IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 4TH DAY OF AUGUST 2022 / 13TH SRAVANA, 1944
OP(C) NO. 1523 OF 2019
AGAINST THE JUDGMENT DATED OS 85/2013 OF ADDITIONAL MUNSIFF
COURT, NEYYATTINKARA
PETITIONERS/DEFENDANTS 2 & 3:

1 SHIBU,
AGED 45 YEARS,
S/O.VIJAYAN, PANJAJANYAM, KRISHNAPURAM WARD,
AMARAVILA P.O., MARUTHATHOOR DESOM, NEYYATTINKARA
VILLAGE, NEYYATTINKARA TALUK-695 122.

2 MISHA,
AGED 33 YEARS,
D/O.RADHA, PANJAJANYAM, KRISHNAPURAM WARD,
AMARAVILA P.O., MARUTHATHOOR DESOM, NEYYATTINKARA
VILLAGE, NEYYATTINKARA TALUK-695 122.

BY ADVS.
V.G.ARUN (K/795/2004)
SMT.V.JAYA RAGI
SMT.INDULEKHA JOSEPH
SRI.NEERAJ NARAYAN

RESPONDENTS/PLAINTIFF & 1ST DEFENDANT:

1 SREEKUMARAN,
AGED 67 YEARS,
S/O.DIVAKARA PANICKER, GURUKRIPA, PERUMPAZHUTHOOR
P.O., PERUMPAZHUTHOOR DESOM, PERUMPAZHUTHOOR
VILLAGE, NEYYATTINKARA TALUK, PIN-695 126.
O.P(C).No.1523 of 2019 2

2 N.P.SAJEEV MOHAN,
AGED 51 YEARS,
S/O.PRABHAKARAN NAIR, NEELAMBARA BHAVAN @
VARUVILAKATHU VEEDU, FORT WARD, KADAVATTARAM,
NEYYATTINKARA VILLAGE,
NEYYATTINKARA TALUK-695 121.

BY ADVS.
SRI.RAM MOHAN.G.
SRI.G.P.SHINOD
SRI.GOVIND PADMANAABHAN
SHRI.AJIT G ANJARLEKAR

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON

25.07.2022, THE COURT ON 04.08.2022 DELIVERED THE FOLLOWING:
O.P(C).No.1523 of 2019 3

“C.R”

A.BADHARUDEEN, JJ.
================================
O.P(C).No.1523 of 2019
================================
Dated this the 4th day of August, 2022

JUDGMENT

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

O.P(C).No.1523 of 2019 4

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

O.P(C).No.1523 of 2019 5

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

O.P(C).No.1523 of 2019 6

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
O.P(C).No.1523 of 2019 7

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
excluded either expressly or by necessary implication to entertain
claims of a civil nature, the court naturally feels inclined to consider
whether the remedy afforded by an alternative provision prescribed by
a special statute is sufficient or adequate.
In cases where the exclusion of the civil court's jurisdiction is
expressly provided for the consideration as to the scheme of the statute
in question and the adequacy or the sufficiency of the remedies
provided for by it may be relevant but cannot be decisive. But where
exclusion is pleaded as a matter of necessary implication, such
consideration would be very important, and in conceivable
circumstances, might even become decisive. If it appears that a statute
creates a special right or a liability and provides for the determination
of the right and liability to be dealt with by tribunals specially
constituted in that behalf, and it further lays down that all questions
about the said right and liability shall be determined by the tribunals so
constituted, it becomes pertinent to enquire whether remedies normally
associated with actions in civil courts are prescribed by the said statute
or not.
The relevance of this enquiry was accepted by the Privy Council
in dealing with s.67 of the Income Tax Act in Raleigh Investment Co.'s
74 I.A. 50 case and that is the test which is usually applied by all civil
courts.”
O.P(C).No.1523 of 2019 8

11. Another decision highlighted is a 3 Judge Bench

decision reported in [AIR 1975 SC 2238 : 1975 (31) FLR 195 :

