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IN THE HIGH COURT OF CALCUTTA
Arijit Banerjee, J.
Bijon Kumar Mallick & Ors. – Appellant
Versus
Associated Builders Corporation – Respondent
G.A. No. 1020 of 2013 with C.S. No. 464 of 1981
Decided On : 12-12-2014
CAR PARKING DISPUTE - INJUNCTION - ACT-SECTION REFERRED : Order 1, Rule 8 of the Code of Civil Procedure - SUMMARY: Joint Administrators were appointed over a multi-storied building with several flats. The dispute revolved around car parking space at the premises. Petitioners, assignees of two flats, claimed two car parking spaces and had rented one from another flat owner. The basement, originally allotted for car parking, was inaccessible due to structural defects. The petitioners parked their cars on the ground floor open area along the driveway. The Joint Administrators started harassing the petitioners regarding parking. Petitioners moved an application for injunction restraining the Joint Administrators from interfering with the parking of their cars. The court allowed the petitioners to continue parking their cars without blocking the driveway but later vacated the interim order. On appeal, the Division Bench directed the Joint Administrators to repair and/or remodel the basement in consultation with the flat owners and beneficiaries of the basement to bear the cost equally. The work was to be completed within six months. The petitioners alleged that the Joint Administrators had not commenced the repair/remodeling work as directed by the Division Bench and that Angad Merchants, claiming to be registered sub-lessee of a portion of the basement, was illegally carrying out repair work there to convert it into retail stores. The petitioners sought various reliefs, including an order directing the Joint Administrators to ensure that no repair work is carried out at the basement, to take police protection for implementing the court's order, and to implement the Division Bench order dated 11th August, 2006. Angad Merchants contended that the suit had not assumed representative character as no advertisement had been published and that the petitioners had no locus standi to maintain the application as the deeds of assignment in their favor were unstamped and unregistered documents. The court held that a person having actual notice of the suit, even though the plaintiff had not served notice as contemplated under Order 1, Rule 8 (2) of the CPC, was entitled to make an application in the suit praying for reliefs within the scope of the suit. The court also held that the Division Bench order dated 11th August, 2006, having reached finality, ought to be implemented immediately and that no repair work or any other work should be carried out in the basement until such implementation. The court partly allowed the application and directed the Joint Administrators to take expeditious steps to implement the Division Bench order.
Fact of the Case:
The dispute revolved around car parking space at Premises No. 12 Dr. U.N. Brahmachari St. Kolkata-17 (hereinafter referred to as 'the said premises'). The said premises is a multi-storied building with several flats. The plaintiffs are owners/occupants of Flat Nos. 7B and 6B of the said premises. The petitioners being Aloke Kr. Somani and his wife Manjushree Somani claim to be assignees of Flat Nos. 9A and 9B at the said premises and are residing at the said two flats.
Finding of the Court:
The court held that a person having actual notice of the suit, even though the plaintiff had not served notice as contemplated under Order 1, Rule 8 (2) of the CPC, was entitled to make an application in the suit praying for reliefs within the scope of the suit. The court also held that the Division Bench order dated 11th August, 2006, having reached finality, ought to be implemented immediately and that no repair work or any other work should be carried out in the basement until such implementation.
Issues: Whether the petitioners, who are not parties to the suit, can maintain the instant application.
Ratio Decidendi: The court relied on Order 1, Rule 8 of the Code of Civil Procedure, which provides for representative suits. The court held that even though the proper course is to obtain leave under Order 1, Rule 8 of the CPC before the institution of the suit, but if that is not done the Rule does not forbid leave being granted afterwards. Leave under the said Rule may be granted even after the institution of the suit and even at the appellate stage by allowing an amendment if such amendment does not materially change the nature of the suit.
Final Decision: The court partly allowed the application and directed the Joint Administrators to take expeditious steps to implement the Division Bench order dated 11th August, 2006.
Arijit Banerjee, J.
1. The entire dispute in the present application appears to revolve around the issue of car parking at Premises No. 12 Dr. U.N. Brahmachari St. Kolkata-17 (hereinafter referred to as 'the said premises'). The said premises is a multi-storied building with several flats. The plaintiffs are owners/occupants of Flat Nos. 7B and 6B of the said premises. The petitioners being Aloke Kr. Somani and his wife Manjushree Somani claim to be assignees of Flat Nos. 9A and 9B at the said premises and are residing at the said two flats. In June, 1991 the plaintiffs instituted the instant suit with leave under Order 1, Rule 8 of the Code of Civil Procedure praying for diverse reliefs. Essentially, the suit is in the nature of an administration suit in respect of the said premises. In the said suit the petitioners have filed the present application.
Contention of the petitioners:
2. Along with the said two flat nos. 9A and 9B the petitioners acquired two car parking spaces at the said premises. They have also taken on rent one car parking space from one M/s. M.C. Sarkar & Sons being the owner of flat no 4 at the said premises. The petitioners as also some other flat owners were originally allotted car parking space in the basement of the building but the same is inaccessible because of inherent defects in the structure of the building. As such, those who owned car parking space in the basement have been parking their vehicle on the ground floor open area along the driveway.
3. In the above suit by an order dated 24th August, 1991 Joint Administrators were appointed over the said premises. Since then, the said premises have continued to be under Joint Administrators although the personnel of such Joint Administrators have changed from time to time.
4. The common passage on the ground floor which is used for car parking and for ingress and egress of vehicle is from Loudon Street to Moira Street. At all material times the Loudon Street gate used to be kept locked and both ingress and egress used to be through Moira Street. This was the position till the Louden Street gate was opened sometime around July, 2006.
5. The petitioners' cars are parked in their allotted space on the Louden Street side of the common passage which is over 13 ft. wide while the passage on the Moira Street side is even wider.
6. The petitioner no. 1 along with other persons have made an application in the present suit being GA No. 2100 of 2005 for discharging the Joint Administrators and for handing over charge of the suit premises to a democratically elected committee of flat owners. The said application is still pending.
7. Particularly after filing of the said application the Joint Administrators started harassing the petitioners in various manners as regards the parking of the petitioners' cars. Accordingly, the petitioners were compelled to move an application being GA No. 2182 of 2006 praying for, inter-alia, an order of injunction restraining the Joint Administrators from interfering with the parking of the petitioners' three cars on the ground floor inside the said premises. An interim order dated 26th July, 2006 was passed by this Court allowing the petitioners to continue parking their cars in the said premises without blocking the driveway. However, on 7th August, 2006 this court vacated the interim order and refused the petitioners prayer for extension of such order.
8. An appeal preferred against the order dated 7th August, 2006 was disposed of by the Hon'ble Division Bench by a judgment and order dated 11th August, 2006 which was to the following effect:-
"After hearing the Ld. Advocates appearing for the parties, the appeal and the application are both disposed of by the following order after treating the appeal as on the day's list.
There shall be an order in terms of prayers (a) and (b).
All undertakings are discharged.
This is a suit filed in representative character. Therefore, the orders to be passed herein shall be binding upon all the
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