IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 RSA.No. 1295 of 2009() ---------------------- AS.10/2008 of SUB COURT,KOCHI OS.180/2007 of ADDL.MUNSIFF COURT,KOCHI .................... APPELLANT (S): APPELLANT/1ST DEFENDANT ------------------------------------------- JOY, S/O. JOHN, AGED 50 YEARS, C.C. II/1253-A, FORTKOCHI VILLAGE, KOCHI TALUK. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT(S):/RESPONDENTS/PLAINTIFF & DEFENDANTS 2 & 3 ------------------------------------------- 1. JEROME, AGED 67 YEARS, S/O.PAULOSE, CC II/1254, KARUMACHERRY HOUSE, VELI, FORTKOCHI, KOCHI TALUK. 2. CORPORATION OF COCHIN, REPRESENTED BY ITS SECRETATRY, CORPORATION OF COCHIN OFFICE, ERNAKULAM, KOCHI-11. 3. ASSISTANT EXECUTIVE ENGINEER, CORPORATION OF COCHIN, ZONAL OFFICE, FORTKOCHI. ADV. SRI.K.ANAND, STANDING COUNSEL, COCHIN CORPORATION FOR R2-3 SRI.M.P.RAMNATH FOR R1 SRI.P.RAJESH(KOTTAKKAL) FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1295 of 2009 -------------------------------------- Dated this the 17th day of February, 2010. JUDGMENT Second Appeal arises from judgment and decree of learned Sub Judge, Kochi in A.S.No.10 of 2008 confirming judgment and decree of learned Additional Munsiff, Kochi in O.S.No.180 of 2007. Appellant and respondent No.1 are adjacent property owners. To be more precise plaint A schedule belongs to respondent No.1 as per sale deed No.3588 of 1979 and the property on the north of plaint A schedule belongs to the appellant which, it is not disputed before me is a plot having two cents. Appellant started construction of a building in the said plot, ofcourse not objected to by respondent No.1 and as per the version of respondent No.1 the building was constructed leaving 90 cms. open space in between the northern boundary wall of respondent No.1 and the building in the two cents belonging to the appellant. Thereafter appellant constructed a latrine, kitchen and staircase in the open space in between the building already constructed and the northern boundary wall of respondent No.1. That was objected by respondent No.1 by filing petitions before respondent Nos.2 and 3, the local authority and its Assistant Executive Engineer. Complaining that respondent Nos.2 and 3 did not take any action on his complaints respondent No.1 filed suit for mandatory and prohibitory injunction, mandatory part of the relief being that appellant may be directed to remove such of the constructions falling within the width of 90 cms. from the northern RSA No.1295/2009 2 compound wall of plaint A schedule. He alleged that the construction violated provisions of the Kerala Municipality Building Rules (for short, “the Rules”) and hence is illegal. Appellant contended that he has only two cents of land as per document No.3204 of 2001 and that the latrine and other structures were constructed under development scheme of the local authority concerned. He denied that there was any violation of the Rules. Respondent Nos.2 and 3 also contested the suit raising appropriate contentions. According to them, respondent No.2 had issued a provisional order against the appellant on receiving complaint from respondent No.1 and since at that stage respondent No.1 instituted the suit no further action could be taken. Case was posted for trial in the list in the trial court on 10.12.2007. That day respondent No.1 was examined as PW1. Exts.A1 to A6 and Ext.C1 were marked. Respondent Nos.2 and 3 were represented by counsel. I am told by learned counsel for appellant that neither the appellant nor his counsel were present in court on 10.12.2007. Learned Munsiff closed the evidence of respondent No.1 and posted the case for evidence of appellant and respondent Nos.2 and 3 and for hearing on 13.12.2007. There was no oral evidence for appellant and respondent Nos.2 and 3. Hence the matter was heard and judgment was pronounced on 17.12.2007 granting a decree as prayed for. As per the decree appellant was directed to remove that part of structures within a space of 90 cms. from northern compound wall of plaint A schedule belonging to RSA No.1295/2009 3 respondent No.1(plaintiff). There is also a prohibitory injunction against further construction. Aggrieved, appellant filed A.S.No. 10 of 2008 in the court of learned Sub Judge. Appeal ended in dismissal in confirmation of judgment and decree of learned Additional Munsiff. Hence the Second Appeal urging by way of substantial question of law whether improper framing of issues without considering the dispute and grounds urged in the appeal has resulted an illegality and whether when appellant and counsel were absent in the trial court on 10.12.2007 he should have