JUDGMENT This application under section 115 of the Code of Civil Procedure, was heard by us on assignment, made by the learned Acting Chief Justice on 29th August, 1985. Initially, we had not directed the issue of a Rule, but since after hearing the learned advocates at length, it transpired to us that various facts will have to be considered, so, on 5th September, 1985, we had directed the issue of a Rule and considering the urgency of the matter gave further directions regarding the completion of the affidavits and also desired that the matter should be heard and disposed of at a very early date. 2. By the application under section 115 of the Code of Civil Procedure, Ashoka Marketing Ltd., a Company registered under the Companies Act, 1956 (hereinafter refereed to as the said Company), has sought to impeach the judgment and order dated 17th July, 1985, made in Misc. Appeal No. 45 of 1985, by the learned Judge, 1st Additional Court, Alipore and whereby, the said Misc. Appeal, which has filed by Hanshree Apartment Owners Association (hereinafter referred to as the said Association), who are Respondent/Opposite parties before us, was allowed on contest and thereby Order No. 5 dated 15th January, 1985, passed by Shri S.K. Roy, learned Munsif, 1st Court, Alipore, in Title Suit No. 838 of 1984, was set aside and the application for temporary injunction dated 22nd December, 1984, as filed by the said Association, was allowed and the said Company, their men, servants, agents and contractors were restrained from making any further construction of a building known as Rajtarang, before demarcating the portion belonging to the said Association or till the disposal of the suit, whichever was earlier. 3. The West Bengal Apartment Ownership Act, 1972 (hereinafter referred to as the said Act) was brought into effect, providing for the ownership of an individual apartment and to make such apartment heritable and transferable property as it was felt that in this social welfare State, complete of absolute title has undergone a change for various reasons. People are constructing their homestead or such other structures in apartment. With that end in view, the said Act was promulgated for making the apartments heritable and transferable property. 4. People are constructing their homestead or such other structures in apartment. With that end in view, the said Act was promulgated for making the apartments heritable and transferable property. 4. It has been stated by the said Company that in or about April, 1973, plans were submitted by the said Company to the Corporation of Calcutta, for the sanction of construction of 3 multi-storeyed buildings viz. "Rajshree", "Rajhans" and "Rajtarang", at No. 6, Hastings Park Road, Alipore, Calcutta-27. The said Association has of course stated that one application for the necessary sanction of construction of two multi-storeyed buildings viz. "Rajhans" and "Rajshree" was filed and there was another application for one block viz. "Rajtarang" at the said Hastings Park Road. At that point of time, advertisements were published in the leading newspapers, offering for sale of apartments to be so constructed. The said Association has of course pointed out that in the concerned advertisements there was reference that the buildings so advertised, would be constructed under the provisions of the said Act and consequently brochures were distributed. It would appear that the plans as mentioned above, were sanctioned by the Municipal authorities, being Sanction No. 52 dated 4th May, 1973, for construction of the three buildings viz. "Rajhans", "Rajshree" and "Rajtarang". 5. The said Association has pointed out that on or about 15th May, 1973, declaration under the provisions of the said Act, relating to the buildings "Rajhans", "Rajshree" and "Rajtarang" were submitted, but in the year 1973, the Competent Authority under the said Act, which means such officer not below the rank of a Deputy Magistrate, as may be appointed by the State Government by notification in the Official Gazette, rejected the said declaration and such rejection was accepted by the said Company. Thereafter, it would appear that another declaration dated 10th May, 1975, under the said Act was submitted by the said Company and admittedly, in the body of the said declaration, which as required, was filed under section 20 read with section 10(1) of the said Act, two buildings "Rajhans" and "Rajshree", were mentioned. It was the case of the said Company that the name of 'Rajtarang" was omitted to be mentioned in the said declaration, as they were under the mistaken belief that an incomplete building would not require to be submitted for necessary sanction, in terms of the provisions of the said Act. It was the case of the said Company that the name of 'Rajtarang" was omitted to be mentioned in the said declaration, as they were under the mistaken belief that an incomplete building would not require to be submitted for necessary sanction, in terms of the provisions of the said Act. Admittedly such declaration which would appear in Annexure-B to the petition, covered four bighas of land which would be equivalent to 57.620 sq.ft. of the land as comprised in the said premises No. 6, Hastings Park Road. It was the case of the said Company that authenticated copies of the sanctioned plans, showing the said two buildings having three blocks viz." Rajhans", "Rajshree" and" Rajtarang" were annexed and they further claimed that the declaration covered 77.620 sq.ft., out of which 20.620 sq.ft. would be the plinth area of "Rajhans" and "Rajshree" and 27,000 sq.ft. was the common area and facilities, as are required to be provided for. It was the further case of the said Company that two declarations, one under the said Act and the other under the West Bengal Apartment (Regulation of Construction and Transfer) Act, 1972 (hereinafter referred to as the said regulating Act), relating to the buildings "Rajhans", "Rajshree" and "Rajtarang" were submitted, and they further contended that the declaration under the said Act was rejected by the Competent Authority as indicated above, on the ground that the same was not made according to or in terms of the prescribed Form-A. It would of course appear that on or about 19th May, 1975, the subsequent declaration was accepted by the Competent Authority under the said Act and the concerned declaration dated 10th May, 1975, was thereafter registered on 28th August, 1975 and after that, the said Company, according to the said Association, ceased to have any right, title and interest in the concerned four bighas of land, as covered by the declaration as mentioned above. It was the case of the said Association that in or about September, 1975, construction of the buildings "Rajhans" and "Rajshree" was more or less completed and possession delivered to the respective buyers of the apartments, with whom the said Company had entered into agreement for sale, on receipt of consideration money. It was the case of the said Association that in or about September, 1975, construction of the buildings "Rajhans" and "Rajshree" was more or less completed and possession delivered to the respective buyers of the apartments, with whom the said Company had entered into agreement for sale, on receipt of consideration money. The said Company has of course claimed that the construction of "Rajtarang" was commenced by them after giving notice to the Municipal authorities, through their contractors Sanon & Associates Architects, on 2nd October, 1975. The said Association has further pointed out that on or about 18th September, 1975, application was made to the Life Insurance Corporation of India for advance recognition of the buildings "Rajhans" and "Rajshree" under "Own Your Apartment Scheme" and they have further pointed out that on 17th December, 1975, the Urban Land (Ceiling and Regulations) Act, 1976 (hereinafter referred to as the said 1976 Act), came into force and in fact, the same became operative in West Bengal in January, 1976. It was also their case that in or about October, 1976, or thereafter, the said Company made applications under section 27(2) of the said 1976 Act and on or about 4th March, 1977, they had received advance recognition certificate No. 2/77 from L.I.C. in respect of the advance recognition of the two buildings viz. "Rajhans" and' Rajshree", for the purpose of facilitating the intending purchasers to get loans from L.I.C. under "Own Your Apartment Scheme" and after that, on or about 9th January, 1978, the said Company requested the apartment owners to pay West Bengal Multi Storeyed Buildings Taxes directly. 