:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5199 OF 2007 Capt. Inder Mohan Duggal (Retd.) and ors. ..Petitioners Vs. Brig Asil Singh and ors. ..Respondents WITH WRIT PETITION NO. 8646 OF 2007 Mrs. Zenobia Russi Patel ..Petitioner Vs. Brig Asil Singh & Ors. ..Respondents Mr. Parveer Shetty i/by M/s. RES Legal for the petitioenrs in both petitions. Mr. Anil Anturkar i/by Mr. S.B. Deshmukh for respondent nos.1 and 2. CORAM: CORAM: CORAM: B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. Date Date Date : April 04, 2008. : April 04, 2008. : April 04, 2008. P.C.: P.C.: P.C.: 1. Both these petitions arise from a common order of injunction passed by the Lower Appellate Court in Misc. Civil Appeal No.119 of 2006. The operative part of the injunction order reads as under:- :2: (i) The defendants are directed not to lock the gates on the East and North side of the suit property marked as (A) and (J) in the map attached to the plaint. (ii) Defendants No.1 to 3 are directed to cut the trees planted by them to be below the foot of the windows of plaintiffs’ flat on the eastern, northern and southern sides of the building. (iii) Defendants No.1 to 3 are directed to remove the two unauthorised taps marked as F-1 and F-2 in the maps annexed to the plaint. (iv) Defendant No.4 is directed to remove the wire fence put up by her on the south and the mud dumped by her to create an obstacle to vehicles at the places marked (M) and (K) in the map annexed to the plaint. (v) Defendant No.4 is directed to remove the unauthorised gate marked as (N) in the map annexed to the plaint. :3: 2. The present respondent nos.1 and 2 are the plaintiffs in RCS No. 1851 of 2004 and the petitioners in the first petition are defendant nos.1 to 3, whereas the petitioner in the second petition is defendant no.4. All of them i.e. plaintiffs as well as defendants are the flat owners in Aalishan Apartment located on Plot No.15, Survey No.63 of village Kondhwa, Taluka Haveli, Dist. Pune and bearing CTS No.584 and a total area of the plot admeasuring 6402 sq.ft. The constructed building has in all eight flats and, admittedly, the Deed of Declaration of the condominium has been registered. Plaintiffs are the owners of flat no.3, whereas the defendant nos.1 to 3 are the owners of flat no.1 and defendant no.4 is the owner of flat no.2 and flat nos.1 and 2 are located on the ground floor. The building has two more upper floors. The plaintiffs have prayed for a declaration that the open space around the building is a common open space and the owners of the flats on the ground floor cannot restrict entry of the other flat owners of the upper floors in the said common area and, therefore, have prayed for an injunction to the same effect. :4: 3. The trial court did not find a prima facie case in favour of the plaintiffs and, therefore, the application at Exh.5 filed under Order XXXIX Rule 1 came to be dismissed and consequently the above said Misc. Civil Appeal was filed before the District Court. The learned Principal District Judge at Pune has allowed the appeal and granted the above stated temporary injunction during the pendency of the suit. 4. It is the contention of the defendants that as per the individual agreements signed by them with the builder and registered, they have exclusive rights on the open space having garden area and the flat owners of the upper floors cannot have access to the same. They claimed that the said agreements make a distinction between a common area and a restricted common area. In short, it is their contention that the area occupied by the garden in the open space around the building on the east side as well as on the west side is attached to the flats of the defendants and, therefore, the plaintiffs cannot have any access to the same. The learned counsel for the petitioners has referred to Section 3(f) of the Maharashtra :5: Apartments Ownership Act, 1970 and submitted that the said Act permits a restricted common area to be carved out of the common areas marked around the building. The contentions of the respective parties are pending for adjudication in the suits filed by both the sides and I am required to examine whether the Lower Appellate court was justified in taking a different view than the one taken by the trial court so as to pass the impugned temporary injunction order. 