Bangalore District Court
K.L. Vidya Shankar vs Janapriya Heights Flat Owners' on 17 December, 2019
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-15) AT BENGALURU
Dated this the 17th day of December, 2019.
PRESENT:
Sri MALLANAGOUDA, B.Com.,LL.M.,
VIII Additional City Civil and Sessions Judge (CCH-15),
Bengaluru.
ORIGINAL SUIT No.4133/2007
PLAINTIFF : K.L. Vidya Shankar,
Aged about 46 years,
S/o. K.L. Narayanaswamy,
Residing at Flat No.3332,
3rd Floor, 3rd Block,
'Janapriya Heights',
Mallasandra,
Bangalore - 560 057.
(By Sri Ram S.N.A., Advocate)
-VERSUS-
DEFENDANT : Janapriya Heights Flat Owners'
Association ®, represented by its
President, Survey No.80/1A and
80/1C, Mallasandra,
Hesaraghatta Main Road,
Bangalore - 560 057.
(By Sri M.R. Ravindra, Advocate)
---------------------------------------------------------------------
Date of Institution of the Suit : 01-06-2007
Nature of the Suit (Suit on : Injunction suit.
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Cont'd..
-2- O.S. No.4133/2007
Date of the commencement : 16-08-2019
of recording of the evidence
Date on which the Judgment : 17-12-2019
was pronounced
---------------------------------------------------------------------
Year/s Month/s Day/s
----------------------------------
Total duration : 12 years, 6 months, 16 days
---------------------------------------------------------------------
(MALLANAGOUDA)
VIII Additional City Civil and Sessions Judge,
An&/- Bengaluru.
JUDGMENT
This suit was originally filed by the plaintiff seeking injunction to restrain the defendant from disconnecting water and electricity supply to Flat No.3332, 3rd Floor, 3rd Block, Jayapriya Heights Apartments, Bangalore, and seeking directions to provide permanent solution to obstructions to plaintiff and his family members and his visitors free movement in the common corridor and direction to the defendant to perform its obligations of general maintenance as laid down in the bye-laws of the defendant association.
Cont'd..
-3- O.S. No.4133/2007
2. During pendency of the suit, plaintiff got amended the plaint by including another prayer for claiming damages of Rs.12,00,000/-.
3. The brief facts of the plaintiffs' case are as under -
Plaintiff is the owner of Flat No.3332 situated at 3rd Floor, 3rd Block, Janapriya Heights Apartments - which is taken care by the defendant association. Plaintiff is living in the said flat along with his wife since three years. As per the bye-laws of the defendant association, the defendant association collects monthly maintenance of Rs.350/- from the owners of each flat for up-keeping of the entire apartment, but the defendant association has comfortably forgotten its duties - due to which, the entire apartment has turned to be a garbage den. It caused inconvenience to the residents of the entire flat.
Further, the persons living in Flat No.3331-A and 3326 are the immediate neighbours of the plaintiff. Plaintiff's flat is situated at the end of third-floor.
Cont'd..
-4- O.S. No.4133/2007 Hence, he has to pass through common corridor of 3 feet width.
Since beginning, the occupants of the neighbouring flats have for no reason turned inimical to the plaintiff. They are causing trouble in many ways like intentionally obstructing movements by means of their safety gates, throwing garbage indiscriminately all around in the corridor causing sound pollution by intentionally talking in high pitch in front of his flat over mobile phones, making the children play games such as cricket and foot ball on rooftop - which are all against the bye-laws of the defendant association - due to which, plaintiff has developed of late heart related problems unable to bear the continuous disturbance.
In spite of several complaints made to defendant association, it has failed to take proper action against the erring flat owners. Plaintiff has even filed a private complaint before the jurisdictional Magistrate against some of his neighbours - who are causing nuisance. Even when plaintiff got issued notice to defendant association, it is of no use. Plaintiff was paying Cont'd..
-5- O.S. No.4133/2007 monthly maintenance regularly up to February, 2007. But, as a protest to gross inactive attitude of the defendant association, he stopped paying maintenance from March, 2007. However, he is ready to deposit the same in Court. Defendant association is covering up its inaction by strangely holding that it is not their business to regulate individual flat members, but it is the duty to regulate themselves any issue cropping up.
Now, the defendant association, in the guise of taking action against non-payment of maintenance fees from the past 3 months has issued notice to the plaintiff calling upon him to pay balance within 10 days
- failing which, his electricity and water supply will be disconnected. In fact, disconnection of the civic amenities of which the association is not the provider like water and electricity is against the constitutional rights. During pendency of the suit, due to sustained harassment by the defendant, plaintiff had to undergo multiple surgeries. Besides, he was subjected to humiliation by the association, its committee members and other flat owners at their justification - which Cont'd..