6. The said Company has stated that on or about 3rd March, 1978, an order of injunction was obtained by one Shri Narsingh Lal Gupta, with whom they had entered into an agreement for sale of an apartment in "Rajhans", in Title Suit No. 102 of 1978 from the learned Munsif, 2nd Court, Alipore, whereby they were restrained from constructing the buildings "Rajtarang" until further orders. In fact, the above state of affairs was not disputed by the said Association. It was of course their case, that in or about February, 1978, construction of "Rajtarang" was started. In fact, the above state of affairs was not disputed by the said Association. It was of course their case, that in or about February, 1978, construction of "Rajtarang" was started. The said Association has further stated that on 14th March, 1978, a General Meeting was called for the formation of the said Association comprising of the apartment owners of "Rajhans" and "Rajshree" and in fact, the said Association, which was then formed, authorised their Chairman Shri K.K. Dutt, to inform the Competent Authority under the said Act, about the formation of the said Association. It was their further case that a Board of Management was formed, comprising persons, who had by then taken conveyances from the said Company and the nominee of the said Company was one Shri K.N. Pathapuria. There is no doubt or any dispute between the parties before us, that the said Association is an Association within the meaning of the said Act and was so recognised by the Competent Authority under the said Act. The said Association has further stated that the said Company's representative as mentioned above, ceased to participate on the meetings of the Board of Managers on and from July, 1978. There is of course no dispute that thereafter, the said Company made and application before the Municipal authorities, for renewal of the sanctioned plans, for another period of five years with effect from 5th May, 1978. There is some dispute of course, with regard to the date. The said Company has stated that such application was made on 28th April, 1978, whereas the said Association has mentioned that such application was made on 28th July, 1978. 7. The said Company has stated that they were directed by the Competent Authority under the said Act, to hand over the management of "Rajhans" and "Rajshree" buildings to the said Association on 19th August, 1978 and the said Association bas further pointed out that by another record of 19th August, 1978, the Competent Authority under the said Act, objected to the construction of the 3rd building "Rajtarang", on the allegation that the concerned declaration had been violated, by not properly utilising the land shown as park, lawn and pathways etc. and then on 24th August, 1978, the said Company passed a resolution, authorising the said Mr. Pathapuria to file an amended declaration under the provisions of the said Act. and then on 24th August, 1978, the said Company passed a resolution, authorising the said Mr. Pathapuria to file an amended declaration under the provisions of the said Act. It would appear that on 13th September, 1978, the Competent Authority under the said Act determined that even persons who had not got the conveyances registered in their favour in respect of the apartments, were deemed to be owners under the said Act by reason of their paying full consideration money and taking possession of the respective apartments. It has also been pointed out that thereafter, on 29th September, 1978, the ad interim order of injunction dated 3rd March, 1978 as paned in Title Suit No. 102 of 1978, was confirmed and the said Association was restrained from (a) making any construction in the suit land without the plan being sanctioned by Calcutta Corporation till the disposal of this suit, (b) selling/disposing of any pathway, road to the north of the buildings Rajhans and Rajshree till the disposal of the suit and (c) making any construction encroaching upon 27,000 sq.ft. common area earmarked for those two above noted buildings till the disposal of this suit. The petition was disposed of accordingly and on such, on 13th September, 1978 the said association addressed a letter to the said Company, that in view of the order dated 13th September, 1978 as mentioned above, the said Company had no claim to be the owner of any flat as none of the flats were held by them or in their name and as such they and their nominees had ceased to be the members of the said Association. 8. 8. Admittedly, on 5th October, 1978 the said Company made an application for amendment of their declaration dated 10th May, 1978 and in the said amendment they sought to incorporate the building "Rajtarang", which the said Company has said to have omitted to be incorporated in the original declaration by bona fide mistake and after that, on 28th September, 1978 the said Company moved and obtained Civil Rule No. 8371 (W) of 1978 from this Court, challenging the order dated 19th August, 1978, by which the Competent Authority had directed them to hand over the management of "Rajhans" and "Rajshree" to the said Association and by such application, the concerned determination that the persons who did not have registered conveyances in their favour in respect of the apartments were deemed to be owners under the said Act by reason of their paying full consideration money and taking possession of the respective apartments, was also challenged. It should be noted that while issuing the said Rule, the operation of the concerned orders were stayed. The said Association has further pointed out that being aggrieved by the order dated 29th September, 1978 as made in Title Suit No. 102 of 1978, the said Company had preferred Misc. Appeal No. 692 of 1978. 9. From the pleadings, it would also appear that on or about 3rd January, 1979 the application for amendment of the declaration dated 10th May, 1978, was rejected by the Competent Authority and thereafter on 26th February, 1979, the said Association moved and obtained Civil Rule No. 1069 (W) of 1979 from this Court, challenging, inter alia, the right of the Municipal authorities to renew the sanctioned plans granted in favour of the, said Company and while issuing such Rule the said company was injuncted from carrying on and completing the construction of the building 'Rajtarang'. 10. 10. It would also appear that from the order dated 3rd January, 1979, rejecting the application for amendment, a challenge was thrown to this Court under Article 226 of the Constitution of India and on the basis of the steps taken by the said Company, liberty was given to them on 21st March, 1979 in Civil Rule No. 1069 (W) of 1979, to the extent that if in the meantime the renewal of the sanctioned plans made by them were allowed, they would have the leave to apply for modification or variation of the interim order upon notice to their adversaries. It is an admitted fact that on 29th March, 1979 T.K. Basu, J. directed that the order dated 3rd January, 1979, as made by the Competent Authority and thereby rejecting the application for amendment of declaration, be reconsidered after giving the said Company opportunities to represent their case. It is the admitted fact also that on or about 17th April, 1979 the sanctioned plans were renewed by the Corporation of Calcutta for another period of five years with effect from 5th May, 1978. It has been pointed out that on that date, the Competent Authority under the said Act again rejected the said Company's application for amendment of their declaration dated 10th May, 1978 and further on 14th May, 1979, the said Association along with Sarbashree B.C. Lunia and Rathindra Nath Roy moved and obtained Civil Rule No. 5425 (W) of 1979, challenging the action of the Corporation of Calcutta or their purported act in proceeding to assess the liabilities in respect of consolidated rates to be paid for the different apartments and buildings and the common areas and facilities, without giving a personal hearing to the petitioners in that Rule. It would also appear that on or about 15th May, 1979, in Civil Rule No. 8371 of 1978 the said Association made an application for administration, management and control of the concerned buildings. 11. It would also appear that on or about 15th May, 1979, in Civil Rule No. 8371 of 1978 the said Association made an application for administration, management and control of the concerned buildings. 11. The said Company has stated to have caused searches in the records of the Competent Authority under the said Act in the last week of May or immediately thereafter and they have further stated to have found, none of the persons who had taken conveyance from them in respect of the apartments "Rajhans" and "Rajshree" complied with the provisions of the said Act and the Rules framed thereunder, by executing the necessary Form "C" and got the same registered, so as to be apartment owners in terms of the said Act. It was also their case that the order of 27th April, 1978 as passed by the Competent Authority, recognising the said Association, was challenged in a writ proceeding, being Matter No. 651 of 1979, as the said Association was formed by persons who were not apartment owners within the meaning of the said Act by reason of their non-compliance, the particulars whereof have been referred to hereinbefore and the said Company also preferred an appeal before the Appellate authority under section 10A of the said Act, against the order dated 5th May, 1979 the particulars whereof have been indicated hereinbefore and whereby the application for amendment of declaration was rejected. It should be noted that on 27th July, 1979 in Civil Rule No. 8371 (W) of 1978, the said Company gave an undertaking, not to make further construction till the disposal of the concerned application and such undertaking was duly recorded by Amiya Kumar Mukherjee, J., as His Lordship then was. 12. It would appear that thereafter, by an order of Sabyasachi Mukherji, J. as His Lordship then was, in Matter No. 651 of 1979, in which recognition of the said Association was challenged, the said Association was restrained from interfering with the management of the two blocks of building 'Rajhans' and 'Rajshree' and from collecting money from the occupiers. 12. It would appear that thereafter, by an order of Sabyasachi Mukherji, J. as His Lordship then was, in Matter No. 651 of 1979, in which recognition of the said Association was challenged, the said Association was restrained from interfering with the management of the two blocks of building 'Rajhans' and 'Rajshree' and from collecting money from the occupiers. The Appellate authority, on 29th October, 1979, upheld the order of the Competent Authority dated 5th May, 1979, whereby the application for amendment of declaration as mentioned above, was rejected and on 21st December, 1979, another application under Article 226 of the Constitution of India was moved by the said Company challenging the said order dated 29th October, 1979. The Rule so issued, was numbered as Matter No. 1291 of 1979 and on 5th May, 1980, B.C. Basak, J. was pleased to pass an order on remand in that proceedings to the appellate authority with a direction to consider whether there was any bona fide mistake in the original declaration dated 10th May, 1979. It should also be noted that on 12th February, 1980, in the proceeding as indicated hereinbefore, Sarbashree K.K. Dutt, B.C. Lunia and S.D. Gupta were added as Respondents. Thereafter, the proceeding was heard by the Appellate authority on 2nd June, 1980 and they had rejected the appeal. It has been alleged that the Appellate authority, this time, did not consider the fresh materials as adduced by the said Company, on the ground that the matter had already been disposed of both by the Competent Authority and so also by the Appellate authority. After this, on 4th August, 1980, the matter again come up before B.C. Basak, J. when the learned Judge was pleased to remand the matter again to the Appellate authority for the purpose of reconsideration of the appeal of the said Company, on the point as to whether there was any bona fide mistake in the declaration within the meaning of Rule 4 of the West Bengal Apartment Ownership Rules, 1974. Such order, H has been stated, was made, as it was felt that the Appellate authority did not consider any of the documents placed before him or the Competent Authority, while passing the concerned order dated 2nd June, 1980. 13. The Misc. Such order, H has been stated, was made, as it was felt that the Appellate authority did not consider any of the documents placed before him or the Competent Authority, while passing the concerned order dated 2nd June, 1980. 13. The Misc. Appeal No. 692 of 1978, which was filed by the said Company before the learned District Judge, Alipore and the particulars whereof have been indicated hereinbefore, was allowed on 7th August, 1980 and it has been stated that the said judgment has observed, inter alia, amongst others, that the construction of "Rajtarang" building must not encroach upon the common areas of 27.000 sq.ft., apart from observing that the case of the said Company viz. that by mistake the 3rd building "Rajtarang" was not mentioned in the declaration and affidavit, could not be lightly brush aside. Admittedly, there were further hearings before the Appellate authority on 28th September, 1980 and on 30th September, 1980, the said authority held that there was no bona fide mistake in the original declaration and accordingly, rejected the appeal of the laid Company. It has been stated by the said Company that in rejecting their applications, the Appellate authority did not take into consideration, the appellate judgment and order dated 7th August, 1980 as mentioned above. It also appeared before us from the pleadings, that on 3rd October, 1980, one Shri N.L. Gupta, moved an application under section 115 of the Code of Civil Procedure against the abovementioned order dated 7th August, 1980 and on that, a rule was issued by A.K. Jana, J. (as His Lordship then was) on 28th January, 1981, with corresponding liberty to the petitioner therein, to apply for interim order of injunction with notice to the Respondents in that Rule. It was pointed out that the said Rule is still pending. 14. It would appear that on or about 22nd May, 1981, the said Association made an application in Civil Rule No. 8371 (W) of 1978, for appointment of Administrator over "Rajhans" and "Rajshree" and by an order dated 21st September, 1981, made in that proceeding B.C. Basak, J. was pleased to appoint Mr. P.K. Roy and Mr. 14. It would appear that on or about 22nd May, 1981, the said Association made an application in Civil Rule No. 8371 (W) of 1978, for appointment of Administrator over "Rajhans" and "Rajshree" and by an order dated 21st September, 1981, made in that proceeding B.C. Basak, J. was pleased to appoint Mr. P.K. Roy and Mr. Indrajit Sen, two of the learned Advocates of this Court, as Special Officers for the purpose of management, maintenance and up-keep of "Rajhans" and "Rajshree" and common areas as appearing in the declaration dated 12th May, 1975 and while passing such order, it was made clear that the same did not cover 11.420 sq.ft. of areas out of the total lands at that Hastings Park Road premises for which there were dispute between the parties. It would also appear that by an order dated 31st January, 1983, made in Matter No. 1291 of 1979, B.C. Basak, J. was pleased to record, on the basis of the submissions made on behalf of the Respondents before him, that the concerned declaration covered only 47.620 sq.ft. out of the total 59.040 sq.ft. i.e., total area of the land, apart from recording that 11.420 sq.ft. of land, being the balance of 59.040 sq.ft. of land, was not included in the original declaration and the same was not covered by the provisions of the said Act. The said Association of course, claimed that such order was made by the learned Judge in the absence of Respondent Nos. 4, 5 and 6 in that proceedings or their learned Advocates and the said order was made only on the basis of submissions made on behalf of the said Association (Respondent No. 3). Thereafter, on 1st February, 1983, by an order passed in the said Matter No. 1291 of 1979, the said learned Judge held that the Competent Authority and the Appellate authority were right in dismissing the application for amendment of the said Company and it was also recorded that the total area of the property would be 4 bighas 2 cottahas, even though the original declaration showed 4 bighas i.e. 59.040 sq.ft. On the basis of such order, the concerned application was disposed of. On the basis of such order, the concerned application was disposed of. Then, on 2nd February, 1983, by consent of parties, the said learned Judge was pleased to dispose of and discharge Matter No. 651 of 1979, by recording that the said proceeding was not pressed, having regard to the judgment delivered in Matter No. 1291 of 1979. It would also appear that by another order of that date, in C.R. No. 8371 (W) of 1978. the said learned Judge was further pleased to record that in view of the disposal of Matter No. 1291 of 1979, which related to the amendment of declaration and so also the disposal of Matter No. 651 of 1979, which was the substantive application challenging the recognition of the said Association. the learned Counsel appearing for the Respondent No. 1 in that proceeding stated that as the main matter was disposed of, he did not want to proceed any further with the same and accordingly, the concerned application and the Rule was disposed of with a further recording that all interim orders made and/or undertaking as given, particularly the undertaking a given on 27th July, 1979, were vacated. It was pointed out by the said Company that it was also made clear in that order; that inasmuch as, due to the said undertaking it was not possible for them to make any construction on the basis of the sanctioned plan during the period of validity of such undertakings, if completing the period of validity of the sanctioned plan, the period during which the undertaking was in force, would be excluded, and the Special Officers as appointed, were directed to hand over the management in terms of the Government order, on or before 28th February, 1983. Mr. Chakraborty pointed out that this order as put forward by the said Company was not and really a correct disclosure of the exact order. Mr. Chakraborty pointed out that this order as put forward by the said Company was not and really a correct disclosure of the exact order. By another order of 2nd February, 1983, passed in C.R. No. 1069 of 1979, the learned Judge had also recorded that having regard to the orders passed in other similar matters and having regard to the fact that the main dispute between the parties had resolved, the parties therein had not pressed their claims and contentions and the moreso when, it was further recorded that learned Counsel appearing on behalf of the said Association stated that he did not want to proceed further with the application, apart from other observations that the right of the petitioners therein and in other writ petitions in respect of 'Rajhans' and 'Rajshree', it had been established that they had given up their claim in respect of the balance area of 11.420 sq.ft. and also when the learned Counsel appearing on behalf of the said Association fairly conceded not to challenge the renewal of the sanctioned plan so far as the balance 11.420 sq.ft. was concerned, the concerned Rule was disposed of and all interim orders were vacated and the said Association has pointed out that the appearances as shown in C.R. No. 8371 (W) of 1978, were not only inappropriate, but were wrong and as such, the said Association has obliquely challenged the bona fide of that order or the findings as recorded therein. 