p. Balasubramanian vs N. Srinivasan

G. Rajasuria, J.—This Second Appeal is focussed animadverting upon the Judgment and decree dated 22.06.2009 passed in A.S. No. 177 of 2008 by the learned VII Additional Judge, City Civil Court, Chennai in confirming the judgment and decree passed in O.S. No. 3213 of 2007 dated 17.12.2007 by the learned XV Assistant Judge, City Civil Court at Chennai.

The parties are referred to hereunder according to their litigative status and ranking before the Trial Court.

Broadly but briefly, narratively but precisely, the germane facts absolutely necessary for the disposal of this Second Appeal, would run thus:

(a) The Plaintiff filed the Suit seeking the following relief and specifying the following Schedule of properties:

"(1) To restrain the Defendants their men, agents or any person claiming under them by means of an injuction from in any manner interfering with the Plaintiff/his Tenants peaceful possession and enjoyment of the Suit schedule premises by preventing the Plaintiff or his Tenants from parking their vehicle in the Suit Schedule property; and

(2) For costs.

Schedule of Property

Flat No. 6, Majestic Parameswaran Apartments, Old No. 6, New No. 13, Soundararajan Street, T. Nagar, Chennai-600017 with the right of common parking facility, pathway, staircase together with all appurtenance attached thereto."

(extracted as such)

(b) The gist and kernel of the averments in the Plaint would run thus:

In an area of 3 grounds and 1500 sq.ft. of land, as many as ten Flats were constructed and the Plaintiff happened to be the purchaser of one such Flat bearing No. 6/6 in the first floor, having joint ownership along with other Flat Owners in the said ground. However, the Plaintiff did not purchase any Covered Car Parking Area available in the ground floor, so to say under the first floor of the said building. The Plaintiff, when he ventured to park his Car in the Common Area, there was objection from the Defendants, who are the self-styled President and Secretary of the Apartment Owners. Whereupon the Suit has come to be filed seeking the aforesaid relief.

(c) Per contra, in a bid to torpedo and pulverise the averments as put forth and set forth in the Plaint, the Defendants filed the Written Statement, which could tersely and briefly be set out thus: The Plaintiff is having no right to park his Car in the Common Area, which is not meant for parking a Car. Out of the ten Apartment Owners, eight Apartment Owners purchased specifically the Car Parking Areas under the first floor, so to say in the ground floor. In order to have ingress and egress to the said Car Parking Area, necessarily open space available on all the four sides of the building inside the compound should be used. The Common Area is meant for being kept vacant and not to be occupied by any single Flat Owner for any purpose including the one for parking his Car. Accordingly, they would pray for the dismissal of the Suit.

(d) Issues were set down for trial.

(e) During trial, on the Plaintiff''s side, R. Rajagopalan, the Power of Attorney of the Plaintiff was examined as PW1 and Exs.A1 to A8 were marked; and the First Defendant/N. Srinivasan examined himself as DW1.

Ultimately the Trial Court dismissed the Suit, as against which the Appeal was filed for nothing but to be dismissed by the Appellate Court confirming the Judgment and Decree of the Trial Court.

Challenging and impugning the Judgments and Decrees of both the fora below, this Second Appeal has been focussed on various grounds and also the suggesting the following substantial questions of law:

"1. Whether the Courts below were right in not relying on Ex.A1, A2 and overlooking the said exhibits?

Whether the Courts below were right in ignoring the evidence of PW1 and the exhibits marked through him as Ex.A1 to A8 when all the documents are very vital to decide the issues involved in the present case?

Whether the Courts below were correct in concluding that the Plaintiff''s prayer is against the provisions of the Tamil Nadu Apartment Ownership Act?

Whether the Courts below were correct in ignoring the exhibits marked by the Plaintiff i.e. Ex.A2?

Whether the Courts below were right in not looking into the recital of Exhibit A2 especially Clause 12?

Whether the Courts below were right in not analysing the valid admissions by DW1 while his cross-examination in respect of Clause 12 Exhibit 2?

Whether the Courts below were right in interpreting the provisions laid down in the Law framed for the Owners of apartments in Tamil Nadu, especially Section 6(3) of the Act, 1994?

Whether the Courts below were right in appraising the evidence of DW1, when the same was contradictory to Exhibit A8-Photographs?

