Punjab-Haryana High Court
Richmond Park Owners And Residents ... vs Regency Park-1 Residents Welfare ... on 12 September, 2018
Author: Raj Mohan Singh
Bench: Raj Mohan Singh
CR No.5741 of 2018 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.5741 of 2018
Date of Decision:12.09.2018
Richmond Park Owners and Residents Association
......Petitioner
Vs
Regency Park-1, Residents Welfare Association (Regd.) and
others
....Respondents
CORAM: HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present:Ms. Puja Chopra, Advocate
for the petitioner.
Mr. Davinder Lubana, Advocate
for caveator-respondent No.1.
****
RAJ MOHAN SINGH, J.
[1]. Petitioner-Association has assailed the order dated 31.05.2018 passed by the Addl. District Judge, Gurugram whereby the order dated 02.04.2018 passed by the Civil Judge (Jr. Divn.) Gurugram was set aside.
[2]. Brief facts of the case are that the petitioner/Richmond Park Owners and Residents Association, Richmond Park, DLF City, Phase-IV, Gurugram, Haryana is a registered Society having registration No.3191 issued by the Department of 1 of 9 ::: Downloaded on - 08-10-2018 05:51:24 ::: CR No.5741 of 2018 2 Industries and Commerce under the Haryana Registration and Regulation of Societies Act, 2012. The petitioner-Association was arrayed as defendant No.2 in the suit filed by respondent No.1/Regency Park-1, RWA (Regd.) Regency Park-1, DLF City, Phase-IV, Gurugram through its President. Plaintiff filed suit for permanent and mandatory injunction with the plea that Regency Park-1 had approximately 320 flats inhabited by 1500 residents. While the Richmond Park had around 280 flats inhabited by 1200 to 1300 people. The above condominium was densely populated and required all preemptive measures for any uncalled for exigency.
[3]. The nomenclature of the parties shown in the plaint would prima facie show that the plaintiff along with defendant No.1 and defendant No.3 have same interest. Pleadings were made in the plaint that the defendants had been trying to illegally encroach upon 18 meters wide road which is also main approach road to the said colony and the defendants have created unauthorized barricades and have locked the same by chain and locks. Following prayer was made in the suit:-
"A. A decree of permanent injunction to the effect that the defendants, their agents and assignees etc. be restrained permanently from creating any obstacles or hindrances in the free movement of vehicles/ingress/egress of men and material and
2 of 9 ::: Downloaded on - 08-10-2018 05:51:24 ::: CR No.5741 of 2018 3 free use of the 18 meter wide road fully detailed and described in para No.5 of the plaint and clearly shown and demarcated in the attached site plan (Annexure P-3) by yellow colour and also shown in the photographs (Annexure P-4 Colly) attached with the plaint; may kindly be passed in favour of the plaintiff and against the defendants with costs.
B. In case during the pendency of the case if the defendant's succeed in their illegal motives and design by creating/erecting any permanent structure or obstacle or digging any pit etc. in the said 18 meter wide road, fully detailed and described in para No.5 of the plaint and clearly shown and demarcated in the attached site plan (Annexure P-3) by yellow colour and also shown in the photographs (Annexure P-4 Colly) attached with the plaint, in the event, a decree of mandatory injunction directing the defendants to remove the encroachment leading to restricting of free flow of traffic/movement and restore the same, back the original position of this road, free from all sorts of encroachment; may kindly be passed in favour of the plaintiff and against the defendants with costs.
C. Any other relief which this Honourable Court deems fit, proper and just may also be granted to the plaintiff."
[4]. Learned counsel for both the parties have tried to argue on merits of the case with reference to declaration, legal notice dated 03.05.2016 issued by Mr. Tilak Raj Arora, Advocate, RTI 3 of 9 ::: Downloaded on - 08-10-2018 05:51:24 ::: CR No.5741 of 2018 4 information dated 23.10.2017 and layout plans original and amended. Since the scope of this revision petition is confined to existence of prima facie case, balance of convenience and irreparable loss to the plaintiff, therefore, I do not wish to appreciate the controversy on merits of the case, lest it may prejudice the case of either side.
[5]. Learned counsel have further disputed the interpretation attached to the declaration and the nomenclature of M/s Rich Reg Condominium Association which is umbrella association. Both the parties have raised serious dispute with regard to the existence of different blocks as per clause 1 of the declaration, provision in terms of declaration made in the notes in para No.5 of the declaration and the interpretation attached to paras no.8 and 9 of the declaration. The assertion made by learned counsel for the petitioner was that both the paras no. 8 and 9 relate to apartments and not to the plots and infact para No.9 is relatable to amended lay out plan Annexure P-8. [6]. The entire dispute between the parties is in respect of usage of 18 meters wide road. As per pleadings in the plaint, the defendants have locked/blocked the road. In the year 1995, the developer namely DLF Limited planned a residential Group Housing Colony with multi-story apartments and independent flats which were a part of a single complex and a road 4 of 9 ::: Downloaded on - 08-10-2018 05:51:24 ::: CR No.5741 of 2018 5 measuring 18 meters was provided. The original lay out plan was revised in the year 1999 and in order to create separate entry and exit for Regency Park-1 residents, provision for additional gates was made and revised plan was made by the developer. According to the petitioner the said revised plan is Annexure P-8 with the petition.