-6- O.S. No.4133/2007 resulted in distress sale of the plaintiff's flat. Therefore, plaintiff claimed damages of Rs.12,00,000/-.
4. After service of summons, defendant appeared and filed written statement as under -
Averments of Paras 3 and 4 of the plaint are true and correct, - but averments of Para 5 of the plaint are false and incorrect. Averments of Para 6 of the plaint are baseless, - plaintiff is put to strict proof of the same. Averments of Para 7 of the plaint are true. There is a common corridor for Flat Nos.3331-A and 3326. Averments of Para 8 of the plaint are false and denied. In fact, to show his high-handedness, plaintiff has filed several complaints against his neighbours and got dismissed. Defendant is helpless in the issue, except to convince both the parties to keep peace in the apartment. Plaintiff, being disguised or depressed with his own personal affairs, is trying to express unwarranted aspects to spoil the atmosphere of social life of the apartment. Averments of Para 9 of the plaint are incorrect and baseless. Association has got its own limits to convince the parties. Averments of Para 10 of Cont'd..
-7- O.S. No.4133/2007 the plaint - which is regarding issuance of notice, is nothing to do with the defendant. Averment of Para 11 of the plaint, is incorrect. Just because of the adamant attitude of the plaintiff, he intentionally avoided to pay maintenance as demanded. Plaintiff is expecting highly classified service from the association - that too without paying monthly maintenance. To avoid payment of maintenance only, he filed the suit. Averments of Paras 12 and 13 of the plaint are false and incorrect. Averments of Para 14 of the plaint that the association has got power and duty-bound to collect its dues and hence, defendant got issued notice to the plaintiff for disconnection of water service for defaulting in payment of maintenance. Averments of Para 15 of the plaint are not warranted. Averments of Para 16 of the plaint are vague and wrong concept of the plaintiff. Averments of Paras 17 to 9 of the plaint are also not correct and there is no cause of action to file the suit. Averments of Paras 20 to 22 are put to strict proof by the plaintiff. The reliefs claimed by the plaintiff are not tenable. Suit itself is not maintainable.
Cont'd..
-8- O.S. No.4133/2007 Averments that due to sustained harassment by the defendant, plaintiff had to undergo multiple surgeries; he was subjected to humiliation by the association and its committee members and other flat owners at their justification, are denied. Plaintiff was not subjected to any humiliation by the association and its committee members. Plaintiff has sold the property for market value. He has not sold the same at distress price. Hence, plaintiff is not entitled for any damages as claimed.
5. On the basis of the above facts, the following Issues and Additional Issues have been framed -
ISSUES
1. ವವದಯಯ ಹಹಹಳರಯವವತಹ ಈ ದವವಹ ಹವಕಯವ ಕವಲಕಹಕ ದವವಹಯ ಅನಯಸಸಚ ಸಸತತನಲಲ ಆತನ ಹಕಕನ ಉಲಲವಘನಹಯವಗದಹ ಎವದಯ ಅವರಯ ಸವಬಹತಯಪಡಸಯತವತರಹಯಹ?
2. ವವದಯಯ ಹಹಹಳರಯವವತಹ ಶವಶಸತ ಪಪತಬವಧಕವಜಹ ಮತಯತ ಆಜವಪಕ ಪಪತಬವಧಕವಜಹಯ ಪರಹವರಗಳಗಹ ಅವರಯ ಅಹರರಹಹ?
3. ಯವ ಆದಹಹಶ ಅಥವವ ಡಕಪ ಮವಡಬಹಹಕಯ?
Cont'd..
-9- O.S. No.4133/2007
ADDITIONAL ISSUES
1. Whether plaintiff proves that due to sustained harassment by the defendant, the plaintiff has undergone multiple surgeries and he was subjected to humiliation by the defendant Association, due to which it resulted in distress sale of plaintiff's flat?
2. Whether suit is barred by limitation?
3. Whether Court fee paid by plaintiff is not sufficient?
4. Whether plaintiff is entitled for damages and litigation expenses as claimed?
6. In support of his case, plaintiff is examined himself as P.W.1 and got marked documents as per Exs.P.1 to P.46 on his behalf.
7. On the other hand, Secretary of the defendant association examined himself as D.W.1 and got marked documents as per Exs.D.1 to D.6.
8. Heard arguments.
9. My findings on the above Issues and Additional Issues are as under -
Cont'd..
