JUDGMENT : S.R. Brahmbhatt, J. The petitioners, partnership firms, through their partners have approached this Court under Art. 227 of the Constitution of India challenging the order dated 6-2-2011 passed by learned Principal District Judge, Jamnagar in Misc. Civil Appeal No. 85 of 2009 and order dated 21-8-2009 passed by learned 4th Senior Civil Judge, Jamnagar in Regular Civil Suit No. 579 of 2008. 2. Facts in brief leading to filing this petition deserve to be set out as under : One Gulab Avenue Condominium has constructed residence-cum-shopping complex in the name of ‘Gulab Avenue'. The building facing the road has five shops in the ground floor. The shops and flats are part of the same condominium. The construction is situated within the jurisdiction of Jamnagar Area Development Authority (‘JADA' for short) constituted under the Gujarat Town Planning and Urban Development Act, 1976. The area, wherein the building is situated is declared to be residential zone under the General Development Control Regulations (‘G.D.C.R.' for short), wherein running restaurants is not impermissible. The petitioner No. 1 purchased five shops by investing substantial amount for starting a restaurant, as a part of chain, of restaurants. The respondent Nos. 1 to 4, members of said condominium filed Regular Civil Suit No. 579 of 2008 for various relief as they were aggrieved on account of proposed restaurant coming up in five shops purchased by petitioner No. 1. The petitioner No. 1 has purchased those five shops by two different registered sale-deeds executed on 29-8-2008 and 28-11-2008. The petitioner No. 1 while purchasing those shops had brought it to the notice of the developer-builder that the petitioners were interested in starting restaurant and one of the partners of the developer firm has also purchased a flat in the said scheme. As per G.D.C.R. and J.A.D.A. running of restaurant in the residential zone is permissible. The running of restaurant shall not cause either any pollution or nuisance, whatsoever, which would have justified the objections on the part of the residents and owners of fiats. It is averred in the memo of the petition that some of the defendants brought one Regular Civil Suit No. 552 of 2008 in the Court of the learned Principal Senior Civil Judge, Jamnagar on 27-10-2008. It is averred in the memo of the petition that some of the defendants brought one Regular Civil Suit No. 552 of 2008 in the Court of the learned Principal Senior Civil Judge, Jamnagar on 27-10-2008. The President of Gulab Avenue condominium filed a criminal complaint against present petitioners and the builder before the Jamnagar City ‘B' Division Police Station, which was registered as C.R. No. (I) 20 of 2009. The petitioners thereafter were compelled to file petition under Section 482 of the Code of Criminal Procedure being Misc. Criminal Application No. 665 of 2009, wherein, the further inquiry pursuant to said F.I.R. is stayed. That many of the flat holders had extended the boundaries of their fiat and/or had covered their balconies and had removed the partition walls with a view to extend the boundary of the room to which the gallery or balcony is attached and as this action was contrary to the provisions of law and J.A.D.A., the petitioners made appropriate complaints to the authorities for taking action and pursuant thereto, initial actions were taken and thereafter, the petitioners had filed petition against respondent authorities and other flat owners. The Civil Court passed an order dated 21-8-2009 ordering status quo, whereby, the petitioners were restrained from putting up restaurant in the premises. This order was carried into appeal by present petitioners by way of Misc. Civil Appeal No. 85 of 2009 before the District Court, Jamnagar, wherein, the appellate Court vide its order dated 6-2-2010 dismissed the same and confirmed the order dated 21-8-2009 passed in Regular Civil Suit No. 579 of 2009 below Exh. 5 by learned 4th Additional Senior Civil Judge, Jamnagar. Being aggrieved and dissatisfied with these two orders, present petition is preferred on the grounds mentioned in the memo of petition. 3. Learned Counsel for the petitioners has invited this Court's attention to the sale-deed, whereunder the five shops came to be purchased. The Court's attention was specifically invited to the covenant Nos. 23 and 24 and it was contended that simple reading of both, jointly or separately, would go to show that putting up of restaurant in the shops was not prohibited in any manner and plain reading of two provisions would imminently make it clear that putting up of restaurant is not prohibited so far as the covenant in respect of shops are concerned. The respondents did not have any right to bring action in the form of suit against petitioners. Learned Counsel for the petitioners invited this Court's attention to the fact that building in question is governed by the Gujarat Ownership of Flats Act, 1973. 