IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 CRP.No. 646 of 2007() ------------------------------ OS.311/2006 of III ADDL.MUNSIFF COURT,ERNAKULAM (RENT CONTROL) .................... REVN. PETITIONER: DEFENDANTS 1 AND 3 ------------------------------- 1. M/S.SPEEDAGE EXPRESS CARGO SERVICE, REPRESENTED BY ITS MANAGER, MR.GOPAL SINGH, AGED 31, S/O.S.N.SINGH, 35/332, KIZHAKKEKKARA ESTATE, MASJID ROAD, VATTEKUNNAM, EDAPPALLY NORTH. KOCHI - 24. 2. K.H.ASHARAF, AGED 42, S/O.K.P.HASSAINAR, KIZHAKKEKKARA HOUSE, VATTEKUNNAM MASJID ROAD, EDAPPALLY NORTH, KOCHI - 24. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY SRI.E.M.MURUGAN RESPONDENTS: PLAINTIFFS NO.1 TO 5 AND 2ND DEFENDANT ------------------------- 1. JOSE BASTIAN, AGED 67 YEARS, S/O.T.I.DEVASSY, THADICARAN HOUSE, HOUSE NO.23/1017, MASJID ROAD, VATTEKKUNNAM, EDAPPALLYNORTH POST, COCHIN - 24. 2. FEENA JOSE, AGED 42 YEARS, W/O.ARNOLD, STEE NESTLE", HOUSE NO.23/1018, -DO- 3. NADARSHA K.H., AGED 35 YEARS, S/O.HASSAINAR, KIZHAKKEKKARA HOUSE, HOUSE NO.35/333, -DO- 4. BENNY ROLAND, AGED 45 YEARS, W/O.ROLAND, 'ACHUS', HOUSE NO.23/1016, MASJID ROAD, -DO- C.R.P. NO.646/2007 5. TANSI NORONHA, AGED 40 YEARS, S/O.NORONHA, 'RUTH DALE', HOUSE NO.23/1015, -DO- 6. THE SECRETARY, KALAMASSERY MUNICIPALITY, KALAMASSERY. BY ADV. SRI.M.K.ABOOBACKER SRI.DINESH R.SHENOY SRI.ROY MATHEW SRI.JOSE JOSEPH ARAYAKUNNEL SRI.P.T.JOSE THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- C.R.P. NO. 646 OF 2007 --------------------- Dated this the 7th day of March, 2008 ORDER This revision petition is preferred against the order of the IIIrd Addl. Munsiff and Rent Control Court, Ernakulam, in OS 311/06 whereby the learned Munsiff considered the maintainability of the suit and held that the suit is maintainable. Aggrieved by the said decision, the additional defendants 1 and 3 had filed this revision petition. The brief facts necessary for disposal of the revision are as follows: 2. The suit is filed for abatement of nuisance by five plaintiffs, who are the residents of Thrikkakara North village. The 1st defendant is the company engaged in the business of handling inter state parcel service. 3. The grievance of the plaintiffs are that they are residing in a residential zone and the 1st defendant is conducting his business in such a way causing great nuisance to the life of the plaintiffs, that is by bringing of goods from other places, parking the lorries and unloading the lorries, noise is produced and that it is done without any break and that affects the life of the plaintiffs. It is further averred that the necessary sanitary requirements are also not met with and the plaintiffs are therefore aggrieved and hence they want abatement of nuisance. They also approached the Municipality and Municipality issued an order directing the C.R.P. No.646/07 2 1st defendant not to load and unload and to ply vehicles between 8 a.m. and 6 p.m. That is also not implemented. The first prayer in the suit is one for permanent prohibitory injunction restraining the 1st defendant, their men and agents from plying heavy trucks and container lorries in to godown bearing No. 35/332, causing nuisance to the plaintiffs and and surrounding other residence. The second prayer is to issue a mandatory injunction directing the 1st defendant to restrict all sorts of business in the godown between 6 a.m. to 6 p.m. in accordance with the notice issued by 2nd defendant and directing the 2nd defendant to take necessary steps to see that no act of nuisance is occurring in the B schedule property violating existing laws. 4. On the other hand, the defendants would contend that the suit is not maintainable in a civil court for the reason that it is impliedly barred under Sec.9 of the Civil Procedure Code and when the plaintiffs themselves have resorted to the provisions of Sec.440 of the Municipality's Act, their only remedy is to pursue again under the said enactment and not to file a civil suit. The court below did not find in favour of the defendants 1 and 3 and therefore they preferred the present civil revision petition. 