JUDGMENT
1. This miscellaneous First Appeal is presented by the defendant (appel-lant herein) aggrieved by the order dated 27-9-1989 made by the VIII Additional City Civil Judge, Bangalore City on I.A. Nos.1 and 3. I.A. No. 1 was an application filed by the plaintiff (respondent herein) in a suit instituted by her for partition of her 25% share and separate possession of the plaint schedule land. In the said suit, the respondent made an application numbered as I.A. No. 1 seeking an ex parte order of injunction restraining the appellant from proceeding with the construc-tion on any portion of the suit land. The Court granted the ex parte order of injunction sought, by order dated 19-6-1989. Subse-quently, the respondent entered appearance and made an application numbered as I.A. No. 3 for vacating the said order of injunction, which has been dismissed by the trial Court while affirming the order on I.A. No. 1 previously made granting injunction.
2. The facts necessary, for appreciating the rival contentions, in brief, are as follows :
Lands bearing Sy. Nos. 11 and 12 of Chik-kalasandra village, Uttarahalli Hobli, Banga-lore South Taluk, originally belonged to five persons. It appears, the said lands which were agricultural lands, are converted for non-agricultural purposes. The total extent of lands in question is 12,752 sq. mtrs. It is not in dispute that these lands which originally belonged to five persons, namely, K. R. Balaram, K. R. Krishnappa, Ramakka and Gouramma, were jointly purchased under five sale deeds in the month of February 1988 by the appellant, respondent and one Radha D. Kashyap. These lands were held jointly by the appellant, respondent and the said Radha D. Kashyap in the following ratio–
50% held by the appellant;
25% held by the respondent; and
25% held by Radha D. Kashyap.
3. Subsequently, Radha D. Kashyap sold her 25% share in the property to the appellant and consequently the appellant is having 75% share in the plaint schedule property. From the documents produced by the parties, it appears that under an agreement to sell dated 21-9-1988 between the respondent and the appellant herein, the respondent agreed to sell her 25% of the share in the plaint schedule property to the appellant. The main terms as could be gathered from the agreement between the appellant and the respondent are the following —
(i) That the appellant has formulated a project for a group housing scheme on the plaint schedule lands and has requested the respondent, who owned 25% share in the property, to sell her share to the appellant for a consideration of Rs. 8,00,000/- free from all encumbrances;
(ii) That the appellant has paid the respondent on the day of execution of the agreement a sum of Rs. 20,000/- by cheque dated 21-9-1988 drawn on Amarnath Cooperative Bank Ltd., Bangalore as advance towards the sale-price;
(iii) The balance of the sale price, namely Rs. 7,80,000/- to be paid in five instalments by the appellant to the respondent on the following dates :
(a) On or before 31st December 1988 — Rs. 1,25,000/-;
(b) On or before 31st January 1989 — Rs. 1,25,000/-;
(c) On or before 28th February 1989 — Rs. 1,25,000/-;
(d) On or before 31st March 1989 –Rs. 1,25,000/-;
(e) On or before 31st April 1989 –Rs. 3,00,000/-.
(iv) That the sale deed shall be executed by the respondent in favour of the appellant or their nominee/s;
(v) That the appellant shall not be entitled for vacant possession of the property which is the subject matter of the agreement unless and until the appellant has paid the respondent the full consideration as stated above;
(vi) That if the appellant fails to pay any instalment towards sale consideration as provided in cluase (iii) above or commits any breach of the agreement, then for such delayed payment, the appellant shall be liable to pay to the respondent interest calculated at the rate of 3% per annum till the date of payment, provided that in the event of default on the part of the appellant “to pay any two instalments at a time”, then the respondent shall be entitled to terminate the agreement without any notice to the appellant and shall be entitled to forfeit a sum of Rs. 2,00,000/-.
4. In the agreement the property is described as under :
“All that piece and parcel of immoveable property being agricultural land now converted to residential use totally measuring 3 acres 6 guntas in Sy. Nos. 11 and 12 Chik-kalasandra, Uttaratialli Hobli, Bangalore South Taluk”.