(1976) 1 SCC 496 : (1976) 1 SCR 427], The Premier Automobiles

Ltd. v. Kamlekar Shantaram Wadke of Bombay & Ors. In the said

case, the Apex Court considered the provisions of the Industrial

Disputes Act and Sections 9, 80 and Order 1 Rule 8 of the Code of

Civil Procedure, 1908. In para.14 of the said decision, the Apex

Court held that a Suit for permanent injunction filed before the civil

court for implementing terms of a scheme within the jurisdiction

of the Labour Court or the Tribunal cannot be entertained by the

civil court. In the said decision in para.23, the Apex Court summed

up the principles applicable to the jurisdiction of a civil court in

relation to an industrial dispute as under:

“(1) If the dispute is not an industrial dispute, nor does it relate to

enforcement of any other right under the Act the remedy lies only in the civil
Court.
(2) If the dispute is an industrial dispute arising out of a right or
liability under the general or common law and not under the Act, the
jurisdiction of the civil Court is alternative, leaving it to the election of the
suitor concerned to choose his remedy for the relief which is competent to
O.P(C).No.1523 of 2019 9

be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right
or an obligation created under the Act, then the only remedy available to the
suitor is to get an adjudication under the Act.
(4) If the right which is sought to be enforced is a right created
under the Act such as Chapter VA then the remedy for its enforcement is
either Section 33C or the raising of an industrial dispute, as the case may
be.”

12. Another decision reported in [1988 KHC 459 : 1988 (2)

KLT 387 : 1988 (2) KLJ 601], Kochunny v. State of Kerala, is

placed where a learned Single Judge of this Court while dealing

with Motor Vehicles (Taxation of passengers and Goods) Act, 1963

held that when special statute provides special machinery to

workout remedies in the absence of specific statutory provisions,

the jurisdiction of the civil court is not ousted unless specific

statutory provision is given.

13. Another decision reported in [2007 KHC 4096 : 2007

(4) KLT 972], Thodupuzha Municipality v. Abraham Philip, is

highlighted to buttress the point. In the said case, this Court

reiterated the principles in tune with the constitution Bench

decisions in Kamala Mills Ltd. v. State of Bombay's case (supra);

O.P(C).No.1523 of 2019 10

[AIR 1966 SC 893], Ram Swarup & Ors. v. Shikar Chand & anr.

and [2002 KHC 1721 : 2002 (6) SCC 416], Shiv Kumar Chadha

& anr. v. Municipal Corporation of Delhi. In this decision this

Court finally held while dealing with the provisions of the

Municipality Act with reference to Sections 247 and 364 that

exclusion of jurisdiction of civil court is implied when the special

act affords alternative remedy.

14. Apart from the above decision, the learned counsel for

the petitioner placed heavy reliance on a decision of the Bombay

High Court reported in [1992 KHC 1983 : AIR 1992 Bom. 283],

Municipal Corporation of Greater Bombay v. Piagelal Pannalal

Talwar since deceased by his heirs Smt.Chandrani P. Talwar etc.

& Ors. The learned counsel for the petitioners submitted that in the

said decision, Section 337 of the Bombay Municipal Corporation

Act, 1888 was considered by the Bombay High Court along with

other relevant sections, viz. Sections 342, 347. Section 351, which

is pari-materia to Section 406 of the Kerala Municipality Act was

considered. In the said decision, it has been held by the Bombay

O.P(C).No.1523 of 2019 11

High Court that in view of Section 351, the jurisdiction of the civil

court is excluded by implication since Section 351 provides that

proceedings shall be taken in respect of the buildings or works

commenced contrary to Section 347 by the Commissioner of the

appellant.

15. Per-contra it is submitted by the learned counsel for the

plaintiff/1st respondent herein that the plaintiff has an option to

elect the forum in between the forum provided under the special

statute or before the civil court. In support of this contention, he

has placed 3 decisions. The first decision is [2012 (1) KHC 377 :

2012 (1) KLT 485 : 2012 (1) KLJ 546 : ILR 2012 (1) Ker. 723],

Bernad Mani @ Roy & Ors. v. James & Ors. In the said decision,

this Court considered Section 563 of the Kerala Municipality Act,

1994 and held that 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 temporary injunction against the

issuance of the completion and owner certificates and allotment of

number in respect of those buildings.