been set ex parte. A further question urged is that whether the suit is beyond jurisdiction of the civil court as per Section 563 of the Kerala Municipality Act (for short, “the Act”). It is contended by learned counsel for appellant placing reliance on the decision of a Division Bench of this Court in Balakrishnan v. Balan (2009 (4) KLT 699) that when appellant and counsel were absent in the trial court on 10.12.2007 procedure which the trial court ought to have followed was to set appellant ex parte and pass judgment under Order 17 Rule 2 of the Code of Civil Procedure (for short, “the Code”) rather than passing a judgment on merit. It is contended by learned counsel that first appellate court has not considered the relevant issues in a proper manner and at any rate whether Section 563 of the Act ousted jurisdiction of the civil court. Learned counsel for respondent No.1 has supported judgment and decree of the courts below. I have heard learned counsel for respondent Nos.2 and 3 also. RSA No.1295/2009 4 2. I shall first consider the argument advanced by learned counsel for appellant relying on the decision referred supra. That was a case where one of the parties remained absent and notwithstanding that, a decision was rendered on merit. Absentee defendant filed an application under Order 9 Rule 13 of the Code as if the judgment and decree were passed under Order 17 Rule 2 of the Code notwithstanding that the decision was on merit. Trial court and first appellate court which considered the Civil Miscellaneous Appeal took the view that it is not an ex parte decree but a decision on merit notwithstanding absence of the defendant concerned. Accordingly petition under Order 9 Rule 13 of the Code as provided in Order 17 Rule 2 of the Code was dismissed. Division Bench of this Court referred to the provisions under Order 17 Rules 2 and 3 of the Code and stated that though in the circumstances referred to in Rule 3 it was open to the court to pass a judgment forthwith on merit which is not amenable to the procedure under Order 9 Rule 13 of the Code, judgment in question could not be treated as one falling under that provision and instead it fell under Order 17 Rule 2 of the Code which is amenable to an application under Order 9 Rule 13 of the Code. Accordingly it was held that decision rendered by the courts below were wrong and an application under Order 9 Rule 13 of the Code was maintainable. RSA No.1295/2009 5 3. There can be no dispute on the proposition made by the Division Bench. Question is whether that decision is applicable with all its vigour to the facts involved in the present case. Copy of B diary of the trial court handed over to me by learned counsel for appellant does not say that on 10.12.2007 appellant or counsel were absent. For the purpose of the decision of the point urged by learned counsel, I accept his version that appellant and counsel were absent on 10.12.2007 and inspite of that, not only that absence was not noted, appellant was not set ex parte but learned Munsiff has decided the case on merit with the available evidence. Indisputably, treating the judgment and decree as one on merit and coming under Order 17 Rule 3 of the Code appellant preferred a Regular First Appeal before the first appellate court as A.S.No.10 of 2008 and he got an unfavourable verdict there which is challenged in this Court invoking Section 100 of the Code. It is also not as if from an ex parte judgment and decree a regular appeal would not lie. Against an ex parte judgment and decree it is the concurrent remedy of the party aggrieved either to file an application under Order 9 Rule 13 of the Code or to file an appeal as provided under Section 96 of the Code. Restriction is only that when a regular appeal is filed against an ex parte judgment and decree appellant will not be permitted to urge any ground which he could have urged in an application under Order 9 Rule 13 of the Code. (See Bava alias Asees (1995 (2) KLJ 706) and Abdul Azeez v. Shareefa Beevi (1997 (1) KLT 8). The regular appeal RSA No.1295/2009 6 must stand or fail on the merit of the case. In this case, if the appellant had a case that the decision of the trial court though on merit is ex parte, it was open to him to move an application under Order 9 Rule 13 of the Code if he were otherwise entitled to that course. Concededly he did not do so and instead, he has chosen to file an appeal challenging the judgment and decree. Therefore maintainability of the Regular First Appeal or the right of the appellant to file Regular Second Appeal under Section 100 of the Code cannot be disputed. But it is only that in this appeal the reason for so called absence of counsel and appellant in the trial court on 10.12.2007 cannot be urged or considered. In that view decision relied on by learned counsel for appellant has no application. 