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Madras High Court · body

2009 DIGILAW 1653 (MAD)

I. Akbar Ali v. Paramasivam & Another

2009-06-10

G.RAJASURIA

body2009
Judgment :- 1. The long and short of the case of the plaintiff, as stood exposited from the averments in the plaint could succinctly and precisely be set out thus:- The plaintiff is the owner of the flat found described in the schedule of the plaint. The defendants 1 and 2 are also other flat owners in the same complex. D1 is responsible for maintaining the common area and also providing other facilities to the flat owners, for which, he also collected money; but, he has not so far accounted. D1 and his wife D2 indulged in dumping materials in the common passage and also interfered with the right of the plaintiff in parking his car in the area ear marked for his use. Hence this suit seeking the following reliefs: "1. To grant permanent injunction, restraining the defendants their agents, servants and men and everyone claiming under him and acting on his behalf from, in any way, interfering with the plaintiffs peaceful possession and enjoyment of the plaintiffs property and more fully described in the schedule B hereunder, either by interfering with the car parking area earmarked for the plaintiff or by blocking the entrance to the B schedule property from Kumarappa Street, or by interfering with the common areas and common amenities or in any other manner whatsoever; 2. to grant permanent injunction restraining the defendants their agents, servants, and men and everyone claiming under him and acting on his behalf from, in any way, trespassing into the common area like common passage open space around the flat, open terrace and other common facilities and amenities either by storing the things in the common area or by high handedly occupying the common area and common facilities or in any other manner whatsoever; 3. to direct the defendants to pay the plaintiff a sum of Rs.10,00,000/- (Rupees ten lakhs only) as damages together with interest at 24% per annum from the date of the plaint till date of payment; 4. to grant permanent injunction restraining the defendants 1 and 2 from in any way tampering with the electricity meter or water supply or any other common amenities in the suit flat or in the common area, common passage, open space, open terrace, etc., or in any other manner whatsoever; 5. to grant permanent injunction restraining the defendants 1 and 2 from in any way tampering with the electricity meter or water supply or any other common amenities in the suit flat or in the common area, common passage, open space, open terrace, etc., or in any other manner whatsoever; 5. to direct the first defendant to render accounts from May 2004 for the amounts collected from the plaintiff and other flat owners towards towards mainbtenance charges for the maintenance of A Schedule property; 7. to direct the defendants 1 and 2 to pay cost of the suit." 2. The defendants entered appearance and filed their written statement, gainsaying and refuting the allegations/averments in the plaint. 3. My learned predecessor framed the following issues: "1. Whether the plaintiff is entitled to get an order of permanent injunction restraining the defendants and their men from interfering with the plaintiffs peaceful possession and enjoyment of the plaintiffs property either by interfering with the car parking area earmarked for the plaintiff or by blocking the entrance to the B Schedule property as prayed for? 2. Whether the plaintiff is entitled to get an order of permanent injunction restraining the defendants and their men from trespassing into the common area like common passage open space around the flat, open terrace and other common facilities and amenities either by storing the things in the common area or by high handedly occupying the common areas and common facilities as prayed for; 3. Whether the plaintiff is entitled to get a decree for Rs.10 lakhs towards damages with interest at 24% per annum as prayed for? 4. Whether the plaintiff is entitled to an order of permanent injunction retraining the defendants 1 and 2 from tampering with the electricity meter or water supply or any other common amenities in the suit flat or in the common area, common passage, open space, open terrace as prayed for? 5. Whether the plaintiff is entitled to a decree for rendition of accounts against the first defendant from May 2004 as prayed for? 4. Before the Master, the plaintiff examined himself as P.W.1 and Exs.P1 to P6 were marked. However, the defendants did not choose to cross-examine P.W.1. Hence, the matter has been listed before me. Even today, neither the defendants nor their advocate has appeared before me. 4. Before the Master, the plaintiff examined himself as P.W.1 and Exs.P1 to P6 were marked. However, the defendants did not choose to cross-examine P.W.1. Hence, the matter has been listed before me. Even today, neither the defendants nor their advocate has appeared before me. However, the learned counsel for the plaintiff would briefly narrate the entire facts with reference to the evidence available on record and pray for the granting of the reliefs. 5. Issues:1 and 2: The perusal of the records, including the Chief Examination Affidavit and the following documents, namely, Ex.P1-the sale deed dated 5. 2000; Ex.P2-the construction agreement dated 5. 2000; Ex.P3-the copy of the ground plan; Ex.P4-the letter handing over possession; Ex.P5-the copy of the complaint and Ex.P6-the copy of the order dated 3. 