2014 (12) TMI 1390 - HC - Indian Laws

Issue of car parking at Premises - leave under Order 1 Rule 8 of the Code of Civil Procedure - whether the petitioners, who are not parties to the suit, can maintain the instant application? - HELD THAT - While it is not disputed that the suit was instituted with leave under Order 1 Rule 8 of the Code of Civil Procedure, it is contended on behalf of Angad Merchants that no notice of the suit having been published as contemplated under Order 1 Rule 8 (2) of the CPC, the suit has not assumed representative character and, as such, a non-party to the suit cannot maintain any application therein. There is nothing on record to show that notice of the suit has been given to all persons interested therein either by personal service or by public advertisement. Would that mean that a party who is similarly interested in the suit as the plaintiff is precluded from filing an application in the suit for appropriate reliefs even if he has actual notice of the suit? In my opinion, the answer must be in the negative. The provision of notice is there so that a party who would be bound by a decree passed in a representative suit does not find that he is bound by a decree without even having notice of the suit. The entire purpose of serving notice, be it individual notice or public notice, is to make all such persons aware that a representative suit has been filed so that such persons, if they choose can come forward and either support or oppose the cause. A person having actual notice of the suit, even though the plaintiff has not served notice as contemplated under Order 1 Rule 8 (2) of the CPC, is entitled to make an application in the suit praying for reliefs which are within the scope of the suit - time to issue notice of the suit may be extended by the Court and such notice can be issued privately or by public advertisement at any stage of the suit. It is merely that until such notice is issued a non-party who is not before the Court will not be bound by any order or decree passed in the action - the issue is decided in favour of the petitioners. The petitioners prayed that the Joint Administrators should take expeditious steps for the purpose of implementing the Division Bench order dated 11th August, 2006. Angad Merchants contends that the said order was obtained by suppressing their presence in the disputed portion of the basement and behind its back. Application allowed in part.

Summary

Issues Involved:
1. Car parking allocation and usage at the said premises.
2. Appointment and actions of Joint Administrators.
3. Implementation of the Division Bench order dated 11th August, 2006.
4. Alleged illegal possession and construction by Angad Merchants Pvt. Ltd.
5. Validity and effect of unstamped and unregistered deeds of assignment.
6. Representative nature of the suit under Order 1 Rule 8 of the CPC.
7. Petitioners' locus standi to maintain the application.

Issue-wise Detailed Analysis:

1. Car Parking Allocation and Usage:
The dispute centers around the car parking spaces at Premises No. 12 Dr. U.N. Brahmachari St., Kolkata-17. The petitioners, owners of flats 9A and 9B, claim two car parking spaces and have rented an additional one. Due to structural defects, basement parking is inaccessible, leading to vehicles being parked on the ground floor driveway.

2. Appointment and Actions of Joint Administrators:
Joint Administrators were appointed by an order dated 24th August, 1991, to manage the said premises. The administrators have been in charge since then, although personnel have changed over time. The petitioners allege harassment by the administrators regarding car parking, leading to an application for injunction against interference, which was initially granted but later vacated.

3. Implementation of the Division Bench Order Dated 11th August, 2006:
The Division Bench directed the Joint Administrators to repair or remodel the basement, with costs to be borne equally by the beneficiaries. The work was to be completed within six months. However, the administrators have not commenced this work. The petitioners seek expeditious implementation of this order.

4. Alleged Illegal Possession and Construction by Angad Merchants Pvt. Ltd.:
The petitioners allege that Angad Merchants has illegally taken possession of a portion of the basement and is converting it into retail shops, contrary to the Calcutta Municipal Corporation Rules. Angad Merchants claims to be a registered sub-lessee and asserts that the administrators never took possession of their portion of the basement.

5. Validity and Effect of Unstamped and Unregistered Deeds of Assignment:
Angad Merchants argue that the deeds of assignment in favor of the petitioners are unstamped and unregistered, thus conferring no proprietary rights. The petitioners counter that the question of impounding arises at trial, not at the interlocutory stage, and their current application seeks to enforce the Division Bench order.

6. Representative Nature of the Suit Under Order 1 Rule 8 of the CPC:
The suit was filed with leave under Order 1 Rule 8 of the CPC, but no notice has been published, raising questions about its representative nature. The court holds that a person with actual notice of the suit can still apply for reliefs within the suit's scope, even if formal notice under Order 1 Rule 8(2) has not been issued.

7. Petitioners' Locus Standi to Maintain the Application:
Despite Angad Merchants' contention that the petitioners lack locus standi due to unstamped and unregistered documents, the court finds that the petitioners can maintain the application. The Division Bench's order dated 11th August, 2006, which has attained finality, must be implemented immediately.

Court's View:
The court acknowledges the rival contentions but emphasizes the need to implement the Division Bench order dated 11th August, 2006. The Joint Administrators are directed to take immediate steps for repair or remodeling of the basement as per the order. Until then, no repair or other work should be carried out in the basement by any other person. The application is partly allowed with an order in terms of prayers (d) and (e) of the petition. There is no order as to costs.