Usha Suresh vs Ferns City Plot Owners Association

B.S. Patil, J—This appeal is directed against the order dated 19.12.2014 passed in O.S. No. 26403/2014, whereby the application filed under Order XXXIX Rules 1 & 2 CPC by the plaintiff-respondent herein has been allowed restraining the 1st defendant-appellant herein from putting up any construction on the schedule property without prior consent and permission of the plaintiff and also from putting up any multi-dwelling unit on the schedule property.

Respondent herein - M/s. Ferns City Plot Owners Association has filed the suit. The case of the plaintiff is that it is a society registered under the Karnataka Societies Registration Act, 1960, and was formed with an object to protect the collective interests of the plot owners who were the members and residents of Ferns City, a layout formed by the 2nd defendant; 2nd defendant is a developer engaged to provide infrastructure and other facilities such as water and sewage connection to individual plots and common overhead tanks, etc.; in order to ensure systematic and uniform development of the layout, 2nd defendant, prescribed a unique set of bye-laws/rules and regulations known as ''Ferns Builders & Developers FBD Plot Owners'' Manual (Owners'' Manual). According to the plaintiff, as per this manual, a purchaser of the plot in any of the layout formed by the 2nd defendant would be bound by the rules and regulations contained in the owners manual; the owners'' manual at Clause-3 stipulates construction of only a single dwelling unit on the plot and prohibits construction of a multi-dwelling unit.

Plaintiff further contends that it is based on this scheme and the object of having a uniform development, sites were formed and independent purchasers were conferred with ownership over the sites subject to such conditions; 1st defendant-appellant herein being fully aware about the said stipulations and restrictions purchased Plot No. 157 in the layout which was preceded by an agreement of sale.

It is further urged that once formation of layout was completed, plaintiff-association which was formed by the plot owners'' succeeded to the 2nd defendant and took over the management of the layout with regard to its maintenance, etc. It is urged that in terms of owners manual any owner of the plot intending to put up construction has to first obtain NOC from the neighbours; no Due Certificate from the Club; approved layout plan for construction from the authorities, receipt for deposit of garbage fee and construction deposit and No Due Certificate from the Association. It is alleged by the plaintiff that inspite of being a member of the society since 2001 and being fully aware of the rules and regulations 1st defendant did not comply with any of the regulations and started putting up construction by merely obtaining a plan from the BBMP. It is also contended by the plaintiff that though the 1st defendant had made an application seeking No Objection Certificate for putting up construction and although the same was rejected by the plaintiff-association, 1st defendant illegally proceeded with the construction which constrained the plaintiff to approach the court by filing the suit. An application was also filed seeking temporary injunction restraining the plaintiff from putting up construction.

1st defendant appeared and resisted the suit and the application filed. It was contended by the defendant that she was not a member of the plaintiff-society and therefore, the rules and regulations, or for that matter, the bye-laws of the society were not binding on her; that there was no privity of contract between the plaintiff and 1st defendant and that the plaintiff does not have any pre-existing right to restrain the 1st defendant from putting up construction over the said property; that a suit for bare injunction was not maintainable. She also contended that she was the absolute owner in possession and enjoyment of the suit property and had absolute marketable title and was therefore entitled to use and enjoy the property in accordance with law and no restrains or restrictions could be put on her enjoyment by the plaintiff. She further contended that she had obtained plan and license for construction on the suit schedule property from BBMP in accordance with the Karnataka Municipal Corporations Act and the rules, regulations and bye-laws, and therefore, plaintiff cannot prevent lawful construction undertaken by her. Several other contentions were urged.

The Trial Court had granted an ad interim order of temporary injunction. Defendant applied for vacating the same. The Trial Court having heard both the applications, has passed the order under challenge allowing the application filed by the plaintiff and dismissing the application filed by the defendant. In the circumstances, the present appeal has been filed.

Mr. Jayakumar S. Patil, learned Senior Counsel appearing for the appellant contends that 1st defendant was not the member of either 2nd defendant or the plaintiff and that she had not applied for no objection certificate. He further urges that even if an application had been made for grant of no objection certificate to the plaintiff, it will not clothe the plaintiff with a right to prevent the plaintiff from putting up construction or direct the plaintiff to put up construction in a particular manner. He is critical of the findings recorded by the court below contending inter alia that inference drawn by the court below stating that the 1st defendant has to be deemed to have been a member of the plaintiff-society, as otherwise, there was no need for her to apply for issuance of no objection certificate is illegal. In this regard, he has pointed out that the site in question was purchased way back in the year 2001, whereas the plaintiff-association was formed in the year 2003.

