IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 RSA.NO. 1095 OF 2009() ---------------------------------- AS.74/2006 OF I ADDL. DISTRICT COURT, TRIVANDRUM OS.445/2003 OF PRL.M.C.,TRIVANDRUM .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- SHEELA JOHN,D/O.ALEYAMMA, T.C.14/1481, BETHEL, PARIS ROAD, PALAYAM, THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------------------------------------- 1. THE CITY CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, CORPORATION BUILDING, THIRUVANANTHAPURAM. 2. ALEYAMMA VARGHESE, W/O. Y.GEORGE, RESMI.T.C.29/2029,THYCAUD P.O., THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.1095 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27th day of October, 2009 J U D G M E N T ---------------------- This Second Appeal is directed against judgment and decree of the court of learned Additional District Judge, Thiruvananthapuram in A.S. No.74 of 2006 confirming dismissal of the suit, O.S. No.445 of 2003 by the Principal Munsiff, Thiruvananthapuram as not maintainable in view of the bar of jurisdiction for the civil court under Section 563 of the Kerala Municipalities Act (for short, “the Act”). Respondent No.1 issued notices to the appellant under Sec.406(1) and (2) of the Act directing the appellant to remove the wall which according to respondent No.1 has been unauthorisedly put up by the appellant encroaching into the public lane abutting the property of appellant. Thereon appellant filed the suit for prohibitory injunction to restrain respondent No.1 from initiating action pursuant to the said notices. Respondent No.1 contended, among other things that the suit is not maintainable in view of the bar under Sec.563 of the Act. Adjacent owner of the property who got impleaded as additional defendant No.2 (respondent No.2) supported the case of respondent No.1. 2. Learned Munsiff found that in view of the bar under R.S.A. NO.1095 of 2009 -: 2 :- Sec.563 of the Act the suit is not maintainable. It was also found that under Sec.509(6) of the Act appellant has an equally efficacious remedy against the notices issued by respondent No.1 by moving the authority mentioned therein. First appellate court confirmed the dismissal of the suit. 3. Substantial question of law urged in the memorandum of appeal relates to the finding of the courts below as to jurisdiction and whether the appellant should have been relegated to the appropriate Forum giving benefit under Section 14 of the Limitation Act. 4. So far as the finding on jurisdiction is concerned, it is not disputed that the notices issued by respondent No.1 under Sec.406(1) and (2) of the Act came within Chapter XVIII of the Act. Section 563 of the Act is specific that no civil court shall have jurisdiction to entertain any suit, application or petition challenging the legality, propriety or any action taken by or under the authority of the Secretary under any provisions contained in the Chapters referred to therein including Chapter XVIII or the Rules and Regulations if any, made thereunder. Appellant has no escape from the mischief of Sec.563 of the Act. It is also correct for the courts below to say that in view of the provisions of the Act which enables appellant to challenge the notices issued by the Secretary before the Forum provided, appellant has an equally R.S.A. NO.1095 of 2009 -: 3 :- efficacious remedy and hence relief prayed for cannot be granted. I am not satisfied that any substantial question of law is involved in the finding of the courts below as to maintainability of the suit. 5. On the question whether appellant should have been relegated to the Forum prescribed under the Act for redressing his grievance there is no provision in the Act or any other law for the time being in force brought to my notice requiring the civil court to relegate the parties to appropriate Forum under the Act. It is for the appellant to approach the appropriate Forum if he is otherwise entitled to do so and seek protection of Sec.14 of the Limitation Act or any other provision of law which enables him to take advantage of the period of pendency of the suit and the appeals in the matter of limitation for filing such proceeding. With the above observation, Second Appeal is dismissed in limine. Interlocutory Application No.2492 of 2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.1095 of 2009 -: 4 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.1095 of 2009 =================== J U D G M E N T 27TH OCTOBER, 2009