissions. The Municipality or its members cannot be C.R.P.NO.691 OF 2006 (F) 4 punished for their failure". The omission must have a positive content in it. The non-discharge of duty must amount to a culpable illegal omission. If not the inaction or omission cannot be termed to be an action as provided under of Section 563 of the Municipalities Act.
5. Learned Munsiff considered the question in the proper perspective and found that plaintiffs have not challenged the orders of second respondent and had only stated that inspite of filing complaint to the secretary to take action, no action was taken. In such circumstances as found by the court below it cannot be said that suit is barred under section 563 of the Act. I find no illegality or irregularity in that order refusing to reject the plaint, warranting interference in exercise of the revision jurisdiction of this court. Question whether plaintiffs are entitled to the decree for mandatory injunction against second defendant is a matter to be considered by the court on the evidence and cannot be rejected at the outset. Court below has to dispose the suit untrammeled by any observation in the impugned order, as expeditiously as possible.
M.SASIDHARAN NAMBIAR, JUDGE.
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