IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 WP(C).No. 8640 of 2010(O) ------------------------- CMA.15/2010 of VI ADDL.DISTRICT COURT, ERNAKULAM OS NO.1198/2009 OF ADDITIONAL MUNSIFF-II, ERNAKULAM .................... PETITIONER(S): --------------- RAJEEV RAMA KAMATH,S/O.RAMA KAMATH, AGED 41,RESIDING AT FLAT NO.39,J.M.GARDENS, PALLIKAVU TEMPLE ROAD,VADUTHALA,COCHIN-23. BY ADV. SRI.A.BALAGOPALAN SRI.M.N.MANMADAN RESPONDENT(S): --------------- J.M.GARDENS,APARTMENT OWNERS ASSOCIATON J.M.GARDENS,PALLIKAVU TEMPLE ROAD,VADUTHALA,COCHIN -682023,REP;BY ITS i) PRESIDENT,B.RAJEEV,J.M.GARDENS, PALLIKAVU TEMPLE ROAD,VADUTHALA,COCHIN-682023. ii) SECRETARY,V.VENUGOPALA B.MENON,J.M.GARDENS, PALLIKAVU TEMPLE ROAD,VADUTHALA,COCHIN-682023. ADV. SRI.N.NEELAKANDHAN NAMBOODIRI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.8640/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS NO.1198/2009 EXT.P2 TRUE COPY OF THE IA NO.8475/2009 IN OS NO.1198/2009 EXT.P3 TRUE COPY OF THE COUNTER AFFIDAVIT IN IS NO.8475/2009 IN OS 1198/2009 EXT.P4 TRUE COPY OF THE ORDER IN IA NO.8475/2009 IN OS 1198/2009 PASSED BY II ADDITIONAL MUNSIFF'S COURT, ERNAKULAM EXT.P5 TRUE COPY OF IA NO.829/2010 IN CMA NO.15/2010 EXT.P6 TRUE COPY OF ORDER PASSED BY 6TH ADDL.DISTRICT COURT, ERNAKULAM IN IA NO.829/2010 IN CMA 15/2010 AS WRITE DOWN FROM A DIARY. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.8640 of 2010 -------------------------------------- Dated this the 6th day of July, 2010. JUDGMENT Petitioner is the plaintiff in O.S.No.1198 of 2009 of the court of learned Additional Munsiff-II, Ernakulam and appellant in C.M.A.No.15 of 2010 of the court of learned Additional District Judge-VI, Ernakulam. Challenge in the suit is to the validity of clause No.21 of the bye-law of respondent. Petitioner has sought for a declaration that the said clause is null and void and for consequential injunction to restrain the respondent from cutting off amenities to the apartment of petitioner. He filed I.A.No.8475 of 2009 for an order of temporary injunction. Though, learned Munsiff was inclined to grant an interim order of injunction after hearing respondent that application was later dismissed. That order has been challenged by petitioner in C.M.A.No.15 of 010. In that C.M.Appeal petitioner filed I.A.No.829 of 2010 for an order of temporary injunction. Learned Additional District Judge has passed Ext.P6, interim order on 04.03.2010 directing petitioner to pay Rs.7,000/- from the accumulated arrears (to respondent No.1) within two weeks from date of the order. There was also a direction to respondent No.1 not to cut off any of the amenities being enjoyed by petitioner. That order to the extend it directed payment of the amount is under challenge in this Writ Petition. According to the petitioner he is not liable to pay any amount to respondent No.1 for the reasons stated in the plaint and also since the alleged truss work was done by respondent No.1 much prior to petitioner purchasing the building. Learned counsel for respondent No.1 contends that respondent No.1 finds it difficult to raise the funds and that it WP(C) No.8640/2010 2 caused respondent No.1 to take loan of Rs.3,50,000/- from the bank for which it is paying heavy interest. Paragraph No.15 of the counter further states about the financial difficulties being experienced by respondent No.1. 2. Learned Additional District Judge has passed an interim order to ensure that amenities are enjoyed by the petitioner but on condition that petitioner paid Rs.7,000/- to respondent No.1. Petitioner is prepared to deposit the said amount in the trial court. What is required is to ensure that when respondent No.1 withdraws that amount it is after furnishing appropriate security. The order under challenge is to be modified accordingly. Resultantly this Writ Petition is allowed in part to the extent that Ext.P6, order is modified directing that petitioner need deposit Rs.7,000/- (Rupees Seven thousand only) in the trial court within two weeks from this day. It is open to respondent No.1 to withdraw the said amount on furnishing security to the satisfaction of learned Additional Munsiff-II. The deposit shall be subject to the result of C.M.Appeal or otherwise as the Additional District Judge may direct while disposing of the C.M.Appeal. Respondent No.1 will ensure that amenities being enjoyed by the petitioner are not interfered with unless direction for deposit of the amount as aforesaid is not complied. THOMAS P.JOSEPH, Judge. cks