4. Learned Counsel for the petitioners thereafter invited this Court's attention to the provisions of the Gujarat Ownership of Flats Act and contended that said Act does not prevent the individual owner's free usage or exclusive usage of the property purchased under valid contract and its covenants. The reliance is placed upon the provisions so far as common facilities and common passages and it was urged that the same could not be construed as an impediment in the exclusive enjoyment of the property in question. A specific emphasis was placed on Secs. 21, 22 and 27 of the said Act. Learned Counsel for the petitioners has invited this Court's attention to the ownership declaration under Section 17 with specific emphasis to Item No. 3 which talks about factum of part of second unit being commercial, consisting of shops. Learned Counsel for the petitioners thereafter invited this Court's attention to the suit plaint and prayer clause and submitted that the inherent defect going to the root of the matter has unfortunately remained unnoticed by both the Courts below. The prayer clause does not contain prayer for ‘permanent injunction'. A close reading of all the prayers indicate that they pertain to declaration but there exists no substantive prayer qua permanently restraining the defendants from putting up and carrying out the business of restaurant and when no relief of permanent injunction is sought, the Court was not justified in granting temporary injunction in favour of the plaintiff. Learned Counsel has invited this Court's attention to Page 131 i.e. order passed by trial Court on 21-8-2009. The order of temporary injunction contained three restrictions against defendants namely (i) Defendants Nos. 1 to 4 themselves and or through their agents, servants, franchises and contractors are restrained from putting up hotel/restaurant, contrary to conditions and bye-laws of society, (ii) defendant Nos. 2, 3 and 4 are not to change in any manner the elevation, they are not to install and fit the internal chimney through their agents, servants etc., (iii) respondent Nos. 1 to 4 themselves and or through their agents, servants, franchises and contractors are restrained from putting up hotel/restaurant, contrary to conditions and bye-laws of society, (ii) defendant Nos. 2, 3 and 4 are not to change in any manner the elevation, they are not to install and fit the internal chimney through their agents, servants etc., (iii) respondent Nos. 2, 3 and 4 were restrained from putting up central air conditioned system and generators creating vibration or any other equipments through their agents, servants etc. Learned Counsel for the petitioners has thereafter invited this Court's attention jo the reasoning preceding the final order of interim injunction below Exh. 5 application. Learned Counsel for the petitioners has heavily relied upon the provisions of Section 34 of the Specific Relief Act, 1963 and in support of his contention, he has submitted that the declaratory relief when made and when the plaintiff is in a position to seek further relief then, and he has not prayed further relief of permanent injunction against the defendants, then the Court cannot grant such declaration. In support of this proposition of law, at the cost of repetition, learned Counsel for the petitioners invited this Court's attention to the relief clause in the plaint and indicated that there exists no substantive relief of permanent injunction, and therefore, no temporary injunction could have been granted because even though the ultimate relief is not required to be granted in light of the unequivocal provision of Section 34 of the Specific Relief Act. Learned Counsel for the petitioners relied upon the following authorities in support of his submission : (1) 1998 (2) SCC 510 in case of State of M. P. v. Mangilal Sharma. (2) 1973 (2) SCC 60 in case of Ram Saran v. Smt. Gangadevi. (3) AIR 1973 Goa, Daman & Diu 1, in case of Jairam Ramchadra Sirsat v. Baburav Mungesh Karekar, Para 14. (4) AIR 2007 SC 2191 in case of M/s. Kamakshi Builders v. M/s. Ambedkar Educational Society. (5) AIR 2002 Ker. 1 in case of Thrissiamma @ Sebatian Mathew @ Sunny. (6) AIR 1960 All. 252 in case of Mohmad Ibrahim Khan v. Pateshwari Prasad Singh. (7) AIR 1971 SC 761 in case of Jugraj Singh v. Jaswant Singh. (8) State of Gujarat v. Mohant Ranchhoddas Guru Atmaramdasji, AIR 1974 Guj. 115 . (9) AIR 1936 Bom. (5) AIR 2002 Ker. 1 in case of Thrissiamma @ Sebatian Mathew @ Sunny. (6) AIR 1960 All. 252 in case of Mohmad Ibrahim Khan v. Pateshwari Prasad Singh. (7) AIR 1971 SC 761 in case of Jugraj Singh v. Jaswant Singh. (8) State of Gujarat v. Mohant Ranchhoddas Guru Atmaramdasji, AIR 1974 Guj. 115 . (9) AIR 1936 Bom. 160 in case of Jamnabai Gulabchand Gujarati v. Dattatraya Ramchandra Gujarati. (10) AIR 2000 SC 1410 in case of Kuldip Singh Subhashchandra Jain Quia Timet. (11) Decision of this Court in Appeal From Order No. 72 of 2001 decided on 17-8-2001 (Coram : J. R. Vora as he then was, J.) between Jagannthaji Mandir Trust v. Union of India, Paras 21 and 23. In short, the close reading of order impugned would go to show that the Court did not appreciate the aspect of omission of seeking appropriate relief and Section 34, which is in pari materia with older Section 42 in fact embedded restriction upon the Courts. In other words, the duty is cast upon the Court to bear in mind this provision and observation of the authorities cited hereinabove would support this submission in its totality. 