1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (ORDINARY ORIGINAL CIVIL JURISDICTION) TUESDAY, THE 26TH DAY OF JULY 2011 THE HON'BLE MR. JUSTICE V.PERIYA KARUPPIAH O.A.No.539 of 2011 in C.S.No.421 of 2011 Sri Jugal Kishore Jewellers Pvt. Ltd., Rep. by its Director Mr.Vijay Kumar Kadel #44/73, Basement, (Kalptaru Complex) C.P.Ramaswamy Road Alwarpet, Chennai 600 018. ..Plaintiff/Applicant VS 2.Mr.P.Baskaran S/o.not known to the plaintiff Aged about 55 years South Wing #44/73, Basement, (Kalptaru Complex) C.P.Ramaswamy Road Alwarpet, Chennai 600 018. 2.The Secretary Kalpataru Complex Owners Association C.P.Ramaswamy Road Chennai 600 018. ..Defendants/Respondents Original Application praying that this Hon'ble Court be pleased to grant an ad-interim order of injunction as against the 1st defendant, his men, representatives, agents, construction workers etc., from, in any manner putting up construction, either underground or superstructure in the common passage, morefully mentioned in Schedule-B hereunder pending disposal of the suit. This Original Application coming on this day before this court for hearing the court made the following order: https://hcservices.ecourts.gov.in/hcservices/ 2 Heard Ms.Renuka Shankar, learned counsel for the applicant / plaintiff. No appearance for the respondents despite their names are printed in the cause list. This application has been filed by the plaintiff against the respondents / defendants seeking interim injunction till the disposal of the application and also temporary injunction till the disposal of the suit. 2. The suit has been filed by the applicant / plaintiff for various reliefs as follows: - a) declaration declaring schedule 'B' property as an exclusive common passage for the occupants of the Kalpataru Complex. b) Consequently issue Permanent Mandatory Injunction directing the second defendant not to permit any parties to put up any structure either underground or above in the common passage. c) Grant permanent injunction against the 1st defendant his men, agents, representatives, tenant assigns etc., restraining them from in any manner interfering with the common passage by digging, putting up construction either underground or above in the common https://hcservices.ecourts.gov.in/hcservices/ 3 passage mentioned more fully in schedule 'B' of the property; and d) for costs. 3. This Court on an earlier occasion, granted ad- interim injunction restraining the first defendant from carrying out any construction activity or digging activity in the common passage described in the suit schedule property. The further case of the applicant / plaintiff was that the plaintiff is the owner of the shop portion in the basement of residential commercial complex at No.73, Dr.C.P.Ramaswamy Road, Chennai – 18 described in the suit 'A' schedule property, by virtue of two sale deeds dated 30.06.2004. The said documents are produced in the typed set of papers produced by the applicant at Page Nos.1 and 18. The learned counsel for the applicant would also point out that the second defendant, which is an association comprising the owners of both residential and non- residential complexes as its members, is now responsible for the welfare of all the apartment and shop owners in the said complex. She would further submit that however the first respondent / first defendant had come forward with preparatory work for constructing a restaurant and thereby trying to cause obstructions in the common passage in and around the complex, which is purely meant for the common usage. She would also drawn the attention of the Court https://hcservices.ecourts.gov.in/hcservices/ 4 that the building permission and the sanctioned plan have been produced at Page Nos.38 and 39 of the typed set of papers. She would further submit that those common passages are meant for the common usage and if it is obstructed by any person by putting construction or digging up in the common passage, it would not facilitate the apartment owners and other commercial apartment owners to move freely and to enjoy the property as contemplated in the planning permission. She would further submit in her argument that a sump dug at the front of the building was constructed for the welfare of the apartment owners and it was scientifically closed and the apartment owners and other persons used to use the flooring for the purpose of ingress and egress of the suit property described as 'B' schedule. She would also submit that the first defendant's intention to let it for restaurant, had caused digging of a pit for the purpose of putting the refusals and waste from the restaurant and the same was thwarted and an order of ad-interim injunction was passed by this Court, and thus prevented from the said injury. She would therefore, request the Court that ad-interim injunction granted by this Court already may be made absolute and temporary injunction can be granted till the disposal of the suit. She would further submit that if an order of temporary injunction is not granted by making the ad-interim injunction absolute, the applicant and the other https://hcservices.ecourts.gov.in/hcservices/ 5 residential apartment owners and commercial apartment owners would be put into much difficulty by not permiting them to use the common passage described in 'B' schedule property. She would also submit that the balance of convenience is in favour of granting temporary injunction and it does not rest in favour of the respondents. 4. No appearance for the respondents 1 & 2. I have considered the arguments advanced by the learned counsel for the applicant. I have also perused the papers. 5. No doubt, it is true that this Court has granted ad-interim injunction on 22.06.2011 against the respondents from in any way digging the common space described in 'B' schedule of judge's summons. The planning permission produced in Page Nos. 38 and 39 would go to show that the 'B' schedule property is the open space left around the constructed building in which the applicant had purchased commercial apartment. The other apartment owners have also got their own apartments. The common space described in 'B' schedule property is meant for common usage for all the apartment owners. Neither anyone of the apartment owners nor any other third party can claim exclusive right over the said 'B' schedule property for erecting any structures or preventing any other apartment owners from using the said common space without hindrance to other apartment https://hcservices.ecourts.gov.in/hcservices/ 6 owners. The second respondent / second defendant who is the association of the owners of the apartments did not prevent the injury likely to be caused by the act of the first respondent. In the event of the first respondent putting up constructions in the 'B' schedule property or digging pit for the purpose of the conduct of any restaurant to be housed in any of the commercial apartments, it would certainly prejudice the rights of the applicant as well as the owners of the residential apartments and commercial apartments. Therefore, I could see a strong prima facie case in favour of the applicant against the respondents. If for any reasons, no temporary injunction is granted in favour of the applicant and the first respondent / first defendant is constructing some structures or digging some pits in the common space, then it could not be rectified and the convenience and enjoyment of the applicant and other apartment owners would certainly be prejudiced. There would not be any hardship to the respondents, in the event of granting injunction against the proposed digging of any pit or putting up any constructions, since the property described in 'B' schedule is meant for common use and enjoyment. Therefore, the balance of convenience is also only in favour of the applicant and in favour of granting temporary injunction against the respondents. Therefore, I have no hesitation to make the ad-interim injunction already granted by this https://hcservices.ecourts.gov.in/hcservices/ 7 Court on 22.06.2011 as absolute and thereby to grant an order of temporary injunction till the disposal of the suit. 6. For the foregoing reasons, the interim injunction already ordered by this Court is made absolute. Accordingly, temporary injunction is granted till the disposal of the suit and the application is thus, ordered. No costs. Sd/-V.P.K.J 26.07.2011 //Certified to be a true copy// Dated this the day of 2011. R.s/21.09.2011 COURT OFFICER From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format. https://hcservices.ecourts.gov.in/hcservices/