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2014 DIGILAW 1140 (BOM)

Tejas Natwarlal Parekh v. Deepak Natwarlal Parekh

2014-05-07

ROSHAN DALVI

body2014
Judgment : 1. The defendant is the elder brother of the plaintiff. The plaintiff and the defendant have purchased one flat each in a unit which is like a rowhouse being Unit No.5 of Premium Unit Cooperative Housing Society Ltd at Four Bungalows, Link Road, Andheri (West), Mumbai-400 053. The plaintiff is the owner of flat No.2 on the first floor of Unit No.5. The defendant is the owner of flat No.1 on the ground floor of Unit No.5. 2. Despite the separate and independent purchase, the parties have been residing and using the entire unit No.5 as a row-house together with their family members since 1990 when it was purchased. The parties have had disputes since the last few years. The parties are not able to reside together and use the entire unit No.5 jointly as before. Consequently this suit is filed restraining the defendant from using a part of flat No.2 on the first floor of unit No.5 by removing the belongings, materials and articles of the defendant and his family members therein from there and directing the defendant and his family members to shift permanently in flat No.1 on the ground floor purchased by the defendant. The suit is also in respect of a common garden, but with which this Court is not concerned at present. 3. The plaintiff has taken out the above notice of motion restraining the joint user as above and for directing the defendant to shift as stated above. 4. The notice of motion is also for preventing the entry by the defendant and his family members in flat No.2 on the first floor of unit no.5 belonging to and owned and purchased by the plaintiff. 5. This notice of motion is also in respect of the garden and the compound wall of unit No.5 as also CCTV cameras which are put in, for but which relief is not pressed in this notice of motion. 6. The parties being brothers have consistently endeavored to settle their dispute amongst the family members being their sisters prior to the filing of the suit. The Courts have similarly endeavored to settle the dispute between the parties after the filing of the suit. 7. It is the plaintiff's case that both the brothers purchased one flat each in unit No.5 in 1990 from the previous owner. The Courts have similarly endeavored to settle the dispute between the parties after the filing of the suit. 7. It is the plaintiff's case that both the brothers purchased one flat each in unit No.5 in 1990 from the previous owner. They were both put in possession of the respective flats purchased by them in unit no.5. They have been transferred the share certificates by the society. The plaintiff has relied upon and produced the agreement of sale in his favour in respect of flat No.2 on the first floor of unit no.5 in the above society. The plaintiff has shown the payment of consideration made by him as reflected in the receipt clause in the said agreement. The payment is made by 3 demand drafts to the Vendor. The parties have used and occupied both the flats in unit No.5 jointly as family members. 8. Each flat consists of one living room, one bedroom, one kitchen and toilets. 9. Consequently the parties and their family members used the ground floor flat with the adjoining garden by making certain alterations. The parties admittedly have a common kitchen on the ground floor. The bedroom on the ground floor is converted into a kitchen to make a larger kitchen on the ground floor. The parties and their family members jointly used the said area as a common kitchen on the ground floor. Hence there is no bedroom in the ground floor flat No.1 of unit no.5 purchased by the defendant. The parties have also made certain alterations in the living room by removing one toilet and enlarging the area of the living room. Hence the ground floor flat has only one living room and a kitchen. 10. Consequently all the parties have their bedrooms in flat No.2 on the first floor of unit no.5 purchased by the plaintiff. The living room and the toilet adjoining the living room have been converted into a bedroom. The kitchen has also been converted into a bedroom. The verandah has been unauthorizedly enclosed to make yet another bedroom. The bedroom remains as such. Consequently there are four bedrooms in unit No.5, all on the first floor. 11. This position of the two families using and occupying the entire unit no. The kitchen has also been converted into a bedroom. The verandah has been unauthorizedly enclosed to make yet another bedroom. The bedroom remains as such. Consequently there are four bedrooms in unit No.5, all on the first floor. 