Boundaries are also given in the agreement.
5. On the same day another agreement between the appellant and the husband of the respondent has come into existence under Which, the husband of the respondent namely, M. Chandrashekar is engaged by the appellant company as a consultant for the proposed group housing project to be executed on the plaint schedule lands. It is seen from the agreement that the aforesaid Chan-drashekar, who is referred to as a consultant in the agreement, advised and assisted the company from time to time in the implementation of the said group housing project, more specifically in the preparation of and filing of applications for permissions and sanctions for the group housing project including building plans from the Bangalore Development Authority, from the Karnataka Electricity Board and the Bangalore Water Supply and Sewerage Board. This consultancy agreement provided for payment of a sum of Rupees 2,00,000/- to the husband of the respondent for the services rendered by him as consolidated fee. In the agreement it is recorded that since the appellant was not in a position to pay the said sum of Rs. 2,00,000/-, the appellant had requested him to accept the payment in four instalments in the manner indicated hereunder —
(a) On or before 31-12-1988 a sum of Rs. 50,000/-
(b) On or before 31-1-1989 a sum of Rs. 50,000/-
(c) On or before 28-2-1989 a sum of Rs. 50,000/-
(d) On or before 31-3-1989 a sum of Rs. 50,000/-
It is provided that the appellant shall not ask for any extension of time and in the event of default in payment of the stipulated amount, interest calculated at the rate of 3% per month till the payment of the instalments shall be paid. In the said agreement the appellant has also acknowledged having received from the consultant all correspondence, documents, specifications, appears and property belonging to the company.
6. From the above two agreements, one thing is obvious i.e., the husband of the respondent, namely, Chandrashekar, had played a significant role in the project contemplated by the appellant-company. It is also necessary to bear in mind in this contest
that the suit now filed is by the respondent represented by her husband Chandrashekar as her power of attorney holder.
7. The aforesaid facts are not in dispute between the parties. From the documents available on record, it appears that differences between the parties have arisen on account of alleged non-payment of amounts by the appellant to the husband of the respondent strictly in terms of the consultancy agreement. This is obvious from the legal notice dated 13-6-1989 caused to be issued by Chandrashekar addressed to the appellant-company. In the said notice, it is asserted that the appellant engaged the services of the said Chandrashekar as a consultant for the proposed group housing project at Sy. Nos. 11 and 12, Chikkalasandra, Uttarahalli Hobli, Bangalore South Taluk; that the said Chan-drasekar had advised and assisted the appellant-company in the implemention of the aforesaid project and his assistance was principally sought for getting the permission and approvals for the said project from the several statutory authorities including Bangalore Development Authority, Karnataka Electricity Board and Bangalore Water Supply and Sewerage Board. In the said notice, the conduct of the appellant company has been found fault with in that the appellant had failed to pay to the said Chandrasekhar the consultancy fees stipulated in the aforesaid agreement and the appellant had also defaulted in paying the additional sum of Rs. 63,805/- said to have been paid by the said Chandrashekar towards the developmental charges to the Bangalore Development Authority under Receipt No. 18228 dated 16-1-1988 which was agreed to be paid by the appellant by its letter dated 7-2-1989. In the said notice, a demand for additional sum of Rs. 9,000/- as commission charges was also made on the basis of the letter said to have been written on 7-3-1989 by the appellant. Therefore the appellant had been called upon to pay the said amount aggregating to Rs. 2,72,805/- with interest at 3% per month. The notice was issued threatening to take legal action in the event of nonpayment of the amount demanded.
