M/S SHWAS HOMES PVT. LTD. v. N.V. HANEESH KUMAR

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933** **OP(C).No. 3364 of 2011(O)** **-------------------------** **CMA.38/2011 of I ADDL.DISTRICT COURT, ERNAKULAM OS.270/2011 of PRL.M.C.,ERNAKULAM** **....................** ## **PETITIONER** **-------------------** **M/S.SHWAS HOMES PVT.LTD., REP.BY ITS DIRECTOR,SREENI PARAMESWARAN,AGED 37, S/O. N.G. PARAMESWARAN NAIR, DIRECTOR, MYSTIC HEIGHTS,GROUND FLOOR,KANIYAMPUZHA ROAD, EROOR,NADAMA VILLAGE, R/AT VILLA NO.1, MYSTIC BELLS,KANIYAMPUZHA ROAD,EROOR, NADAMA VILLAGE, PIN-682 306.** **BY ADVS. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN SRI.P.GOVIND** **RESPONDENT** **---------------------** **N.V.HANEESH KUMAR, AGED 48, S/O. N.G.VIJAYAN, RESIDING AT SHEEBA, NELLIPARAMBIL HOUSE, CHEMBUKKAVU ROAD, THRISSUR TALUK, PIN-680 020.** **BY ADVS. SRI.P.K.SAJEEV FOR R SRI.P.P.HARRIS FOR R** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/11/2011, ALONG WITH OPC NO. 3400 OF 2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** ## **OP(C).No. 3364 of 2011(O)** ## **---------------------------------------** ## **APPENDIX** **-----------------** ## **PETITIONER(S) EXHIBITS** **------------------------------------** - **EXT.P1 : TRUE PHOTOSTAT COPY OF THE PLAINT IN OS NO.270/2011, ON THE FILES OF THE MUNSIFF'S COURT, ERNAKULAM.** - **EXT.P2 : TRUE PHOTOSTAT COPY OF IA NO.1880/11 IN OS NO.270/2011, ON THE FILES OF THE MUNSIFF'S COURT, ERNAKULAM.** - **EXT.P3 : TRUE PHOTOSTAT COPY OF THE COUNTER AFFIDAVIT IN IA NO.1880/11.** - **EXT.P4 : TRUE PHOTOSTAT COPY OF THE ORDER DTD.4.4.2011 PASSED IN IA NO.1880/2011.** - **EXT.P5 : TRUE PHOTOSTAT COPY OF THE COMMON JUDGMENT IN CMA NO.38 AND 39 OF 2011, ON THE FILE OF THE DISTRICT COURT, ERNAKULAM.** ## **RESPONDENTS' EXHIBITS : NIL** **----------------------------------------** **/ TRUE COPY /** **P.A. TO JUDGE** **VK** ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C) Nos.3364 of 2011 & 3400 of 2011 -------------------------------------Dated this the 4[th] day of November, 2011.** ## **JUDGMENT** These Original Petitions arise from the order passed by the learned Principal Munsiff, Ernakulam on I.A.No.1880 of 2011 in O.S.No.270 of 2011 as confirmed by the learned Additional District Judge-I, Ernakulam by a common judgment dated 23.09.2011 in C.M.A.Nos.38 of 2011 and 39 of 2011. The learned Munsiff granted injunction restraining the defendant from running its office on the ground floor of plaint schedule building and from doing service apartment business by leasing out the rooms to hotels or providing passage through the premises of the building other than to the building in question without required licence from the concerned authorities till the disposal of the suit. It was made clear that first part of the order of injunction with regard to running of office will come into effect only after one month (since it came out in the evidence that the defendant was running its office in the said room for some time before the institution of the suit). Both sides were aggrieved by the order and preferred C.M.A.Nos.38 and 39 of 2011. Learned Additional District Judge confirmed the order passed by the learned Munsiff. Both sides are aggrieved and have preferred these Original Petitions under Article 227 of the Constitution of India. Defendant filed O.P.(C) No.3364 of 2011 while plaintiff has filed O.P. **OP(C)Nos.3364 & 3400/2011** 2 (C) No.3400 of 2011. Parties for the sake of convenience, are referred to as petitioner/defendant and respondent/plaintiff as in O.P.(C)No.3364 of 2011, hereunder. 2. As per Ext.A5, building permit (marked in the trial court) petitioner started construction of an apartment (allegedly) exclusively for residential purpose. While so, as per Ext.A2, agreement dated 06.02.2006 executed between petitioner and the respondent the latter became the owner of a flat on the 17th floor of the apartment, bearing door No.17B with covered car park area on the ground floor. Later, respondent got 1489/90,000 undivided share in the rest of the building as per Ext.A2, agreement for sale followed by Ext.A3, sale deed of the year, 2007. Respondent, it is not disputed is working abroad though according to him, often he comes to his native place and stays in the flat bearing door No.17B. While so, respondent noticed (alleged) attempts on the part of petitioner to convert portions of the apartment for commercial use. Respondent alleged that petitioner put up a name board ‘Spark Hotel Apartment’ in front of the building in question. It is also alleged that petitioner opened a way through the northern compound wall of the premises to the adjoining property belonging to it. Apprehending danger, respondent rushed to the court and instituted O.S.No.270 of 2011 seeking relief of injunction against petitioner. Respondent filed I.A.No.1880 of 2011 with a prayer that petitioner be restrained from conducting office on the ground floor, restaurant, leasing out the rooms to hotels or providing passage through the premises of the building other than to the **OP(C)Nos.3364 & 3400/2011** 3 building in question. Petitioner was given notice on the said application and directed to appear before learned Munsiff on 21.03.2011. As learned counsel for petitioner puts it, petitioner was directed to file its counter if any and get ready for hearing of the application on 24.03.2011. Accordingly, petitioner filed Ext.P3, counter on 24.03.2011 but, was unable to produce the documents in support of its claim. Learned Munsiff heard I.A.No.1880 of 2011 on 24.03.2011 and passed the impugned order which the learned Additional District Judge has confirmed by the common judgment in C.M.Appeals referred to above and which is under challenge in these proceedings. 