Madras High Court
Sri Venkatachela Flat Owners ... vs T.Shanmuga Priya on 2 September, 2008
Bench: M.Chockalingam, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 2-9-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL OSA Nos.210 to 216 of 2004 Sri Venkatachela Flat Owners Association Represented by its Secretary P.Sundareshwar Old No.16, 17 and 18, New. 27 Sir Thyagaraya Road T.Nagar, Chennai 600 017. .. Appellant in all appeals vs 1.T.Shanmuga Priya 2.T.Anuratha 3.TSenthilkumaran 4.Thyagarajan 5.Pelita Nasi Kandar International (P) Ltd., Appaswamy Towers 17 & 18, Sir Thiyagaraya Road T.Nagar, Chennai 600 017. .. Respondents in all appeals Original side appeals preferred under Order 36 Rule 1 of O.S. Rules read with Clause 15 of the Letters Patent against the order of the learned Single Judge dated 19.3.2004 in O.A.Nos.792, 901, 903, 902, 56, 794 and 793 of 2003 in C.S.No.697 of 2003. For Appellant : Mr.T.R.Rajagopalan Senior Counsel for Mr.D.Gangadharan For Respondents : Mr.R.Parthasarathy for Mr.Sathish Parasaran for R1 to 4 Mr.P.Sukumar for R5 COMMON JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) These appeals have arisen from a common order of the learned Single Judge of this Court made in O.A.Nos.792 to 794 of 2003, 901 to 903 of 2003 and 56 of 2004 in C.S.No.697 of 2003.
2.The appellant is the plaintiff in all these appeals.
3.In C.S.No.697 of 2003, the plaintiff, a flat owners' association, on the basis of the averments and allegations, sought for (a) a mandatory injunction directing the defendants to remove the unauthorized structure being Chimneys, blowers and generators; (b) a mandatory injunction directing the defendants to remove the obstructions and hindrance caused to the property described in Schedule B(a) and B(b); (c) a decree for a sum of Rs.9,21,825/- as compensation or the use of Schedule B(a) and B(b) properties from December 2002; (d) future damages for the occupation at the rate of Rs.1,02,425/- from the date of plaint; (e) a decree against the defendants to pay maintenance charges quantified at Rs.72,85,000/- from 7.4.2003 till the date of plaint and at the same rate after plaint; and (f) an injunction restraining the defendants from letting any sewerage or sullage water, being a source of nuisance in the residential area. At the time of filing of the suit, the plaintiff filed six applications for interim reliefs namely O.A.No.792/2003 to restrain the defendants from causing nuisance to the members of the plaintiff association by polluting the air, creating excess noise pollution and letting in sewerage and sullage water thereby polluting the main source of the plaintiff's drinking water situate within Schedule A property; O.A.No.793/2003 to restrain the defendants from preventing the members of the plaintiff from the use of the Schedule B(a) and B(b) properties as well as other common areas; O.A.No.794/2003 to restrain the defendants from utilizing the common amenities of the plaintiff including the car parking space, the lifts, the terrace and other facilities without payment of maintenance charges; O.A.No.901/2003 to restrain the defendants from utilizing Schedule B(b) property for any other purpose other than the purpose for which it has been set apart; and O.A.No.902/2003 to restrain the defendants from utilizing the Schedule B(b) property either as a kitchen or for storage of combustible materials/LPG cylinders; and O.A.No.903/2003 to restrain the defendants from operating/using the unauthorized chimneys installed around Block A of the Schedule A property. The fifth defendant filed O.A.No.56 of 2004 for an ad-interim injunction restraining the first respondent/plaintiff association from preventing the entry and parking of the commercial vehicles carrying provisions, vegetables and other articles and of the staffs of the applicant in parking slot at the rear portion of 'A' Block of the suit mentioned premises.