[7]. In the year 2002, deed of declaration was made and the same was scribed by all the members and a final lay out plan was formulated. Thereafter in the year 2008, the sectoral plan was revised by the developer and 18 meters wide road was terminated at Regency Park-1 and access to the plots was given to 30 meters wide sector road. The question remains to be answered is whether 18 meters wide road still remains to be enforced as a public road or the same became private road which was accordingly distributed as per situation on the site. Whether the usage of 18 meters wide road as a plotted area was connected with 30 meters wide sector road would be a debatable issue at the time of conclusion of the suit. At this stage of consideration, no such final opinion can be made. [8]. The Civil Judge (Jr. Divn.) Gurugram, vide order dated 02.04.2018 dismissed the application under Order 39 Rules 1 and 2 CPC without giving any opinion on merits of the case. The trial Court held that the plaintiff was not able to establish all the 5 of 9 ::: Downloaded on - 08-10-2018 05:51:24 ::: CR No.5741 of 2018 6 three ingredients required for grant of ad interim injunction. The Court observed that the plaintiff has sought permanent injunction and mandatory injunction restraining the defendants from creating any obstacle or hindrance in free movements of vehicles/ingress/egress and free use of 18 meters wide road. As per the plaintiff/applicant, the road was used by the residents for ingress and egress purposes. The total area of 13.316 acres in Sector 43 Gurugram has this approach of 18 meters width which is a main road and the same was duly approved in the lay out plan. The respondents/defendants asserted that at the time of handing over the possession of the plots to the members of RCRR and the deed of declaration, separate entry and exit road measuring 9 meters was provided in the name of Regency Park and Regent Park and 18 meter wide road was never shown in the lay out plan as public road. As per sanction plan of the year 2008, 18 meters wide road was terminated at Regency Park-1 and access to the plots was given to 30 meters wide sector road. The boom barriers at the entry and exit points have been laid as per deed of declaration. Defendants made stress on the layout plan vide which it shows that plotted area is connected with 30 meters wide road.
[9]. The trial Court further observed that the plaintiff has not been able to satisfy the test of prima facie case, balance of 6 of 9 ::: Downloaded on - 08-10-2018 05:51:24 ::: CR No.5741 of 2018 7 convenience and irreparable loss in the event of not granting any interim injunction. The boundary walls were constructed by the DLF by demarcating the land of Regency Park. Boom barricades and entry gate have been created subsequently for Regent Park residents which is located on 18 meters wide road. This provision was made in the deed of declaration. [10]. The trial Court decided the application without adverting to the merits of the case, however on prima facie consideration based on three golden principles for grant of ad interim injunction under Order 39 Rules 1 and 2 CPC.
[11]. The lower Appellate Court vide its order dated 31.05.2018, however set aside the order of the trial Court. With regard to the controversy regarding usage of 18 meters wide road, the lower Appellate Court considered the lay out plan showing 18 meters wide road starting from 30 meters road and terminated in Regency Park-1 i.e. the plaintiff. It was prima facie found that the same was meant for the plaintiff as well as defendants and the same was also found in consonance with the RTI information. It was also observed that there was nothing in the deed of declaration to show that the disputed 18 meters wide road is meant for exclusive use of the defendants. Prima facie case was found to be existed in favour of the plaintiff and the defendants were restrained from interfering in the free and 7 of 9 ::: Downloaded on - 08-10-2018 05:51:24 ::: CR No.5741 of 2018 8 unfettered, peaceful use/ingress and egress of the suit property. [12]. I have considered the submissions made by learned counsel for the parties.
[13]. Having considered the controversy on prima facie note, I find that the pleadings of the plaint in terms of usage of 18 meters wide road are evasive enough. Pleadings are silent as to whether the plaintiff is in use of 18 meters wide road or not or what is the right attached? No declaration has been sought, nor reference to any plan or bye laws has been made. Virtually the injunction has been sought in the form of mandatory injunction for use of the road by the plaintiff as an interim measure. [14]. It is a settled law that interim mandatory injunction cannot be granted in routine. The plaintiff has to make out a strong case and the standard for making such a case rests on higher pedestal than the prima facie case which is normally required for a prohibitory injunction. Ad interim injunction is not a remedy which is to be granted in routine manner. Such order can only be passed in the circumstances which are clear and unambiguous on record. The reference can be made to Purshottam Vishandas Raheja and another vs. Shrichand Vishandas Raheja (Dead) through LRs and others, 2011(3) R.C.R. (Civil) 762 and Kishore Kumar Khaitan vs. Parveen 8 of 9 ::: Downloaded on - 08-10-2018 05:51:24 ::: CR No.5741 of 2018 9 Kumar Singh, 2006(1) R.C.R. (Civil) 735.
[15]. At this stage, I am of the prima facie view that the relief granted by the lower Appellate Court is in the form of interim mandatory injunction and the same should not be allowed in normal circumstances. The controversy has to be tested by the trial Court on the basis of evidence to be produced by the parties on merits at appropriate stage. It would not be in the interest of justice to undo a thing by means of interim injunction, otherwise it will have the effect of deciding the lis at this interim stage.
[16]. For the reasons recorded hereinabove, the impugned order dated 31.05.2018 passed by the Addl. District Judge, Gurugram is hereby set aside. Without meaning anything on the merits of the case, both the parties are directed to maintain status quo with regard to the existing position of 18 meters wide road during pendency of the suit.
[17]. With the aforesaid observation, this revision petition is disposed of.
September 12, 2018 (RAJ MOHAN SINGH)
Atik JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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