3. Learned counsel for petitioner has contended that injunction granted by the learned Munsiff so far as doing service apartment business is concerned, is only without obtaining required licence from the authorities concerned and Ext.B series produced and marked before the learned Additional District Judge would show that the necessary licence has been obtained by petitioner from the authorities concerned. It is also submitted by the learned counsel that the local authority has regularized by a revised plan variations petitioner made in the original plan (for construction of the building). It is further contended that even the learned Munsiff accepted the case of petitioner that it has been running its professional office on the ground floor room of the building in question even before institution of the suit and that is why, petitioner was granted a month’s time to vacate the said office. In the light of Ext.B series as also the revised plan petitioner is entitled to run its professional office in the **OP(C)Nos.3364 & 3400/2011** 4 room on the ground floor. Learned counsel submitted that so far as apprehension of respondent that petitioner may make use any portion of building for any commercial activity is concerned, petitioner has in unequivocal terms stated in Ext.P3, counter affidavit that it has no intention to do so and that statement is sufficient to allay the apprehension of respondent. It is also contended that respondent has not shown any prima facie case, not to say about any irreparable loss or injury if injunction is not granted. It is also contended that so far as access to the adjoining property of petitioner through the northern side of the compound where the building is situated is concerned, that access will be used by petitioner alone for its personal use and nobody else will use it. In the circumstances, it is contended that the balance of convenience is in favour of petitioner and hence the order of injunction granted by the learned Munsiff and confirmed by the learned Additional District Judge is only to be vacated. 4. In response learned counsel for respondent has contended that whatever regularization the local authority has made and the revised plan issued by it will not affect the claim and right of respondent so far as the use of the apartment is concerned in the light of Exts.A1 to A4. It is contended that permission the local authority has given by Ext.B series or the alleged regularization of variation from the original plan effected by the petitioner are illegal in so far as it was done after Exts.A1 to A4, without reference to the respondent and hence is subject to the scrutiny of the appropriate authority. It is **OP(C)Nos.3364 & 3400/2011** 5 contended that so far as petitioner has no right in the room in question it having already sold out various flats, it cannot any more be allowed to occupy the room in question. In that view of the matter respondent has a prima facie case in his favour. It is contended that when the petitioner who has no right over the building is occupying a portion of it and using it for its purposes, certainly it must be taken that irreparable injury and loss will be caused to the respondent and in the circumstances, finding regarding balance of convenience also should be in favour of the respondent as courts below found. It is contended that learned Munsiff and learned Additional District Judge were not justified in refusing a portion of the relief sought by the respondent in I.A.No.1880 of 2011. Hence it is prayed that O.P.No.3400 of 2011 may be allowed and O.P.No.3364 of 2011 may be dismissed. 5. I have heard learned counsel on both sides as to rival contentions they have raised. I must bear in mind the limitations this Court has while exercising the supervisory power under Article 227 of the Constitution of India. The Supreme Court in **Jai Singh and others v. Municipal Corporation of Delhi and another ((2010) 9 SCC 385)** has held that the power under Article 227 of the Constitution cannot be exercised as if ‘a bull in a china shop’. My attempt therefore will be to consider the rival contentions within the frame work of Article 227 of the Constitution as held in the above decision. 6. So far as the claim of respondent is concerned, what is required is **OP(C)Nos.3364 & 3400/2011** 6 only to prove a prima facie case meaning thereby a triable issue, ie., an issue which requires deeper consideration at the trial stage. Whether the respondent is ultimately to succeed in his claim or not is not a matter which the trial court is required to decide while considering prima facie case. As above stated what is required to be shown is only a case which requires consideration. It is not disputed that by Ext.A2, agreement respondent has become the owner of a flat on the 17th floor of the apartment (bearing door No.17B). It is not also disputed that respondent has got a fractional Interest in the apartment and building as per Exts.A1 to A4. A further fact which I must bear in mind is that Ext.B series as well as the alleged regularization of work done by the petitioner in variation of the original plan (which it is not disputed was for construction of the apartment for residential purpose) are all after Exts.A1 to A4 and how far Ext.B series and the regularization would affect the respondent in the light of Exts.A1 to A4 is a matter which the trial court has to decide. Prima facie, so far as respondent is concerned, he is entitled to stand by Exts.A1 to A4. 