2007 passed in O.A.Nos.361, 390 and 719 of 2006 would demonstrate and display, spotlight and highlight the fact that the plaintiff being a flat owner, as described in the schedule of the plaint, is entitled to park his car in the area ear marked for it and he is also having a right to see that no one is interfering with the common passage in that apartment complex. But, in this case, the defendants have interfered with the car parking area of the plaintiff and also the common passage meant for the usage of the plaintiff and as such, I could see considerable force in the argument of the learned counsel for the plaintiff that the plaintiff is entitled to the injunctions as prayed for in the plaint. In the absence of any rebuttal evidence, I am having no reason to doubt or look askance at the case of the plaintiff. Accordingly issues 1 and 2 are decided in favour of the plaintiff and as against the defendants. 6. Issue No.3: This issue is relating to claim for damages. The plaintiff would claim Rs.10,00,000/- as damages. It is a trite proposition of law that awarding damages is not a matter of course and there should be specific evidence relating to quantification of damages. No doubt the mental agony suffered by the plaintiff cannot be quantified so easily in terms of money. The plaintiff would claim Rs.10,00,000/- as damages. It is a trite proposition of law that awarding damages is not a matter of course and there should be specific evidence relating to quantification of damages. No doubt the mental agony suffered by the plaintiff cannot be quantified so easily in terms of money. The plaintiff faced difficulty in parking his car as well as using the common passage and naturally he might have been put to untold misery and mental agony, for which I am of the considered opinion that awarding a sum of Rs.1,00,000/-(rupees ten lakhs) would meet the ends of justice. Accordingly issue No.3 is decided. 7. Issue No.4: This issue is relating to seeking injunction so as to restrain the defendants from interfering with the enjoyment of electricity supply, water supply and other amenities, which are to be enjoyed by the plaintiff. 8. The learned counsel for the plaintiff would expound and explain that proceedings are pending before the authority under the Electricity Act and it is for the Electricity authorities to deal with the matter and arrive at a conclusion. 9. However, I could see considerable force in the prayer of the plaintiff that there should be an injunction so as to restrain the defendants from interfering with the amenities, including the electricity supply and water supply enjoyed by the plaintiff. The sworn statement of the plaintiff would be to the effect that the defendants did interfere with such amenities and in such a case, in the absence of rebuttal evidence, I would like to grant injunction on that ground also. Accordingly, issue No.4 is decided in favour of the plaintiff. 10. Issue No.5: This issue is relating to calling upon the defendants to render accounts. 11. The learned counsel for the plaintiff would submit that the plaintiff paid Rs.500/-per month to D1 for the purpose of maintenance of the common passage and also for providing other amenities to the plaintiff, as he being an occupier of a flat in that apartment complex. Since the first defendant has not furnished accounts, I would like to direct D1 to furnish accounts to the plaintiff within a period of three months from the date of receipt of copy of this order, failing which, it is for him to file separate application for further action. 12. Since the first defendant has not furnished accounts, I would like to direct D1 to furnish accounts to the plaintiff within a period of three months from the date of receipt of copy of this order, failing which, it is for him to file separate application for further action. 12. Issue Nos.6 and 7: In view of the reasons given for deciding the above said issues, the suit is decreed as under:- "a. The defendants are restrained from interfering with the plaintiffs peaceful possession and enjoyment of the plaintiffs property and more fully described in the schedule B of the plaint, either by interfering with the car parking area earmarked for the plaintiff or by blocking the entrance to the B schedule property from Kumarappa Street, or by interfering with the common areas and common amenities or in any other manner whatsoever; (b) the defendants are restrained from trespassing into the common area like common passage open space around the flat, open terrace and other common facilities and amenities either by storing the things in the common area or by high handedly occupying the common area and common facilities or in any other manner whatsoever; (c) the defendants are directed to pay to the plaintiff a sum of Rs.1,00,000/- (Rupees one lakh) as damages together with interest at 24% per annum from the date of the plaint till the date of payment within a period of three months from the date of receipt of copy of this order, failing which, the same shall carry 6% interest from the date of decree till realisation. (d) the defendants are restrained from in any way tampering with the electricity meter or water supply or any other common amenities in the suit flat or in the common area, common passage, open space, open terrace, etc., or in any other manner whatsoever; (e) the first defendant is directed to render accounts from May 2004 for the amounts collected from the plaintiff and other flat owners towards maintenance charges for the maintenance of A Schedule property. Accordingly, the suit is decreed with costs.