8. There are several other documents produced by the parties from which the following facts emerge : It appears that the original five owners, who sold the lands under five sale deeds to the appellant, respondent and Radha D. Kashyap, themselves had obtained permission from the Bangalore Development Authority for group housing scheme in the aforesaid lands which is evident from the letter dated 8-10-1987 written by the Bangalore Development Authority to the said Ramakka and others. In the said letter there was a demand by the Bangalore Development Authority for the payment of a sum of Rs. 64,365/- towards development charges at Rs. 3/- per sq. yd. for three acres six guntas of land and supervision charges at 17.5% or Rs. 7/- per sq. yd. for three acres and six guntas. In the previous notice dated 21-12-1982 addressed to the said Ramakka and others, a demand had been made purporting to be under Section 18(1) of the Karnataka Town and Country Planning Act, 1961, for payment of betterment fee of Rs. 63,805/-. There is also a receipt dated 8-1-1988 for a sum of Rs. 64,365/- issued in favour of the said Ramakka and others towards approval of the aforesaid development plan. There is another receipt dated 16-1-1988 for a sum of Rs. 63,805/- issued in favour of Ramakka and others towards betterment fee.
9. The letter dated 17-9-1988 addressed to the appellant, respondent and Radha D. Kashyap, by the Bangalore Development Authority discloses that with reference to their application dated 27-7-1988 for grant of licence for the proposed group housing project, a licence had been sanctioned and the same had been approved by the Commissioner in No. 4992 dated 9-9-1988.
10. From the aforesaid documents it is obvious, that the appellant-company on the basis of certain understanding arrived at with the respondent and her husband proceeded to invest considerable sums of money for the development of the land at Sy. Nos. 11 and 12 of Chikkalasandra village, Uttarahalli, Hobli, Bangalore South Taluk, which is the plaint schedule property. The licence issued by the Bangalore Development Authority bearing No. PL/EM/S98 of 1989 dated 17-9-1988
which stands in the name of the appellant lends support to the case of the appellant that the company acted on the representation of the respondent and her husband that 25% share of the respondent will be conveyed to the appellant company for executing the said project, on the basis of which the appellant made necessary arrangements and obtained the licence and the sanctioned plan as stated above. The photo copy of the sanctioned plan for the group housing project discloses that the said plan has been prepared by M/s. Potential Service Consultant (P) Ltd., Consulting Engineers. The Certificate dated 26-6-1989 issued by the said M/s. Potential Service Consultants (P) Ltd., discloses that the appellant has already invested on the preparation and securing of materials to an extent of Rs. 25,96,124-15.
11. The plan sanctioned by the Bangalore Development Authority for group housing project is in accordance with the table 2G of the Comprehensive Development Plan which is prepared under Chapter IV of the Karnataka Town and Country Planning Act, 1961. The table 2-G which contains the zonal regulations, specifies the minimum size of the land for group housing, the land coverage, height of the building, the number of floors, floor area ratio and the set backs.
12. The photographs produced by the appellant also show that foundations have already been put up for two or three blocks of the building and columns have also erected up to a certain height. It is at this stage differences have arisen between the parties and the respondent has filed the suit for partition of the plaint schedule properly in which an ex parte order of injunction has been made absolute by the trial Court as already stated.
13. It appears that the appellant has also filed a suit in O.S. No. 3711/89 for specific performance of the agreement to sell dated 21-9-1988.
14. The trial Court having granted the ex parte order of injunction on 19-6-1989 on I.A. No. 1 has made the injunction absolute dismissing I.A. No. 3 filed by the appellant, mainly on the ground that the title in respect of 1/4th share of the property still continues to be with the respondent and that the agreement to sell executed by the respondent in favour of the appellant has been cancelled and that the shares of the parties in the property in question is not divided by metes and bounds and if the appellant were to put up construction over the schedule property, it will lead to complications and, therefore, the appellant should not be permitted to put up any construction and that status quo should be maintained as between the parties. The trial Court, has taken the view that the fact that the appellant has proceeded with the construction on the basis of the agreement dated 21-9-1988 and that the appellant has invested considerable amount of money on the project was of no consequence. The trial Court has held that mere collection of building materials and also the investment of Rs. 28,00,000/- and that the appellant has also borrowed huge amounts from various creditors by paying high interest are totally irrelevant. The trial Court has also held that in the event the construction is allowed to be proceeded with, the respondent will be put to greater hardship and injury and that the balance of convenience therefore does not lie in favour of the appellant-company to permit further construction.
15. At paras 5 to 7 of the order under appeal, the case of the appellant is summed up by the trial Court as under :
“5. The defendant appeared through its Counsel by filing advancement application and also filed an application under Order 39, Rule 4, C.P.C., to vacate the ex parte order of temporary injunction granted in the above case on such terms and conditions. (I.A. No. III).
6. In support of this contention, the Director of the defendant Company filed his affidavit and contended that the plaintiff herein filed the above suit against the defendant-company and by misrepresenting the facts on insufficient grounds, obtained an order of ex parte temporary injunction against the defendant. But, the plaintiff has not made out a prima facie case to issue an order of temporary injunction. The defendant further alleges
that it is no doubt true that the plaintiff is the owner of 1/4th share in the suit schedule property and the defendant is the owner of 3/4th share in the suit schedule property. The plaintiff has not brought to the notice of this Court the intention with which the properly was purchased and the intention with which the property is put to as project. She has filed the suit making it appear as if they have acquired the title just to partition the property and to take their respective shares. The property was purchased with the sole idea of developing the property for the purpose of group housing. Hence, the plaintiff has given a letter authorising the defendant to obtain the necessary sanctioned plan for the group housing and another letter to get the No Objection Certificate from BWSSB for the purpose of group housing. In pursuance of the said consent letters, the defendant obtained a sanctioned plan and licence for group housing. The BOA has also granted a licence with conditions. The BDA put a condition that the Development Plan will be sanctioned on condition that it should be used as a single unit for group housing. So in that context only, the plaintiff offered to sell her undivided 25% share in the land in favour of the defendant and entered into an agreement to sell dated 21-9-1988. On the date of agreement, the defendant has paid a sum of Rs. 20,000/-, as advance and she has also agreed to receive the remaining Rs. 7,80,000/-in five instalments as per clause 3 of the agreement. But, at the time of the agreement itself, the plaintiff has received five post-dated cheques for the said five instalments. But the defendants made arrangement for the remaining sale price of Rs. 7,80,000/-. Hence, the defendant sent registered letter on 21-12-1988, stating that it has made arrangement for full sale price of Rs. 7,80,000/- and the defendant is ready and willing to pay the full sale consideration and take the sale deed and called upon the plaintiff to fix the date for execution of the sale deed by taking the full amount. Though, the plaintiff has received the same, she did not reply to the defendant nor did she comply with the demands.
Though the plaintiff received the registered covers as well as the cover sent under Certificate of Posting, in the acknowledgment enclosed to the registered cover she did not sign it, hence, the defendant received the acknowledgment without her signature. Later, the defendant made a complaint before the Postal Department and the Postal Department after enquiry, sent an intimation to the defendant dated 14-2-1989 stating that the registered post was duly served on the plaintiff on 27-12-1988 itself. Further, it is alleged by the defendant that the defendant is ready and willing to perform its part of the contract all through and the defendant reserves its right to file a separate suit for specific performance of the contract. That apart, the defendant has also wrote sonic more letters expressing its desire to take the sale deed and pay the balance sale price my means of letters dated 7-2-89, 10-2-89 and telegraph dated 13-2-89. But, the plaintiff did not show any inclination to perform her part of the contract and therefore, the plaintiff cannot institute a suit for partition at nil and the suit itself is misconceived under law. In fact, the suit schedule property was purchased only for the purpose of group housing, after obtaining the sanctioned plan and licence and after collecting the various building materials, the defendant started construction work. The defendant has already spent more than Rupees 28,00.000/-. The plaintiff herself has given a consent letter, under the law, she has given the exclusive possession to the defendant, though in the agreement it is not expressly stated for the purpose of development and accordingly, the development work was started and she made the defendant to spend more than Rs. 28 lakhs in the development work. Now. she cannot turn down and ask the defendant to stop the work. She is hit by the principles of promissory estoppel and this Court has to vacate the order of temporary injunction.
