Madras High Court · 2009

This application is filed by the applicant/first defendant under Order 7 Rule 11 C.P.C., for rejecting the plaint in C.S.No.457 of 2009.

2. The first respondent is the plaintiff. The suit is filed by the first respondent/plaintiff for a declaration that the sale deed No.1511/03 dated 31.03.03 executed by the second defendant on 31.03.03 is null and void and for a mandatory injunction directing the first defendant to demolish and close the 735 Sq.Ft. of unauthorised construction put up by the first defendant in the basement morefully described in the schedule 'B' and for recovery of possession and directing the first defendant to hand over the possession of the approved basementmeasuring 415 Sq.ft., described in the schedule 'C'.

3. The suit is filed by the plaintiff, who are an Association of flat owners of Ishwarya Apartments, situate at No.48, Rukmani Road, Kalakshetra Colony, Besant Nagar, Chennai -90 represented by its authorised agent and Secretary. The suit was admitted on 25.05.2009.

4. Pending the suit, O.A.No.562 and 577 of 2009 was filed. When the matter came up on 27.05.2009, this Court after recording the statement of the respondents that the construction was completely over, granted an injunction from putting up further constructions. Subsequently when the matter came up on 11.06.2009, it was recorded that the basement should not be used for any commercial purpose in the interest of the residents of the association of flat owners until further orders. The statement of the counsel for the respondent was recorded that the respondents will not let out the basement for any commercial purpose. In the meanwhile, the first defendant has taken out this application for rejecting the plaint.

5. It is the case of the plaintiff that the Association comprised of nine owners, who are owning flats in the Ishwarya Apartments. In paragraph 4 of the plaint, they have given the built up area as well as the undivided share in the land. The property in which the flats were built up at 48, Rukmani Road, belonged to the second defendant. Each of the nine members of the Association purchased 442 sq.ft of undivided share out of the entire land of 4008 sq.ft from the third defendant. Through the first purchasers, they have registered sale deeds in their favour executed on various dates between 2001 to 2003.

6. Nine members of the Association entered into separate and individual agreements with the first defendant for construction of their respective apartment in the property, in accordance with the terms, conditions and specifications of their respective agreements. The members had also paid all the monies as agreed by them to the first defendant, whereupon, the first defendant completed the construction of the apartment along with the construction in the fourth floor and had also applied for regularisation of the additions for the fourth floor, which are pending before the competent authority.

7. The first defendant after completing the construction and receiving the entire agreed amounts from all the nine members of the Association handed over possession of the flats to the respective owners. The first defendant had also purchased an adjoining property, measuring about 1600 sq.ft on the western side of the property and put up a car parking in the ground floor and an office building on the first floor. The first defendant thereupon informed the members of the Association that they could buy individual car parking at an additional of Rs.1,00,000/- each and requested that the first defendant may be allowed to use the passage on the western side of the apartment to park one of their vehicles in the additional car parking till the first defendant makes an alternative arrangement for parking their vehicle on their premises. Considering the additional car parking facility, which would decongest the passage on the western side of the apartment, the members purchased the additional car parking at additional cost of Rs.1,00,000/- each and allowed the first defendant to only use without any right or title, to park one of the first defendant's vehicles in the additional parking on the western side of the apartment. The permission was given to the first defendant only for interim convenience till he made alternative arrangement and it was not an absolute right.

8. As per the building plan approved by CMDA, the first defendant put up the basement, which is meant to be specifically used as generator room. After handing over possession of the completed flats to the members of the association, the first defendant requested the plaintiff to permit them to use the basement for storing their materials. On humanitarian consideration, the members allowed the first defendant to use the basement for storing their materials.

9. The third defendant is the Power of Attorney of the second defendant. The first defendant with the intention of claiming ownership of the entire basement and to make their unlawful gains had colluded and connived with the third defendant and by taking advantage of the permission given to store their materials and to park one of their vehicles, they made preparations to achieve their unlawful ends by stealthily putting up construction of 1150 sq.ft instead of the permitted 415 sq.ft of basement area. The first defendant never made his intentions known and they had joined the association by paying subscription of a monthly maintenance of Rs.5,000/-. It was stated that the construction of 1150 sq.ft instead of 415 sq.ft in the basement is against the permitted and approved plan and is also illegal.

