A civil suit challenging actions under the Kerala Municipality Act is not maintainable if the Secretary of the Municipality is not included as a party.

ORDER

Confronted with the order passed in I.A.No.2/2022 in O.S.No.127/2018 by the Court of the Additional Munsiff- II, Thiruvananthapuram, the defendant has filed the revision petition. The respondent is the plaintiff in the suit.

2. The concise case of the petitioner is that, she is the defendant in the suit, which is filed by the respondent, for a decree for a permanent prohibitory injunction. The petitioner has filed I.A. No.2/2022 challenging the maintainability of the suit, in the light of Section 563 of the Kerala Municipality Act, 1994 (in short ‘Act’). The respondent has deliberately not impleaded the Secretary of the Municipality in the party array with illegal motives. The respondent has alleged that the petitioner has made illegal construction violating the building rules. The respondent has an alternative and efficacious remedy under the Act. The petitioner has not violated the respondent’s civil rights. The learned Munsiff has dismissed the application by the impugned order. The impugned order is illegal, improper and irregular.

Hence, the revision petition.

3. Heard; Sri.Shaijan C. George, the learned counsel appearing for the revision petitioner and Sri.K.M.Sathyanatha Menon, the learned counsel appearing for the respondent, on admission.

4. The short question is, whether there is any illegality, impropriety or irregularity in the impugned order.

5. The suit has been filed by the respondent, against the revision petitioner, for a decree for a permanent prohibitory injunction, to restrain the revision petitioner from carrying out any construction near the northern boundary of the respondent’s property.

6. Admittedly, the suit was filed in the year 2018 and the petitioner had filed her written statement in the suit.

7. In 2022, the petitioner filed I.A. No.2/2022, to hear the question of the maintainability of the suit as a preliminary issue on the ground that the suit is hit by Section 563 of the Act.

8. Section 563 of the Kerala Municipality Act, 1994 reads as follows:-

“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 Chap 17 Chap. 18 and Chap 19 or the rules and regulations, if any, made thereunder.”

9. Interpreting Section 563 of the Act, the Division Bench of this Court inBernad Mani @ Roy and Others v. James and Others [ 2012(1) KHC 377 ] has succinctly held as follows:-

“14. Going by the plaint averments as well as averments in the application for temporary injunction we are of the view that the Court below was not justified in holding that it was debarred by S.563 of the Kerala Municipality Act from going into the said question. If as a matter of fact the buildings have been constructed illegally or in violation of the Rules, then the plaintiffs will be justified in seeking the temporary injunction against the issuance of the aforementioned certificates and allotment of number in respect of those buildings. The Court below by refusing to go into this question has abdicated its function as the Civil Court. We, therefore, set aside the impugned order so far as it relates to the above question and direct the Court below to go into that question untrammeled by any of the observations made therein or in this judgment. The order for status quo shall be in force till the matter is finally decided.”

10. In the light of the exposition of law in the afore-

cited decision, I have meticulously read the averments in the plaint, which was handed over in the open court by the learned counsel appearing for the revision petitioner. The respondent has pleaded in paragraph 5 and 6 of the plaint as follows:-

“5. It is to be noted that the defendant is now making construction of the residential building in such a way to touch the northern boundary wall of the plaint A scheduled property. The defendant is not ready to provide ad