Kerala High Court
C.M.Sundaram vs A.Pichan on 15 February, 2022
Author: K.Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943
RSA NO. 891 OF 2004
AGAINST THE DECREE AND JUDGMENT DATED 12.03.2004 IN
AS 194/2000 AND CROSS OBJECTION IN AS194/2000 OF II ADDITIONAL
DISTRICT COURT,PALAKKAD
AGAINST THE DECREE AND JUDGMENT DATED 24.01.2000 IN OS
443/1994 OF PRINCIPAL MUNSIFF COURT, PALAKKAD
APPELLANT/S:
1 C.M.SUNDARAM,
S/O.MAHADEVA IYER, HOUSE NO.1/575,
CHATHAPPURAM, KALPATHY, PUTHUR AMSOM,
PALAKKAD TALUK.(DIED)
2 C.M.GOKARNATH,
S/O.MAHADEVA IYER, HOUSE NO.1/575,
CHATHAPURAM, KALPATHY,, PUTHUR AMSOM,
PALAKKAD TALUK.
*ADDL.A3 SARASWATHY,
MINERVA BUILDING, CHATHAPURAM,
KALPATHY, PALAKKAD - 3.
*ADDL.A4 VISHALAKSHY,
TC2-789, SOORIYAKIRAN, K.K.LINE,
POONKUNNAM, THRISSUR - 680 002.
*ADDL.A3 AND 4 ARE IMPLEADED AS THE SUPPLEMENTAL
APPELLANT VIDE ORDER DATED 18/8/08 IN I.A.1672/08.
BY ADV.
SRI.O.RAMACHANDRAN NAMBIAR
RESPONDENT/S:
1 A.PICHAN,
S/O.ARUMUGHAM, SHOP NO.1/579, CHATHAPPURAM,
KALPATHY,, PUTHUR AMSOM, PALAKKAD.
RSA NO.891 of 2004
2
2 MUNICIPAL COMMISSIONER,
PALAKKAD MUNICIPALITY, KOPPAM AMSOM,
PALAKKAD TALUK.
BY ADVS.
SRI.P.R.RAJA FOR R1
SRI.P.R.VENKATESH FOR R1
SRI.T.C.SURESH MENON FOR R2
SHRI.BINOY VASUDEVAN, SC, FOR R2 PALAKKAD
MUNICIPALITY
THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON
15.02.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RSA NO.891 of 2004
3
K.BABU, J.
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R.S.A. No. 891 of 2004
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Dated this the 15th day of February, 2022
JUDGMENT
Defendant Nos. 1 and 2 in O.S.No.443/1994 on the file of the Munsiff's Court, Palakkad, are the appellants. The plaintiff and defendant No.3 are the respondents.
2. During the course of proceedings, appellant No.1/defendant No.1 died and his legal representatives were impleaded as additional appellant Nos. 3 and 4.
3. Material facts relevant for the adjudication of this appeal are briefly narrated below:
3.1. The plaintiff is a tenant of building bearing number 1/579 of Palakkad Municipality owned by defendant Nos. 1 and 2. The plaintiff was running a barbershop in the building. Defendant No.3, the Municipal Commissioner, Palakkad Municipality, issued Ext.A2 notice to the plaintiff and defendant Nos. 1 and 2, stating that the building is in a dangerous condition and it requires urgent repairs so as to prevent any danger therefrom. Thereafter, RSA NO.891 of 2004 4 defendant Nos. 1 and 2, the landlords, issued Ext.A1 notice to the plaintiff, requiring him to surrender the vacant possession of the building in order to make the repairs required by defendant No.3.
3.2. The plaintiff instituted the Original suit alleging that defendant Nos.1 and 2, being influential persons, instigated defendant No.3 to issue Ext.A2 notice. According to the plaintiff, the building is not in a dilapidated condition and it only requires some minor repairs. It is not in a dangerous position, as contended by defendant No.3. The plaintiff further pleaded that he had requested defendants 1 and 2, the landlords, to effect the repairs, which they refused to do so. The plaintiff also alleged malafides in the action taken by defendant No.3 at the instance of defendant Nos.1 and 2.
