IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.06.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.584 of 2010 and M.P.No.1 of 2010 1. Balasubramanian 2. Sarasu .. Appellants/Defendants vs. 1. Venkatesan 2. Padma .. Respondents/Plaintiff This Second Appeal is focussed as against the judgment and decree dated 20.04.2010 passed in A.S.No.59 of 2008 on the file of the Sub Court, Poonamallee, reversing the judgment and decree dated 21.10.2008 passed in O.S.No.439 of 2004 on the file of the District Munsif-cum- Judicial Magistrate, Ambattur. For appellants : Mr.N.Manoharan For respondents : Mr.S.Ramesh JUDGMENT This Second appeal is focussed by the original defendants, animadverting upon the judgment and decree dated 20.04.2010 passed in A.S.No.59 of 2008 by the learned Subordinate Judge, Poonamallee, reversing the judgment and decree of the learned District Munsif-cum- Judicial Magistrate, Ambattur in O.S.No.439 of 2004. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiff filed the suit seeking the following reliefs: "(i) To grant a permanent injunction restraining the defendants from putting up iron grill gate (open type) in front of main door in the 'B' schedule property and thereby interfering in any manner with the plaintiffs' peaceful common enjoyment of the 'C' https://hcservices.ecourts.gov.in/hcservices/ schedule property; and (ii) for costs." (Extracted as such) (b) The written statement was filed by the defendants resisting the suit. (c) Whereupon the trial Court framed the issues. (d) During trial, the first plaintiff-Venkatesan examined himself as P.W.1 and Exs.A1 to A8 were marked. On the side of the defendants, one Mr.Jayavelu was examined as D.W.1 and Exs.B1 to B6 were marked. Exs.C1 and C2 were marked as Court Exhibits. (e) Ultimately the trial Court dismissed the suit as against which appeal was filed. 3. It is an admitted fact that after the dismissal of the suit and before the filing of the appeal, the defendants did choose to put up a grill gate in front of their wooden outer door of their apartment. An Advocate Commissioner was appointed during the pendency of the suit and also during the pendency of the appeal. The Commissioner who visited the suit property during the appellate stage submitted his report to the effect that the defendants had put up the grill gate in front of the wooden door of their apartment and it was opening into the common passage which could also be called as corridor capable of being used by both the parties. 4. The appellate Court while setting aside the judgment and decree of the trial Court, decreed the original suit granting permanent injunction as against the defendants. 5. Being aggrieved by and dissatisfied with the judgment and decree of the appellate Court, the defendants preferred this Second Appeal on various grounds and also suggesting the following substantial questions of law: "(a) Whether the First Appellate Court erred in law in reversing the well considered findings of the trial Court merely on the basis of the photographs and Commissioner's report and plan marked as Ex.C3 and C4 especially when the legal existence and right to use the suit corridor has not been proved by the plaintiffs through his title deed (Ex.A1)? (b) Whether the First Appellate Court is correct in law in decreeing the suit for injunction which is an equitable remedy even though the plaintiffs are in occupation of the property which has not been sanctioned by the Chennai Metropolitan Development Authority under Ex.B5? https://hcservices.ecourts.gov.in/hcservices/ (c) Whether the First Appellate Court is right in decreeing the suit solely on the basis of the Commissioner's report and plan is marked as Ex.C3 & C4 even though no legal sanctity could be given to decree the suit for permanent injunction especially when the plaintiffs are in occupation of unauthorized construction? (d) Whether the findings of the First Appellate Court are vitiated for not considering the vital admissions made by P.W.1? (e) Whether the First Appellate Court is legally correct for not adverting to the reasonings of the trial Court in view of the mandatory provisions under Order 41 R 31 CPC?" (extracted as such) 6. After hearing both sides, the following substantial questions of law have been framed: (1) Whether the first appellate Court failed to decide as to the nature of the said passage as to whether it is a common one or not from the available materials on record? (2) Whether the first appellate Court misread the evidence of P.W.1 in granting relief in favour of the plaintiff? (3) Whether the judgment of the first appellate Court is not in commensurate with Order 41 Rule 31 of CPC? (4) Whether the Court has got jurisdiction to take note of the developments which emerged during the pendency of the proceedings and accordingly pass a decree moulding the relief sought in the suit? 7. Heard both sides on the aforesaid points. 