Whether the Courts below were right in dismissing the Suit as well as Appeal without considering the fact that the Appellant also one of the owner in respect of a Flat in the Suit property with undivided share in the entire land, like other co-sharers?

Whether the Courts below were right in recognizing the various illegal and unilaterial acts of the so called office bearers of an unregistered Association?

Whether the Courts below were correct in concluding that the rights of the original owners be ceased because of the purchase by subsequent owners?

Whether the Courts below were right in recognizing the sale by the builder by ear marking as "covered Car Parking Area"?

Whether First Appellate Court was right in dismissing the Petition viz., C.M.P. No. 38 of 2008 filed by the Appellant herein with a view to mark the sanction given by the CMDA while construction of the Flat in question?

Whether the Courts below were correct and justified in not considering the aspect that on behalf of the defendants no documentary evidence has been placed in order to prove their case, if at all any?"

On hearing both sides, I thought fit to formulate the following substantial questions of law to the knowledge of both sides:

(1) Whether the Courts below failed to take into consideration the feasibility of parking the Car by the Plaintiff in the open space which forms part of the common space, without affecting the rights of other Flat Owners including the eight Flat Owners having their right to park their Cars in the Car Parking Area in the ground floor, in the absence of an Advocate Commissioner appointed and understanding the realities on ground prevailing?

(2) Whether there is any perversity or illegality in the Judgments and decrees of both the Courts below?

The learned Counsel for the Defendants would pyramid his argument, which could succinctly and precisely be set out thus:

(a) The Plaintiff is having no right to get his Car parked as per the Sale Deed in his favour, but on the other hand the Defendants and also the other Flat Owners, who purchased the Car Parking Areas, are having their right to get their Cars parked; wherefore, the question of the Plaintiff trying to ferret out equity in his favour so as to get his Car parked in the Open Space, which is meant for being used by all the ten Flat Owners would be a well neigh impossibility. When there is no right on the part of the Plaintiff, there is no question of himself seeking the help of the Court to get such alleged imaginary right enforced.

(b) The Plaintiff with his wide open eyes purchased the Flat without having any Car Parking Area purchased by him and in such a case, if his right is recognised, it would amount to the Plaintiff capitalising something out of nothing. Both the Courts below correctly applying the law on this point dismissed the claim of the Plaintiff, warranting no interference in the Second Appeal.

Per contra, in a bid to make mince meat of the arguments as put forth on the side of the Defendants, the learned Counsel for the Plaintiff, would put forth and set forth his arguments, the warp and woof of the same would run thus:

(a) The Plaintiff no doubt did not purchase any Car Parking Area in the premises concerned. However, he is also one among the Flat Owners having the right to use the Common Space without affecting the right of the other Flat Owners.

(b) There is enough space at the rear side of the plot, where the other eight Flat Owners having Cars would have no necessity to move their Car by that side. Even without taking their respective Cars to the said back side of the plot, they could very well from either of the two sides of the building enter into the Car Parking Areas and come out of it at any time. When such is the scenario, there is no rhyme or reason on the part of the Defendants in resisting the attempt of the Plaintiff to get his Car parked on the rear side of the plot.

(c) Accordingly, he would pray for remanding the matter to the First Appellate Court for getting an Advocate Commissioner appointed, so as to note down the physical features and submit a report to the Court, so that the Court would be in a position to recognise and uphold the right of the Plaintiff to use the common pathway for the purpose of getting his Car parked without affecting the rights of others.

At the outset, I would like to recollect the following maxim:

Ubi jus ibi remedium - Where there is a right, there is a remedy.

My mind is redolent and reminiscent of one other maxim:

Sic utere tuo ut alienum no laedas - Enjoy your own property in such a manner as not to injure that of another person.

A cumulative reading of both the maxims would enable me o??? understand that simply because the Plaintiff did not purchase any covered Car Parking Area in the ground floor, that it does not mean that the Plaintiff cannot take his car inside the premises at all and park in some convenient place without affecting the rights of others. Scarcely could it be stated that the Plaintiff should despite availability of area for parking his Car should keep his Car outside the said premises.

