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Jomer Avalon Apartments Owners Welfare ... vs A.M.Joy on 3 March, 2020

Author: Sathish Ninan

Bench: Sathish Ninan

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

             THE HONOURABLE MR. JUSTICE SATHISH NINAN

    TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941

                      OP(C).No.3278 OF 2019

  AGAINST THE ORDER DATED 08.07.2019 IN I.A.NO.3534/2019 IN OS
 1434/2018 DATED 08-07-2019 OF III ADDITIONAL MUNSIFF COURT, EKM
                         (RENT CONTROL)


PETITIONER/ RESPONDENT / PLAINTIFF:

             JOMER AVALON APARTMENTS OWNERS WELFARE ASSOCIATION
             JOMER, AVALON, CARRIER STATION ROAD, ERNAKULAM SOUTH,
             KOCHI-682016, REPRESENTED BY ITS PRESIDENT,
             N.M.R.SIRAJ, FLAT NO.7D, JOMER AVALON, CARRIER
             STATION ROAD, ERNAKULAM SOUTH, KOCHI-682016

             BY ADV. SRI.LATHEESH SEBASTIAN

RESPONDENT/ PETITIONER / DEFENDANT:

             A.M.JOY
             AGED 68 YEARS
             S/O.AATHAPALLIL MATHAI, APARTMENT NOS.8E AND 8F,
             JOMER AVALON, CARRIER STATION ROAD, ERNAKULAM SOUTH,
             KOCHI-682016

             R1 BY ADV. SRI.A.KRISHNAN
             R1 BY ADV. SRI.R.UMASANKAR

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03.03.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                             2
OP(C).No.3278 OF 2019




                                JUDGMENT

Petitioner is the plaintiff in a suit for prohibitory injunction. The reliefs claimed in the plaint reads thus:

"i) Pass a mandatory injunction directing the defendant to remove the plants, vegetables, water tanks, pipes placed in the terrace and common areas of the 8th floor and further removing the obstruction placed in the 8th floor preventing the entry to the terrace of the 7 th floor of Jomer Avalon Apartment at Carried Station Road, Ernakulam and on his failure permit the plaintiff to remove the plants, vegetables, water tanks, pipes placed in the terrace and common areas of the 8 th floor and further removing the obstruction placed in the 8th floor preventing the entry to the terrace of the 7th floor of Jomer Avalon Apartment at Carrier Station Road, Ernakulam through the process of this hon'ble court,

ii) Pass a permanent prohibitory injunction restraining the defendant from obstructing and preventing the execution of structural reinforcement works and other repairs being conducted on the basis of the structural audit 3 OP(C).No.3278 OF 2019 report of M/s.Engineers Diagnostic Centre Pvt.Ltd.

through respective contractors and unauthorizedly occupying the terrace and common areas of the 8 th floor and further placing the obstruction in the 8 th floor preventing the entry to the terrace of the 7 th floor of Jomer Avalon Apartment at Carrier Station Road, Ernakulam

iii) Award cost of this proceedings to the plaintiff.

iv) Pass any other and such other orders of this Honourable Court may deem fit to grant in the nature and circumstances of the case."

2. In substance, the plaintiff wants to do some repair works which, it is alleged that, the respondent - defendant is obstructing. It appears that in the plaint as well as in the interlocutory proceedings for injunction, as I.A.No.9370/2018 and I.A.No.9371/2018, the plaintiff relied on the report of an expert which was marked as Exhibit A4 in the order dated 02/02/2019 on the said applications, based on which the work was permitted to be done.

3. As per I.A.No.3534/2019, the petitioner - plaintiff wants the work to be done on the basis of a 4 OP(C).No.3278 OF 2019 modified report of the expert dated 15/04/2019 and seeks for modification / clarification of the order of injunction passed on I.A.No.9370/2018. In substance, the petitioner - plaintiff seeks for permission to carry out the repair works in terms of the revised report of the expert dated 15/04/2019. As per the order impugned, the said application was ordered with a direction to complete the work in tune with Exhibit A4. The same is under challenge by the plaintiff.