3.3. Defendant Nos.1 and 2 resisted the suit. They admitted the tenancy. According to the defendants, they have never made any attempt to evict the plaintiff by force. Due to old age, the building is in a dilapidated condition and it may fall down at any time. Defendants 1 and 2 required the plaintiff to surrender the vacant possession of the building to carry out the urgent repairs RSA NO.891 of 2004 5 and the said request was made only after getting notice from defendant No.3. Defendants 1 and 2 have not exerted any influence as alleged by the plaintiff. They only requested the plaintiff to surrender the vacant possession of the building for the minimum purpose of effecting the urgent repairs noted by the Local Authority in Ext.A2 notice.
3.4. Defendant No.3, the Commissioner of Palakkad Municipality, contended that the Civil Court has no jurisdiction to question the legality of the order passed under the relevant provisions of the Municipality Act, 1994.
Defendant No.3 has not tried to evict the plaintiff by force and he stoutly denied the allegation of malafides. Defendant No.3 received a complaint stating that the plaint schedule property and the building adjacent thereto are in a dangerous condition and may fall down at any time. Based on the complaint, the Competent Authority inspected the building and was satisfied that it was in a dangerous condition. In exercise of the statutory responsibility, defendant No.3 caused to issue Ext.A2 notice. The plaintiff has no cause of action against the defendants.
RSA NO.891 of 2004 6
4. Parties went to trial. PWs 1 to 3 were examined and Exts.A1 to A12 were marked on the side of the plaintiff. DWs 1 and 2 were examined and Exts.B1 to B3 series were marked on the side of the defendants. Exts.C1 to C3 series were marked as Court Exhibits.
5. The Trial Court held that the suit as against defendant No.3 is not maintainable in view of the bar contained in Section 563 of the Kerala Municipality Act, 1994 (for short 'the Act'). The Trial Court, by way of a permanent prohibitory injunction, restrained defendants 1 and 2 from causing any obstruction to the plaintiff or evicting him from the plaint schedule property except in accordance with the provisions of the Kerala Buildings (Lease and Rent Control) Act. The Original Suit as against defendant No.3 was dismissed.
6. Defendants 1 and 2 challenged the decree and judgment passed by the Trial Court, filing A.S.No.194/2000 before the District Court, Palakkad. The plaintiff preferred a Cross Objection challenging the finding of the Trial Court to the effect that the suit as against defendant No.3 is not maintainable. The First Appellate Court dismissed the appeal preferred by defendants 1 and 2 and allowed the RSA NO.891 of 2004 7 Cross Objection.
7. Defendants 1 and 2 are in appeal before this Court under Section 100 of the CPC challenging the judgment and decree of the First Appellate Court which held that the suit as against defendant No.3 is maintainable and the plaintiff is entitled to the injunction restraining defendant No.3 from doing any act to evict him from the plaint schedule property based on Exts.A2 and A10 notices.
8. On 18.03.2005, this Court admitted the appeal on the following substantial questions of law:
"(1) Whether the finding of the Court below that defendant No.3 has acted malafide and the Civil Court has got jurisdiction to challenge the action of the Municipality is legal and sustainable in law.
(2) Whether the Court has committed illegality in holding that the plaintiff is entitled to get injunction against the landlord without considering the materials on record."
9. Heard Sri.Geen T. Mathew, the learned counsel appearing for the appellants/defendants 1 and 2, RSA NO.891 of 2004 8 Sri. P.R.Venkatesh, the learned counsel appearing for respondent No.1/plaintiff and Sri.Binoy Vasudevan, the learned Standing Counsel appearing for respondent No.2/defendant No.3.
10. The learned counsel for the appellants/defendants 1 and 2 contended that the finding of the First Appellate Court that the Original Suit as against defendant No.3 is maintainable and that the plaintiff is entitled to the prohibitory injunction prayed for in the plaint is against the express bar contained in the statutory provisions. The learned counsel further contended that the prohibitory injunction was granted against defendant Nos.1 and 2 without taking into account the materials on record. The learned counsel for respondent No.1/plaintiff contended that the Original Suit is maintainable against defendant No.3 in view of the fact that the plaintiff established malafides against defendant No.3 in initiating proceedings which led to Ext.A2 statutory notice.