4. Now coming to Section 563 of the Act as ousting the jurisdiction of the civil court, I am afraid that provision cannot be read so. That provision only ousted the jurisdiction of the civil court to entertain any suit, application or petition challenging legality or propriety of any action taken by or under the authority of the Secretary under any of the provisions referred to therein. In the case on hand, respondent No.1 is not challenging any action taken by the Secretary of respondent No.2. Instead, on alleged failure of respondent Nos.2 and 3 to take action based on his complaint he has approached the civil court with a request to issue a decree for mandatory injunction. Section 563 of the Act cannot therefore have any application. RSA No.1295/2009 7 5. So far as the jurisdiction of the civil court is concerned, it has been held in Mariamma v. C.P.Thomas (2003 (1) KLJ 133) that even at the instance of a party who has not suffered any special damages, it is open to the civil court to enforce the provisions of Building Rules if construction is found to be in violation of the Rule. 6. What remained for consideration is whether the finding of the courts below that appellant has violated the provision of the Rules is legally correct. It is not disputed that the total extent of land belonging to the appellant where his house is constructed is two cents. That brings the case to Chapter VIII of the Rules dealing with buildings in small plots. Rule 62(2) of the said Rules says that any one side shall have a minimum of 90 cms. and other side shall have a minimum of 60 cms. Thus in the case on hand the minimum width left is 90 cms. on one side and hence it was sufficient for appellant to leave open space of 60 cms. on all other sides abutting his building. Report of the advocate commissioner shows that within 90 cms. from the northern compound wall of the property belonging to respondent No.1 appellant has put up structures. That as rightly found by the courts below is in violation of rule 62(2) of the Rules. Therefore, there is nothing illegal in the courts below passing a decree for mandatory injunction directing the appellant to remove the impugned structures within the said space of 90 cms. RSA No.1295/2009 8 7. Learned counsel has invited my attention to Annexure-A3 which according to him is part of Ext.B1 where certain concessions are allegedly made by respondent No.1. The concession allegedly made on 23.2.2007 before respondent No.2 is that respondent No.1 will be satisfied if the appellant removed the shed within a space of 60 cms. from the northern wall. It is further stated in the so called concession that in case appellant acted as above (removing the impugned construction from the space of 60 cms) respondent No.1 has no objection regarding the staircase but that did not in any way affect the right of respondent No.1 to seek a decree for mandatory injunction if construction violated the Rules. There is no case that in accordance with the concession made by respondent No.1, appellant acted. Hence also concession relied on by the appellant cannot be stand. There is nothing illegal in granting mandatory and prohibitory injunction as prayed for. I do not find any substantial question of law as urged in the memorandum of appeal arising for a decision. 8. Learned counsel for respondent No.1 has agreed that respondent No.1 is satisfied with removal of that part of the structures coming within a width of 60 cms. from the northern side of the northern compound wall of plaint A RSA No.1295/2009 9 schedule. The concession made by learned counsel for respondent No.1 is recorded and accordingly the judgment and decree of the courts below to the extent it relates to mandatory injunction is modified. Resultantly, Second Appeal is disposed of in the following lines: Judgment and decree of the courts below so far as it concerned mandatory injunction is modified to the extent that appellant would remove such of the structures or part of it including the shed, staircase, etc. coming within a width of 60 (sixty) cms. from the northern side of the northern compound wall of plaint A schedule within two months from this day failing which it will be open to respondent No.1 to get the same removed through the executing court. Decree for prohibitory injunction is also modified accordingly confining it to the said space of 60 (sixty) cms. I.A.No.2972 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks