S R BHATTACHARYA Vs. SUBRATA MAJUMDAR

JUDGEMENT

(1.) . In a suit filed by plaintiff against the defendants seeking for a decree of declaration and permanent injunction and in the alternative seeking for a decree for damages for an amount of Rs.15 lac, the plaintiff filed an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure praying for an interim injunction restraining the defendants from selling, transferring or otherwise disposing of the second floor of the said suit property and to maintain status quo thereof till the disposal of the suit.

(2.) The plaintiff filed the suit seeking for the aforesaid relief on the ground that the plaintiff and defendants No.1 to 3 entered into a collaboration agreement dated 10/5/1996 to make construction at property No.A-51, Chitranjan Park, measuring approximately 160 Sq. Yds. The defendants No.1 to 3 are the owners of the said property. In the said collaboration agreement it was mentioned that the Collaborator namely, "the plaintiff would enjoy the exclusive rights of the lower ground floor and terrace rights above second floor whereas the owners namely", the defendants No.1 to 3 would have exclusive rights over the ground floor, first floor and second floor. Process of construction of the aforesaid building was started by the plaintiff and the building came to be completed. It is stated in the plaint that the plaintiff subsequently came to learn that as per rules, regulations and building bye-laws of the Municipal Corporation of Delhi the construction of a third storey on the properties in the area is prohibited and under such circumstances no construction can be made over the terrace of the second floor or anything over and above the second floor and thus the defendants 1 to 3 have defrauded the plaintiff and therefore, the present suit.

(3.) On 1/5/1997 the aforesaid suit as also the injunction application filed by the plaintiff and registered as I.A. No.3875/1997 were placed for necessary orders whereupon this court directed for issue of summons and notices to the defendants. By an order on the same day the defendants were restrained from selling, transferring or disposing of the second floor of the suit property. On service of summons and notices the defendants 1 to 3 made their appearance in the suit and filed their written statement and reply to the injunction application. Subsequently however, on 26/3/1998 as there was no representation on behalf of the plaintiff the suit as also the injunction application was dismissed in default and the interim order was vacated. The plaintiff however, immediately thereafter filed an application in this court under Order 9 Rules 3 & 4 of the Code of Civil Procedure praying for setting aside and/or recalling of the order dated 26/3/1998 and for restoration of the suit to its original number. The plaintiff also filed an application under Order 39 Rules 1 & 2 seeking for a fresh order of injunction restraining the defendants from selling, transferring or otherwise disposing of the second floor of the suit property and for maintaining status quo during the pendency of the suit. On 3/4/1998 an interim injunction was passed by this court restraining the defendants from selling, transferring or disposing of the second floor of the suit property. On 14/5/1998 the application filed by the plaintiff under Order 9 Rules & 4 Civil Procedure Code praying for restoration of the suit was allowed and the suit was restored to its original number. The applications namely IAs No.3063/1998 and 3875/1997 which are got restored alongwith the restoration of the suit to its original number were listed before me and I heard the learned counsel appearing for the parties on the merits of the said applications.