O.P(C).No.1523 of 2019 12

16. Decision of the Apex Court reported in [1988 KHC

912 : 1988 (1) SCC 681 : AIR 1988 SC 752 : 1988 (171) ITR 254 :

1988 Tax LR 839], Raja Ram Kumar Bhargava (dead) by LRs v.

Union of India is placed to contend that wherever a right, not pre

existing in common law, is created by a statute and that statute

itself provided a machinery for the enforcement of the right, both

the right and the remedy having been created uno flatu and a

finality is intended to the result of the statutory proceedings, then,

even in the absence of an exclusionary provision the Civil Courts'

jurisdiction is impliedly barred. A right pre existing in common

law is recognised by the statute and a new statutory remedy for its

enforcement provided, without expressly excluding the Civil

Court's jurisdiction, then both the common law and the statutory

remedies might become concurrent remedies.

17. Another decision of the Apex Court reported in [2019

KHC 6814 : 2020 (12) SCC 680], South Delhi Municipal

Corporation & anr. v. M/s.Today Homes and Infrastructure Pvt.

Ltd. is highlighted, where the Apex Court considered the question

O.P(C).No.1523 of 2019 13

of levy of property tax under the Delhi Municipal Corporation Act.

In the said decision it was held by the Apex Court that it is settled

law that jurisdiction of the civil courts cannot be completely taken

away in spite of either an express or implied bar. The civil courts

shall have jurisdiction to examine a matter in which there is an

allegation of non-compliance of the provisions of the statute or any

of the fundamental principles of judicial procedure. A plain

reading of the plaint would suggest that the order impugned in the

suit is at the most an erroneous order. No jurisdictional error is

pleaded in the plaint. Therefore, the question of maintainability of

the suit does not arise. In the absence of any pleadings in the

plaint, the High Court ought not to have remanded the matter back

to the learned Single Judge.

18. The learned counsel for the petitioners/defendants 2 and

3 pointed out that, in fact, the property originally belonged to

ancestors of the predecessors of the plaintiff and the defendants,

and the building construction started while holding so and

thereafter the plaintiff and the defendants got title over the same, by
O.P(C).No.1523 of 2019 14

way of sale deeds. It is submitted further that though in the

cleverly drafted plaint, a copy of which is produced as Ext.P1, 2

reliefs moulded together, first part of the relief is confined to

demolition of the building alleged to be constructed by the

defendants in violation of the Kerala Municipal Building Rules,

1999 and without leaving set back as per the Rules and without

plan and permit. In the second part, the prayer was to the effect

that the construction in the property of the defendants obstructing

natural right of the plaintiff to get light and air to the property of

the plaintiff after closing the ventilators provided therein and by

effecting illegal fixtures in the building may be directed to be

demolished. According to the learned counsel for the

petitioners/defendants 2 and 3, the first relief alone is to be read as

the relief actually sought for and therefore, Section 406 of the

Kerala Municipality Act, an exhaustive provision which laid down

the procedure to be adopted in the case of construction made in

violation of the statute and the building rules made thereunder shall

be resorted to and it is well settled that the procedure under Section

O.P(C).No.1523 of 2019 15

406 of the Act can be set in motion by an aggrieved person like an

adjoining owner. He also argued that as per Section 271 (S) of the

Kerala Panchayat Raj Act, 1994, the Tribunal for Local Self

Government Institutions has been functioning and an order passed

under Section 406 of the Kerala Municipality Act, 1994 is

amenable to an appeal before the said forum as per Sections 509(1)

and 509(7) of the Keala Municipality Act. Similarly, if no action is

taken by the Secretary on the complaint of the aggrieved person, as

per Rule 8(2) of the Tribunal for Local Self Government

Institutions Rules, 1999, an appeal can be preferred by the

aggrieved person against the inaction of the Secretary. Therefore, it

is obvious that exhaustive self contained redressal mechanism is

provided by the statute and the rules for enforcement of rights and

the obligations created as per the Kerala Municipality Building

Rules. Thus it is this jurisdiction of the civil court is impliedly

ousted.