11. This position of the two families using and occupying the entire unit no. 5 jointly as family members continued for a number of years, they having a living room and a kitchen in the ground floor unit no.5 with a garden and having four bedrooms on the first floor flat of the unit. Both parties have contended that the construction converting the verandah on the first floor to a bedroom is put up by the other. The defendant has given notice to the plaintiff to remove the unauthorized construction. The plaintiff has no objection. It is stated by Counsel on behalf of the plaintiff that he shall remove the unauthorized enclosure upon the reliefs being granted in this notice of motion. The dispute with regard to the removal of such construction on the first floor and the garden on the ground floor as also the entrance gate may be decided upon evidence. The plaintiff has not sought reliefs with regard thereto. 12. The only relief in essence that the plaintiff has sought is either to continue the above arrangement of joint use or to amicably part such that both parties would use their respective flats separately. 13. It is an admitted position that the defendant has put up a sliding glass door as shown in the plan Exhibit-E in the ground floor flat No.1 so as to prevent the plaintiff's entry in the common kitchen on the ground floor. The plaintiff claims that though the plaintiff is excluded from the common kitchen, the defendant continues to use the bedrooms on the first floor with his family members. The plaintiff claims that though the plaintiff is excluded from the common kitchen, the defendant continues to use the bedrooms on the first floor with his family members. It is argued on behalf of the plaintiff that either the plaintiff be allowed to use the common kitchen or at least a separate part of the common kitchen pending the suit or the defendant be directed not to enter upon and use the living room in the first floor flat as also the enclosed verandah room so that the plaintiff can make a separate kitchen in his own flat No.2 on the first floor of unit No.5 and live separately from the defendant and his family in the flat purchased by him and remove the unauthorized construction on the verandah as demanded by the defendant. 14. The defendant has not denied the joint user and occupation by the parties and their family members. The very setup of the two flats in a single unit shows the joint use. The parties have lived as family members in a single unit. The material part of the plaintiff's case of joint user, which is not denied, is set out in para 5 of the plaint thus: “The plaintiff states that since the kitchen on the ground floor have been use by the parties in common, the kitchen on the first floor have been used by the plaintiff as a room. The garden and parking space was used by the plaintiff and defendant jointly in common. The plaintiff states that the living room on the first floor have been used by the family member of the Defendant”. The plaintiff states that the said unauthorized room has been in use, occupation of the defendant and his family members”. 15. Upon the disputes having arisen between the parties the plaintiff sought exclusive possession of the flat purchased by him being flat No.2 on the first floor of unit No.5. Accordingly the plaintiff sent the defendant a notice through his Advocate by his letter dated 29th May, 2013. The defendant accepted the notice and replied by his letter dated 22nd June, 2013. 16. The defendant alleged that the plaintiff has put up the unauthorized construction converting sloping portions of the terrace on the first floor and called upon the plaintiff to restore the original position as shown in the sanction plan. The defendant accepted the notice and replied by his letter dated 22nd June, 2013. 16. The defendant alleged that the plaintiff has put up the unauthorized construction converting sloping portions of the terrace on the first floor and called upon the plaintiff to restore the original position as shown in the sanction plan. The defendant also called upon the plaintiff to discontinue the entry into the premises except from the common entrance. The defendant also called upon the plaintiff not to have any car parking space which is not provided in all the units for the first floor occupants. The plaintiff has no objection to comply with all of the above demands/ requests of the defendant. 17. What is more important is that the defendant called upon the plaintiff to “forthwith discontinue” with immediate effect the kitchen arrangement which was allowed to the plaintiff for cooking purpose “only as a family member”. The defendant stated in his reply that as per the sanctioned plan the occupier of flat No.2 was only entitled to one bedroom, living room and kitchen along with toilets. The specific demand of the defendant in his reply dated 22nd June, 2013 is worth a note and runs thus: “I call upon your client through you to communicate the execution of the aforesaid and its compliance with time frame work so that I can make necessary arrangement in my flat”. 