K. S. Gupta ( 1 ) THIS order will govern the disposal of I. A. No. 1116/99 under Order 39 Rules 1 and 2 read with Section 151, Civil Procedure Code filed by the plaintiff and I. A. No. 11003/99 under Order 39, Rule 4 read with Section 151, Civil Procedure Code filed by defendants 1 to 3 for vacation of ex parte ad interim injunction order dated 5th February, 1999. ( 2 ) SUIT was filed, inter alia, alleging that Kishori Lal Malhotra was an allottee/ owner of the property bearing No. R-833, New Rajinder Nagar with leasehold rights in the land underneath it measuring 200 sq. yds. vide registered Lease Deed No. 2230 entered in Additional Book No. 1 Vol. No. 1738 on pages 115 to 117 dated 7th April, 1967 and Conveyance Deed registered as No. 2231 in Additional Book No. 1 Vol. No. 1738 on pages 118 and 119 dated 7th April, 1967 with the Sub-registrar, New Delhi. Said Kishori Lal Malhotra died on 20th February, 1972 leaving behind a registered Will dated 26th April, 1969 bequeathing the said property in favour of Sardari Lal Malhotra and Smt. Usha Rani. Thereafter property was allowed to be substituted in the names of both of them jointly by the Landdo vide Letter No. L and DO/ps. 1/108 dated 28th January, 1993. It is alleged that as per mutual understanding in between Sardari Lal Malhotra and Smt. Usha Rani the ground floor of property was taken by Smt. Usha Rani while first and barsati floors by Sardari Lal Malhotra. Smt. Usha Rani sold her 1/2 share in the property, i. e. ground floor to the plaintiff under a registered sale deed dated 20th October, 1993. Said property now stands jointly in the names of Sardari Lal Malhotra and plaintiff in the records of L and DO New Delhi. Plaintiff is in occupation of the ground floor since 20th October, 1993. ( 3 ) IT is pleaded that defendants 1 to 3 are carrying business as builders. Said Sardari Lal Malhotra seems to have sold his 1/2 share in the property, i. e. first floor and barsati floor to defendants 1 to 3 in March, 1998. Defendants 1 to 3 are in actual physical possession of both the said floors of property. Said Sardari Lal Malhotra seems to have sold his 1/2 share in the property, i. e. first floor and barsati floor to defendants 1 to 3 in March, 1998. Defendants 1 to 3 are in actual physical possession of both the said floors of property. On or about 21st December, 1998 the defendants 1 to 3 with the help of their workers started demolishing barsati floor with a view to construct flats on the second floor of property. It is stated that since the lease and conveyance deeds of the property are jointly in the names of plaintiff and Sardari Lal Malhotra, even if defendants 1 to 3 have purchased first and barsati floors from Sardari Lal Malhotra they cannot raise any construction either on the first or second floor after removing the existing construction as it is impermissible under the terms of lease and conveyance deeds of the property. Further, without getting the building plans sanctioned from defendant No. 4, the defendants 1 to 3 are not entitled to make any additions/alterations or construct any new flats. It is further alleged that defendants 1 to 3 have removed some of the walls on first floor. On account of demolition carried out by defendants 1 to 3 on the first and barsati floors considerable damage has been caused to the portion on ground floor of property in occupation of plaintiff and repair thereof would require expenditure of atleast Rs. 5. 00 lakhs. Existing construction of the property also cannot bear the additional burden of the flats which defendants 1 to 3 propose to construct on the second floor of property. Decrees of permanent prohibitory and mandatory injunctions in addition to Rs. 5. 00 lakhs towards damages, have been claimed by the plaintiff against defendants 1 to 3. ( 4 ) IN the suit the plaintiff filed aforesaid I. A. 1116/99 and on 5th February, 1999 following order was passed thereon: "issue notice to defendants returnable by 7th July, 1999. Meanwhile, defendants 1 to 3, their servants and agents are hereby restrained from making any additions and alterations on the first floor and second floor without the permission of the local Authorities. Meanwhile, defendants 1 to 3, their servants and agents are hereby restrained from making any additions and alterations on the first floor and second floor without the permission of the local Authorities. They are also restrained from causing any damage to the ground floor in occupation of the plaintiff while making any additions and alterations on the first floor and second floor of the property bearing No. R-833, New Rajinder Nagar, New Delhi. " ( 5 ) DEFENDANTS 1 to 3 have contested the suit and also the said application by filing joint written statement and reply. In the written statement it is alleged that defendant No. 1 purchased the first floor and barsati floor of property No. R-833, New Rajinder Nagar from Sardari Lal Malhotra as a business proposition with intent to renovate/improve the same and sell the flats/floors to the intending purchasers. After purchasing the said portions of property the answering defendants approached the plaintiff and asked him to join hands with them to get the property converted from leasehold to freehold. However, the plaintiff refused the proposal on the ground that he did not have funds to pay his share of conversion charges and he instead offered to sell his share in the property to defendant No. 1 but demanded exhorbitant price therefor which was not acceptable to the answering defendants. Plaintiff also refused to sign the application to be filed in the office of L and DO for grant of NOC needed by MCD for sanction of building plans unless the answering defendants agreed to construct for him the basement under ground floor at their cost. It is denied that the additions/alterations/improvements have caused any damage to the portion of property owned by the plaintiff as alleged. It is claimed that plaintiff is residing in another property No. R-907, New Rajinder Nagar. Liability to pay Rs. 5. 