-10- O.S. No.4133/2007
ISSUE No.1 - Does not survive for
consideration;
ISSUE No.2 - Does not survive for
consideration;
ISSUE No.3 - As per final order;
ADDITIONAL- Negative;
ISSUE No.1
ADDITIONAL- Affirmative;
ISSUE No.2
ADDITIONAL- Affirmative;
ISSUE No.3
ADDITIONAL- Negative;
ISSUE No.4
for the following -
REASONS
10. ISSUE NOs.1 AND 2 : Though initially
plaintiff had filed the suit seeking injunction to restrain the defendant from disconnecting water and electricity supply to his flat, to provide permanent solution to the obstruction to free movements in the common corridor and to perform its obligations of general maintenance by the defendants, during pendency of the suit, plaintiff has sold his flat bearing No.3332 of the Janapriya Heights Apartment building and got amended the plaint for inserting the relief of damages, the reliefs claimed by Cont'd..
-11- O.S. No.4133/2007 the the plaintiff for injunction becomes in fructuous and hence, Issue Nos.1 and 2 does not survive for consideration and therefore, Issue Nos.1 and 2 are answered as above.
11. ADDITIONAL ISSUE No.1 : This suit is filed by the plaintiff who was the owner of flat No.3332 of Janapriya Heights apartment building and plaintiff has sought the relief of damages from the defendant association for undergoing multiple surgeries, humiliation and harassment sustained by him as a result of the distress sale of his flat due to nuisance of the neighbouring flat owners and failure of the defendant association to perform its obligations. During arguments, learned Counsel for the plaintiff has argued that as the neighbouring flat owners have fixed rotatable iron gate which causes obstruction to use the common passage, defendant association - which was duty-bound to make efforts to remove all those nuisances - failed in its duties; at the same time, when plaintiff stopped payment of maintenance amount as a protest, defendant disconnected water and electricity Cont'd..
-12- O.S. No.4133/2007 supply to the plaintiff's flat; therefore, plaintiff being
unable to continue in the same flat, he sold the same to some other person and therefore, defendant is liable to pay damages of Rs.12,00,000/- to the plaintiff. In support of his said argument, he has relied upon the following judgments -
(1) (1994) 4 Supreme Court Cases 1 [Jaylaxmi Salt Works Private Limited -versus- State of Gujarat] -
"A. Tort Law - 'Tort' - Meaning and ingredients of - Compared with contract -
Test is whether injury or damage occasioned due to failure of duty to take reasonable care - When actionable - State's liability - 'Strict liability' and 'fault liability' - Difference between - 'Malfeasance', 'misfeasance' and 'non- feasance' - Malice or bad faith essential element to constitute - But even without such intention, tortious liability may arise not only in cae of negligencebut also in cases of mistake, defective planning or failure to discharge public duty resulting in loss or damage to common man - 'Reclamation bundh' constructed by State Govt. without heeding to appellant's Cont'd..
-13- O.S. No.4133/2007 request to change the location of weirs so as not to face its factory - Consequently floor water entering into appellant's factory causing damages and loss - Applicability of rule in Ryland v. Fletcher - Held, State liable to pay compensation to appellant - Words and phrases - 'Negligence', meaning of"
(2) AIR 1998 SUPREME COURT 223 [Mrs. Manju Bhatia and another -versus- New Delhi Municipal Council and another] -
"(A) Constitution of India, Art.226 - Rule of equity-Applicability - Building constructed and flats therein sold - Some floors of building subsequently demolished on ground of unauthorised construction - Flat owners were not informed of illegal construction-Entitled to be recompensated for loss suffered by them - Builder directed to pay back to flat owners amount paid by them -plus- certain amount on account of escalation of price."
(3) AIR 1968 PUNJAB AND HARYANA 399 [Ram Lal -versus- Mustafabad Oil and Cotton Ginning Factory and others] -
"(B) Tort - Nuisance - When actionable -
Principles."
Cont'd..
-14- O.S. No.4133/2007
12. On the other hand, defendant's Counsel has argued that as there is no evidence to show that plaintiff has sustained any loss or suffered any damages due to nuisance of the neighbouring flat owners, question of plaintiff becoming entitled for damages does not arise. He has further argued that there is no nexus between the alleged nuisance caused to the plaintiff and surgery undergone by him, plaintiff has failed to prove his case.
13. On perusal of evidence of both the parties and arguments of their Counsel, it appears to me that admittedly, plaintiff was the owner of flat No.3332 of Janapriya Heights Apartment building and the defendant is the association of the said apartment owners'. Plaintiff is claiming damages from the defendant for the reason of nuisance caused by neighbouring flat owners and failure of the defendant to stop said nuisance of the neighbouring flat owners. It is contended by the plaintiff that due to nuisance of the neighbouring flat owners, he has undergone multiple surgeries and he has sold his flat to some third-parties and therefore, he is entitled for damages. Though it is Cont'd..