15. Similarly, on the said 2nd February, 1973, the learned Judge disposed of C.R. No. 5425 (W) of 1979 by directing that the Municipal authorities to determine and assess the consolidated rates to be paid in respect of the apartments separately, in accordance with law and particularly having regard to the provisions of the said Act and on that date another order was passed by the said learned Judge in Matter No. 1291 of 1979 whereby he was pleased to direct the Special Officers to mark out the area of 74.620 rq.ft. as referred to in the original declaration. The said Association has of course, contended that the said order was made in the absence of Respondent Nos. 4, 5 and 6 in that proceeding. as referred to in the original declaration. The said Association has of course, contended that the said order was made in the absence of Respondent Nos. 4, 5 and 6 in that proceeding. It would also appear that by another order, made In Matter No. 1291 of 1979 along with Matter No. 65 of 1972 dated 8th February, 1983 the said learned Judge has observed that the question of boundary and construction of a boundary wall of the area covered by the declaration in question, would be taken up later, after the Special Officers complete the marking out as directed. 16. The said Association has pointed out that on 15th February, 1983, some directions were given by the said learned Judge in C.R. No. 8371 (W) of 1978 and C.R. No. 1069 (W) of 1979, to the effect that if any construction work has been started, that would be subject to the marking out by the Special Officers as directed. It has been stated then by the said Company, that by an order dated 25th February, 1983 passed by the said learned Judge, in Matter No. 1291 of 1971 along with Matter No. 651 of 1979, the order as passed on 2nd February, 1983 the particulars whereof have been indicated earlier was modified, only to the extent that possession would be handed over on or before 15th March, 1983 instead of 28th February, 1983 and it was the case of the said Company that similar orders were passed in C.R. No. 8371 (W) of 1978, C.R. No. 1969 (W) of 1979 and C.R. No. 5425 (W) of 1979. It was the case of both the contesting parties before us that by an order dated 11th March, 1983 passed In Matter No. 1291 of 1979 along with Matter No. 651 of 1971, the learned Judge, was pleased to postpone the handing over of the management by the Special Officers until further orders and the said Association has stated, that on 11th March, 1983, the Engineers, who were appointed on 2nd February, 1983, had made their report and according to the said Association, the orders of 2nd April, 11th April, 1983 and 28th April, 1983 would clearly show and establish that it was specifically found that it would be difficult for the said Company to construct "Rajtarang" building. The said Association has also pointed out that on 17th March, 1983, in Matter Nos. 651 of 1979 and 1291 of 1979, the learned Judge, further ordered that the sum of Rs. 2,000/- and Rs. 7,000/- respectively are to be refunded and neither the said Company nor the said Association would be able to sale any portion of the common area and facilities and an arrangement, if any, would be made on the basis of the permission to use only, by the apartment owners. 17. There was an appeal taken against the order dated 20th April, 1983, as made in Matter No. 1291 of 1971, wherein the Bench consisting of M.M. Dutta and C.K. Banerjee, JJ. passed an order of injunction, restraining the said Company from making any construction and appointed a surveyor, for the purpose of measurement of the vacant land as also the total area with the buildings. The said Association as stated that it was found by the surveyor's report that the correct area would be 57.419 sq.ft. This appeal was preferred against the order dated 20th April, 1983, as made in Matter No. 1291 of 1979, whereby B.C. Basak, J. was pleased, not to pass an order of injunction upon an application made by the said Association. It would appear that thereafter, on 12th May, 1983, B.C. Basak, J. was pleased to pass an order of injunction in Matter No. 1291 of 1979, restraining the said Company from making any construction till the disposal of the concerned application. This order, the said Association has stated was passed on consent of the parties. It has also been pointed out by the said Association, that by another order of 13th May, 1983, made in Matter No. 1291 of 1979, B.C. Basak, J. was pleased to record that all the records of the writ petitions and all proceedings thereunder and thereafter all the reports made by the Engineers as appointed by the Special Officers or the said Company or the said Association or the Engineers appointed by the Appeal Court, including all the records as referred to therein, should be treated as part of the records of Matter No. 1291 of 1979. Thereafter, by an order dated 16th May, 1983. Thereafter, by an order dated 16th May, 1983. an application challenging the Constitution of Board of Managers of the said Association, because of induction of large number of persons as members of the said Board, although they did not have any conveyance for becoming owners of the apartments, as filed by Brita Roy & Ors. was considered. It has been pointed out by the said Association that in 1983, Title Suit No. 205 of 1983, was also filed by B.C. Lunia against the said Company & Others, for declaration and necessary order for specific performance of the contract and the said suit is pending. Then, on or about 12th April, 1984, the said Association made an application in C.R. No. 8371 (W) of 1978, for handing over of the management of the "Rajhans" and "Rajshree" building by the Special Officers to them and on 27th July, 1984, in F.M.A.T. No. 287 of 1984, which was preferred against the order dated 29th April, 1983, as passed by B.C. Basak, J. the Division Bench consisting of Chittatosh Mookerjee and Mukul Gopal Mukherjee, JJ. was pleased to direct the Special Officers to hand over the management of the two blocks of buildings of "Rajhans" and "Rajshree" to the said Association along with the employees employed under the Special Officers. After this on 27th September, 1984, the said Association made an application in C.R. No. 8371 (W) of 1978 before Mukul Gopal Mukherjee, J. who was the learned vacation Judge, for implementing the above mentioned order dated 27th July, 1984 and on 15th October, 1984, the said Association had to make another attempt to move such application before Prabir Kumar Majumdar, J. who at that time, was the learned vacation Judge, but His Lordship was pleased not to entertain the said application in view of the fact that there was no urgency in the matter. The parties have stated that on 9th November, 1984, directions for affidavits relating to the application dated 27th September, 1984 as mentioned hereinbefore, was given by B.C. Basak, J. and on 5th December, 1984, the concerned C.R. No. 8371 (W) of 1978, came up before His Lordship as "for orders", when submissions were made on behalf of the said Association, for handing over of the management and on behalf of the said Company, for vacating the order of injunction and the order restraining them from making any construction. On such, on 7th December, 1984, B.C. Basak, J. directed the Special Officers to hand over the management and His Lordship vacated all interim orders, including the order restraining the said Company from making any construction. This order was made in C.R. No. 8371 (W) of 1978 and the said Association has stated that the learned Judge further recorded that the parties were left to their remedy and apart from directing as above, be also directed vacating of all interim orders, including the order restraining the said Company from making any construction as passed in Matter No. 1291 of 1979. 