4.The case of the plaintiff who sought the interim reliefs as could be seen from the averments in the plaint and affidavits in support of the applications can be stated thus:
(a) The members of the plaintiff association are owners having undivided share in the land and corresponding built up area in the Schedule A property and they are entitled to the common enjoyment and use of the Schedule B(a) and B(b) properties. The association was formed to protect and promote the basic amenities and also the welfare and common interest of the owners of the suit property. The entire common areas, basic amenities and maintenance vested with the society and no individual member has got any exclusive right to be claimed or authority over any of the common areas or amenities in the suit property. It is also reflected in the bye-law of the plaintiff association. The defendants 1 to 3 had purchased certain commercial apartments in Block A of the said property; but, they laid exclusive claims for Schedule B(a) and B(b) properties and obstructed the plaintiff's members from the common use and enjoyment of the common areas which was objected to by the other apartment owners who are the occupiers of Schedule A property. Hence the plaintiff entered into an agreement dated 26.2.1998 with the respondents/defendants 1 to 3 represented by their agent/fourth defendant whereby the defendants 1 to 3 have agreed not to claim any exclusive right for the open space in and around the schedule A property and also the front garden area. It was clearly agreed that the said areas would form the common property of the various flat owners who are the occupiers.
(b) While the matter stood thus, the defendants 1 to 4 approached the association and informed that the fifth defendant was a world famous Malaysian fast food restaurant desiring to commence its business at Chennai. The defendants 1 to 4 informed that they had decided to lease out their portion of the built up areas to the fifth defendant to enable to set up a fast food restaurant. They requested the plaintiff to use of the front garden area namely Schedule B(b) property and agreed to pay compensation of Rs.35,000/- per month to the plaintiff association for the said purpose. The plaintiff in turn proposed to utilise that amount for the upkeepment and maintenance of the suit property. But, the fifth defendant has installed number of unauthorized structures like blowers, huge chimneys, air-conditioners, generators, etc., in the common area of the Schedule A property thereby obstructing and blocking the other owners from the common enjoyment of the said common areas. As agreed, the fifth defendant has not paid Rs.35,000/- to the plaintiff. Besides non-payment of the rental amount, the defendants have caused lot of nuisance to the members of the plaintiff. The running of the restaurant itself has become a health hazard in view of the overflowing sewage, perpetually spills out the harmful waste into the property. Since the defendants failed to adhere to the norms, a notice was issued on 13.5.2003 to remove the unauthorized structure and pay a compensation as agreed. The defendants have issued a reply with unsustainable contentions.
(c) The defendants 1 to 3 had never any right over Schedule B(a) property as alleged by them in their legal notice. A perusal of the sale deed would clearly indicate that the defendants' claim was false. The defendants have acted with an intention to deceive and deprive the members of the plaintiff association from using Schedule B(a) property. The defendants were obstructing the Schedule B(a) and B(b) properties by putting it to exclusive use by the customers of the fifth defendant. The defendants are not entitled to claim or enjoy exclusive right over any portion of Schedule B(a) and B(b) properties since no individual owner of the apartment can hinder or obstruct the other co-owners from the enjoyment of the common rights and any obstruction of the common areas was liable to be removed. The defendants are liable to deliver vacant possession of the Schedule B(a) and B(b) properties to the members of the plaintiff and they are also liable to make payment of damages. Under the circumstances, all the interim reliefs have got to be granted.
5.The defendants 1 to 4 filed a common counter inter alia alleging that the property comprising of the building of the defendants and the land measuring about 12 grounds was the subject matter of a registered agreement of sale dated 19.8.1985 between the original owners of the property and M/s.Ravi Ram Builders. Thereafter two blocks were put up in the schedule mentioned property which could be seen from the planning permit filed by the plaintiff. The defendants 1 to 3 are the owners of the basement, ground floor and Mezzanine floor respectively of a total undivided share of 150/1710 in the lands by way of conveyance under the three sale deeds dated 11.11.1988. From the time onwards, the defendants have been in continuous and uninterrupted possession of the said properties. In addition thereto, the respondents were also granted rights by M/s.Ravi Ram Builders for exclusive use of the limited common area on the front and western portion of the building in consideration of Rs.10,000/- and a memorandum of understanding dated 11.11.1988 was also entered into. Thus, the defendants 1 to 3 were the owners of the commercial property as purchased by them in A Block along with the basement and for the exclusive right over the limited common areas as found under the Tamil Nadu Apartment Ownership Act 1994 in respect of the front and western side of the building. The total area thus allotted to them as a limited common area is well within the total area that they were entitled to by virtue of being owners of the basement, ground and mezzanine floors of a total extent of 7500 sq. ft. Hence the entire claim of the plaintiff that they have ownership right in respect of the basement and its common area was patently false since even from the planning permit submitted by the builders it is quite clear that it was not a common area and has not been marked as such and it has been exclusively conveyed to the respondents.
