Dismissed

Bharatchandra Jeram Thakkar and Anr. v. Mrs. Veena Bipin Udani

Bombay HC1 Jul 2014WP/1142/2013

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order of the Bombay City Civil Court that held the appellants guilty of civil contempt for locking gates and blocking terrace access. The court construed the impugned order as granting common use rights to all tenement holders.

What did the court decide?

No order as to costs; Writ Petition dismissed holding the lower court's contempt order correct.

Bharatchandra Jeram Thakkar and Anr. Vs Mrs… — Civil Procedure and Limitation | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.1142 OF 2013

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Bharatchand J. Thakkar & Anr.

...Petitioners

V/s.

Mrs.Veena B. Udani

...Respondent

Mr.Harinder Toor with Ms.Sumedha Sawant i/b Mr.N.N. Amin for the Petitioners.

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Ms.Siddhi Doshi i/b Vinod Juwale for the Respondent.

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CORAM : S.J. VAZIFDAR & A.K. MENON, JJ. DATE : 1ST JULY, 2014.

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P.C. :-

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The petitioners have challenged an order passed by the Bombay City Civil Court dated 25.01.2011 in Contempt Notice of Motion No.66 of 2011 in S.C. Suit No.6704 of 2002. We will presume for the purpose of this order and judgment that the writ petition is maintainable against the impugned order.

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The petitioners are defendant Nos.16 and 17 to the said suit. The suit was filed by the respondent. The respondent had earlier taken out Notice of Motion 5017 of 2002 for an injunction directing the

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petitioners / defendant Nos.16 and 17 to remove the structures constructed by them on the terrace of the building ; an injunction restraining the petitioners from preventing her from parking her cars in the compound and an order restraining the petitioners from obstructing and/or preventing her use, occupation and enjoyment of the flat purchased by her together with the incidental rights, use and enjoyment of the common places and the terrace by locking the same.

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By an order dated 20.11.2010 the learned Judge disposed of Notice of Motion No.5017 of 2003. Mr.Toor, the learned counsel appearing on behalf of the petitioners relied upon the operative part of the order, which reads as under :-

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“ ORDER

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Notice of Motion No.5017/2003 in suit No.6704/2002 is partly allowed.

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During the pendency of the suit defendant Nos.16 and 17 or any persons on their behalf are restrained from causing obstruction to the plaintiff from use, occupation and enjoyment in respect of suit flat.

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3. Rest of the claims in Notice of Motion stands dismissed.”

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For the purpose of this writ petition, it will be necessary to

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refer to the order as a whole. We will refer to the order in greater detail while dealing with Mr.Toor's submissions challenging the impugned order, which was passed in the contempt notice of motion,

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alleging a breach of the above order dated 20.11.2010.

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The respondent thereafter filed the said Contempt Notice of Motion No.66 of 2011 alleging contempt of the order dated 20.11.2010. The respondent inter-alia alleged that the petitioners had obstructed her access,use and enjoyment of the common areas, including the common car parking and the terrace.

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The said contempt notice of motion was disposed of by the impugned order and judgment dated 25.01.2011. The operative part of the order reads as under :-

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“ ORDER

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Contempt Notice of Motion No.66/2011 in Suit No.6704/2002 is partly allowed.

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If defendant Nos.16 & 17 failed to remove the lock of the compound gate and door of the terrace premises of suit building the plaintiff would get further order from the court for removal of these locks.

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If the defendant Nos.16 & 17 failed to remove the locks of compound gate and door of the terrace premises the court is reserving the right to pass an order in respect of detention of defendant Nos.16 & 17 in civil prison.

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Time granted for removal of locks till 31.01.2011.”

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The question therefore, is whether the petitioners had

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violated the order dated 20.11.2010. Mr.Toor submitted that the order

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dated 20.11.2010 rejected the petitioners' application for reliefs entitling her to avail of the common areas for parking and to use the

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terrace. He submitted therefore, that the petitioners having prevented the respondent from doing so are not guilty of contempt.

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The respondent on the other hand contended that the order dated 20.11.2010 not only did not prevent her from using the common facilities but expressly permits her to do so.

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The resolution of this dispute lies in the interpretation of the order dated 20.11.2010. Mr.Toor's interpretation of the order is not well founded. We are entirely in agreement with the respondent. The error in Mr.Toor's submission is on account of relying upon stray sentences from the order. The order must be read as a whole. So read, it supports the respondent's contention. We proceed to construe the order dated 20.11.2010.