18. It would appear that on 15th December, 1984, the Special Officers handed over the management of "Rajhans" and "Rajshree" buildings along with common areas of 27,000 sq.ft., to the said Association, pursuant to the order of B.C. Basak, J. as mentioned above and according to the said Association such order was made excluding the areas of land measuring 11.420 sq.ft., situated at the said Hastings Park Road land and regarding which, there was a dispute between the parties. 19. It would also appear that the said Association filed T. Suit No. 838 of 1984 before the learned Munsif, 1st Court at Alipore, against the said Company for a declaration that the said Association and/or its members were entitled to an area of 47.620 sq.ft. out of 59.040 sq.ft. of area of 6, Hastings Park Road and they obtained an order of injunction from the said Court, restraining the said Company from making any construction. Such order however, was "stayed" by the said learned Munsif on the same day, on an application made by the said Company and on 15th January, 1985, the order of injunction as passed, was vacated and according to the parties the said injunction petition was dismissed. 20. Thereafter, on 21st January, 1985, the said Association mentioned the matter before B.C. Basak, J. for clarification, whether actually any order of injunction was passed on 12th May, 1983, in Matter No. 1291 of 1979 being an Original Side matter, stood vacated by virtue of His Lordship order dated 7th December, 1984, as made in C.R. No. 8371 (W) of 1984, when His Lordship directed the said Association to file formal application, if they so choose, after observing that the order dated 7th December, 1984 also covered the Original Side matters. Then, it would appear that on 22nd January, 1985, the said Association preferred an appeal being Misc. Appeal No. 45 of 1985, against the order dated 15th January, 1985, as passed by the learned Munsif, 1st Court, Alipore in T.S. No. 838 of 1984 and in their appeal, they filed an application for temporary injunction before the learned District Judge, Alipore, when the learned District Judge was pleased to pass an order of injunction restraining the said Company from making any construction beyond the second floor till the disposal of the appeal. The copy of the said application of the said Association was served on the learned Advocates of the said Company on or about 29th January, 1985 and thereafter, on 30th January, 1985, an application was moved before B.C. Basak, J. in C.R. No. 8371 (W) of 1978, which, His Lordship was pleased to dismiss, holding the same to be misconceived and the said Association has pointed out that while making such order, His Lordship has recorded that His order dated 7th December, 1984, would cover all matters. 21. Admittedly, the hearing of the Misc. Appeal No. 45 of 1985 as mentioned above, commenced on and from 2nd February, 1985, before the learned Additional District Judge, 1st Court, Alipore and in the meantime on or about 7th February, 1985, the said Association preferred an Appeal being F.M.A.T. No. 221 of 1985 before M.M. Dutta and Paritosh Mukherjee, JJ., against the order dated 7th December, 1984, as passed by B.C. Basak, J. and Their Lordships observed that there was no merit in the Appeal, apart from observing that it was not necessary for them to decide whether the learned Judge, while disposing of the concerned writ petition, could set aside the interim order passed by him on the writ application filed in the Original Side of this Court. It would further appear that on 20th February, 1985, the said Association's Advocate on record served a copy of the notice of motion, with an application for clarification of the order dated 7th December, 1984, on the Advocate on record of the said Company in Matter No. 1291 of 1979 and B.C. Bask, J., had directed the said matter to appear before His Lordship as "new motion" on 25th February, 1985. On that date, the learned Judge, by an order, dismissed the said application as made in Matter No. 1291 of 1979 and according to the said Association, he observed that "orders were all heard together and I had made it clear from time to time that the order as made will be made orders in all the cases". Against the said order of 25th February, 1985, an Appeal was preferred by the said Association when on 21st March, 1985 and on 4th April, 1985, the Bench consisting of D.K. Sen and A.K. Sengupta, was JJ. pleased to dispose of the Appeal by observing that nothing was adjudicated and all interim orders were vacated. In fact, the said Association has pointed out that on the date as mentioned above, the said Appeal No. 123 of 1985 was disposed of by directing as under :- "Ultimately the matter in the First Court was disposed of by a Judgment dated the 1st February, 1983 where it was held that the application of the Respondent No. 1 for amendment of the accepted declaration was rightly rejected. No appeal having been preferred there from the judgment has now become final." "The concessions made by the association in respect of the area, in our view, was of little affect as it would not bind the Authorities. The statutory declaration, a matter of record was upheld by the First Court and it is not understood, how by a concession from a co-respondent the Association, the purport of the same could be altered. In any event, it was not recorded that the concession made on behalf of the Association was accepted either by respondent No. 1 Ashoka Marketing Ltd. or the Competent Authority." All interim order were vacated. 22. On 27th April, 1985, the hearing of the concerned Misc. Appeal No. 45 of 1985, the particulars whereof have been indicated hereinbefore, was concluded before the learned 1st Additional District Judge, Alipore and by the judgment and order as impeached in this proceeding the said learned Judge on 17th July, 1985, restrained the said Company from making any construction of "Rajtarang" building before demarcating the portion of the said Association till the disposal of the Suit or whichever was earlier. It should be noted that on or about 28th August, 1985, the said Association has made an application under Order 6, Rule 17 of the Civil Procedure Code, for amendment of the plaint in Title Suit No. 838 of 1984 and thereby they have asked that the figure 47.620 sq.ft. be replaced by the word "4 Bighas of land" and the said application is still pending. 23. Before dealing with the submissions put forward on behalf of the respective parties and, our determinations to be made on consideration of them, we must keep it on record that the exhaustive list of dates as filed by the parties helped us very much, to get all the facts, which are many, at a glance. We should also keep it on record that against the petition and during the course of hearing. On 5th September, 1985, Mr. Chakraborty filed an affidavit on behalf of the said Association disclosing certain documents, which were not filed in the Court below and it was claimed by the said Company, that by filing those documents at this stage, the nature and character of the proceedings was sought to be changed. The said Company was given opportunities to take exception to that affidavit, which was dated 4th September, 1985, but the learned Advocate for the said Company, elected not to file any exception and as such the documents as disclosed were allowed to be placed on records and to be used by the said Association. The said affidavit would hereafter be referred to as the said affidavit No. 1. After the Rule was issued by us, another affidavit-in-opposition dated 16th September, 1985 (hereinafter referred to as the said affidavit No. 2), was filed by the said Association, against the contents whereof the said Company filed their affidavit-in-reply dated 18th September, 1985. In fact and really, in between all the affidavits as indicated hereinbefore, the parties to this proceeding have disclosed all the relevant and essential documents in support of their respective cases. 24. In fact and really, in between all the affidavits as indicated hereinbefore, the parties to this proceeding have disclosed all the relevant and essential documents in support of their respective cases. 