11. The plea of the plaintiff that he is the tenant of the plaint schedule property, is not in dispute. It is also admitted that the Kerala Buildings (Lease and Rent Control) Act is applicable to the area where the building is situated. RSA NO.891 of 2004 9
12. The cause of action for the initiation of the Original Suit is Ext.A2 notice sent by defendant No.3 and Exts.A1 notice caused to be issued by defendants 1 and 2, requiring the plaintiff to surrender vacant possession of the building, so as to effect the repairs as required in Ext.A2 issued by the Municipality. Defendant No.3, on getting a complaint that the building is in a dangerous condition, deputed the Competent Authority to conduct an inspection and thereafter proceeded under Chapter XIX of the Act. Notice under Section 411 of the Act was caused to be issued to the plaintiff and defendants 1 and 2. The plaintiff pleaded that defendants 1 and 2, being influential persons, instigated defendant No.3 to initiate proceedings under Chapter XIX of the Act. The challenge of defendants 1 and 2 is that they never had the malafides as alleged by the plaintiff to require the plaintiff to surrender the vacant possession of the building and they were compelled to request the plaintiff to surrender the vacant possession of the building in view of the Ext.A2 statutory notice issued by the Municipality.
13. Defendant No.3 also set up a pleading that based on a complaint received regarding the dangerous RSA NO.891 of 2004 10 condition of the building, the Competent Authority inspected the building and after satisfying that the building requires urgent repairs, so as to prevent danger therefrom, they proceeded under Section 411 of the Act.
14. The Trial Court found that the suit as against defendant No.3 is not maintainable in view of the bar under Section 563 of the Municipality Act.
15. On the other hand, the First Appellate Court, relying on the pleadings of the plaintiff, corroborated by the oral evidence of PWs 1 to 3 recorded the finding that the Municipality acted in haste with intend to help defendants 1 and 2. The First Appellate Court also took note of the fact that defendant No.3 did not give any notice to the plaintiff and defendants 1 and 2 before inspecting the premises to enter into this conclusion.
16. In Reghunath v. Thiruvalla Municipality [2004 (3) KLT 75], this Court held, that while proceeding under Section 411 of the Act, the tenant is not entitled to notice. In Sunder Raj v. Corporation of Cochin [2001(1) KLT 536] , this Court held that when there is a bonafide decision taken by the Corporation, after inspection of the premises, if the building requires substantial repairs or if it is to be RSA NO.891 of 2004 11 demolished, nothing prevents the Corporation from passing such orders and unless the parties are able to show that it is without any basis or justification interference may not be warranted. Section 411 of the Act, does not bar inspection of the premises, either suo motu by the Corporation or when the situation is pointed out by a third person.
17. After going through the evidence adduced on both sides, in the light of the pleadings set up, this Court is unable to record a finding that defendant No.3 proceeded under Chapter XIX of the Act with malafides. The finding of the First Appellate to the above effect is a misconstruction of evidence. The Kerala Municipality Act, 1994, is a self contained code. Chapter XIX deals with 'Nuisances'. Section 411 under Chapter XIX refers to the precautions to be taken by the Secretary of the local Authority in the case of dangerous structures. Section 411 reads thus:-
"411.Precautions in case of dangerous structures-
(1)Where any structure is deemed by the Secretary to be in a ruinous state and dangerous to the passers by or to the occupiers of neighbouring structures, the Secretary may by notice require the owner or occupier of such structure to fence off, take down, secure, demolish or repair the same so as to prevent any danger therefrom.
(2)Where immediate action is necessary, the Secretary shall, before giving such notice or before the period of such notice expires, cause to fence off, take down, secure, demolish or repair such RSA NO.891 of 2004 12 structures, or fence off a part of any street or take such temporary measures as he deems fit to prevent danger, and the cost thereof shall be recoverable from the owner or occupier in the manner provided in Section 538.
(3) Where in the opinion of the Secretary the said structure is imminently dangerous to the inmates thereof, the Secretary shall order the immediate evacuation thereof, and any person disobeying the order may cause to be removed if necessary, with the assistance by a police officer."
18. A person aggrieved by the proceedings initiated by the Secretary under Chapter XIX is appealable under Section 509 of the Act. An appeal may be preferred to the Council against any notice issued or any order passed or action taken by the Chairperson or the Secretary under any of the provisions of the Act other than Sections 390, 391, 395 406 and 408 or the rules or bye-law or regulations made thereunder.
19. Section 563 of the Act refers to jurisdiction of Civil Court. Section 563 reads thus:
"563.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 Chapters XVII, XVIII and XIX or the rules and regulations, if any, made thereunder."