5. Learned Counsel for the respondent Nos. 1 to 4 contended that this is the petition under Art. 227 of the Constitution of India, and therefore, the restraints recognised by Courts in exercising its jurisdiction need to be borne in mind while examining the challenge. Learned Counsel for the respondents invited this Court's attention to the terms of covenant namely Clauses 23 and 24 and submitted that, these clauses are to be read in its proper perspective, the mentioning of the word "restaurant" so far as first floor of covenant of flat owners is concerned would specifically go to show that this was required to be mentioned as any change of putting up restaurant on first floor sought to be ruled out by specific insertion, whereas such is not required so far as Clause 24 is concerned, as same is imminently barred by inserting word "Hotel of Tea-Coffee, Pan Masala shop, huge fried pan (Tavdo in local parlance) or baking kiln etc." may not be installed. Now this insertion essentially go to show that when even small hotel serving tea was prohibited then, the question of putting up of restaurant was ruled out, and therefore, word "restaurant" was not required to be mentioned. But that omission in itself cannot lead to inference that party to agreement while prohibiting even small tea hotel did not prohibit putting up of restaurant. The essential effect of this covenant is to avoid nuisance that could be generated on account of such activities, and therefore, the trial Court as well as appellate Court appreciated this aspect in its right earnest and no interference is called for in the orders impugned. 6. The learned Advocate for the respondents, while dealing with submissions with regard to Section 34 of the Specific Relief Act contended that the plaintiffs were not required to pray for any permanent injunction against the defendants restraining them from putting restaurants as once the declaration as sought for is granted declaring that defendants have no rights to run restaurants in their premises then on the strength of this declaration any attempt on the part of the defendants in putting restaurant would be illegal and even the concerned local authorities wherefrom the requisite licences are to be obtained for putting up restaurants would also not grant the same to defendants in light of the declaration that defendants are not entitled to run restaurant in their premises. In view of this, it was submitted that plaintiffs were not obliged to seek any further relief of permanent injunction against defendants. 7. Without prejudice to the above, the learned Advocate for the defendants submitted assuming for the sake of argument, without conceding that plaintiffs were required to pray permanent injunction in plaint then also nothing prevents them from seeking appropriate amendment in the suit at the relevant time and besides that the Court has all the powers to grant relief by molding relief appropriately. 8. 8. The learned Counsel for the respondent submitted that the decisions cited at the Bar in support of the contention that on account of omission on the part of the plaintiffs in seeking permanent injunction, no relief was likely to be granted, are all the cases arising out of the final judgments and none of them are from interlocutory order hence they may not have any applicability to the facts of the case on hand as it arises out of interlocutory order of injunction only and suit is still pending. Therefore, the submission on the basis of Section 34 of the Specific Relief Act is of no avail to the petitioner. 9. The learned Advocate for the respondents further submitted that the petitioners are not entitled to take such plea for the first time in the writ proceedings under Art. 227 of the Constitution of India. The scope of this petition would debar the petitioners from taking this contention for the first time in the Court, thus on this ground also the petition is required to be dismissed. 10. The learned Advocate for the respondent contended that concurrent findings of facts by two Courts below did not warrant any interference by this Court while exercising its power and jurisdiction under Art. 227 of the Constitution. 11. The learned Advocate for the respondent relied upon the following authority of law in support of his submission against the petitioners : (1) JT 1988 (1) SC 67 in case of Jawahar Bharti Education Trust v. S.Y. Mariappa wherein the Apex Court observed that while considering the appeal against the interim injunction the High Court should not have held that the suit was not maintainable, without examining the question of injunction while disposing of the matter. The question of maintainability of suit should be left to be adjudicated by the trial Court. (2) AIR 1977 Orissa 69 in case of Md. Aftabuddin Khan v. Smt. Chandan Bilasini, the Division Bench of Orissa High Court's observations in Para 15 of the judgment. (3) Order dated 23-2-1996 in Appeal From Order No. 91 of 1996 on the point that interim relief and interim orders cannot be examined on the ground of the maintainability of the suit itself as it would fall in the realm of the trial Court's powers. 12. (3) Order dated 23-2-1996 in Appeal From Order No. 91 of 1996 on the point that interim relief and interim orders cannot be examined on the ground of the maintainability of the suit itself as it would fall in the realm of the trial Court's powers. 