18. The plaintiff agrees to the above demands and the state of flat No.2 also. 19. All that the plaintiff contends is that if the joint user of the parties in unit No.5 is to discontinue, both parties must have exclusive use, occupation and possession of the respective flats purchased by them and the possession that they were put in by their respective Vendors for the shares of the Society that have been transferred in their respective names. 20. It is rightly contended on behalf of the plaintiff that if the plaintiff was to discontinue the kitchen arrangement as demanded by the defendant the defendant would have to discontinue the user of the bedroom on the first floor so as to allow the plaintiff additional space to construct his own kitchen. The defendant would have to discontinue the user of the verandah – turned – bedroom so that the plaintiff can demolish the unauthorized construction. 21. The defendant has already made the “necessary arrangement” in his flat. The defendant would have to discontinue the user of the verandah – turned – bedroom so that the plaintiff can demolish the unauthorized construction. 21. The defendant has already made the “necessary arrangement” in his flat. He has put up a sliding glass door to prevent the plaintiff's entry into the flat on the ground floor being flat No.1 of unit No.5 and the kitchen therein. Consequently the defendant has become obliged to perform his reciprocal part of allowing the plaintiff to make “the necessary arrangement” in the plaintiff's flat No.2 on the first floor of unit No.5. It would be most inequitable to allow the defendant to prevent, exclude and disentitle the plaintiff from using the kitchen in the ground floor flat and to continue to use the bedrooms in the first floor flat. 22. The discontinuance of the joint user as demanded by the defendant must be to the full extent. Both parties must discontinue joint user of both the flats and commence independent, separate and exclusive user of their respective flats at the same time. 23. The letter of the defendant clearly shows the joint user of the parties as family members in the entire unit no.5. The very setup of unit no.5 is itself evidence in that behalf. The demand of the defendant in the letter dated 22nd June, 2013 itself shows the joint user. The defendant has himself caused execution of his demand by putting up the sliding glass door. The defendant's intent of putting up the glass door at the time of writing his letter dated 22nd June 2013 is apparent from the demand of discontinuance along with the reason “so that I can make necessary arrangement in my flat”. The defendant has already made necessary arrangement in his flat. The plaintiff has been made to discontinue the user of kitchen. It is argued that the plaintiff is required to obtain his meals from outside for want of kitchen in his premises. 24. It is in these circumstances that the reliefs sought by the plaintiff of directing the defendant to perform his reciprocal obligation of discontinuance of the user of the bedrooms in the first floor flat of the plaintiff so that the plaintiff can make the necessary arrangement of putting up his kitchen therein is to be considered. 25. 24. It is in these circumstances that the reliefs sought by the plaintiff of directing the defendant to perform his reciprocal obligation of discontinuance of the user of the bedrooms in the first floor flat of the plaintiff so that the plaintiff can make the necessary arrangement of putting up his kitchen therein is to be considered. 25. The defendant has expressly admitted that the occupier of flat No.2 is entitled to one bedroom, one living room and one kitchen along with toilet. The plaintiff has the use of one bedroom, another room which was the kitchen and which is converted into the bedroom in view of the arrangement between the parties of joint user of the entire unit, but no living room in his flat no.2 on the first floor of unit no.5. The plaintiff has, therefore, amply made out a case for being granted such relief by a mandatory injunction and order in that behalf. Not granting such mandatory injunction would be most inequitable and would leave the defendant in possession of a much larger area than what he has purchased. 