Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act, 1987-Order VII Rule 11(d) CPC- suit for perpetual injunction restraining the petitioner from parking car in the stilt area of the complex -he is the absolute owner and possessor -the recitals and description of the schedule property in the sale deeds of the parties would reveal that while he has got car parking rights in the stilt area, the petitioner does not have such a right.- objection raised - suit not maintainable as A.P.A (PC&O)Act - under Section 24 of the Act, selling or leasing out or misuse of common areas is prohibited and therefore, the claim of the respondent/plaintiff that he has purchased the parking area through registered document dated 29.12.2010 is not sustainable and that as the car parking area forms part of common area, the petitioner is entitled to use the same by parking the car notwithstanding the sale deed does not contain the fact that the parking area is allotted to him. - filed IA for rejection of suit - Trial court dismissed the IA- whether the common area in the apartment premises could be sold or not being a mixed question of fact and law needs to be adjudicated only after trial. The lower Court has further opined that as the provisions of the Act have not expressly or impliedly barred institution of civil suit in respect of any such common areas or questions with regard to such areas, the petitioner is not entitled to question the order under Order VII Rule 11(d) CPC. - their lordships of Telangan High court confirmed the same.- 2015 Telangan msklawreports



The respondent has filed above-mentioned suit for perpetual
injunction restraining the petitioner from parking car in the stilt
area of the complex known as Laxmi Nivas bearing municipal
No.11-13-116/24, admeasuring 500 sq.yards, situated at Road 
No.6, Ramakrishnapuram, Kothapet, Ranga Reddy District. It is
his pleaded case that he is the absolute owner and possessor of
flat bearing No.202, Laxmi Nivas, including common areas and
balcony along with car parking and undivided share of 49 sq.yards
in the said premises and that the petitioner is the owner of flat
No.201, second floor, admeasuring 1115 sq.feet in the same
complex without right to park his car. The respondent averred that
the recitals and description of the schedule property in the sale
deeds of the parties would reveal that while he has got car parking
rights in the stilt area, the petitioner does not have such a right.

The petitioner has filed written statement, raising various
pleas on merits and also the plea that the suit is not maintainable
as it is against the provisions of the Andhra Pradesh Apartments
(Promotion of Construction and Ownership) Act, 1987 (for short
the Act). After filing the written statement, the petitioner has filed
I.A.No.318 of 2014 under Order VII Rule 11(d) CPC for rejection of
the plaint. The main premise on which this application is filed is
that under Section 24 of the Act, selling or leasing out or misuse of
common areas is prohibited and therefore, the claim of the
respondent/plaintiff that he has purchased the parking area
through registered document dated 29.12.2010 is not sustainable
and that as the car parking area forms part of common area, the
petitioner is entitled to use the same by parking the car
notwithstanding the sale deed does not contain the fact that the
parking area is allotted to him.
Trial court dismissed the I.A.
whether the common area in the apartment premises 
could be sold or not being a mixed question of fact and law needs
to be adjudicated only after trial. The lower Court has further
opined that as the provisions of the Act have not expressly or
impliedly barred institution of civil suit in respect of any such
common areas or questions with regard to such areas, the
petitioner is not entitled to question the order under Order VII Rule
11(d) CPC.

 As rightly observed by the lower Court
that the provisions of the Act and the effect of recitals in the sale
deed of the petitioner need to be adjudicated only after recording of
evidence. Any such conclusion arrived at the stage of consideration
of Order VII Rule 11(d) CPC would amount to premature
adjudication and the same is not desirable in the absence of
evidence on record. In the absence of any provision under the Act
expressly barring the suit, the lower Court has rightly dismissed
the application filed by the petitioner for rejection of the plaint.

      In view of the above-mentioned reasons, I do not find any
merit in the Civil Revision Petition and the same is accordingly
dismissed. - 2015 Telangan msklawreports

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