Judgment:
The Court : By this contempt application the petitioners have alleged violation of the order dated 22nd October, 2009. The case of the petitioners is that by order dated 22nd October, 2009, an undertaking was given by the occupants of flat no.9B that no motor cycle will be parked in the common area of the said building. In spite of such undertaking, the alleged contemnor nos.5 and 6 have continued to park their motorcycles in the common area.
Hence the instant application has been filed and orders sought. Counsel for the alleged contemnor respondent nos.1 to 4 submits that no undertaking was given by them and the said premises divided into commercial and residential establishments. The ground floor and the first floor are commercially exploited while the second and third floor is used for residential purposes.
The said premises has two entrances. One of which is used by the occupants of the commercial establishment and the other which is used by the residents of such premises. The areas which have been allotted to persons for commercial purposes are used by them.
As no undertaking was given by the landlord there has been no violation of any order. Therefore, no rule be issued against it. At no point of time it has allowed or permitted the occupants of flat no.9B to park their motorcycles.
Therefore, no rule be issued. Having considered the submissions of the parties from the order dated 22nd October, 2009, it appears that no undertaking was given by the alleged contemnor respondent nos.1 to 4. In the affidavit filed in February, 2010 also it has been stated that the alleged contemnor respondent nos.1 to 4 have not permitted parking of any vehicle.
This averment made in the affidavit filed is contrary to the averments made by the added respondent in its affidavit affirmed on 23rd December, 2009 wherein the added respondent has categorically stated that a sum of Rs.100 is paid for a month to the landlord to park two motorcycles in the market place. Such parking was definitely in the common area which is a property of the landlord as the landlord has refused to recognize the association.
A money receipt evidencing sums paid on account of motorcycles parked has also been annexed to the affidavit of the added respondent affirmed in December 2009, although such receipt is for the month of July 2009. In the affidavit filed in December, 2009 it has been categorically stated that Rs.100 is being paid every month as rent for parking motorcycle. Paragraph 4 of the affidavit is set out herein below:- With reference to paragraphs 1 to 37 of the said petition save and except what are matters of record all allegations to the contrary are denied and disputed. I state that the answering respondents pay the monthly rent regularly for occupying the area of 1400 sq.ft. as flat No.9B.
In addition thereto a sum of Rs.100/- is being paid every month as rent for parking motor cycle. Therefore, the parking of the motor cycle is with the consent of the alleged contemnor respondent nos.1 to 4 and the explanation sought to be given in the affidavit cannot be accepted.
Accordingly, let a rule be issued against the alleged contemnor respondent nos.1 t 4. As the parking of the motor cycle has been admitted by the alleged contemnor respondent nos.5 and 6, the explanation given by them that no parking is being effected by them cannot be accepted and accordingly, a rule be also issued against the alleged contemnor-respondent nos.5 and 6. Rule is made returnable two weeks after the long vacation.
Department and all parties concerned are to act on a Photostat signed copy of this order on the usual undertakings.