IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 RSA.No. 617 of 2009() --------------------- AS.180/2004 of III ADDL. DISTRICT COURT, KOZHIKODE OS.460/1997 of I ADDL.MUNSIFF'S COURT,KOZHIKODE .................... APPELLANT/IST RESPONDENT./PLAINTIFF -------------------------------------------------- CHAKKALAKKAL MOHANAN NAIR @ MOHANDAS, S/O.SUBHADRA AMMA, RESIDING AT KOTTOLI AMSOM PARAYANCHERI DESOM, KOZHIKODE TALUK. BY ADV. SRI.V.V.SURENDRAN SRI.P.M.PADMANABHAN SRI.P.A.HARISH SMT.SANIKA.V.S. RESPONDENTS/APPELLANT& 2ND RESPONDENT/DEFENDANTS -------------------------------------- 1. THE CALICUT CORPORATION, REP. BY ITS SECRETARY, NAGARAM AMSOM DESOM OF KOZHIKODE TALUK. 2. K.P.RAMAKRISHNAN, AGED ABOUT 53 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT KOTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.617 OF 2009 --------------------------- DATED THIS THE 3RD DAY OF JULY, 2009 JUDGMENT Plaintiff in O.S.No.460/2007 on the file of the Additional Munsiff's Court-I, Kozhikode is the appellant. This appeal is directed against the decree and judgment in A.S.No.180/2004 on the file of the III Additional District Court, Kozhikode. The suit was filed for declaration and prohibitory injunction. The parties are arrayed as plaintiff and defendants as in the suit. 2. The plaintiff challenged Ext.A3 notice dated 20/6/1997issued by the Calicut Corporation. He submitted before the court below that before issuing Ext.A3 notice the 2nd defendant Corporation had not made any enquiry regarding the allegations levelled against the plaintiff and without conducting any proper enquiry Ext.A3 notice was issued. The trial court held that the 2nd defendant has not adduced any evidence to show -2- R.S.A.No.617/2009 that Ext.A3 notice was issued, after making any enqiry. The trial court also held that unless the defendants are able to show that the plaintiff has encroached into any public street or road or any public property, the 2nd defendant is not justified in issuing Ext.A3 notice. It is further observed that the 2nd defendant has not succeeded in establishing that Ext.A3 notice was issued after making proper enquiry, that no evidence was adduced by the 2nd defendant and that before issuing Ext.A3 notice any enquiry was conducted by the defendant-Corporation and had there been any enquiry naturally there will be documents at the 2nd defendant's office to substantiate the said fact. Since no documents are produced on the side of the defendants, the contention of the plaintiff that the 2nd defendant did not conduct any enquiry was accepted and passed a decree restraining the defendants from enforcing Ext.A3 notice and further restrained them from trespassing into the plaint schedule property and from removing the raw of stones placed by the plaintiff in the eastern boundary -3- R.S.A.No.617/2009 of the property and from widening the lane on the eastern side of the plaint schedule property by adding land from plaint schedule property. 3. The Appellate Court on merits reversed the findings of the trial court. The Appellate Court found that the action of the plaintiff without properly fixing his boundary and obtaining permission for constructing the compound wall is illegal, that the the plaintiff is not entitled get any discretionary relief of injunction, that he has placed laterite stones on the public lane so as to prevent his neighbour from taking his vehicle to his house and thus his action is illegal. The Appellate Court mainly considered the question of maintainability of the suit and the alternative remedy available to the plaintiff. Referring to Sections 406 and 563 of the Kerala Municipalities Act, the Appellate Court rightly held that the jurisdiction of the civil court is strictly barred and that the alternative remedy by way of appeal is available to the plaintiff at the time when Ext.A3 was issued. -4- R.S.A.No.617/2009 According to the Appellate Court, more efficacious remedy was provided to the party under the Kerala Municipalities Act and therefore the plaintiff is not entitled to any relief against the Calicut Corporation. 4. I do not find any ground is made out by the appellant against the findings of the Appellate Court as to the maintainability of the suit and the availability of the alternative remedy. In stead of approaching the civil court, plaintiff should have filed statutory appeal before the competent authority and ought to have challenged Ext.A3 notice. The question of maintainability of the suit was considered by the Appellate Court only in appeal. The suit is of the year 1997 and the appellate judgment was rendered in January, 2009, after 12 years. This Court do not want to shut out the remedies available to the plaintiff and the plaintiff is at liberty to approach the Appellate Authority under the Kerala Municipalities Act for ventilating his grievances. The plaintiff is permitted to file a statutory appeal -5- R.S.A.No.617/2009 before the Appellate Authority within a period of thirty days from today. In case such an appeal is filed within the said period, the Appellate Authority shall entertain the appeal and decide the question on merits untrammelled by any of the findings and observations of the courts below, notwithstanding the fact that the period for filing the appeal has expired long back. 5. I do not find any reason to entertain this second appeal. No grounds are made out to invoke Section 100 C.P.C. The appeal stands dismissed in limine subject to the observations made above. HARUN-UL-RASHID, Judge. kcv.