8. The gist and kernel of the arguments of the learned counsel for the defendants would run thus: (a) The apartment, which the plaintiffs are occupying, was constructed without the backup of the approval granted by CMDA, whereas, the apartment under the occupation of the defendants is an approved one. (b) Nowhere it is found spelt out that the passage concerned in front of the door of the defendants' apartment is a common passage for the plaintiffs also to be used along with the defendants. (c) The defendants have got exclusive right to use the said passage. https://hcservices.ecourts.gov.in/hcservices/ (d) After the dismissal of the suit of the plaintiffs, the defendants had put up the said grill gate and in such a case, the plaintiffs, at the appellate stage should have taken steps to get the plaint amended, which was not done so. (e) The newly put up grill gate is in no way hindering or hampering the ingress and egress of the plaintiffs to their apartment. Even though the said passage is not a passage meant for the use of the plaintiffs, yet the defendants did not obstruct it. (f) The defendants are senior citizens and they cannot also have a collapsible grill gate, as they could not operate it. (g) The appellate Court without taking into consideration the pros and cons of the matter, simply granted injunction which is untenable and accordingly, the learned counsel for the defendants would pray for setting aside the judgment and decree of the appellate Court and for restoring the dismissal decree of the trial Court. 9. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the defendants, the learned counsel for the plaintiffs would submit his arguments, which could tersely and briefly be set out thus: (a) The Court has always got the powers to mould the relief and grant it, taking into consideration the developments which emerged during the pendency of the suit and in such a case, the question of getting formally the plaint amended would not arise. (b) The trial Court without applying the law, simply dismissed the genuine prayer of the plaintiffs and consequently the appellate Court au faith with law and au courante with facts and that too taking into consideration the subsequent developments, granted injunction. (c) Once such injunction is granted, it is for the defendants to put the passage in its former position and no formal amending of the plaint is required. Accordingly, the learned counsel for the plaintiffs would pray for the dismissal of the suit. 10. All the aforesaid substantial questions of law are taken together for discussion, as they are inter-linked and interwoven with one another. https://hcservices.ecourts.gov.in/hcservices/ 11. A re'sume' of facts absolutely necessary for proper discussion would run thus: Unarguably and unassailably, the plaintiffs and the defendants are having their respective flats adjacent to each other. It appears a common builder constructed the apartments and the parties to the litigation happened to be the purchasers of their respective flats. The flat of the defendants is near to the common staircase, whereas, the flat of the plaintiffs is in the interior portion. As such, the plaintiffs, to have ingress and egress to their flat from the common staircase should pass through the common passage only. Even though it is contended before me that the said passage was exclusively meant for the defendants and not for the plaintiffs, there is nothing to indicate and exemplify that apart from the said passage, there is any other passage available for the plaintiffs to have ingress and egress to their flat. 12. The learned counsel for the plaintiffs also would invite the attention of this Court to the averments in the written statement filed by the defendants, wherein, at paragraph No.3 it is found stated as under: "At no point of time the Defendants have obstructed the other flat owners from using the common corridors." (emphasis supplied) 13. It is therefore crystal clear that the defendants themselves in the written statement unambiguously and unequivocally admitted the fact that the said passage or corridor is the common one meant for the use of the parties to this lis. I recollect and call up the maxim: Judicis est judicare secundum allegata et probata – It is the duty of a Judge to decide according to the facts alleged and proved. 14. The defendants cannot quite antithetical to what they committed themselves in black and white in the written statement simply veer round and have a volte face and contend now that the said passage or corridor is not a common one for both. Hence, I am of the considered view that it is too late in the day on the part of the defendants to take up the plea that the said common passage or corridor is not a common one for the use of both. 15. I recollect the maxim: Ubi jus ibi remedium: When there is a right there is a remedy. https://hcservices.ecourts.gov.in/hcservices/ The plaintiffs have got the right to use the common passage. When such is the position, any interference by the defendants would be looked askance at, by the Court. 16. The learned counsel for the defendants would convincingly and acceptably put forth the point that the defendants are sexagenarians and more specifically senior citizens, so to say above 65 years and they cannot opt to have a collapsible gate, which would be very difficult to operate by such elderly persons and hence, according to him, only the ordinary grill gate could be used. 17. The learned counsel for the plaintiffs would submit that no doubt the defendants might not be in a position to use collapsible gate, but even then, they must use their grill gate in such a manner not to interfere with the right of the plaintiffs over the common passage. 18. I recollect the maxim: Sic utere tuo ut alienum no laedas – Enjoy your own property in such a manner as not to injure that of another person. 