5. There is no dispute that flat no.1 admeasures 1310 sq.ft. of built up area and flat no.2 admeasures 810 sq.ft. of built up area. Whereas flat no.3 owned by the plaintiffs admeasures 1400 sq.ft. built up area. The owners of flat nos.1, 2 and 3 have been allotted an enclosed parking space, whereas for the remaining flats there is no provision for enclosed parking space and perhaps they are required to park their vehicles in the open areas around the building. In the Condominium Deed registered, restricted common areas include the purported garden attached to Unit/Units and also parking space allotted to particular Unit/Purchaser as well as parking under open internal roads allotted to the Unit purchasers. :6: The restricted area also includes open space allotted to particular Unit/Purchaser. The validity of these terms called the "restricted common areas and facility" will certainly be a matter of adjudication in the pending suits. At page 212 of the first petition, there is a map brought on record which is not disputed by either of the parties (at least for the claim of the petitioners in the first petition of their exclusive right in the open space) and it appears that in the said map the area starting from north side (B) to south side (M) is enclosed and is claimed to be the excessive area and open space attached to flat no.1 and if this is accepted to be correct, the undivided share in the property as shown in the Condominium Deed registered, would become unmeaningful. As noted earlier, the plaintiffs have 20.22% of undivided share, whereas the defendant nos.1 to 3 have 18.91% undivided share and the defendant no.4 has 11.70%. I have also perused the sanctioned plan of the said building as well as the affidavit-in-reply filed by the Chief Engineer, Pune Municipal Corporation in RCS No. 247 of 2002 filed by the defendant no.1. Paras 9 and 11 of the said affidavit read as under:- :7: "9. By constructing dividing walls, the plaintiff has enclosed the entrance of the flats holder who are entitled to use the side margin as a common margin. The side margin is used for the flat holder. Therefore this side margin cannot be used by the plaintiff. Again on 22/2/2002 plaintiff has given letter to the Corporation in which he has submitted that he has plans to submit revised plan but as per D.C. Rules regularization it cannot be regularised as the construction carried out by the plaintiff is within the side margin. 11. Side margin which is developed by the plaintiff as a garden cannot be regularised as this space is provided for the use of all flat holders." 6. The learned Principal District Judge in the impugned order did not agree with the trial court in its observations that unless the terms and conditions :8: mentioned in the documents of the defendants are declared illegal, the plaintiffs cannot have a prima facie case in their favour and undoubtedly this was the sole ground on the basis of which the application at Exh.5 was rejected by the trial court. The share of each of the flat owners has been stipulated in the registered Deed of the Aalishan Condominium and the access to the open space will have to be considered on the basis of the scheme of the Act as well as the sanctioned plans which are undoubtedly based on the Development Control Rules of the Pune Municipal Corporation as well as the deed. The Lower Appellate Court has rightly stepped in and allowed the application at Exh.5. However, so far as the issue of cutting of trees is concerned, the same cannot be resorted to unless permission from the Competent Authority is obtained and, therefore, blanket directions to cut the trees cannot be given. Clause (ii) of the injunction order as quoted hereinabove will have to be, therefore, deleted and the remaining injunction order does not call for any interference. 7. Hence, the injunction granted by the Lower :9: Appellate Court is modified as under:- (i) The defendants are directed not to lock the gates on the East and North side of the suit property marked as (A) and (J) in the map attached to the plaint. (ii) Defendants No.1 to 3 are directed to remove the two unauthorised taps marked as F-1 and F-2 in the maps annexed to the plaint. (iii) Defendant No.4 is directed to remove the wire fence put up by her on the south and the mud dumped by her to create an obstacle to vehicles at the places marked (M) and (K) in the map annexed to the plaint. (iv) Defendant No.4 is directed to remove the unauthorised gate marked as (N) in the map annexed to the plaint. 8. Petitions are disposed off accordingly. Trial of the suits is expedited. :10: 9. Oral application made to stay the operation of this order is rejected. (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)