10. If the total 4008 sq.ft (1.67 grounds) is taken into account, it leaves out only 30 sq.ft of unaccounted area taking into account after the undivided shares purchased by the members of the plaintiff association. During February 2005, the first defendant did not remove their materials stored at the basement. Therefore, a letter was sent to them to clear the basement. In March 2007, the members noticed unusual activities in the basement and they came to know that the first defendant was using it as a commercial establishment.

11. Therefore, some of the members of the association filed a civil suit in O.S.No.2884 of 2007 before the City Civil Court, Chennai seeking for a mandatory injunction, directing the first defendant to remove their materials from the basement and to hand over the possession to them. But the first defendant stealthily avoided to inform the members about the unlawful sale deed executed in their favour by the third defendant. It came to their knowledge only when the first defendant filed his written statement in that suit.

12. The VI Assistant City Civil Court which heard the matter found that only five members of the association were made as plaintiffs and the plaintiff's Association was not registered at the time of the filing of the suit and proper prayer has not been made with proper Court fee and hence dismissed the suit on 18.04.2009 on technical grounds of not filing a suit for recovery of possession with proper court fee, non joinder of necessary parties and the suit not being filed by a registered association. Therefore, the plaintiff association has come forward to file the present suit with proper prayer and had sought for interim orders.

13. The first and third defendants have filed the present application to reject the plaint. It was stated by them in the affidavit filed in support of the Judge's summons dated 25.06.2009 that the suit in C.S.No.457 of 2009 is barred by law as the earlier suit in O.S.No.2884 of 2007 was filed by the first five persons. The first defendant claims that he was the co-owner of the land at Plot No.48, Rukmani Road, Kalakshetra Colony, Chennai -90 and having purchased the same under a Deed of absolute sale dated 31.03.2003 which was registered as Document No.1611 of 2003 with the District Registrar (South), Chennai. The entire basement belonged to the first defendant as their share in the constructed area in the apartment complex, in proportion to their ownership of the undivided share in the land and they are the owner of 333 sq.ft of undivided share in the land. The first defendant had also raised the ground of non-joinder of parties. Out of 9 owners of the flats, only 5 of them have filed the suit and the suit was not filed in a representative capacity. The suit was dismissed by the City Civil Court by a judgment and decree dated 18.04.2009. Another objection raised by them was that no proper court fee was paid by plaintiff. The Trial Judge in the civil suit had rendered a finding in favour of the first defendant that he was a co-owner. Even during the pendency of the suit, the plaintiff association was duly registered under the provisions of Tamil Nadu Societies Regisration Act and it also filed an application to implead itself. But its impleading petition was rejected. The C.R.P. filed against the same was also rejected by this Court. Therefore, having failed in their attempt before the Civil Court, they cannot institute the present suit.

14. The defendants placed reliance upon Explanation 6 to Section 11 CPC, wherein it was stated that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Therefore, having filed the suit on behalf of all and allowing it to be dismissed, the present suit is barred by res judicata. 15. When the plaintiffs, at that time stated that it was not a registered association, they were not truthful. Even at the time of filing of the suit before the City Civil Court, there was a registered association. Since the earlier suit was filed in a representative capacity, the second suit is not maintainable. It was established that the first defendant being a co-owner and owns the basement, and as he had paid subscription to the owners association, they are estopped from contending that they are not the owners. The first defendant having a registered sale deed cannot be dislodged. If the plaintiffs are aware of the sale deed, they should pleaded for setting aside the sale in the earlier suit itself. By not doing the same, the present action is barred under Order II Rule 2 CPC. It was on these lines, the present application was filed for rejecting the plaint.

16. Heard the arguments of Mr.R.Parthasarathy, learned counsel for the applicant/first defendant and Mr.B.Lenin for M/s.Lenin and Bagya, learned counsel for the respondent/plaintiff.

17. Mr.R.Parthasarathy, learned counsel for the applicant/first defendant placed reliance upon the following judgments: i) Sonachalam Pillai v. Kumaravelu Chettiar AIR 1928 Mad 445) ii) Talluri Venkata Seshayya and Others v. Thadikonda Kotiswara Rao and others (AIR 1937 PC 1) iii)Sunderbai v. Devaji Shankar Deshpande