26. It may be mentioned that though the plaintiff’s purchase is not denied and the defendant has only sought the source of funds to purchase the flat no.2 by the plaintiff in his letter dated 22nd June, 2013, it has been sought to be argued on behalf of the defendant that the plaintiff could not have purchased the suit flat as he was then 25 years old. The age difference between the brothers is stated to be two or three years. Hence the defendant would have been about 27 or 28 years old at the time he purchased his flat. The agreement of purchase of the plaintiff shows amounts paid by the plaintiff by three demand drafts to the Vendor. It is for the defendant to show, and it is not shown, that the defendant had paid the consideration, or even part consideration, of flat No.2. The attempt of the defendant to show his ownership right or his entitlement to any portion of flat No.2 is, therefore, wholly in vain. 27. The parties being brothers have attempted to settle their dispute which is most amiable to settlement. A memorandum of understanding (MOU) has been executed by and between the parties on 2nd April, 2012. The attempt of the defendant to show his ownership right or his entitlement to any portion of flat No.2 is, therefore, wholly in vain. 27. The parties being brothers have attempted to settle their dispute which is most amiable to settlement. A memorandum of understanding (MOU) has been executed by and between the parties on 2nd April, 2012. It is handwritten and signed by both the parties and witnessed by the brother-in-law of the plaintiff, a copy of which is annexed as Exhibit-F to the plaint. Even in the said settlement with regard to the suit unit described as the bungalow the parties have admitted that they were “staying together for more than 20 years”. They decided that both the brothers have to share and contribute to the household expenses equally and if that is not feasible the parties would have to “shift their respective premises”. 28. There can indeed be neither any other settlement nor any other order upon adjudication given the aforesaid admitted facts. 29. Not only the parties, but also their five sisters who helped the parties to settle the dispute unsuccessfully, having the same thing to state. Surprisingly the defendant has sought affidavits from the five sisters of the parties. Five affidavits of one Madhuben, Thrupti, Deepti, Kokila and Tarulata have been filed by the defendant in his affidavit in reply to the notice of motion. The five affidavits are identical. The five sisters have stated that both the plaintiff and the defendant are residing together. The relevant part of the affidavit specifying the residence of the parties runs thus: “I am the sister of Mr. Deepak Natwarlal Parekh and Mr. Tejas Natwarlal Parekh, both of whom are residing at Unit No.5, flat No.1 on the ground floor and at Unit No..5 – flat No.2 on the 1st floor respectively of Premium Unit Co-operative Housing Society Ltd Lokhandwala Complex, Off Link Road, Andheri (West), Mumbai-400 053”. 30. Upon their common user of the entire unit No.5 the parties have been paying the electricity bills essentially every alternate month. The plaintiff has produced copies of electricity bills from the year 2007 for certain months showing the payments made by the plaintiff in those months. The plaintiff claims that after the dispute between the parties the defendant has not sent the electricity bills to the plaintiff for payment since mid 2013. The plaintiff has produced copies of electricity bills from the year 2007 for certain months showing the payments made by the plaintiff in those months. The plaintiff claims that after the dispute between the parties the defendant has not sent the electricity bills to the plaintiff for payment since mid 2013. The last bill relied upon by the plaintiff is dated 30th March, 2013. The dates of the bills do show several months in each year though not exactly alternate months in which prima facie the plaintiff has paid the electricity charges. Though the defendant claims before the Court that he paid electricity bills exclusively and was called upon to produce all the electricity bills paid by him he has not produced them. 31. The relevant evidence of joint user is, therefore, not only admitted, but also corroborated. The joint user is by the parties as family members in a single dwelling unit. The plaintiff has been excluded from a part of such unit by the erection of the sliding glass door. Consequently either the plaintiff must be allowed to enter into the kitchen and use it jointly with the defendant as before or at least use a part of the kitchen to the exclusion of the defendant and his family members pending the suit, or if the defendant insists upon excluding the plaintiff from the kitchen as demanded by him in his letter dated 22nd June, 2013, he must be injuncted from entering upon any part of the first floor flat No.2 of the plaintiff pending the suit. 32. Hence either there should be joint user as before or separate exclusive user of two separate flats as demanded by the defendant himself in his letter dated 22nd June, 2013. 