4. Heard the learned counsel on either sides.

5. As noticed supra, the very purpose of filing the application I.A.No.3534/2019 was seeking permission of the court to carryout the repair works in tune with the report of the expert dated 15/04/2019, in modification of the earlier report of the expert and as was ordered in I.A.No.9370/2018. A reading of the impugned order shows that the court has not considered as to whether permission is liable to be granted, to do the work on the basis of the revised report of the expert or not.

OP(C).No.3278 OF 2019 In view thereof, the application requires to be reconsidered by the Court. In the result, the order impugned is set aside. The court below shall reconsider I.A.No.3534/2019 and pass appropriate orders. Needless to say that the objections filed by the defendants shall be conisdered and both parties be heard. I clarify that I have not expressed anything on the merits of the rival claims.

Sd/-

SATHISH NINAN JUDGE rsr 6 OP(C).No.3278 OF 2019 APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.1434/2018 OF THE FILE OF 3RD ADDITIONAL MUNSIFF COURT, ERNAKULAM EXHIBIT P2 TRUE COPY OF THE STRUCTURAL AUDIT REPORT OF M/S.ENGINEERS DIAGNOSTIC CENTRE PVT LTD EXHIBIT P3 TRUE COPY OF IA NO.9370/2018 IN O.S.NO.1434/2018 EXHIBIT P4 TRUE COPY OF IA NO.9371/2018 IN O.S.NO.1434/2018 EXHIBIT P5 TRUE COPY OF IA NO.9372/2018 IN O.S.NO.1434/2018 EXHIBIT P6 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER APPOINTED ON THE BASIS OF ORDER IN EXT.P5 EXHIBIT P7 TRUE COPY OF THE OBJECTION OF THE RESPONDENT TO EXT.P6 COMMISSIONER REPORT EXHIBIT P8 TRUE COPY OF THE COMMON ORDER OF THE 3RD ADDITIONAL MUNSIFF, ERNAKULAM IN IA NO.9370/2018 AND I.A.NO.9371/2018 IN O.S.NO.1434/2018 DATED 02.02.2019 EXHIBIT P9 TRUE COPY OF THE ESTIMATE PROVIDE BY THE CONTRACTOR IE.LA GRACE CONSULTANT LLP, PALARIVATTOM DATED 14.03.2019 EXHIBIT P10 TRUE COPY OF THE PETITION IN IA NO.2797/2019 IN O.S.NO.1434/2018 EXHIBIT P11 TRUE COPY OF THE OBJECTION OF THE RESPONDENT TO IA NO.2797/2019 EXHIBIT P12 TRUE COPY OF THE ORDER OF THE MUNSIFF COURT IN IA NO.2797/2019 DATED 12.04.2019 EXHIBIT P13 TRUE COPY OF THE REPORT OF THE ENGINEERS DIAGNOSTIC CENTRE PVT LTD, SUBMITTED TO THE 7 OP(C).No.3278 OF 2019 PETITIONER DATED 15.04.2019 EXHIBIT P14 TRUE COPY OF PETITION IN IA NO.3534/2019 EXHIBIT P15 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXT P14 PETITION EXHIBIT P16 TRUE COPY OF THE ORDER OF THE MUNSIFF COURT IN IA NO.3534/2019 IN O.S.NO.1434/2018 DATED 08.07.2019 RESPONDENT'S/S EXHIBITS:

EXHIBIT R1(A) TRUE COPY OF ORDER IN I.A.NO.2797 OF 2019 IN O.S.NO.1434 OF 2018 DATED 12.04.2019.

EXHIBIT R1(B) TRUE COPY OF ORDER IN I.A.NO.342 OF 2019 IN O.S.NO.1434 OF 2018 DATED 12.02.2019.