It is his submission that 1st defendant has not purchased the property from the plaintiff-society as its member. Therefore, question of plaintiff-association placing restrictions on the right of the 1st defendant in putting up construction in accordance with the bye-laws of the association would not arise. It is his further submission that balance of convenience was not in favour of grant of temporary injunction because by virtue of the order now passed, 1st defendant has been subjected to recurring loss and irreparable injury and hardship.

It is urged that if the plaintiff failed in the suit, there is no way the loss sustained by the defendant could be compensated in view of the unconditional order. He has also pointed out that reliance placed before the court below on the decision of the Apex Court in the case of Zoroastrian Co-operative Housing Society Limited and Another Vs. District Registrar Co-operative Societies (Urban) and Others, AIR 2005 SC 2306 : (2005) 125 CompCas 235 : (2005) 4 JT 337 : (2005) 5 SCC 632 : (2005) 1 SCR 592 : (2005) AIRSCW 2317 : (2005) 3 Supreme 428 , has no application to the facts of the present case, in as much as, it was a case of a member of the House Building Cooperative Society in whose favour the house was allotted incorporating certain restrictions and conditions requiring the allottee to sell the property only to a person who was eligible and would become a member of the society.

It is further contended by the learned counsel for the appellant that pursuant to the order passed by this Court on 27.02.2015, appellant has filed an affidavit enclosing certain photographs and giving particulars of multi-dwelling units that have been constructed in the same layout by different owners of the properties and that it was only as against the 1st defendant that plaintiff had made such a grievance by approaching the Court. He takes me through the affidavit, the addresses furnished therein and the photographs to contend that there is no substance in the contention urged by the plaintiff that it was only the appellant who was attempting to put up multi-dwelling unit and all others had put up single unit.

Learned counsel for the respondent however, invites the attention of the Court to the affidavit filed in reply to the affidavit by the 1st defendant to assert that no apartment building has been permitted so far in the layout.

Learned counsel for the respondent - plaintiff has further contended that 1st defendant having paid the annual maintenance charges in respect of site purchased by her and her conduct in filing an application seeking no objection certificate from the plaintiff for putting up construction clearly disclosed that she was the member of the plaintiff - association and that she had submitted herself to the bye-laws/rules and regulations governing the members of the association with regard to the restriction on the construction to be put up in the sites sold.

It is next contended by him that even while purchasing the site, 1st defendant had full knowledge about the restrictions and therefore, she could not be permitted to contend to the contrary. It is also urged that all the other land owners have followed the restrictions placed on the nature of the construction put up and if the 1st defendant is allowed to deviate from the same, it will result in serious prejudice to the interests of the plaintiff and other owners of the plots/sites in the layout.

It is also contended by him that the Trial Court having appreciated the entire materials on record, has rightly come to the conclusion that prima facie case had been made out by the plaintiff and therefore, the findings recorded therein do not call for interference as there is no illegality or perversity in the said findings.

Upon hearing the learned counsel for the parties, the point that arises for consideration is

"Whether the Trial Court has committed any illegality in granting an order of temporary injunction restraining the 1st defendant - appellant herein from putting up construction over the suit schedule property without prior consent and permission of the plaintiff and also from putting up any multi-dwelling unit on the suit property?"

The deed of sale dated 06.10.2001 under which the 1st defendant has purchased the property has been produced at Document No. 5 along with the absolute sale deed executed by the erstwhile owners of the property in favour of defendant No. 1 In the said sale deed, no restriction is put on the right of the purchaser to enjoy the property in the manner he desired and in accordance with law much less any restriction has been placed to put up any particular type of construction or not to put up any multi dwelling unit. Nearly after 11 years from the date of sale, a deed known as confirmation of sale has been executed on 05.04.2012 between the 2nd defendant - M/s. Ferns Builders and Developers along with its partners and the 1st defendant. In the confirmation deed also there is no such restriction put on the rights of the purchaser - 1st defendant prohibiting use of the property for construction of multi-dwelling unit.

Indeed, these two documents are the documents of title. When the sale deed does not place any restriction on the right and enjoyment of the property by the purchaser, the deed of confirmation of the said sale would not and could not have placed any such restriction. Indeed, there is no such restriction placed. In such an event, under what authority plaintiff wants to restrict the use and enjoyment of the site by the 1st defendant as long as the building byelaws and the rules and regulations of the local body is not violated is un-understandable.