6.It is further alleged that the front portion namely the Block A consists of commercial as well as residential flats whereas the rear portion was purely residential. While so, even from the inception, the residents have been constantly creating hurdles for the respondents in their legitimate use and enjoyment of the properties with a view to collect large amounts as maintenance charges from them in order to subsidize the other owners of the maintenance charges that they have to pay for the maintenance of the building. The respondents have been regularly paying the dues even when the premises were kept vacant. At that point of time, some of the owners for the reasons best known to them, started creating problems. Therefore with the sole intention of bringing to an end the conflict and to amicably resolve the issue, discussions were held and attempt was made to enter into an agreement in that regard by way of an agreement dated 26.2.1998 between the members of the plaintiff association and the defendants. The above agreement was never pertaining to basement since it has been exclusive property of the first defendant. But it was pertaining to the additional amounts for the limited common area. The above said agreement also rearranged the entry and exit of vehicles to and from the building. The said agreement could not be solemnized for the reason that the majority of the residents continued to have objections to the same and it was not signed by all the residents and therefore it was not given effect to. Even in respect of the alteration of the right to the limited common area, it cannot be changed since it would effectively amount to transfer of the rights of the respondents relating to immovable property and also the alteration is of permanent character under the terms of the Tamilnadu Apartment Ownership Act. If to be done, it could be done with the consent of all the apartment owners which admittedly never took place.
7.It is further stated that the respondents continued to make the regular payment towards the charges. But, they were denied of the benefits as well as the maintenance. In fact, till date, they have not availed either the water or any other common facility. The signatory in the plaint on behalf of the association was related to the original vendor of the property and he also owned certain flats. He and his family members were constantly harassing the respondents only to perpetuate their illegalities. Under the sale deeds registered in favour of all the buyers of the flats in respect of the undivided share as well as from the planning permission, it would be quite evident that the undivided share in the entire extent has been conveyed and the description in respect of the boundaries is also clear. The respondents 1 to 3 have let out the property on rent to the fifth defendant and an agreement in that regard was also entered into. From the inception, there have been constant pinpricks from certain vested interests who with a view to make illegal profit have been making huge and preposterous claim of a sum of Rs.35,000/- as maintenance charges which was originally Rs.2156/-. Such a claim was only illegal since the maintenance charges was equally to be borne by all the owners in proportion to their undivided share and one flat owner cannot be called upon to pay an amount 15 times or more than what is being charged from the other owners. Despite the same, the respondents were continuously paying higher maintenance charge than the other owners. The respondents made several efforts to amicably resolve the same. Since the fifth defendant is operating and conducting an international food chain, highest level hygiene and cleanliness was to be maintained.
8.It is their further case that the applicant association is an illegal association. Since it has not complied with any of the laws, it is understood that the association has been declared as defunct by the Registrar of Societies for not complying with the requirements of the statute. The suit has been brought forth with malafide intention in order to make the defendants amenable to the illegal demands. The suit is not maintainable. The basis for making the claim as to the rights of the other owners has not even been made known. The sale deeds have not been filed for the obvious reasons to demonstrate the falsity of the claims of the applicant. The very basis for the suit is the so called claim of the other owners in respect of the Schedule B(a) and B(b) properties, but without any evidence for making such a claim. Hence, the applications are frivolous, and they are only to harass the respondents.