7. The defendant has gathered huge materials for the purpose of construction, engaged number of employees and owing to the injunction order passed by this Court, the defendant is bound to stop the work and everyday, he is incurring loss to the tune of Rs. 5,000/-. Besides it in the project already it was published in the newspapers and the intending purchasers have entered into
contract with the defendant to purchase flats. So, in order to construct the apartments, the plaintiff has raised heavy loans from the financial institutions and every month, now the defendant is paying interest more than Rs. 43,000/-. Under such circumstances, if this Court were to stop the further construction, the defendant-company will be ruined.
Hence, the defendant prays to vacate the temporary injunction ordered by this Court, on such terms and conditions.”
The documents on record substantiate the defence in the suit.
16. The trial Court while affirming the order of injunction has relied on a decision of this Court reported in 1LR 1989 Kant 1382. That was a case where the plaintiffs and defendants were members of a family governed by Aliasanlhana law as administered in South Kanara District. They were co-owners of the property in the suit. The defendant had taken up construction unauthorisedly on the open site where there was already an existing house in which he was residing on behalf of the family. After referring to several decisions of this Court as well as other High Courts, it is observed as follows at para 17 as follows:
“*** The right to the relief or demolition and injunction will be granted or withheld by the Court according as the circumstances established in the case justify. The Court may feel persuaded to grant both the reliefs if the evidence establishes that the plaintiff cannot adequately compensate at the time of partition and that accordingly injury will result to him by the refusal of the relief than by granting it. On the contrary if material and substantial injury will be caused to the defendant while granting the relief, the Court will no doubt be exercising proper discretion in withholding such relief. Each case will be . decided upon its own peculiar facts and it will be left to the Court to exercise its jurisdiction upon proof of circumstances showing which side the balance of convenience lies. That the Court will exercise a jurisdiction wilt be guided by consideration of justice, equity and good conscience cannot be overlooked and it is not possible for the Court to lay down an inflexible Rule as the circumstances in which the relief for demolition and injunction should be granted or refused”.
Again at para 20, it is observed as follows :
“20. In my view, in view of the measurements of the property and his share in the common property, the Courts below kept in view the well established principles in allowing or refusing the remedy of this nature and even though this portion is now in the occupation of the Ejman, ultimately the equities could be worked out in a suit for partition.”
17. Sri S. G. Sundaraswamy, learned Senior Counsel, submitted that in the instant case, the grant of injunction would cause greater hardship to the appellant inasmuch as the appellant has invested considerable sums of money by borrowings at high rate of interest and it would be disastrous to the appellant if he is prevented from proceeding with the construction for which he has collected men and material. He submitted that if ultimately partition has to take place between the parties, mutual adjustments could be made at the time of final decree while dividing the property. The learned Senior Counsel particularly drew my attention to the observation in Krishna Murthy v. Bangalore Turf Club, (1975) 2 Kant I..J 428 at para 9. The relevant portion reads thus :
“** In other words, his case may not be frivolous or vexatious and might appear stronger on the balance of probabilities. But that by itself is no ground for any Court to issue injunction. What matters is the balance of convenience. It must be a major consideration. The Court must decide in whose favour the balance of convenience lies. A man who seeks the aid of the Court by way of interlocutory injunction must, as a rule, he able to satisfy the Court that its interference is necessary to protect him from that species of injury which the Court calls irreparable, before the legal right can be established upon trial. The Court must pertinently put the question. “Will the plaintiff suffer irreparable damage if no injunction is granted now?” Last but not the least the Court always must look to the conduct of the plaintiff and will refuse to interfere even in cases where it acknowledges his right unless his conduct in the matter has been fair and honest and in particular without acquiescence or delay.”
He also relied on the following observation of this Court in Lakshminarasimhaiah v. Yalakki Gowda, (1965) 1 Mys LJ 370 : (AIR 1965 Mysore 310). The relevant portion reads thus (at page 373 of Mys LJ) : (at p. 312 of AIR):
“The rule regarding the caution to be observed by Courts and the necessity for a clear case for granting the relief of injunction has been succinctly stated in the American Jurisprudence as follows :
“Caution in Granting : Necessity of Clear Case :
“The extraordinary character of the injunc-tive remedy and the danger that its use in improper cases may result in serious loss or inconvenience to an innocent party require that the power to issue it should not be lightly indulged in, but should be exercised sparingly and cautiously, only after thoughtful deliberation, and with a full conviction on the part of the Court of its urgent necessity. In other words, the relief should be awarded only in clear cases reasonably free from doubt, and, when necessary, to prevent great and irreparable injury. The Court should therefore be guided by the fact that the burden of proof rests upon the complainant to establish the material allegations entitling him to relief” (28 American Jurisprudence p. 217).