19. The Commissioner's report as well as the photographs concerned, would exemplify and demonstrate that the newly put up grill gate in fully opened position is not in parallel with the wall concerned, so to say, it is occupying atleast an extent of one foot and odd in the common verandah. I need not dilate further on that, in view of the supine submission made by the learned counsel for the plaintiffs that the plaintiffs would be having no objection if the grill gate is rearranged in such a manner that when it is kept in fully opened position, it does not in any way interfere materially with the width of the common passage. In other words, he would submit that when it is kept in fully opened position, it should be in allignment with the wall concerned and it should not project and occupy as it is now occupying an extent of one foot and odd. 20. The learned counsel for the plaintiffs also while making his submission would submit that he was instructed by his clients that they would bear the expenses of rearranging the said grill gate in such a manner that it does not in any way occupy any significant portion in the width of the common passage. It is a well settled proposition of law that if any changes occur in the long longevity of the litigation, the Court has got the right to mould the relief and grant it. Since during the interregnum period between the time of the disposal of the suit and the filing of the appeal, such grill gate was put up, the Court could readily take note of the same and mould the relief accordingly and grant the same. The defendants cannot be heard to contend that they are having a right to have the grill gate in the position as they are having at present. Certainly they could use the grill gate without in any manner interfering with the right of the plaintiffs. To the risk of https://hcservices.ecourts.gov.in/hcservices/ repetition and pleonasm, but without being tautologous I would like to point out that the grill gate in fully opened position is virtually occupying more than one foot and odd in the common passage, which cannot simply be ignored by ushering in the maxim: De minimis non curat lex – The law does not care for, or take notice of, very small or trifling matters. Hence, by way of striking a balance between the two, the following direction should necessarily be given: The grill gate now in existence as found exemplified in the second Commissioner's report, which emerged during the period of pendency of the first appeal, should be rearranged by the defendants in such a manner that when it is kept in fully opened position outside, into the verandah, then it should be in allignment with the wall concerned and not projecting out occupying more than the thickness of the grill gate. The defendants should not at any point of time keep the grill gate in semi opened position so to cause hindrance to the free and full use of the said common passage. If for any reason, such exercise is not undertaken by the defendants immediately, then the plaintiffs are at liberty to file E.P. and get such rearrangement effected. In any event, the plaintiffs shall bear the expenses of rearranging the said grill as mandated supra. 21. Accordingly, the first substantial question of law is answered to the effect that the first appellate Court failed to decide as to the nature of the said passage as a common passage. 22. The second substantial question of law is answered to the effect that the first appellate Court misread the evidence of P.W.1 in granting relief in favour of the plaintiffs. 23. The third substantial question of law is answered to the effect that the judgment of the first appellate Court is not in commensurate with Order 41 Rule 31 of CPC. 24. The fourth substantial question of law is answered to the effect that the Court has got jurisdiction to take note of the developments which emerged during the pendency of the suit and accordingly mould the relief and grant it. 25. In the result, the judgment and decree of the first appellate Court shall stand modified as under: The grill gate now in existence as found exemplified in the second Commissioner's report, which emerged during the period of pendency of the first appeal, should be rearranged by the defendants in such a manner that when it https://hcservices.ecourts.gov.in/hcservices/ is kept in fully opened position outside into the verandah, then it should be in allignment with the wall concerned and not projecting out occupying more than the thickness of the grill gate. The defendants should not at any point of time keep the grill gate in semi opened position so to cause hindrance to the free and full use of the said common passage. If for any reason, such exercise is not undertaken by the defendants immediately, then the plaintiffs are at liberty to file E.P. and get such rearrangement effected. In any event, the plaintiffs shall bear the expenses of rearranging the said grill as mandated supra. 26. Accordingly, this Second Appeal is disposed of. The parties shall bear their respective costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Sub Court, Poonamallee. 2. The District Munsif-cum-Judicial Magistrate, Ambattur. +1cc to M/s. N.Manokaran, Advocate Sr 33775 +1cc to M/s.S.Ramesh, Advocate Sr 33509 RSI(CO) km/29.6. S.A.No.584 of 2010 https://hcservices.ecourts.gov.in/hcservices/