Compliance with Section 8 of the Tamil Nadu Apartment Ownerships Act, 1994 in the context of alterations to apartment properties.

JUDGMENT

(Prayer: Second Appeal is filed under Section 100 of CPC, against the judgment and decree, dated 01.07.2015 in A.S.No.133 of 2014 on the file of the Principal Sub Court, Madurai, confirming the judgment and decree, dated 02.06.2014 in O.S.No.614 of 2009, on the file of the Additional District Munsif, Madurai.)

1. The appellant herein is the appellant / plaintiff and the respondents herein are the respondents / defendants before the Court below.

2. For the sake of convenience, the parties are referred to according to their litigative status before the trial Court.

3. The brief averments in the plaint is as follows:-

The plaintiff is represented through her power agent. According to the plaintiff, she is the owner of Flat No.C7/118, in C7 Block of the Tamil Nadu Housing Board. The same is the suit property. This plaintiff submits that, in the undivided common area and the common facility, no one have any right to alter the physical features, unless it is approved by all the Flat owners. This plaintiff further submits that the flat, namely, the suit property was constructed 45 years back. The C - Block consist of 6 houses and all the 6 flat owners have been using the common area available infront of their block and in that common area, there is also a common sewage system exist. This plaintiff further submits that, the first defendant is the owner of the flat No.C7/6, and the second defendant is the owner of flat No.C7/5. The defendants, without even obtaining any concurrence from other flat owners, have altered the physical features of the flat by shifting the main door in the place of the existing window and has also put up a cement concrete floor in the common area. As such, this plaintiff submits that the defendants have encroached upon the common area. This plaintiff further submits that the very conduct of the defendants is contrary to the Tamil Nadu Apartment Ownerships Act, 1994 (Herein after called “the Act”). Therefore, this plaintiff prayed to grant an order of permanent injunction, restraining the defendants from interfering in the usage of the common area, and for mandatory injunction to direct the defendant to set right the unauthorized alteration made in the defendants' flat. Hence, prayed to allow the suit.

4. The brief averments of the written statement filed by the first defendant is as follows:-

This defendants submits that, their flat situate in the ground floor, and that their floor level is in the depth of one feet from the road level. They further submits that, during the rainy season, there will be influx of sewage and rainy water. Hence, they got permission from the apartment owners Association to put up concrete floor, similar to the one has already been permitted by the Association for the flat owners C7/1, 2 and 3. Therefore, this defendant submits that concrete flooring has been put up only upon the permission granted by the apartment owners. This defendant further submits that, they have made alteration of the door with the permission of the Secretary of the Association and of the other flat owners. This defendant further submits that the plaintiff has every right to use the common area. It is also the further submission of the defendant that, since they had an Association under the name and style of “Housing Unit Association”, the instant suit is liable to be dismissed on the ground of non-joinder of necessary party qua the Association. They would further submit that the plaintiff instituted the suit only with vengeance on account of the complaint of this defendant against misdeeds of the plaintiff. Hence prayed to dismiss the suit.

5. Before the Court below, the plaintiff has examined One witness as P.W.1, and on behalf of the defendants 2 witnesses were examined as D.W.1 and D.W.2. On behalf of the plaintiff, 12 documents were marked as Ex.A1 to A12 and on behalf of the defendants, 4 documents were marked as Ex.B1 to B4. As Court documents, Ex.C1 and C2 were marked.

6. After consider