33. It is contended on behalf of the defendant that the mandatory injunctions cannot be granted. The contention is incorrect. 34. The defendant has relied upon the judgment in the case of Dorab Cawasji Warden Vs. Coomi Sorab Warden & Ors. (1990) 2 SCC 117 in that behalf. The Supreme Court has set out in that judgment, the circumstances in which mandatory interim injunction can be granted in paragraphs 10 to 12 of the judgment which may be paraphrased thus: “10. The trial Court gave an interim mandatory injunction directing respondent 4 not to continue in possession. (1990) 2 SCC 117 in that behalf. The Supreme Court has set out in that judgment, the circumstances in which mandatory interim injunction can be granted in paragraphs 10 to 12 of the judgment which may be paraphrased thus: “10. The trial Court gave an interim mandatory injunction directing respondent 4 not to continue in possession. There could be no doubt that the courts can grant such interlocutory mandatory injunction in certain special circumstances. It would be very useful to refer to some of the English cases which have given some guidelines in granting such injunctions. 11. In Shepherd Homes Ltd. Vs. Sandham Megarry J. observed: “(iii) On motion, as contrasted with the trial, the court was far more reluctant to grant a mandatory injunction; in a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this was a higher standard than was required for a prohibitory injunction.” 12. In Evans Marshall & Co. Ltd. Vs. Bertola SA2 the Court of Appeal held that: “Although the failure of a plaintiff to show that he had a reasonable prospect of obtaining a permanent injunction at the trial was a factor which would normally weigh heavily against the grant of an interlocutory injunction, it was not a factor which, as a matter of law, precluded its grant; …...” 35. Courts can grant interlocutory and mandatory injunctions in special circumstances. There is a higher standard of case to be made out than the required for a prohibitory injunction. The Court must see a reasonable prospect of the plaintiff obtaining a prohibitory injunction. 36. The principles set out in Halsbury's Laws of England, 4th Edition, Vol. 24, para 948 extracted in para 12 of the judgment must be the guide. They thus run: “A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the plaintiff....”. 37. This case satisfies the above requirements. It is clear that the parties lived jointly. 37. This case satisfies the above requirements. It is clear that the parties lived jointly. It is clear and admitted that the defendant has accepted the plaintiff’s entitlement to the first floor flat consisting of the bedroom, living room and kitchen. The defendant has himself discontinued the joint user by creating the sliding glass door. The relief had to be granted in the notice of motion as the defendant has admitted to steal a march on the plaintiff. Even if the interim injunction is granted in this notice of motion, upon further evidence the situation can be amended. No prejudice is going to be caused to the defendant as he would be entitled to the entire ground floor flat purchased by him including the garden and car parking space which the plaintiff is not entitled to and which the plaintiff does not claim, if he is granted separate exclusive user of the first floor flat. 38. Hence the following order: 1. The defendant shall forthwith allow the plaintiff to enter upon and use the kitchen on the ground floor flat No.1 of Unit No.5 of Premium Unit Co-operative Housing Society Ltd at Four Bungalows, Link Road, Andheri (West), Mumbai-400 053. 2. If the defendant does not allow the plaintiff to use the kitchen in the ground floor flat the defendant shall not enter upon any portion of the first floor flat no.2 in unit no.5 of Premium Cooperative Housing Society Ltd, Mumbai purchased by the plaintiff. 3. This matter is most amenable to settlement. 39. The parties would do well to settle their dispute amicably amongst themselves or through mediation of family members or lawyers. 40. The defendant has not filed his written statement. The defendant has been represented in the notice of motion and has been served copies of the papers and proceedings. He is deemed to be served. The defendant shall file his written statement within 30 days from today unless the above dispute is settled between the parties. 41. The suit shall be on board for framing of issues or for recording the settlement on 18th June, 2014 at 3 p.m. This order is stayed until 18th June, 2014. 42. Notice of Motion is disposed off accordingly.