Besides the above, there are certain equitable principles also which govern the Courts in granting or withholding of the relief of injunction. One of the main considerations is the fairness or good conduct of the party invoking the aid of the Court. The Court denies the relief to a suit or who is himself guilty of misconduct in respect of the matter in controversy. It is a well-known maxim of equity that “He who comes into equity must come with clean hands”, or as otherwise expressed, “He that hath committed inequity shall not have equity”. The wrong conduct of the plaintiff in the particular matter or transaction with respect to which he seeks injunctive relief precludes him from obtaining such relief. Injunction will not be granted in aid of a possession secured by stratagem or trick.”
18. Certain passages from Woodroof on Injunctions (Revised and Enlarged Edition), 1988 at pages 255, 258, 262 and 265 were also read out to impress upon me that “there is no such broad proposition as that one co-owner is entitled to an injunction restraining another co-owner from exceeding his rights absolutely and without reference to the amount of damage to be sustained by the one side or the other from the granting or withholding of the injunction.”
19. On the other hand Sri N. Kumar, learned counsel appearing for respondent, submitted that the grant of injunction by the trial Court on the facts of the case is fully justified and it does not call for interference by this Court. He submitted that any construction on the land which is the subject matter for partition would cause insuperable difficulties in its division, the respondent having 25% share in the land in question.
20. In support of his submission for grant of injunction, he relied on Gangubai v. Sita-ram, . That was a case where there was dispute regarding the title to the property. The facts of that case have no bearing on the issues that arise for consideration in this case. Here, appellant and respondent joined hands and took up a commercial venture and midway during the cause of execution of that venture differences have arisen between the parties. The appellant has invested already apari from having 75% share in the land, considerable sums of money in the venture. The question, therefore, is whether it is equitable to completely stop further construction at this stage. Sri N. Kumar also relied on a decision of High Court of Madras in Rukmani v. Thirumala Chettiar, . That was also a case between co-sharers, where one co-sharer having 2/3rd share in the land proceeded to put up construction on the entire land. The Madras High Court held ‘The respondent, being a co-sharer, cannot be allowed to cause prejudice to the other co-sharers by putting up a substantial construction during the pendency of a suit for partition filed by the co-sharers”. No doubt, this observation supports the case for injunction in the instant case. But there are other factors to be taken into consideration
here. It is not that the appellant has taken up the construction without any agreement with the respondent. On the other hand, the respondent has assisted the appellant in obtaining licence for Group Housing Project and other statutory permissions. Besides, she has entered into an agreement to sell her 25% share in the land in favour of the appellant. These are considerations which cannot be overlooked while considering the question of grant of injunction. The learned counsel also brought to my notice the decision in Gouri v. Ibrahim, , wherein on general principle it is laid down that if several owners are in possession of an undivided property, none of them has a right to appropriate to his exclusive use any portion of the property as that will effect a compulsory partition in his own favour according to his choice. It is pertinent to note the observation of the Court at para 11 extracted hereunder —
“11. The law is that the right of a co-owner to raise construction or to make other improvement on the common property really depends on the consent, express or implied, or on the sufferance of the other co-owners. And when one co-owner commences to build without seeking the consent of the others and in spite of the protest to the construction, the possession, of the co-owner raising the construction at once becomes wrongful and the work will have to be stopped by an order of injunction. The wrongful possession or an ouster by a co-owner is itself an injury to the other co-owners and the latter would not he required to prove any other injury to them in order to sustain action for injunction. (See. : Mitra’s Co-ownership and Partition — Fifth Edition pp. 127 & 128).”