24. The sketch plan as disclosed as Annexure-"C" to the petition, was the one for the proposed Multi Storied Block of Flats at premises No. 6, Hastings Park Road, Calcutta, for the said Company and the same would shows the three buildings and more particularly the buildings "Rajhans" and "Rajshree" in a row and side by side and opposite to them at the north, is the building "Rajtarang". Mr. Chatterjee also referred to Annexure-"B" which is the affidavit as required to be filed in terms of and under the provisions of the said Act. That affidavit showed the area and description of the land upon which the buildings were to be constructed as 4 Bighas and gave the description of the buildings as 'Rajhans" and "Rajshree" and the same did not include "Rajtarang". That apart, the total plaint area was mentioned as 20,620 sq.ft. and it was also mentioned that in each of the two buildings as disclosed, the total number of stories would be ground floor and 10 floors and the two buildings would contain 90 apartments, apart from indicating that the basements would be used for parking of cars and entrance to the ground floor, lobby, electrical sub-station etc. The said declaration also mentioned (1) 16,000 sq.ft. for Lawn, Parks etc., (2) 8.000 sq.ft. for Road, Pathway, (3) 3,000 sq.ft. for open Car parking and also described the other common area. Apart from the above, other particulars as required, were also mentioned. On a reference to a specimen copy of an indenture of sale between the said Company 2nd one Shri K.K. Jain dated 10th September, 1981, Mr. Chatterjee pointed out that it was specifically mentioned that the vendor viz. the said Company, undertook the construction of two Multi-storied buildings known as "Rajhans" and "Rajshree" on the land in question and another building "Rajtarang" was to be constructed and such being the position, the vendees viz. the members of the said Association purchased their flats with the specific knowledge of the other building "Rajtarang" which was to be constructed on the land in question and as such they could not authorisedly object to the said third building to be constructed now. the members of the said Association purchased their flats with the specific knowledge of the other building "Rajtarang" which was to be constructed on the land in question and as such they could not authorisedly object to the said third building to be constructed now. In fact, on a reference to the said document, Mr. Chatterjee specifically pointed out that the purchasers had no right to object to the construction of the said building "Rajtarang" at any point of time or whenever the same would be built by the vendors. The respective submissions as indicated hereinbefore were advanced on a reference to clauses 2 and 9 of the indenture question. 25. It was also and the specific contention of Mr. Chatterjee that in view of the agreed terms as indicated hereinbefore, the learned lower Appellate Court had no right, authority, jurisdiction and justification in making the order as impeached, whereby these agreed terms of the contract were sought to be altered. Mr. Chatterjee further contended that such would also and be the unauthorised position and character of the concerned order, as the only apprehension of the said Association was encroachment and there was no apprehension or any such claim in the Suit, in respect of ceasement. It was a further pointed out by Mr. Chatterjee, that there having no provision as to at what stage the demarcation is to be made, the order as made on that basis, was also unauthorised. 26. The plaint in T.S. No. 838 of 1984, has disclosed as Annexure "O" to the petition and Mr. Chatterjee, on a reference to the same pointed out that the plaintiffs in that proceeding, inter alia, amongst others prayed for (a) declaration that they would be entitled to an are of 47,620 sq.ft. out of 59,040 sq.ft. of area at No. 6, Hastings Park Road, Calcutta-27 in terms of the order of the Hon'ble High Court, Calcutta dated 2nd February, 1983 and the declaration filed by the defendants before the Competent Authority dated 10th May, 1975, (b) that the defendant has no right, title or interest in the said area of 47.620 sq.ft. out of 59,040 sq.ft. of area at No. 6, Hastings Park Road, Calcutta-27 in terms of the order of the Hon'ble High Court, Calcutta dated 2nd February, 1983 and the declaration filed by the defendants before the Competent Authority dated 10th May, 1975, (b) that the defendant has no right, title or interest in the said area of 47.620 sq.ft. in the said premises No. 6, Hastings Park Road, Calcutt-27 in terms of the declaration dated 10th May, 1975 filed by them before the Competent Authority, apart from asking for (c) permanent injunction restraining the defendant Company its agents/servants/men and Contractor from raising any construction on the said premises No. 6, Hastings Park Road, Calcutta before demarcating the said area of 47,620 sq.ft. on the basis of the sanctioned plan with reference to the declaration dated 10th May, 1975 by raising partition wall thereon and (d) injunction restraining the defendant from interfering with in any manner with the plaintiff's right, title and interest in the apartments "Rajhans" and Rajshree" together with common areas and facilities in the wit premises in terms of the declaration dated 10th May, 1975. It should also be noted that the said Association's application for amendment for replacing the area of 47,620 sq.ft. by "4 Bighas of land", as filed in the Suit on 28th August, 1985, is still pending. 27. Mr. Chatterjee claimed that the apartment owners of "Rajhans" and "Rajshree" having thus purchased their respective apartments being appraised of all the facts as indicated hereinbefore, were not and as such the said Association was also not entitled to bring and maintain the concerned Title Suit, and in any event they would not be entitled to say or contend anything contrary to their covenants and that being the reason and position, any objection raised in respect of the building "Rajtarang" was not bonafide and maintainable. It was further contended that since the building "Rajtarang" has already been constructed upto the second floor and that too with the knowledge and notice of the members of the said Association, so any objection now raised, would not be bonafide and proper and in fact, the said Association and its members are estopped from raising any objection to the construction of "Rajtarang", the moresowhen, the said building is being constructed on an area and location as indicated in the sanctioned plan which would expire in November, 1986 and in fact, there has been no deviation at all, of the same. 28. It was also contended initially by Mr. Chatterjee and thereafter, in reply by Mr. Batchwat that the learned lower Appellate Court failed to appreciate and consider the true impact and effect of the order dated 7th December, 1984 as made by B.C. Basak, J. and in any event, the order as impeached, should be deemed to be improper and irregular, as by the same, the true impact, effect and purport of the order as indicated above, was misconstrued and more particularly when by the concerned order, the order as made by B.C. Basak, J. was sought to be interfered with and in fact and effect, the same was interfered with. It was also contended by both the learned Advocates as above, that there having no direction anywhere regarding demarcation of the property or the area and such order, not having been available on the basis of the plaint and the prayers, the order as made for demarcation was improper and without jurisdiction and in making such order, the learned lower Appellate Court failed to realise and consider that the members of the said Association were and are enjoying 27,000 sq.ft. of common and facilities in terms of the declaration dated 10th May, 1985. The effect of the impugned order being the virtual setting aside of the order dated 7th August, 1980, as passed by the learned 12th Additional District Judge, who was of the same rank, Mr. of common and facilities in terms of the declaration dated 10th May, 1985. The effect of the impugned order being the virtual setting aside of the order dated 7th August, 1980, as passed by the learned 12th Additional District Judge, who was of the same rank, Mr. Chatterjee claimed that the judgment as impeached, was not proper and furthermore in making such order, the learned lower Appellate Court failed to appreciate that since the building 'Rajtarang' was being constructed in terms of the duly sanctioned plan, there could have been no ground of injuncting the said Company in continuing with such construction or in any manner restricting the same in the facts and circumstances of the case and furthermore or in any event when the effect of the said order has the ultimate issue of a permanent injunction on the said Company, the same should not have been made. 29. It was also submitted by both the learned Advocates as indicated above, that in making the order as he did, the learned lower Appellate Court failed to appreciate that 11,420 sq.ft. of an area would be outside the purview of the declaration dated 10th May, 1975 and as such also, the said Association or its members had no right to institute the suit and more particularly in respect of an area which would be outside the pail of the said declaration. It was also claimed that the impugned appellate order cannot be sustained, as while making the same, the effect and import of the order dated 1st February, 1983, as made by B.C. Basak, J. in Matter No. 1291 of 1979 was overlooked or was not appreciated and similar were the submissions made in respect of the other order dated 2nd February, 1983 as made by the said learned Judge, in Civil Rule No. 8371 (W) of 1978. In any event, it was contended that because of the orders as indicated above and the relevant particulars whereof have been incorporated and indicated hereinbefore, the learned lower Appellate Court should have held that the said Association had no prima facie case for claiming any order of injunction or such order as impeached or even to go on trial on such issue. Both the above mentioned learned Advocate on behalf of the said Company claimed and contended that really and in fact, the true implications of the orders as mentioned hereinbefore and whereunder the said Company had the right to construct the building "Rajtarang" on 11,420 sq.ft. of land and in accordance with the sanctioned plan, was misconstrued and not appreciated properly and further the learned lower Appellate Court did not consider that at this stage and more particularly when the said Company has already invested huge sum of money and in fact has constructed upto two stories of the said building "Rajtarang", there should not have been any restrain order, as that would expose the said Company, not only to embarrassment, but also to great financial strain and loss. It was further contended that the apprehension of the prejudice which would be caused and which was the basis of the claims in the Suit by the said Association, was really neither any ground for maintaining the proceeding nor any justification for making the impugned order. 