00 lakhs as claimed by the plaintiff towards damages is emphatically denied. It is stated that the answering defendants are ready to make good the damages, if any, caused to the portion of property in occupation of plaintiff at their cost. ( 6 ) REPLY to said I. A. 1116/99 and also aforesaid I. A. 11003/99 have been drafted on the pleas identical to those taken in the written statement, by defendants 1 to 3. ( 6 ) REPLY to said I. A. 1116/99 and also aforesaid I. A. 11003/99 have been drafted on the pleas identical to those taken in the written statement, by defendants 1 to 3. ( 7 ) IN the written statement defendant No. 4-MCD has alleged that defendants 1 to 3 had tried to raise unauthorised construction but the same was stopped at ongoing stage. Answering defendant received application dated 29th December, 1996 (File No. 206/b/kbz/98) from defendant No. 1 for sanction of building plans of property No. R-833 (second floor) and as it did not complete the required formalities invalid notice dated 20th January, 1999 was issued to defendant No. 1. It is asserted that answering defendant will take action strictly as per law as regards sanction etc. of the property in question. ( 8 ) I have heard Mr. M. L. Bhargava for plaintiff, Mr. Ravinder Sethi for defendants 1 to 3 and Mr. Raman Duggal for defendant No. 4 and have also been taken through the record. ( 9 ) PHOTOSTAT copies of lease and conveyance deeds in respect of said property No. R-833, New Rajinder Nagar are placed on Part III file. Covenant l (iii) of the lease deed which is relevant, runs as under : "not to make any alterations and/or additions to the building either externally or internally, without first obtaining the permission of the local Authority in writing, and also if called upon by the said Authority the lessee shall submit plans, sections elevations and specifications for the additions and/or alterations to the building in duplicate and shall not start the work of construction unless and until the approval of the said officer has been obtained in writing. " ( 10 ) CONDITION 3 of said deed of conveyance which too is material, runs thus: "the purchaser shall not make any alterations and/or additions to the building either externally or internally, without first obtaining the permission of the local Authority in writing, and also if called upon by the said Authorty the purchaser shall submits plans, sections, elevations and specifications for the additions and/or alterations to the building, in duplicate, and shall not start the work of construction unless and until the approval of the said officer has been obtained in writing. " ( 11 ) IN para 9 of the plaint it is alleged that on or before 21st December, 1998 defendants 1 to 3 with the help of workers started demolishing the barsati floor of property with a view to construct new flats on second floor. In Para No. 11 it is further alleged that as on date the barsati floor of property has been totally demolished. In corresponding paras of the written statement filed by defendants 1 to 3 they have not specifically denied the said averments. It is even admitted in the written statement by the said defendants that additions/alterations have been made on the first floor which they allege are permissible under the Building Bye- laws. The details of the those additions/alterations have, however, not been disclosed by them. Plaintiff has filed photostat copy of the inspection report issued by Harish Chandra, Structural Consultant which notices that some of the walls of suit property are 9" thick while some of them only 4. 5" and there is no RCC column or beam in the property; that for modification/alterations on first and second floors of property RCC columns and beams are very essential. It was urged by Mr. Ravinder Sethi, Senior Advocate that at the time of purchase of 1/2 share of property from Smt. Usha Rani the plaintiff had agreed that the owner of first and barsati floors of property shall have the right to raise any further construction on the upper floors and the plaintiff shall have no objection to it. In support of the submission he drew my attention to the photostat copy of agreement to sell dated 6th September, 1999 executed in between Smt. Usha Rani and the plaintiff placed on the file. Cuse 11 of this agreement says that the owner of upper floors shall have full right to raise any further construction in the property without damaging the structure on ground floor for which the second party shall have no objection or interference. Second party referred to in this clause is the plaintiff. In my view in the garb of said Clause 11 the defendants 1 to 3 cannot violate the covenant/conditions referred to above of the lease and conveyance deeds dated 25th February, 1967 as also building bye- law 4. Second party referred to in this clause is the plaintiff. In my view in the garb of said Clause 11 the defendants 1 to 3 cannot violate the covenant/conditions referred to above of the lease and conveyance deeds dated 25th February, 1967 as also building bye- law 4. 1 framed by MCD in the matter of raising construction of new flats on second floor and making additions/alterations on the first floor for which sanction is needed from defendant No. 4-MCD. It is not within the domain of this suit to make any direction to the plaintiff either to join hands with defendants 1 to 3 in moving application to Landdo for issue of NOC to them or agree to the conversion of property to freehold by paying necessary conversion charges by the plaintiff. By now structure on second floor of property stands demolished completely. Defendants 1 to 3 cannot have any grievance against the said ad interim injunction order dated 5th February, 1999 for vacation whereof they have filed I. A. 11003 /99 if the construction or additions/alterations to be made by them are not permissible under the existing Building Bye-law of defendant No. 4 except with prior sanction of MCD. Plaintiff has thus prima facie made out a strong case for making the order dated 5th February, 1999 absolute. Further, taking note of the said inspection report the plaintiff is likely to suffer irreparable injury if defendants 1 to 3 are not restrained from proceeding with the proposed construction for sanction whereof the building plans had been submitted with defendant No. 4. In the facts and circumstances of the case, the balance of convenience also lies in favour of the plaintiff. ( 12 ) CONSEQUENTLY, I. A. 1116/99 is allowed and said order dated 5th February, 1999 is made absolute. I. A. 11003/99 is dismissed. It is made clear that defendants 1 to 3 are at liberty to make repairs etc. in the first floor of the property for which no permission is needed from defendant No. 4.