9.They further alleged that the plaintiff association has much relied on a document wherein it is claimed that the defendants 1 to 4 have transferred the rights in respect of the alleged schedule B(b) property in favour of the plaintiff association. The respondents reiterate that the said document filed by the plaintiff shown as document No.6, was void and non-est in law since there cannot be any transfer of an immovable property without registration and payment of necessary stamp duty. The plaintiff has made such unlawful claim when the document would indicate that there was conveyance of the schedule mentioned properties designating them as of common area. This would amount to transfer of property and the document has to be compulsorily registered. Even assuming that the subject matter of the said agreement was pertaining to common area, such undivided interest in terms of Sec.6(2) of the Tamilnadu Apartment Ownership Act can be altered only with the consent of all the apartment owners and the agreement has not been signed by all the apartment owners and therefore it is unenforceable. The said document does not pertain to Schedule B(a) property, the subject matter of the present proceedings. In fact Schedule B(a) property has already been conveyed to the respondents by way of sale deed namely Document No.1624 of 1988, and thus, the very basis of the claim of the plaintiff is incorrect.
10.The fifth defendant filed an application in O.A.No.56 of 2004 seeking interim injunction to restrain the plaintiff association from preventing the entry and parking of the commercial vehicles, etc., as stated above. The plaintiff opposed the application.
11.All the applications were taken up for enquiry by the learned Single Judge. After hearing the contentions put forth by both sides and looking into the materials available, the learned Single Judge has passed an order which is the subject matter of challenge before this Court.
12.The questions that would arise for consideration are:
(i)Whether the plaintiff association is entitled to have the interim injunction as asked for in the aforestated applications.
(ii)Whether the injunction granted in favour of the 5th defendant has got to be vacated for the reasons put forth by the appellant?
13.Advancing arguments on behalf of the appellant, the learned Senior Counsel Mr.T.R.Rajagopalan would submit that the provisions of the Tamil Nadu Apartment Ownership Act, 1994, are applicable to the present facts of the case; that the said provision regulates not only the rights and duties of the land owner and the occupier but also that of the builder and any contravention of the provisions of that Act, pertaining to the common enjoyment and amenities and the obligations in relation to the owners and occupiers will have a bearing on the decision; that any transaction contrary to Sections 6(1) and 6(2) of the Act is null and void, and therefore the agreement dated 19.8.1988 relied on by the first respondent cannot convey any title to the first respondent; that it is pertinent to note that the common area cannot be conveyed to anybody either by the owner or by the builder as they have no right over the same; that it is true that the appellant has made an admission that the respondents 1 to 3 have purchased the said basement; but, mere admission will not give them title to the property; that while the sanctioned plan specifically states that the said basement and frontage are common areas, the Court cannot travel beyond the scope of the pleadings and the relief sought for and decide title to the said basement at the interlocutory stage; that in the case on hand, the respondents with the help of the builder have illegally deprived the applicant association and its members of the common areas which they are legally entitled to use; that any agreement entered into between the builder and the respondents contrary to the sanctioned plan depriving the user of the common areas and granting absolute right to any individual, will be void; that it is evident from the circular dated 12.1.2003 that it refers to the apprehensions raised by the members regarding the activities of the fifth defendant; that apart from that, there were numerous complaints from all the residents of Schedule A property regarding the pollution and nuisance caused by the fifth respondent; that the documents filed before the learned Single Judge would indicate that the right to use of the common areas are being hindered, obstructed to and prevented by the respondents; that the licenses from the various authorities had been obtained by the fifth defendant by suppression of facts; that the appellant filed a writ petition against the Pollution Control Board, the CMDA, the Corporation of Chennai, Fire Service Authorities, etc., challenging the validity of the license; that in an equitable remedy, an occupation or user of an area contrary to statute cannot be regularized by imposing premium for the wrong doing; that under the circumstances, the learned Single Judge should have allowed the applications filed by the appellant and hence the order of the learned Single Judge has got to be set aside.