30. The balance of convenience in the peculiar facts of this case was claimed to be was in favour of the said Company and not in favour of making the order in the manner as has been done, more particularly when, every thing has been done and the steps in the construction of the building "Rajtarang" upto two stories and those of the other two buildings, the constructions whereof have been completed, was done in terms of the sanctioned plan. The Suit of Shri Narsinglal Gupta (T.S. No. 102 of 1978) was claimed to be operative as res judicata in the matter of making the present order in the concerned Title Suit. 31. In the concerned Misc. Appeal No. 25 of 1985, references to the orders dated 13th May, 1983 and 7th December, 1984, as referred to hereinbefore were made and it was also claimed by the said Association that in view of the order dated 2nd February, 1983, as made in Matter No. 1291 of 1979, directing the Special Officers to make over the concerned area of 47,620 sq.ft. on the basis of the sanctioned plan and with reference to the declaration dated 10th May, 1975, the said Company would not be entitled to make any further construction of the property in dispute before the respective areas are marked out by necessary demarcations by raising partition walls. There is no doubt, that the application of the said Association under Order 39, Rules 1 and 2 read with section 151 of the Code of Civil Procedure was allowed on 22nd December, 1984 and thus the said Company, their agents, men and servants and contractors were restrained from making any construction or further construction of the said building "Rajtarang", apart from restraining them further from making any change in the nature and character of the property till the disposal of the application. Since the order as indicated hereinbefore was made without issuing a Rule to show-cause on the said Company, the learned lower Appellate Court has commented appropriately, and that too according to us duly that such procedure was a strange one and he should have given the said Company an opportunity to be heard. But such defect, we also feel agreeing with the learned lower Appellate Court, was cured, as the said Company appeared in the proceeding on that date and there was an order of stay of the order granted by the learned Court below on the grounds as recorded in the impugned judgment. 32. Before the lower Appellate Court it was contended amongst others by the said Company, in addition to the above as indicated earlier that the provisions of certain amenities like club complex, swimming pole etc. which were the part of the 3rd block of "Rajtarang" had not been finally given up and that in the declaration of 10th May, 1975, the entire vacant land measuring about 4 Bighas 2 Cottahs equivalent to 59,040 sq.ft. was now shown as appertaining to only two block of buildings "Rajhans" and "Rajshree". It was further pointed out that B.C. Basak, J. by his order as indicated above, held that 11,420 sq.ft. of area out of the said total land of 59.040 sq.ft. was now shown as appertaining to only two block of buildings "Rajhans" and "Rajshree". It was further pointed out that B.C. Basak, J. by his order as indicated above, held that 11,420 sq.ft. of area out of the said total land of 59.040 sq.ft. was outside the purview of the declaration dated 10th May, 1975 and that the right, title and interest of the said Company in respect of the said two blocks of buildings and the land appertaining thereto in the said Hastings Park Road premises, did not cease and the same did not vest in the members of the said Association and that the entire vacant land of the said Hastings Park Road premises was not shown in the declaration of 10th May, 1975 as appertaining to the two blocks of buildings as "Rajhans" and "Rajshree" and it would further appear from the concerned declaration dated 10th May, 1975 that an area measuring 11,420 sq.ft. of land was outside the said declaration and furthermore the building "Rajtarang" is being constructed in strict compliance with the sanctioned plan, the particulars whereof have indicated hereinbefore. 33. Admittedly, before the learned lower Appellate Court the parties to the dispute referred to numerous documents and on the basis of the pleadings as available, the following issues were framed for determination :- 1. Have the plaintiff-appellants any prima facie case to go to trial ? 2. Is protection necessary from that species of injury known as irreparable before the legal right of the appellants can be established? 3. Will the mischief of or inconvenience likely to arise from withholding injunction be greater than which is likely to arise from granting it ? 4. Is the suit prima facie barred by the principles of res judicata? 5. Are the appellants entitled to any relief in this appeal? 34. The learned lower Appellate Court while making the impugned order, in our view, appropriately observed that since the Appeal which was being considered, was one from an order of injunction and as such in deciding the same, no opinion should be expressed which would prejudice the case of the parties or would in any way influence the learned Court below in coming to his independent findings in the Suit. On consideration of the relevant facts and submissions as put forward, the particulars whereof have been indicated in the impugned judgment, the learned lower Appellate Court answered Issue Nos. 1 to 3 as quoted hereinbefore, in the affirmative and in favour of the said Association. So far the other two issues were concerned, the answers to the same were also in the affirmative. 35. In this proceedings, we are really concerned with the findings in respect of Issue Nos. 1 to 3 as indicated hereinbefore. 36. We have already recorded the case and submissions of the said Company that the building "Rajtarang" was not included in the declaration dated 10th May, 1975 and the plan which was annexed to the said declaration and submitted to the Competent Authority was not for three buildings but the particulars, as would be indicated hereafter, would show that they were for "Rajhans" and "Rajshree" only. It was also pointed out and the full particulars whereof would be shown hereafter that are application for amendment of the said declaration was rejected. It was also claimed by Mr. Chakraborty that the members of the said Association had entered into the agreement for sale and purchase of the apartments on the basis of various representations as made by the said Company and which would appear from Annexures to the petition and for that also, the said Company should not need be allowed to deviate from their primise. 37. Mr. Chakraborty appearing for the said Association also contended that initially, declaration dated 10th May, 1975, the description of the building was mentioned as "Rajhans" and "Rajshree" and there was no mention about "Rajtarang" and the area on which the buildings were to be constructed was shown as 4 Bighas and it was further stated that there would be two blocks of buildings, apart from indicating that there would be 16,000 sq.ft. of land for lawn, park etc., 8.000 sq.ft. for other common areas and so, when the members of the said Association have elected to purchase the apartments on the basis of such declarations, they would be entitled to acquire a total area of at least 47,000 sq.ft. plus 10,000 sq.ft. of area. of land for lawn, park etc., 8.000 sq.ft. for other common areas and so, when the members of the said Association have elected to purchase the apartments on the basis of such declarations, they would be entitled to acquire a total area of at least 47,000 sq.ft. plus 10,000 sq.ft. of area. which is required to be reserved for club complex, swimming pole and children playing space, apart from adequate space, which is also required to be provided for marriage and social functions, the moresowhen, the members of the said Association had really changed their position on the basis of such representation as indicated hereinbefore. It was further pointed out by him that the other statements as produced by the said Company along with their declaration as mentioned above, would also enable and entitle the members of the said Association to have the area of lands as mentioned hereinbefore and that too, on the basis of their statements in Ext. A of Annexure-'B' to the petition. In fact, the said statement would be available at page 95 of the petition and that would establish the contentions of Mr. Chakraborty as indicated hereinbefore. It was claimed by him, that such area of 14,782 sq.ft. was sought to be reduced to 10,220 sq.ft. by the said Company in their amendment application which was rejected. Such order of rejection, Mr. Chakraborty has pointed out has been upheld upto this Court and that being the position, he further claimed that the members of the said Association, would be entitled at least to 14,782 sq.ft. on the basis of the initial declaration of 4 Bighas which would be equivalent to 57,600 sq.ft. plus other area of 10,000 sq.ft. The fact that the area as offered initially was 4 Bighas was also sought to be supplemented by Mr. Chakraborty on a reference to Annexure-"C" to the declaration dated 10th May, 1975 and more particularly in the schedule thereunder. It was also pointed out by him, on a reference to the said declaration that the same never included the building "Rajtarang". 