20. The question that falls for consideration is whether, the plaintiff is entitled to approach the Civil Court RSA NO.891 of 2004 13 and seek a decree for a permanent prohibitory injunction. It is trite that when the Special Act affords an alternative remedy, which is sufficient and adequate, the exclusion of the jurisdiction of the Civil Court is implied. The Constitution Bench of the Apex Court in M/s.Kamala Mills Ltd. V. State of Bombay (AIR 1965 SC 1942) has declared the law on this question. The question was again considered in Ram Swarup and Others v. Shikar Chand and another (AIR 1966 SC 893) and later in Dhruv Green Field Ltd. v. Hukum Singh and others [(2002) 6 SCC 416]. In Dhruv Green Field, the Apex Court, held thus:
"10. In the light of the above discussion, the following principles may be restated:
(1) If there is express provision in any Special Act barring the jurisdiction of a civil Court to deal with matters specified thereunder the jurisdiction of an ordinary civil Court shall stand excluded.
(2) If there is no express provision in the Act but an examination of the provisions contained therein lead to a conclusion in regard to exclusion of jurisdiction of a civil Court, the Court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil Court is barred. If, however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of the civil Court cannot be inferred.
(3) Even in cases where the jurisdiction of a civil Court is barred expressly or impliedly, the Court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity."
21. In Noushad v. Kayamkulam Municipality [2006 (2) KLT 319], this Court held thus:
RSA NO.891 of 2004 14 "10. It is clear from the above that Section 563 expressly bars entertaining of any suit by civil court challenging the propriety or legality of any action taken by or under the authority of the Secretary under the provisions comprised in Chapters XVII, XVIII, XIX of the Act or the rules and regulations made thereunder. Granting of approval for construction of the building and action for violation etc. under the Building Rules are contained in Chapter XVIII of the Act. Therefore, suit is prima facie not maintainable.
Moreover, the issue raised in the suit is decided by this Court, in these proceedings and therefore suit is now barred by res judicata. Therefore, in exercise of jurisdiction under Article 227 of the Constitution, I dismiss the suit as one no longer maintainable based on the findings in this Writ Petition."
22. In Thodupuzha Municipality v. Abraham Philip [2007 (4) KLT 972], this Court held that when the Special Act affords an alternative remedy which is sufficient and adequate, exclusion of jurisdiction of Civil Court is implied.
23. The result of the above discussion is that the Original Suit filed against defendant No.3 challenging the proceedings which led to Ext.A2 notice is liable to be set aside. The decree and judgment of the First Appellate Court granting a permanent prohibitory injunction against defendant No.3 are therefore set aside.
24. The next question to be considered is whether the prohibitory injunction granted against defendant Nos. 1 and 2 restraining them from causing obstruction to the plaintiff and from evicting him from the plaint schedule building and property except in accordance with the RSA NO.891 of 2004 15 provisions of the Kerala Buildings (Lease and Rent Control) Act, is sustainable or not. As mentioned above, it is the admitted case that the Rent Control Act is applicable to the area where the building is situated. As per Section 11 of the Rent Control Act, notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of the Act. As per Ext.A1 notice, defendant Nos. 1 and 2 demanded the plaintiff to surrender the vacant possession of the building.
25. The apprehension of the plaintiff is that he will be evicted from the building without recourse to the provisions contained in the Rent Control Act. The plaintiff has a right not to be evicted from the plaint schedule building and property otherwise than on the grounds mentioned in Section 11 of the Rent Control Act. The plaintiff has established the requirements for getting a prohibitory injunction as against defendant Nos. 1 and 2. Defendants 1 and 2 have a legal responsibility not to evict the plaintiff from the plaint schedule property except in accordance with the provisions contained in the Rent RSA NO.891 of 2004 16 Control Act. From the pleadings set up by the parties, the Trial Court found that there was a threatened invasion of the right of the plaintiff to remain in the plaint schedule building. Therefore, the Trial Court granted an injunction as prayed. The decree and judgment of the Trial Court granting prohibitory injunction against defendants 1 and 2, which stand confirmed by the First Appellate Court require no interference. Hence the Regular Second Appeal is partly allowed. The judgment of the First Appellate Court granting prohibitory injunction against defendant No.3 is set aside. The judgment and decree granting prohibitory injunction against defendants 1 and 2 stand confirmed. The parties are directed to bear their respective costs.
Pending interlocutory applications, if any, stand closed.
Sd/-
K.BABU JUDGE VPK