14.In answer to the above, it is contended by the respective learned Counsel for the respondents that the plaintiff association itself has no standing in the eye of law; that no proceedings can be maintained and the Secretary has no authority to initiate any proceedings; that the first respondent has a right and exclusive ownership and enjoyment of the schedule B(a) and B(b) properties in view of the registered sale deed; that in order to reduce the constant harassment by the other apartment owners and occupiers, an agreement dated 26.2.1998 was sought to be entered into; that the same was never given effect to; that this is because the front portion of the building was never maintained as a garden and was used as a parking place for M/s.MPL Automobiles; that the claim of the appellant that the respondents herein had agreed to pay Rs.35,000/- is a blatant falsehood; that in fact, only because of the disruption, and constant nuisance by the residents in the floor above, the fifth respondent had to put up umbrellas in the front portion; that the respondents in fact informed the erection of the chimney and generators which was accepted and the same was recorded in the minutes of the meeting dated 25.12.2002; that the fifth respondent had not caused any nuisance to other members of the association; that the question of any enjoyment or obstruction of the common area does not arise at all and the vacant possession of the schedule mentioned property also does not arise, and hence all the appeals have got to be dismissed.
15.Admittedly, the property in question consists of 2 blocks. The blocks were constructed by M/s.Ravi Ram Builders not a party to the suit pursuant to an agreement of sale dated 19.8.1988 a registered one, with the original owners of the property. On construction, the building was named as Appasamy Towers. A Block consists of 7 commercial apartments and 24 residential apartments, while Block B consists of 33 residential apartments. The building is facing and abutting Sir Thiyagaraya Road on the northern side. The owners of the residential and commercial complexes have constituted an association, a registered one, and the same was registered under the Tamilnadu Societies Registration Act. The defendants 1 to 3 had rights over the commercial premises in Block A of the said property. The basement area in Block A and the open space around the same are the subject matter in controversy. The consistent stand of the plaintiff is that both are common areas and both spaces are enjoyed in common by the flat owners of the said property and hence the defendants 1 to 3 cannot be allowed to claim the exclusive ownership or right to use the said property and likewise, the fifth defendant, a tenant under the defendants 1 to 3, cannot also do. On the contrary the stand taken by the defendants 1 to 3 was that they are the owners of the basement, ground and mezzaine floors together with undivided share of 150/1710 under the sale deeds in their favour dated 11.11.1988. Under the circumstances, it has got to be decided whether the basement shown as B(a) of Block A and the open space shown as B(b) in Block A are the common areas which has got to be enjoyed by all as contended by the plaintiff, or the defendants 1 to 3 have got exclusive title in respect of the basement and exclusive right to use in respect of the open space. The basement shown as Schedule B(a) is measuring 2750 sq. ft. and the open space shown as Schedule B(b) is measuring 1345.70 sq. ft. A perusal of the sale deeds executed by the owners of the property on 11.11.1988 would indicate that they have purchased undivided share as mentioned in the Schedule of property namely the piece and parcel of the land, built house and building erected in Door No.16, 17 and 18, Sir Thyagaraya Road, T.Nagar, Madras, measuring 12 grounds. This would clearly indicate that they have purchased undivided share in the property owned by the previous owners.
16.The memorandums of contract were entered into on 19.8.1988 between the defendants 1 to 3 and M/s.Ravi Ram Builders for the construction of one chamber for the proportionate undivided share in the land viz. Chamber in basement floor. On 26.2.1998, the flat owners' association who is the plaintiff in the suit, have entered into an agreement with the defendants 1 to 3 which incorporates a recital as follows:
"Whereas the parties of the second part have purchased the basement, ground and mazeanine areas respectively, situated in Block "A" in No.17, Sir Thyagaraya Road, T.Nagar, Madras 600 017, from M/s.Ravi Ram Builders."
