Notice under Section 249 of the Kerala Panchayat Raj Act is not mandatory when no relief is claimed against the Panchayat, nor is any action by it challenged.

JUDGMENT :

MURALI PURUSHOTHAMAN, J.

This original petition is filed challenging Ext.P6 order dated 04.10.2017 passed by the Court of the Principal Munsiff, Neyyattinkara, to the extent of rejecting the prayer of the petitioner for impleading the 5^th respondent herein as the additional 5^th defendant in O.S.No.1126 of 2014.

2. The suit is filed by the petitioner seeking a decree declaring her right, title and possession over the plaint schedule property, permitting completion of the western boundary wall in accordance with the permit, and restraining respondents 1 to 4/defendants from interfering with the construction or encroaching upon the plaint schedule property. Respondents 1 to 4 entered appearance and filed written statement contending that Kottukal Panchayat is a necessary party to the suit as the road which runs through the western side of the plaint schedule property belongs to them. Paragraph 7 of the written statement reads thus:

“7) The averments in Paras 7,8,9 and 10 in the plaint are incorrect hence denied. Plaintiff is not entitled to get her title declared, as the intention of the plaintiff is to use the Court of law as a shield to protect her unlawful acts. Plaintiff is not entitled to put up boundary including the pond and runnel. Plaintiff is not entitled to get any relief as stated in the plaint. The suit is not supported by a cause of action. Moreover Kottukal Panchayath is a necessary party to the suit, as the western road belongs to the Panchayath and plaintiff is trying to construct a compound wall in the western side touching the road. Hence the suit is bad for non jointer of necessary party.”

3. On the basis of the said contention, the petitioner filed I.A.No.5773 of 2015 (Ext.P4) seeking to include Kottukal Panchayat as the additional 5^th defendant in the suit. The petitioner also filed I.A.No.5774 of 2015 for appointment of an Advocate Commissioner to have local inspection of the plaint schedule property. After the filing of the applications, the petitioner issued notice under Section 249 of the Kerala Panchayat Raj Act, 1994 (‘KPR Act’ for short) to the Secretary of the Panchayat.

4. The proposed additional 5^th defendant Panchayat (hereinafter referred to as the ‘Panchayat’ for brevity) filed Ext.P5 objection to the application for impleading contending that a notice prior to the institution of the suit, as contemplated under Section 249 of the KPR Act is required to be issued to the Panchayat and the same statutory restriction is applicable to impleading application also and therefore, the impleading application filed without prior notice to the Panchayat cannot be sustained. The relevant portion of Ext.P5 reads as follows.

“3) Section 249 of the Kerala Panchayat Raj Act mandates issuance of notice prior to the filing of the suit against the Panchayat. There is statutory interdiction for filing a suit against the Panchayat without complying with the mandate under Section 249 . The same statutory embargo is applicable to impleading application also.

4) Thus the impleading application filed by the plaintiff is liable to be dismissed with cost to the proposed additional defendant.”

5. The learned Munsiff heard both interlocutory applications together and by Ext.P6 common order, dismissed I.A.No.5773 of 2015 for impleading and allowed I.A.No.5774 of 2015 filed for appointment of Advocate Commissioner. In Ext.P6, the learned Munsiff observed that the petitioner has not complied with the mandatory condition of issuance of prior notice to the Pancha