GEETHA GURUSWAMY Vs. ROHINI GARDENS WELFARE ASSOCIATION

JUDGEMENT

(1.) THIS Revision is directed against the order of the VI assistant Judge, City Civil Court, Madras, made in I. A. No. 13609 of 2001 in o. S. No. 5485 of 1999, dated 21-09-2001, dismissing the Application filed under or. 26 R. 9 C. P. C. , declining to appoint an Advocate Commissioner. The Defendant is the Revision Petitioner.

(2.) THE Plaintiff is Rohini Gardens Welfare Association, represented by its Secretary. THE case of the Plaintiff is that the Tamil Nadu housing Board has constructed a residential Apartment, numbered as A to Q and named as Rohini Gardens at Raja Annamalaipuram. Each block consists of 8 MIG Flats, two Flats in the ground floor and six Flats above. THE Plaintiff-Association was formed on 14-07-1983. In the ground floor, Flat Bearing No. B-1 was allotted by the Tamil Nadu Housing Board to one Subbammal. After the demise of subbammal, the Defendant, who claims to be related to the said Subbammal is now in occupation of the Flat No. B-1. In the third week of July 1999, without any authority, violating the conditions of allotment, the Defendant has made structural and other alterations in the said Flat, thereby causing obstruction and inconvenience to other Flat owners. THE Plaintiff's Office bearers met the defendant and asked her to desist from making the structural alterations, but the Defendant did not pay heed to their request. In the letter dated 28-7-1999 the Defendant has clearly admitted the alterations put up by her and she has also admitted that the alterations would weaken the structure and offered to erect beams to strengthen the foundation for the safety of the upper Flats of the Block. Alleging that the disputed construction by the Defendant affects the safety of the owners of the remaining Flats, the Plaintiff-Association has filed the Suit for Mandatory Injunction, directing the Defendant to restore flat No. B-1 to its original position by restoring the Kitchen Wall, by restoring the entrance to its original place and by removing the extension of the balcony of the said Flat and also for Permanent Injunction.

(3.) THE Application was resisted by the Plaintiff contending that the alleged alterations in the Flat Nos. A-4, D-2, Q-1, O-2, i-3 and I-4, are irrelevant factor to decide the Suit on merits. THE application to note down the physical features in the other Flats, which are not the subject matter of the Suit, is not maintainable and is liable to be dismissed.