7. So far as the question regarding irreparable loss and injury is concerned, I must bear in mind that even as per the version of respondent, he is working abroad and not permanently staying in flat No.17B belonging to him as per Ext.A2. He only comes to that flat occasionally for stay. I must also bear in mind that respondent brought the suit in his individual capacity and not representing the other flat owners, under Order I, Rule 8 of the Code of Civil Procedure. Therefore, in this proceeding I am only concerned with the **OP(C)Nos.3364 & 3400/2011** 7 irreparable loss and injury that respondent has alleged in his favour if injunction is not granted. On the controversial issues involved in the case, trial court has to express its ultimate opinion after trial of the case. In the above circumstances what is required is to make some arrangements so that the parties are not prejudiced at this stage and the trial court can take appropriate decision on the rival contentions in the suit. 8. So far as petitioner using the room on the ground floor as its office is concerned, it would appear that even before the institution of the suit petitioner was doing so as is indicated by the fact that the learned Munsiff has granted a month’s time to the petitioner to vacate. In the circumstances, I am inclined to think that petitioner (whatever right petitioner claims) could be permitted to use the room on the ground floor which it is now using as its office subject to conditions. At the same time, this Court must ensure that no portion of the apartment is used for any commercial of industrial activity, to be more specific, for any use other than for residential purposes be it by service apartment or otherwise. So far as the access to the property of petitioner on the north of the compound where the apartment is situated is concerned, that will be confined to user by the petitioner alone and, that too to gain access to the adjoining land belonging to the petitioner. In the light of the above, these Original Petitions are disposed of as follows: I. Petitioner/defendant (without prejudice to the claim it has made in **OP(C)Nos.3364 & 3400/2011** 8 the written statement) is permitted to use the office space on the ground floor (which it is now using) as its professional office until disposal of the suit subject to the following conditions: (a). that petitioner shall obtain whatever licence or permission required from the authorities concerned, if any, which again shall be subject to the decision in the suit. (b) that petitioner shall as a condition for it being permitted to use the said room as office space deposit in a separate account in its name in a nationalized bank `30,000/- (Rupees Thirty thousand only) per month until disposal of the suit. Such deposit shall be made on or before 5th of every month commencing from December, 2011. As to the entitlement of the said amount, it will depend on the ultimate decision in the suit. Petitioner shall also produce the receipt for such deposit in the trial court before the 10[th] of every month. II. It is made clear that petitioner shall not withdraw the whole or any portion of the amount thus deposited or raise any loan on the security of the said amount. III. The said office space shall not be used for any purpose other than in connection with the activity of petitioner as a developer or for the purpose of service apartment (which shall be subject to the terms hereunder stated) IV. So far as use of service apartment is concerned, the same can be done by the petitioner only with the written consent of the respective owners of the flat provided further that such flats shall not be used for any purpose other **OP(C)Nos.3364 & 3400/2011** 9 than for residential purpose. V. All variations granted by the local authority to the original plan will be subject to the decision by the authority concerned. VI. It is made clear that so far as access from the compound of the apartment to the property of petitioner on the northern side is concerned, it will be confined purely to the use of petitioner. It is also directed that petitioner shall not take vehicles or building materials to its adjoining property through the compound where the apartment in question is situated. VII. The above directions are made without prejudice to the contentions that petitioner and respondent have raised in their respective pleadings which the trial court shall decide ultimately. VIII. Trial court is directed to expedite disposal of the suit after completing the pre-trial steps and dispose of the suit untrammeled by any observation or finding contained in this judgment or in the order/common judgment under challenge. IX. The order of learned Munsiff as confirmed by the learned Additional District Judge will stand modified as above stated. **THOMAS P.JOSEPH, Judge.** **cks**