5. Learned counsel for the revision petitioners, relying upon Sec.440 and Sec.563 and also Sec.9, very strongly contends that there is an implied bar of jurisdiction of the civil court and therefore the plaintiffs are not entitled to maintain the suit before the civil court. Sec.563 of the Kerala C.R.P. No.646/07 3 Municipality's Act deals with the jurisdiction which reads as follows: “No civil court shall have jurisdiction to entertain any suit application or permission 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 made thereunder.” 6. A reading of Sec.563 would show that an action taken by the Municipality shall not be questioned in a civil court. Sec.440 of the Municipality's Act which is contained in Chapter XIX gives the power to the secretary o issue directions for abatement of nuisance. So the learned counsel would argue that since the plaintiffs in the case have resorted to the remedy provided under Sec.440 of the Kerala Municipality's Act, certainly, though not expressly, by implication of Sec.563 will have application and therefore the suit cannot be entertained. I am afraid that I cannot fully agree with that proposition. Kerala Municipality Act is a self contained enactment which lays down the duties and powers of the Municipality. That enactment confers a power on the secretary to take action to abate nuisance. But it is not in contradiction to the ordinary civil right of a person but it is only in addition to the said right. Similar provisions are embodied in the criminal procedure code as well. Sec. 133 of the Cr.P.C. enables the action to be initiated by the Additional District Magistrate with respect to certain causes of nuisance. Just because such a provision is there under the Cr.P.C. It does not bar the ordinary civil right C.R.P. No.646/07 4 of a litigant. Therefore the contention that a civil suit is barred cannot be accepted. The expressed bar or the implied bar should have been there in Sec.563 and if it is there, the court can consider and say that since there is an express or implied bar and so Sec.9 bars jurisdiction of the civil court. The catena of decisions are to the effect that the powers of the civil court are very wide and unless there is such a restriction, which is manifest either expressly or impliedly, the civil court shall not be stated to have no jurisdiction. A reading of Sec. 563 would make it very clear that it is the action taken by the authorities of the Municipality that is protected under Sec.563 and the action taken by them under the provisions of the Municipality's Act cannot be called in question in a civil case. That appears to be the purport and intention of the provisions of Sec. 563 and it does not cover the situation. There it does not impliedly bars jurisdiction of the civil court. 7. So far as first prayer is concerned, I feel there is perfect jurisdiction for the civil court to entertain the case. As far as second prayer is concerned, I have no doubt in my mind to hold that when a civil court passes a decree, the civil court is certainly bound to take into consideration all the materials available, before it grant an absolute decree in favour of the plaintiff or it can grant a restrictive decree with certain terms and conditions. This will not have any bar under any provisions of law. But a reading of the 2nd prayer in the plaint will manifestly show that C.R.P. No.646/07 5 what the plaintiffs in the suit want is to direct the Municipality to implement an order passed by it invoking Sec.440 of the Municipality's Act. I am afraid it cannot be done for the reason that the enactment is a self contained enactment where there are appellate and revisional remedies are provided. Being a self working statute the civil court cannot sit over the order of an authority of Municipality ignoring the platforms for ventilating the grievance and for passing an order directing them to do so. Therefore, the prayer of the plaintiffs for a direction to the Municipality to comply with the notice issued by it invoking Sec.440 of the Evidence Act cannot be given in such a situation. But as stated by me earlier, restrictions or conditions are always there within the four parameters of the civil court and it can be done. 8. Therefore from an overall discussion, I hold that the civil court has absolute jurisdiction to deal with the first prayer mentioned in the plaint which will cover the entire situation and the court will be entitled to pass appropriate orders even if the 2nd prayer is not maintainable. With these observations, this civil revision petition is disposed of. M.N.KRISHNAN, JUDGE vps C.R.P. No.646/07 6