19. He argued further that as per Section 147 of the Kerala

Municipality Building Rules, the illegal constructions can be

O.P(C).No.1523 of 2019 16

regularised and such a right will be curtailed if a decree of

injunction for demolition is passed by the trial court and, therefore,

the Suit is not maintainable and the remedy of the plaintiff lies

before the Tribunal for Local Self Government Institutions.

20. Dispelling this argument, the learned counsel for the

plaintiff would submit that as per the ratio in South Delhi

Municipal Corporation & anr. v. M/s.Today Homes and

Infrastructure Pvt. Ltd. (supra), the Civil Courts shall have

jurisdiction to examine a matter in which there is an allegation of

non-compliance of the provisions of statute or any fundamental

principles of judicial procedure and in such cases it could not be

held that the jurisdiction of the civil courts completely taken away

in spite of either an express or implied bar. Therefore, he pressed

for confirming the order impugned.

21. In this matter the learned counsel for the

petitioners/defendants 2 and 3 argued that in the cleverly drafted

plaint, two reliefs clubbed together, the first part of the relief alone

is sufficient to address the grievance of the plaintiff and the

O.P(C).No.1523 of 2019 17

grievance can very well be addressed before the Tribunal for Local

Self Government Institutions.

22. Before addressing the main question, the maintainability

of this Original Petition, put under challenge by the learned counsel

for the plaintiff, required to be addressed. It is argued by the

learned counsel for the plaintiff that Ext.P3 order is a revisable

order and, therefore, revision ought to have been filed instead of

filing this Original Petiton, to challenge Ext.P3 order. He

submitted further that since Ext.P3 order dated 10.01.2019 has

been challenged on 06.06.2019, the remedy by way of revision is

barred by limitation. Therefore, the Original Petition is liable to be

dismissed holding that the same is not maintainable.

23. The learned counsel for the petitioners/defendants 2 and

3 also conceded that the proper remedy against Ext.P3 is by filing

revision along with a delay petition. However, this Court is not

powerless to decide a legal question by exercising the powers

under Article 227 of the Constitution of India.

24. In view of the above argument, I am inclined to decide

O.P(C).No.1523 of 2019 18

the query as to which orders are revisable as per Section 115 of the

Code of Civil Procedure. It is worthwhile to extract Section 115 of

C.P.C in this context, which reads as under:

“115. Revision: (1) The High Court may call for the record of
any case which has been decided by any Court subordinate to such High
Court and in which no appeal lies thereto, and if such subordinate
Court appears
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or
with material irregularity,
the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or
reverse any order made, or any order deciding an issue, in the course of
a suit or other proceeding, except where the order, if it had been made
in favour of the party applying for revision would have finally disposed
of the suit or other proceedings.
(2) The High Court shall not, under this section, vary or reverse any
decree or order against which an appeal lies either to the High Court or
to any Court subordinate thereto.
(3) A revision shall not operate as a stay of suit or other proceeding
before the Court except where such suit or other proceeding is stayed
by the High Court.
Explanation--.In this section, the expression "any case which has been
decided" includes any order made, or any order deciding an issue in
the course of a suit or other proceeding.

It is relevant to note that proviso to Section 115 incorporated w.e.f

O.P(C).No.1523 of 2019 19

01.07.2002 provided a rider in the matter of revision, whereby it is

stipulated that the High Court shall not, under this Section, vary or

reverse any order made, or any order deciding an issue in the

course of a suit or other proceeding, except where the order, if it

had been made in favour of the party applying for revision would

have finally disposed of the suit or other proceedings. Prior to the

amendment brought into force w.e.f 1.07.2002, second limb of

proviso (b) stipulated that “the order if allowed to stand would

cause a failure to justice or cause irrerparable injury to the party

against whom it was made”. In fact, proviso (b) was given a go-by

way of amendment as on 01.07.2002. Thus the law is clear on the

point, after amendment of Section 115 of CPC w.e.f 01.07.2002,

that power of revision under Section 115 shall not be available to

challenge all orders which are not appealable on the ground that the

same would cause a failure to justice or cause irreparable injury to

the party against whom it was made and revision would lie only

against an order, if it had been made in favour of the party applying

for revision would have finally disposed the suit or other

O.P(C).No.1523 of 2019 20

proceedings. In the case on hand, defendants 2 and 3 challenged

the maintainability of the Suit and if it had been allowed, the same

would have finally disposed of the Suit holding that the same is not

maintainable. Therefore, the present order Ext.P3 is, no doubt, a

revisable order and therefore the proper remedy of the

petitioners/defendants 2 and 3 herein should have been a revision.