21. On overall consideration of all the facts of this case, it appears to me that the appellant having 75% share in the lands in question proceeded to invest considerable sums of money in the project on the faith of the understanding arrived at with the respondent, with the husband and power of attorney holder of respondent playing a key role. In these circumstances, when the respondent’s stake in the project is only 25%, that too in the land only and no cash investment on the construction, would it be equitable to stop further construction completely till the partition suit is finally disposed of. Stopping further construction at this stage hurts the appellant most in view of the heavy borrowings and investment he has made. On the other hand, the respondent is not incurring any loss by way of paying interest on the money invested for const ruction by the appellant. Therefore, purely from the point view of general considerations of justice and fairness, the appellant has to be permitted to proceed with the construction, but at the same time with sufficient safeguards to protect the interest of the respondent. There cannot be strait-jacket formula in the matter of granting injunction. The trial Court has failed to consider the balance of convenience in proper perspective.
22. As already stated construction of the Group Housing Project for which sanction has been granted is in accordance with the table 2G of the comprehensive development plan. Under the said regulation, the minimum size of the plot for Group Housing has to be one hectare to put up 8 floor building blocks. If ultimately, he respondent succeeds in carving out his 15% share in the land, the total land area available to the appellant for construction will be between one half hectare and one hectare in which event the height of the building blocks will have to be reduced to 17 meters from 24 meters and the number of floors from floors to 5 floors only.
23. As could be seen from the sanctioned plan there are 5 blocks of buildings to be constructed on the land in dispute. It appears from the records and the photographs produced that the appellant has proceeded with the construction in respect of 2 or 3 blocks by erecting columns (pile foundation). The memo dated 31-7-1989 filed by the appellant in the trial Court reads as hereunder :
“The defendant submits that if this Hon’ble Court were to feel that it is necessary to reserve any space pending disposal of the above suit, while vacating the order of injunction, in spite of the contentions raised by the defendant, injunction cannot be granted
in the facts and circumstances of the case the defendant is prepared to reserve the vacant land marked as A B C D in Plan No. I without any construction on it. The said area covers 26.8% of the total urea pending disposal of the suit.
In the alternative, the defendant is prepared to reserve the vacant land marked as A B C D E F G H I J & K in the Flan No. II without construction, which measures 26.2% of the total area, pending final disposal of the suit so as to ensure the plaintiff. In ease the plaintiff succeeds in this suit, she will get 25% of the land without any alteration.”
From the memo it is obvious that in respect of the land marked as A B C D in Plan No. I and the land marked as A H C D E F G H I J K in Plan No. It nothing has been constructed so far. I, therefore, consider it appropriate to restrain the appellant from putting up any construction on the aforesaid two pieces of land marked A B C D in Plan No. I and A B C D E F G H I J K in Plan No. II. The appellant may proceed with further construction in respect of the building blocks in the remaining portion of the land, but the const ruction shall be strictly in accordance with the sanctioned plan. The height and the number of floors in any of the blocks shall not exceed 17 meters and five floors respectively for the reasons stated above at para 22.
24. I must place on record the suggestion made by this Court, that one of the blocks representing 25% of the total floor area sanctioned be left for construction to the respondent which would have put an end to this litigation between the parties, did not pass muster. In fact, I delayed pronouncing the judgment in the hope that the parties would arrive at a settlement, which would be beneficial to both of them since if the Group Housing as now sanctioned is taken up as a whole, it would be to the benefit of both the parties since the number of floors and the height of the building could be increased to 8 floors and 24 meters respectively, providing for mole floor area.
25. In the circumstances, I modify the interim order of injunction made by the trial court in the manner indicated above permitting the appellant to proceed with the construction, excepting in the areas, marked as A B C D in Plan No. 1 and A B C D E F G H I J K in Plan No. 11, in accordance with the sanctioned plan, but subject to the condition that the height and number of floors in any of the blocks shall not exceed 17 meters and five respectively.
26. Appeal is allowed in part.
27. Appeal partly allowed.