It is also indicated in the said agreement that the purchasers of the flat built by the promoters namely M/s.Ravi Ram Builders, have formed an association under the name and style of Sri Venkatachela Flat owners Association. From all the above, it would be quite clear that the defendants 1 to 3 who after the purchase of the undivided share of the property as evidenced by the sale deeds, entered into an agreement dated 19.8.1988 with M/s.Ravi Ram Builders for the construction of the chamber in the basement floor in Block A of Schedule B(a) property and subsequently entered into an agreement with the flat owners association on 26.2.1998. A perusal of the agreement would clearly indicate an admission made by the flat owners association that the defendants 1 to 3 have purchased the basement area. At this juncture, it is pertinent to point out that the defendants 1 to 3 even a decade before, have entered into an agreement with M/s.Ravi Ram Builders for the construction of the chamber in the basement area and hence when the agreement was entered into between the flat owners association as the first part and the defendants 1 to 3 as the second part, the admission made by the plaintiff as to the ownership of the defendants 1 to 3 in respect of the basement area should have been made with full knowledge and conscious of the fact. That apart, nowhere the plaintiff has made any claim as to the ownership or possession in respect of the basement area at any point of time. While the defendants 1 to 3 are able to show that they have been in possession and enjoyment of the basement all along in the past, it cannot be stated that the plaintiff has made out any prima facie case to ask for any interim order against them at this juncture, and hence the application for interim injunction in that regard was rightly dismissed by the learned Single Judge.
17.As far as the open space shown as Schedule B(b) of A Block is concerned, this Court has to record its disagreement with the order of the learned Single Judge. It is not in controversy that the defendants 1 to 3 as could be seen under the sale deeds purchased the undivided share in the land and building. Equally all the flat owners have made the respective purchase from M/s.Ravi Ram Builders who made the construction of A and B Block. Needless to say that every flat owner who has purchased from the builder is entitled to a undivided share in the land on which the constructions were made. Admittedly, the open space is situate in and around the apartments and also in the front side of the building which is called as a garden area. The claim of the defendants 1 to 3 that the open space in and around and the garden area have been in their exclusive possession and enjoyment from the time of the purchase of the property has got to be negatived in view of the recitals in the agreement entered into between the defendants 1 to 3 and the flat owners association on 26.2.1998 referred to above. The relevant clauses are as follows:
"4.The Parties of the SECOND PART shall not put forward any claim of exclusive user rights for the open spaces in and around the apartments and the Front Garden and the same shall be the common property of the various flat owners. Further the Parties of the SECOND PART do hereby declare and affirm that the documents if any entered into by them earlier with the promoters namely Ms.Raviram Builders conferring on the former exclusive or any other rights to open spaces, Parking privileges, Garden and etc., under such documents shall all stand altered by this agreement.
...
6.The Parties of the SECOND PART do hereby agree and undertake to maintain the Garden as shown in the sketch attached which is common property of all various flat owners, measuring about 1347.5/- sq. Fts. on the Northern side of "A" Block i.e., in front of "A" Block abutting Sir Thyagaraya Road, at their own cost and expense and such maintenance shall be for and on behalf of the party of the FIRST PART. The said place shall be used only as a garden and not for any other purpose."
18.As rightly contended by the learned Senior Counsel for the appellant, the defendants 1 to 3 cannot be allowed to use the Schedule B(b) property for any purpose other than for which it is earmarked. The fifth defendant who has made his claim only through the defendants 1 to 3 is the lessee, and if to be so, those restrictions which would apply to the defendants 1 to 3 would equally apply to the fifth defendant also. The agreement entered into between the plaintiff association and the defendants 1 to 3 dated 26.2.1998 referred to above clearly makes it quite evident that all the flat owners can exercise the right over the open spaces and also front garden area. It is true that it does not speak anything about the rights of the association over the basement. But, it makes clear that the said agreement was an interference on the claim made by the defendants 1 to 3 about their exclusive right over the said open space area.
19.Much reliance was placed on an agreement entered into on 11.11.1988 thereby the first defendant had entered into a construction agreement with the builder by building a structure. At no stretch of imagination, such an agreement entered into between the first defendant and the builder could be either binding on the plaintiff association or it can be taken as an admission made as to the title of the defendants 1 to 3 in respect of the open spaces. It is true that the agreement provides that Schedule B(b) property was to be maintained by the defendants as a garden at their cost which maintenance should be for and on behalf of the plaintiff. At this juncture, it is pertinent to point out that they specifically averred in the plaint that the defendants 1 to 3 requested the plaintiff for the use of the front garden area shown as Schedule B(b) property by offering to pay compensation of Rs.35,000/- per month to the plaintiff which is to be utilized for the upkeep of the property. This was only with a view that the fifth defendant could not run the restaurant effectively without the front garden area. But, it is quite clear that the said agreement was not given effect to. There was a request made by the defendants 1 to 3 that the fifth defendant, the lessee of the defendants 1 to 3, might be permitted to use the front garden area and also to pay compensation of Rs.35,000/-. But, there is nothing indicative of the fact that the same fructified or can be legalized.
