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2022 Supreme(Online)(KER) 60207
HIGH COURT OF KERALA
A. BADHARUDEEN, J
SHIBU – Appellant
Versus
SREEKUMARAN – Respondent
OP(C)/1523/2019
V.G.ARUN, SMT.V.JAYA RAGI, SMT.INDULEKHA JOSEPH, SRI.NEERAJ NARAYAN, SRI.RAM MOHAN.G, SRI.G.P.SHINOD, SRI.GOVIND PADMANAABHAN, SHRI.AJIT G ANJARLEKAR
Civil court jurisdiction is preserved for claims involving natural rights, notwithstanding statutory provisions that may imply exclusion for certain disputes under special statutes.
Headnote:
Jurisdiction - Civil Procedure - CPC Section 115, Article 227, Kerala Municipality Act - Summary: The court discussed the rules governing civil court jurisdiction under Section 115 of the CPC and Article 227 of the Constitution, while interpreting the provisions of the Kerala Municipality Act to determine the maintainability of a suit concerning building regulations and natural rights.
Fact of the Case:
The plaintiff filed a suit seeking a mandatory injunction for demolition of a building constructed by the defendants without a permit, obstructing natural rights related to light and air. The defendants claimed that the civil court lacked jurisdiction due to statutory provisions barring such suits.
Finding of the Court:
The court concluded that while the civil court's jurisdiction is generally limited when a special statute provides adequate remedies, issues related to obstruction of natural rights are not exclusively governed by the special statute, thus allowing the civil court to retain jurisdiction over such matters.
Issues: 1) Which orders are revisable under Section 115 of the CPC? 2) Can a revisable order be challenged under Article 227? 3) Is the civil court's jurisdiction excluded by special statute provisions?
Ratio Decidendi: The court held that under the Kerala Municipality Act, the civil court retains jurisdiction over claims regarding natural rights, even if a special statute provides alternative remedies for certain disputes.
Final Decision: The Original Petition is dismissed, confirming the trial court's decision.
J U D G M E N T
This is an Original Petition filed under Article 227 of the Constitution of India by the petitioners, who are defendant Nos.2 and 3 in O.S.No.85/2013 on the file of the First Additional Munsiff Court, Neyyattinkara. The 1st respondent herein is the plaintiff in the above Suit. The 2nd respondent is the 1st defendant in the above Suit.
2. Heard the learned counsel for the petitioners Advocate Arun V.G and Advocate Govind Padmanabhan appearing for the
1st respondent.
3. Three questions of seminal importance come forth in this case, which are as under:
(1) Which orders are revisable under Section 115 of the Code of Civil Procedure ?
(2) Whether a revisable order can be put under challenge by invoking Article 227 of the Constitution of India ?
(3) Whether the jurisdiction of the civil court is totally excluded either by express provisions in a special statute providing alternate remedy or by way of implied ouster, since no express bar in the special statute?
4. Ext.P3 order dated 10.01.2019 in O.S.No.85/2013 on the file of the Additional Munsiff Court-I, Neyyattinkara is under challenge in this Original Petition.
5. I would like to refer the parties in this Original Petition as `plaintiff' and `defendants' hereinafter for brevity and convenience.
6. Short facts: The plaintiff filed Suit for mandatory injunction directing the defendants to demolish the building constructed by them without obtaining permit from the concerned Local Self Government Institution and without leaving sufficient set back and by obstructing natural right of light and air by making illegal constructions.
7. Defendants 2 and 3 filed Ext.P2 written statement contending that the trial court, being a civil court, lacks inherent jurisdiction to entertain the Suit. Defendants 2 and 3 contended that the Suit is impliedly barred by the provisions of the Kerala Municipality Act , 1994, Kerala Municipal Building Rules, 1999 and the Tribunal for the Kerala Local Self Government Institutions Rules, 1999.
8. The trial court addressed the question of jurisdiction as a preliminary issue and found the same, against defendants 2 and 3 as per Ext.P3, styled as judgment.
9. While impeaching Ext.P3, it is argued by the learned counsel for the petitioners/defendants 2 and 3 that now it is well settled that if a statute creates rights or obligations and provides exhaustive mechanism for the enforcement of the same, then the jurisdiction of the civil court is impliedly barred. When the said principle is applied by taking recourse to the exhaustive procedures contemplated by Sections 406, 408 & 509 of the Kerala Municipality Act , 1994 r/w Rule 8 of the Tribunal for Local Self Government Institutions Rules, 1999 r/w section 41(h) of the Specific Relief Act, then the cognizance of Ext.P1 Suit is per se barred under Section 9 of the Code of Civil Procedure . Ext.P3 was passed by the trial court overlooking the aforesaid provisions of law and the authoritative pronouncements of the Apex Court and this Court in the matter, is liable to be interfered by this Court under Article 227 of the Constitution of India .
10. The learned counsel for defendants 2 and 3 pointed out the decisions of the Apex Court as well as this Court to assert the point that when the jurisdiction of the civil court is excluded either expressly or by necessary implication, civil court has no jurisdiction to deal with matters to be dealt with by the authority under the special statute. The first decision highlighted is one reported in [ AIR 1965 SC 1942 : (1965) 57 ITR 643 (SC); (1966) 1 SCR 64; (1965) 16 STC 613 (SC)],Kamala Mills Ltd. v. State of Bombay. In this constitutional Bench decision, in para.34 the Apex Court held as under:
“There is one more aspect of the matter which must be considered before we finally determine the question as to whether section 20 excludes the jurisdiction of the civil court in entertaining the present suit.
Whenever it is urged before a Civil Court that its jurisdiction is