38. It was further claimed by Mr. Chakraborty on a reference to Annexure-"C" to the declaration dated 10th May, 1975 and more particularly in the schedule thereunder. It was also pointed out by him, on a reference to the said declaration that the same never included the building "Rajtarang". 38. It was further claimed by Mr. Chakraborty that the sketch plan as annexed as Annexure-"C" to the petition was wrong and such submission was sought to be supported by him, on a reference to an affidavit-in-opposition filed on behalf of the City Architect in C.R. No. 1069 (W) of 1979 wherein it has been indicated that it would appear from the said declaration that the Respondent No. 6 had transferred the land from out of the sanctioned site meant for the third building. On the basis of the allegations made in the said letter and the information, contained in the said Affidavit it appeared prima facie the that Respondent No. 6 had not maintained open space and the site of the proposed third building in terms of the said Association were true and if the two buildings already constructed and some 47,620 sq.ft. of open space had been conveyed to the said Association as common area it would no longer be possible for the Respondent No. 6 to construct the third building in terms of the sanctioned plan. There was another impediment to the renewal of the sanction. As by that time Calcutta Municipal (Amendment) Act, 1977 had already come into force and as the proposed third building exceeded, 18 metres in height it would be necessary for the Respondent No. 6 to have a fresh plan sanctioned in accordance with the provisions of the said Act as amended by the said Amendment Act, and the said Association, according to him, would not be authorised to raise any objection to the completion of the construction of the building "Rajtarang" if there is due demarcation by boundary walls, of the area, which, the members of the said Association would be entitled to under the agreement or the assurances, on the basis whereof they had entered into such agreement. It was Mr. Chakraborty’s specific submissions that the said Association would be entitled to an area of 47,620 sq.ft. out of 59,040 sq.ft. It was Mr. Chakraborty’s specific submissions that the said Association would be entitled to an area of 47,620 sq.ft. out of 59,040 sq.ft. of the land at the said Hastings Park Road premises, in terms of the declaration dated 10th May, 1975, which as mentioned hereinbefore, became final on the basis of the statements of the said Company to the effect that the entire land on which the buildings "Rajhans" and "Rajshree" would be constructed, was 4 Bighas. He further pointed out that the application for amendment of the said Association which is now pending, if allowed, such area of 47,620 sq.ft. would be increased. 39. It was also the claim and contentions of Mr. Chakraborty that even on the basis of the order dated 2nd February, 1983, as made by B.C. Bassk, J. in Matter No. 1291 of 1979 the said Association is entitled to have the demarcation made and more particularly when the order as indicated hereinbefore and the particulars whereof have been indicated earlier, was by consent of the parties. He pointed out that such order as indicated above, is still pending and has not been vacated by any superior authority. He has further pointed out that the demarcation which was directed, not only by the order as mentioned above, but also by order of 7th December, 1984, made by consent in C.R. No. 8371 (W) of 1978 has not also been given effect to and that was the reason or on such failure to have the demarcation made by the said Company, the Suit in which the present impugned order was made, had to be filed. 40. Mr. Chakraborty stated after placing the plaint claimed that on the basis of the prayers as made therein or the scope for determination, it cannot at this stage be held and observed that the Suit as filed, was not maintainable and that being the position, it was his specific contentions that the learned lower Appellate Court had acted rightly, with jurisdiction and authority, in making the impugned order and that too when several contentions issues will have to be determined in the Suit. While dealing with the claim of the said Company, that declaration dated 10th May, 1975, did not cover an area of 11.420, sq.ft. of land, Mr. While dealing with the claim of the said Company, that declaration dated 10th May, 1975, did not cover an area of 11.420, sq.ft. of land, Mr. Chakraborty, after denying such fact, pointed out that in view of the order by D.K. Sen and A.K. Sengupta JJ., on 4th April, 1985, the question of concession, if any, in respect of 11,420 sq.ft. of land as mentioned by the said Company would not arise. He pointed out that the learned Counsel appearing at that time and who is said to have made the concession did not perhaps make such concession duly and on behalf of all the parties interested. He then referred with substantial force to the terms of section 115 of the Code of Civil Procedure and stated that if the tests for interference as indicated therein, are applied, there would be no scope for interference by this Court at this stage. It was contended by him further that the sole object of the said Company in this proceeding is to frustrate the demarcation, which was required to be made under the diverse orders of this Court and thus to make the said Association and its members suffer, even though they have, on the basis of the assurance s as given, changed their position to their detriment by agreeing to purchase or in fact by purchasing the apartments in question. 41. While proposing this order we must also keep it on record that we have taken into consideration the balance convenience of the respective parties and since we have felt that the tilt of such balance would be in favour of the order as has been passed by the learned lower Appellate Court. 42. On consideration of the observations as made by the learned lower Appellate Court, on the basis of the materials before him and so also on consideration of the materials in this proceeding and the submissions as made before us, we feel that since there has been a case, which is required to be tried on merits and which should not at least be tried at this preliminary stage in the final manner, the learned lower Appellate Court was not wrong in making the order as impeached. We feel that the matter should now be heard on merits and on evidence finally and before such determination is made, the status quo as of today must be maintained or in other words, the order as proposed by the learned lower Appellate Court should continue. We keep it on record that even on the basis of such order, the said Company would be entitled to carry on the construction of the building "Rajtarang", after clearly demarcating the portion of the areas of the members of the said Association, who are represented by the said Association, in terms of the observations as made by the learned lower Appellate Court and that being the position, we do not feel or find any justification in making any interference with the order in question. 43. Thus, this Rule should fail and the same is accordingly discharged. There will be no order as to costs. 44. Let the records, if they are here in this Court, be sent down at once. We further request the learned Court below, considering the impact of sufferings of the parties to try, hear and dispose of the Suit with utmost expedition and it would be highly appreciated if such step to dispose of the Suit are taken in such a manner so that the same is disposed of within four months after the Puja vacation. 45. At this stage we also keep it on record that on 25th September, 1985 Mr. Batchawat had filed a draft of a suggested order. The copy of the same was handed over to Mr. Chakraborty but he did not agree to those terms. Since there was no agreement of parties so we have directed that the draft to be kept in the record only. Stay of operation of the order, as prayed for, is refused.