The learned Counsel for the Defendants would submit that the Plaintiff purchased one of the Flats without purchasing or acquiring any right over the Car Parking Area. Indubitably and indisputably, as per the approved plan of the CMDA, there were only five Car Parking Areas available in the ground floor i.e., under the first floor. However, it seems eight Flat Owners purchased the said five Car Parking Areas and those eight persons are adjusting themselves in that area. One important fact should not be lost sight of. Even the Car Parking Area in that Flat is to be considered as a Common Area only and axiomatically all the Flat Owners are having joint ownership over the plot. However, in that Car Parking Common Area, only eight Flat Owners are having the right because they purchased such right. Here the Plaintiff is not laying any claim over that covered Car Parking Area acquired by the eight Flat Owners.

The crucial point to be noted is as to whether the Plaintiff by getting his Car parked at the rear side of the plot, would in any way hamper the right of any other Flat Owners in parking their Car or using their respective flats beneficially and satisfactorily. In this angle, the Courts below never applied their mind. Keeping in mind presumably only one point, namely, where there is a right there is a remedy, which is found embedded in the maxim: Ubi jus ibi remedium, simply they decided the lis. Even that maxim was not fully applied in the facts and circumstances of this case. Simultaneously, the maxim "Ubi jus incertum, ibi jus nullum - Where there is a right, there is a remedy, cannot be lost sight of. The term ''right to use the Common Area'' in this case, should be understood in proper perspective. Had the Plaintiff claimed any right to get his Car parked in the covered Car Parking Area over which he has not acquired any right, then both the Courts below would have been justified in simply throwing away the case of the Plaintiff by applying the maxim Ubi jus ibi remedium. But here the earnest entreaty and Appeal of the Plaintiff is to the effect, that as a Flat Owner in that building, he should be allowed to take his car inside the premises and park it somewhere without infringing the right of others. Surprisingly, both the Courts below thought that such a prayer itself is ex facie and prima facie unreasonable and untenable.

At this juncture I would refer to the following maxims:

(i) Nullus commodum capere potest de injuria sua propria: No one can gain advantage by his own wrong.

(ii) Nul prendra advantage de son tort demesne: No one shall take advantage of his own wrong.

As per those maxims, one person cannot capitalise his own mistake or fraud. Here all the ten owners realised that there are only five covered Car Parking Areas and the remaining Common Areas should be used by all. The sure test is to find out as to whether in the process of exercising the right of the Plaintiff to use the Common Area, his parking of the Car would amount to excessive use of his right over such Common Area. I would at once without any hesitation observe, that in this factual matrix the attempt on the part of the Plaintiff to get his Car parked in the Common Area other than the covered parking area, without affecting the rights of others, would not be labelled or dubbed as an act antithetical to the spirit of the Scheme found embedded in the Sale Deeds which emerged in favour of the Flat Owners. Not to put too fine a point on it, without understanding the real purport of the term "Right to use the Common Area" in the facts and circumstances of the case, both the Courts below decided the lis, which warrants interference in the Second Appeal. Hence, I am of the considered view that the matter has to be remitted back to the First Appellate Court with the following mandate:

The First Appellate Court shall do well to see that an Advocate Commissioner is appointed, who is expected to take the assistance of a person well versed in driving especially a teacher or trainer in a driving school, and visit the spot and find out as to whether eight Cars could reach the covered parking lot in the Ground floor under the first floor, without in any way using the rear portion of the said plot and also come out of the covered Car Parking Area without using the rear portion of the said plot. After obtaining such report and considering the objections if any, the First Appellate Court is expected to decide the lis on merits preferably within a period of four months from the date of receipt of a copy of this order. The plaintiff shall bear the cost for the appointment of the Advocate Commissioner.

On balance,-

The substantial question of law Nos. 1 and 2 are answered to the effect that the Courts below failed to take into consideration the feasibility of parking the Car by the Plaintiff in the open space, which forms part of the Common Space, without affecting the rights of other Flat Owners including the eight Flat Owners having their right to park their Cars in the Car Parking Area in the found floor, in the absence of an Advocate Commissioner appointed and understanding the realities on ground prevailing.

Both parties shall appear before the First Appellate Court on 27.8.2013.

Accordingly, this Second Appeal is disposed of. No costs. Consequently connected Miscellaneous Petition is closed.