-15- O.S. No.4133/2007 alleged by the plaintiff that due to some nuisance by neighbouring flat ownrs he sustained damages, by lokking to the evidence of the plaintiff, it appears that plaintiff is claiming tiny acts of the neighbouring flat owners like talking over phone in loud noise, kids playing over terrace as nuisance. In fact, if a person purchases a flat in an apartment building, such small inconveniences are common and that cannot be called as 'nuisance'.
14. With regard to plaintiff's allegations about fixing the rotatable iron gate is concerned, admittedly plaintiff himself had fixed rotatable iron gate to his apartment. Therefore, when plaintiff himself has fixed rotatable iron gate to his apartment, he is debarred from claiming other flat owners fixing the extra gate as nuisance. Further more, with regard to plaintiff's contention that due to nuisance of the neighbouring flat owners, he has undergone heart surgery is concerned, there is no any evidence to show that on account of such a small disturbance caused by the neighbouring flat owners, plaintiff has undergone heart surgery.
Cont'd..
-16- O.S. No.4133/2007 Therefore, plaintiff's contention that due to nuisance caused by the neighbouring flat owners he has underwent heart surgery, is not supported with proper evidence.
15. With regard to plaintiff's contention that due to nuisance by the neighbouring flat owners and failure of the defendant to do its duties he has sold the flat is concerned, as admitted by the plaintiff during cross- examination, plaintiff had purchased flat in question for Rs.3,50,000/- in 2004, and after about 8 years, he has sold the said flat for Rs.10,00,000/- - which is more than double the purchase price - from which, it appears that plaintiff's contention about distress sale of the flat due to nuisance by the neighbouring flat owners and defendant's failure to perform his duties also appears to be incorrect.
16. Regarding plaintiff's contention that defendant's act of disconnecting water and electricity supply to his flat which caused damage to the plaintiff is concerned, admittedly when plaintiff had filed the suit, plaintiff was due of the maintenance amount - for Cont'd..
-17- O.S. No.4133/2007 which plaintiff has contended that as the defendant association has failed to perform its duties, as a protest for that, he withheld payment of maintenance. In fact, if really the defendant association failed to perform its duties, there are so many due process of law available to the plaintiff to force the defendant association to perform its duties. In spite of it, plaintiff withheld payment of maintenance amount - for which defendant association had taken action for disconnection of electricity and water supply to the plaintiff's flat. Hence, the said act of the defendant association cannot be called as 'illegal'. Therefore, even if plaintiff had sustained any inconvenience due to disconnection of water and electricity supply for non-payment of maintenance amount, it cannot be called as 'illegal act' of the defendant and plaintiff is not entitled for damages for such legal action of the defendant association. Therefore, by looking from any angle, there is nothing to show that due to harassment of the defendant association or due to failure of the defendant to perform its duties plaintiff has sustained any loss or damages. Hence, Additional Issue No.1 is answered in negative.
Cont'd..
-18- O.S. No.4133/2007
17. ADDITIONAL ISSUE No.2 : With regard to
limitation is concerned, admittedly plaintiff has filed suit in the year 2007 and he sold his flat in October, 2012 and he got amended the plaint seeking for inserting the relief of damages by filing application in the year 2014 i.e., after about 7 years from the date of filing the suit. Therefore, as per Article 72 of the Schedule to the Limitation Act, the suit has to be filed within one year for compensation for omitting to do an act within one year from the day when the act or omission takes place. Here, plaintiff got amended the plaint seeking damages after about 7 years from the date of filing suit and after more than 2 years from the date of sale of his flat. Hence, suit of the plaintiff is barred by limitation. Therefore, Additional Issue No.2 is answered in affirmative.
18. ADDITIONAL ISSUE No.3 : Though plaintiff initially filed the suit for injunction, he got amended the plaint by inserting the relief of damages of Rs.12,00,000/-. But, as per his application at I.A. Nos.16 and 17, Issue of Court fee is kept open to decide Cont'd..
-19- O.S. No.4133/2007 at the time of final hearing of the suit. Though plaintiff has contended that he filed application before the District Legal Services Authority seeking payment of Court fee by the District Legal Services Authority, till now there is no any communication received by this Court about payment of the Court fee by the District Legal Services Authority, nor the plaintiff has paid the Court fee. Therefore, the Court fee paid by the plaintiff is not sufficient and hence, it is decided to direct the plaintiff to pay Court fee on Rs.12,00,000/-. However, as the plaintiff has filed application before the District Legal Services Authority, it is decided to give some more time to the plaintiff to pay Court fee. Hence, Issue Additional Issue No.3 is answered as above.