The only contention urged by the plaintiff is that plaintiff - Society is the successor of the developers who had undertaken the development of layout and the said developers had a set of bye-laws framed for the purpose of developing the layout by putting up construction and as per the said bye-laws, multi-dwelling units were not permitted in the layout formed by the developers. It is urged that as the plaintiff - Association is now formed with the plot owners in the layout as its members, they are entitled to enforce the bye-laws which required uniform development of the layout prohibiting construction of multi storied apartments or multi-dwelling units.

This is not a case where the purchaser of the plot - 1st defendant had become a member of the Society subjecting herself to the bye-laws, restrictions and regulations imposed therein requiring her to put up construction at the site allotted in her favour by the Society in a particular manner. As already adverted to above, the sale deed clothes the 1st defendant with absolute power to enjoy the property. The fact that 1st defendant has paid certain maintenance charges to the plaintiff - association or that she has deposited certain amount towards garbage clearance will not automatically subject her to restrictions which the plaintiff - Society wants to impose on its members with regard to the nature of construction put up in the sites owned by them.

Insofar as the findings recorded by the Court below holding that payment of maintenance charges and deposit of garbage charges by the defendant would tantamount to an interference that the 1st defendant had become the member of the society is totally illegal and unsupportable from the documents on record. Indeed, such an inference is contrary to the sale deed which is the primary document that has to be looked into for the purpose of finding out if there is any restriction imposed with regard to the enjoyment of the property. No material is placed before the Court to show that 1st defendant had become a member of the plaintiff - Association and had accepted the restrictions put for constructing dwelling unit in a particular manner in the site purchased by her. Even if an application had been filed by the 1st defendant requesting the plaintiff to grant permission for putting up construction, which of course has been denied by the learned counsel for the 1st defendant, it would not tantamount the plaintiff accepting the restrictions placed and the authority of the plaintiff -association to grant permission or to refuse the same for putting up construction.

The judgment in the case of Zoroastrian Co-operative Housing Society Limited and Another Vs. District Registrar Co-operative Societies (Urban) and Others, AIR 2005 SC 2306 : (2005) 125 CompCas 235 : (2005) 4 JT 337 : (2005) 5 SCC 632 : (2005) 1 SCR 592 : (2005) AIRSCW 2317 : (2005) 3 Supreme 428 referred to supra has no application to the facts of the case. In the said case, a member of the House Building Co-operative Society in whose favour allotment had been made incorporating certain restrictions and conditions regarding alienation of the dwelling unit, intended to dispose of the property contrary to the restrictions put. In such circumstances, the Apex Court found that the restriction placed on him to sell the property only in favour of persons who were eligible to become the members of the society was binding.

In the instant case, as already stated above, there is no material to show that 1st defendant had become the member of the plaintiff - association or for that mater, its predecessor -developers but, had indeed purchased the property in an outright sale from its owners way back in the year 2001. In such circumstances, the Court below has committed serious illegality in recording a finding that prima facie case had been made out by the plaintiff.

It is also necessary to notice here that 1st defendant has stated before the Trial Court and also before this Court by way of an affidavit that in case the judgment goes against her, then, she will not plead equity only because she had put up construction on the site in question. In such circumstances, balance of convenience was not in favour of restraining the 1st defendant from putting up construction. The Trial Court has passed an unconditional order restraining the 1st defendant from putting up construction when the 1st defendant had given an undertaking by way of an affidavit that she will not plead equity in case the judgment goes against her. There is absolutely no reason to restrain her from putting up construction on the suit property. Before a party is restrained from putting up construction, the Court below has to weigh the pros and cons and examine the balance of convenience involved in the case. In the instant case, the balance of convenience is not in favour of the plaintiff for grant of temporary injunction against the defendant. Even the affidavit filed by the 1st defendant - appellant pursuant to the direction issued by this Court enclosing certain photographs also makes it clear that several other persons who have purchased the property have put up construction of huge buildings though not apartments. Whether those buildings could be said to be only single dwelling units or multi-dwelling units is a matter for trial before the Court below. Suffice to observe that no prima facie case has been made out and balance of convenience does not lie in favour of the plaintiff. The Trial Court was not right and justified in granting temporary injunction against the defendant.

Hence, this appeal is allowed. Impugned order is set aside. Interlocutory application filed seeking temporary injunction is dismissed making it clear that in case 1st defendant loses in the suit, she shall not claim equity on the ground that she had put up construction during the pendency of the suit. It is made clear that the observations made in this order are confined to consideration of the application and shall not influence the merits of the case.