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In paragraph 3, the learned Judge rejected the respondent's claim in respect of the terrace. It is however, important to note that what was rejected was the exclusive right in respect of the terrace. It was expressly noted that the petitioners were given development rights, which would be defeated only if the respondent would point out “absolute and exclusive rights on terrace portion of third floor of the suit building”. As the respondent was unable to establish an exclusive right, an injunction directing the petitioners to remove the sheds and structures was not granted. In other words, the learned Judge did not hold that the petitioners did not have a right of

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use the terrace. He did not hold that the terrace was not a common

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area.

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Paragraphs 12 and 13 of the order are important and read

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as under :-

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“12. Here occupation, user and enjoyment in the flat bound to protect by the court but consequential relief for enjoyment of other places at and around the constructed property cannot be absolute in favour of the plaintiff. So plaintiff's claim for protection of right in respect of parking place for the vehicles besides the removal of defendant No.16 and 17 along with their articles from terrace of the building may not be justified. It may held up the development work which is targeted by the defendant Nos.16 and 17. Plaintiff alone is not a person occupying premises in the building. There are many tenements occupied by different persons who are having common interest in respect of open places including terrace of the building on plot in question. The defendant Nos.16 and 17 who agreed to develop the property are not answerable to the individual plaintiff for each and every place particularly open sites but they will be answerable to all the tenement holders who held the flat in the building on plot in question.

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There being no absolute ownership claim of plaintiff to entire property the claim for absolute relief for user, occupation of open place and terrace under the garb of injunction order against the defendant Nos.16 and 17 may not be justified. So I am of the view that protection in respect of possession of flat may be given and common user of open place may also be allowed by the court but not absolute holding of open terrace to prevent defendant Nos.16 & 17 from having development of the property. In the result following order.”

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It is important to note a few aspects in respect of the above observations. Firstly, the learned Judge only held that the

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respondent did not have an absolute right in respect of the area outside her own flat. In other words, the learned Judge did not hold that the respondent has no rights in respect of the area other that of her flat. Secondly, the learned Judge held that there are many tenants other than the respondent, who have a common interest in respect of the open spaces, including the terrace. Thirdly, it was expressly held that the petitioners are answerable “to all the tenement holders”. It follows therefore, that the finding was that the respondent did not have exclusive rights in respect of the areas outside her flat. She had a common interest therein along with the holders of the other tenements. This is clearer still from paragraph 13 where all that the learned Judge held was that the respondent did not have “absolute ownership claim” to the entire property and that the claim for absolute relief of user, occupation of open space and terrace is not justified.

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The last sentence in paragraph 13 is most important. Having come to the above conclusion the learned Judge expressly granted the respondent protection not merely in respect of the flat but in respect of the common user of open space with the caveat that the respondent did not have an absolute right to hold the open terrace to prevent the petitioners from developing the property.

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Despite the above order, the petitioners admittedly locked

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the gates of the compound and blocked the access to the terrace. This is contrary to the order dated 20.11.2010. The learned Judge therefore, by the impugned order rightly granted the petitioners an opportunity of complying with the order.

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Mr.Toor relied upon paragraph 38 of the judgment of the Supreme Court in Food Corporation of India v. Sukh Deo Prasad, (2009) 5 SCC 665, which reads as under :-

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“ 38. The power exercised by a court under Order 39 Rule 2-A of the Code is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971. The person who complains of disobedience or breach has to clearly make out beyond any doubt that there was an injunction or order directing the person against whom the application is made, to do or desist from doing some specific thing or act and that there was disobedience or breach of such order. While considering an application under Order 39 Rule 2-A, the court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the “order”, on surmises, suspicions and inferences. The power under Rule 2-A should be exercised with great caution and responsibility.”

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The judgment is of no assistance to the petitioners' case.

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In our opinion, the respondent has made out a clear case that of disobedience of the order dated 20.11.2010. The learned Judge has not directed the petitioners to do something which was not in the original order. He has enforced compliance of the order.

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In the circumstances, the writ petition is dismissed.

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Presuming in their favour that the petitioners had bona-fide misunderstood the order dated 20.11.2010, there shall be no order as

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to costs.

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(A.K. MENON, J.) (S.J. VAZIFDAR, J.)

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Bharatchandra Jeram Thakkar and Anr. v. Mrs. Veena Bipin Udani

Case brief

What is this about?

What did the court decide?

Bharatchandra Jeram Thakkar and Anr. v. Mrs. Veena Bipin Udani

Case brief

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What the court decided

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