19. ADDITIONAL ISSUE No.4 : As already discussed above, when plaintiff has failed to produce proper evidence to show that due to nuisance caused by the neighbouring flat owners and defendant association, he has sustained damages, plaintiff is not entitled for any damages as claimed by him. Therefore, suit of the Cont'd..
-20- O.S. No.4133/2007 plaintiff is liable to be dismissed. Hence, Additional Issue No.4 is answered as above.
20. ISSUE No.3 : For my reasons and discussion on the above Issues and Additional Issues, I proceed to pass the following -
ORDER Suit of the plaintiff is dismissed with cost.
Plaintiff is directed to pay deficit Court fee within six months from the judgment.
In case, plaintiff fails to pay deficit Court fee on Rs.12,00,000/-, office is directed to put up file and take necessary order for recovery of deficit Court fee on Rs.12,00,000/- from the plaintiff.
Draw decree accordingly.
(Dictated to Judgment Writer, transcribed by him, revised by me and after corrections, pronounced in open Court on this the 17th day of December, 2019.) (MALLANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..
-21- O.S. No.4133/2007
ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFFS:
Examined on:
P.W.1 : K.L. Vidya Shankar 16-08-2019
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:
Ex.P.1 : Copy of letter dated 5.1.2006. Ex.P.2 : Copy of letter dated 10.1.2006.
Ex.P.3 : Discharge summary.
Ex.P.4 : Copy of complaint filed with police.
Ex.P.5 : Acknowledgement issued by police for
having received complaint.
Ex.P.6 : Copy of letter dated 4.7.2007.
Ex.P.7 : Courier receipt.
Exs.P.8 to : Four water bills.
P.11
Exs.P.12 : Copies of two complaints filed with police.
and P.13 Ex.P.14 : Tax paid challan.
Exs.P.15 : Receipt for having received membership fee and P.16 and maintenance charges. Exs.P.17 : Electricity bill and receipt. and P.18 Exs.P.19 : Copy of complaint dated 24.4.2007 and P.20 filed by plaintiff to defendant association and postal cover.
Ex.P.21 : Copy of complaint dated 10-10-2006. Ex.P.22 : Copy of legal notice issued to defendant. Ex.P.23 : Notice sent by the defendant. Ex.P.24 : Copy of notice dated 30.10.2008.
Ex.P.25 : Unserved postal cover.
Ex.P.26 : Copy of publication in the newspaper
dated 22.7.2010.
Cont'd..
-22- O.S. No.4133/2007
Exs.P.27 : 2 receipts regarding maintenance amount. and P.28 Ex.P.29 : Copy of discharge summary. Ex.P.30 : Copy of angiography report. Exs.P.31 : Copies of two discharge summaries. and P.32 Ex.P.33 : Copy of of judgment in C.C. No.714/2006.
Ex.P.34 : Copy of of judgment in
C.C. No.3219/2009.
Ex.P.35 : Copy of judgment in C.C. No.12885/2011.
Exs.P.36 : Copies of judgment and decree in and P.37 O.S. No.6113/2007.
Exs.P.38 to: Account statement, housing loan P.40 installment paid challan and certificate. Ex.P.41 : Bank's letter dated 8.10.2012. Ex.P.42 : Notice dated 11.7.2012. Ex.P.43 : Copy of circular of the defendant association dated 28.11.2010. Ex.P.44 : Letter of the Legal Services Authority dated 1.8.2019.
Ex.P.45 : Receipt issued by defendant association for having received corpus fund from plaintiff. Ex.P.46 : Copy of notice dated 26.2.2010.
3. WITNESS EXAMINED FOR THE DEFENDANT:
D.W.1 : Ravi S. 23-10-2019
4.DOCUMENTS MARKED ON BEHALF OF DEFENDANT:
Ex.D.1 : Copy of Bye-laws of Janapriya Heights Flat Owners' Association.
Ex.D.2 : Statement showing collection of monthly maintenance charges by the defendant association.
Cont'd..
-23- O.S. No.4133/2007 Ex.D.3 : 12 photographs and the C.D. (together).
Exs.D.4 to : Ledgers of the defendant association; D.6 Exs.D.4(a) : Relevant portions in Exs.D.4 to D.6 to D.6(a) (subject to objection).
(MALLANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..