Therefore, the argument advanced by the learned counsel for the

plaintiff in this regard is sustainable. Resultantly, it is held that the

Original Petition filed under Article 227 of the Constitution of

India is not the remedy of a party in relation to an order which is

revisable under Section 115 of CPC; and therefore the Original

petition is not maintainable.

25. However, since this Court heard a vital legal question

involved in this case in relation to a Suit of the year 2013, where

trial has been stated stalled by the stay in operation in this matter, I

am inclined to address the question of law in the interest of justice,

to give a quietus to the matter in controversy.

26. Holding so, while evaluating the merits of the rival

O.P(C).No.1523 of 2019 21

arguments in the matter of jurisdiction, it is to be noted that when a

Suit is filed alleging violation of Building Rules, an equally

efficacious remedy is available before the Tribunal for Local Self

Government Institutions. However, the Tribunal for Local Self

Government Institutions is not competent to deal with the

obstruction of natural right and the same is exclusively within the

domain of the civil court to decide upon. This is the vital reason

pointed out by the learned Munsiff while dismissing the petition.

As far as the question regarding jurisdiction of the civil court,

whether it is expressly or impliedly barred by a special statute, the

law declared by the Constitution Bench of the Apex Court in

Kamala Mills Ltd. v. State of Bombay's case (supra) is binding to

all courts and the same is liable to be followed. The principles are

summed up as under:

1) Where there is express provision in any special Act

barring the jurisdiction of a civil court to deal with matters specified

thereunder the jurisdiction of an ordinary civil court shall stand

expressly barred.
O.P(C).No.1523 of 2019 22

2) Where there is no express provision in the special

statute but on perusal of the various provisions contained in the
statute leads to a conclusion as regards to exclusion of jurisdiction
of a civil court, the court would then inquire whether any adequate
and efficacious alternative remedy is provided under the special
statute; if the answer is in the affirmative, no doubt, the jurisdiction
of a civil court is barred.
(3) At the same time, no such adequate and effective
alternative remedy is provided in the special statute, to address the
grievance of a party, the jurisdiction of the civil court cannot be said
to be barred
27. While crystallising the dispute involved in this matter, in

view of the above principles, I am of the view that since the

allegation of infringement of natural right also is alleged in the

Suit, the grievance of the plaintiff could not be addressed by the

Tribunal for Local Self Government Institutions and, therefore, in

such a Suit, the jurisdiction of the civil court is not impliedly barred

and the civil court is having jurisdiction to proceed with the Suit.

28. It is true that if the Municipality or the Government

intends to regularise an illegal construction that can be apprised

before the civil court by the defendants. Then also, the obstruction
O.P(C).No.1523 of 2019 23

of natural right and the consequential prayer to undo the same shall

be considered by the civil court independently and such violations

cannot be regularised.

29. In view of the above discussion, I am of the view that

Ext.P3 order does not require any interference. Therefore, I

confirm the same.

In the above circumstances, the Original Petition shall stand

dismissed.

Sd/-

(A. BADHARUDEEN, JUDGE)

rtr/
O.P(C).No.1523 of 2019 24

APPENDIX OF OP(C) 1523/2019

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.85 OF

2013 ON THE FILE OF THE FIRST ADDITIONAL
MUNSIFF COURT, NEYYATTINKARA.

EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED

BY THE PETITIONER PLAINT IN O.S.NO.85 OF
2013 ON THE FILE OF THE FIRST ADDITIONAL
MUNSIFF COURT, NEYYATTINKARA.

EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED

10.01.2019 IN O.S.NO.85 OF 2013 ON THE
FILES OF THE FIRST ADDITIONAL MUNSIFF
COURT, NEYYATTINKARA DECIDING THE
PRELIMINARY ISSUE OF JURISDICTION.