20.The learned Counsel for the respondents placed reliance on the minutes of the executive committee meetings of the plaintiff association on 5.1.2003 and 12.10.2003 and would contend that the minutes were to the effect that the fifth defendant was to conduct the restaurant in the commercial area let out by the defendants 1 to 3 including the garden area and open space and there was no objection from any member of the association at that meetings. Neither the defendants 1 to 3 nor their lessee the fifth defendant could be allowed to take advantage of the fact that there was no objection raised by any of the member in its meetings. Neither the offer made by the fifth defendant to pay Rs.35,000/- to use the open space in the front area was accepted nor has the fifth defendant made any payment, and thus, it would be quite clear that the plaintiff association never permitted the defendants 1 to 3 or their lessee the fifth defendant to use the open spaces namely Schedule B(b) property. It is true that without the property namely Schedule B(b), the fifth defendant could not carry on its restaurant effectively. But, neither the defendants 1 to 3 could make any exclusive claim as to user rights to open space in and around the premises shown as Schedule B(b) property in view of the agreement entered into between them and the flat owners association nor the fifth defendant who claims the right of user through defendants 1 to 3 to use the common area, could do so. All would go to show that the fifth defendant without any license or permission from all the flat owners is using the open spaces and the garden area which, in the opinion of the Court, cannot but be unlawful. Hence the plaintiff has made out a prima facie case to injunct the fifth defendant from using the Schedule B(b) property.
21.Now, at this juncture, the learned Senior Counsel for the appellant would fairly concede that insofar as the orders made by the learned Single Judge in O.A.Nos.792, 902 and 903 of 2003 need not be disturbed for the reason that the question that would arise for consideration in those applications could be decided only on appreciation of evidence to be adduced by the parties at the time of trial, and hence he is pressing the relief in the other applications.
22.In view of the reasons stated above, the following order is passed:
(a) The order of the learned Single Judge made in OA Nos.792, 902 and 903 of 2003 is not disturbed. But, at the same time, the parties are at liberty to raise their respective contentions at the time of the trial, and it has got to be decided on the merits of the matter on appreciation of evidence to be adduced by the parties. Accordingly, OSA Nos.210, 212 and 213 of 2004 are disposed of.
(b) The order of the learned Single Judge denying the interim injunction in respect of Schedule B(a) property in OA No.793/2003 is affirmed. In respect of Schedule B(b) property, the order of the learned Single Judge is set aside, and interim injunction is granted restraining the respondents from preventing the members of the plaintiff association from the use of the said property as well as the common area situated in the suit property. Hence OSA No.216 of 2004 is partly allowed.
(c) The order of the learned Single Judge made in OA 794/2003 is set aside, and there will be interim injunction restraining the defendants from utilizing the common amenities of the plaintiff including the car parking space, the lifts, the terrace and other facilities without payment of maintenance charge. Accordingly, OSA No.215 of 2004 is allowed.
(d) The order of the learned Single Judge made in OA 901/2003 is set aside, and OSA No.211 of 2004 is allowed granting interim injunction restraining the defendants from utilising the Schedule B(b) property for any other purpose other than the purpose for which it has been set apart as per the planning permit.
(e) As regards OSA No.214 of 2004, it is reported by both sides that the order of the learned Single Judge passed in O.A.No.56 of 2004, is being followed by them, and they undertake to follow the same order subject to the decision to be taken in the suit. Accordingly, the order of the learned Single Judge in that regard is confirmed and OSA No.214 of 2004 is dismissed.
(f) The parties are directed to bear their costs.
nsv/