12. The learned Counsel for the respondents thereafter invited this Court's attention to the reasoning adopted by learned trial Court as well as appellate Court for granting temporary injunction and submitted that these are the facts and findings which are not to be disturbed under Art. 227 of the Constitution of India, unless and until it is established to be perverse as such no reasonable man could have arrived at. The absence of perversity in the findings of facts per se would oust the jurisdiction of this Court in Art. 227 of the Constitution. The Court, therefore, may not go beyond the orders and examine it on the ground of it being perverse or not. The decisions cited hereinabove in support of the submissions go to show that the order in question being interim order only, it need not call for any interference and the petition is required to be dismissed in limine only. 13. This Court has heard learned Counsel for the parties and perused the paper book produced on record. Before adverting to the rival contentions of learned Counsels, it is most expedient to set out few indisputable aspects emerging therefrom viz. - (I) The Gulab Avenue Condominium is consisting of two types of construction namely residential flats and shops to be used for commercial purpose. (II) The building having shops is facing road. The shops are meant for commercial use and there exists no restrictions on their commercial use by the shop owners. (III) The petitioners vide sale-deed dated 29-8-2008 and 28-11-2008 purchased five shops on sizable investments therein. It is say of the petitioners that at the time of purchase of the shops the intention of putting up of restaurant was notified to the builder-developer. (IV) The respondent Nos. 1 to 4 have essentially in the Civil Suit No. 579 of 2008 contended that in light of the Clauses 23 and 24, the petitioners are not entitled to run restaurant in the shops. (IV) The respondent Nos. 1 to 4 have essentially in the Civil Suit No. 579 of 2008 contended that in light of the Clauses 23 and 24, the petitioners are not entitled to run restaurant in the shops. (V) The J.A.D.A. regulations do not prohibit running of restaurant in residential zones and thus, running of restaurant is not prohibited under J.A.D.A. (VI) The plaintiffs in the plaint have extensively averred with regard to likelihood of creation of nuisance on account of proposed restaurant in the five shops owned by the defendants. (VII) The plaintiffs have filed the suit on 18-11-2008 and in the prayer clause, have sought declaration that the defendant Nos. 2, 3 and 4 are not entitled to run any hotel, restaurant or any such large scale commercial activity in the premises along with that other declarations have been sought. However, it is fact which cannot be denied by any one that the plaintiffs have omitted to make any specific substance prayer seeking permanent injunction of prohibitory order against the defendants restraining them from putting up a restaurant in their premises. (VIII) The plaintiffs have averred in the plaint nuisance and existence of negative coveyance in the sale-deed in form of Clauses 23 and 24 which has effect of restraining the defendants from putting up and running restaurant in their premises. (IX) The contesting defendants have taken up defence that the occurrence of word restaurant in Clause 23 and its omission in Clause 24 would itself be sufficient ground for dismissing the suit as no restrictions of putting up restaurant is mentioned in Clause 24 which is in respect of shops in the building. (X) The defendants have also taken a defence that the plaintiffs have no right to claim about restaurant being put up in the premises owned by the defendants only on account of negative covenants in the sale-deed. (XI) The defendants have elaborately pleaded that on account of latest gadget like scrubber etc., the restaurant is not in any manner likely to cause nuisance or filth in or around the premises in question. The air scrubber in the place of chimni is a latest gadget, it would go to show that the plaintiffs' apprehension with regard to nuisance is ill-founded. The air scrubber in the place of chimni is a latest gadget, it would go to show that the plaintiffs' apprehension with regard to nuisance is ill-founded. (XII) The defendants have also averred that the plaintiffs have filed the suit only for harassing the defendants as the plaintiffs demand for money for putting up of Jim was declined by the defendants. (XIII) The defendants have also taken up a stand that the suit was barred in view of the earlier suit being Regular Civil Suit No. 552 of 2008 on the same facts. (XIV) The defendants have also put up plea that as per provisions of the Specific Relief Act, 1963 Section 41(f) when the nuisance is not likely to be proved, there is no question of granting of any interim relief in favour of the plaintiffs. (XV) The defendants have pleaded provisions of Section 42 of the Specific Relief Act and contended that when positive covenants was not capable of being implement enforced than negative covenants of the contract cannot be granted. Thus, provision of Section 42 of the Specific Relief Act was pleaded. (XVI) The plaintiffs pleaded Section 42 for seeking relief on the basis of the negative covenants in the sale-deed. (XVII) The trial Court granted temporary injunction vide its order dated 21-8-2009. (XVIII) This order of 21-8-2009 was assailed by die present petitioners by way of Misc. Civil Appeal No. 85 of 2009 in the Court of Principal Civil Judge, Jamnagar on the various grounds mentioned in the memo of appeal. (XIX) This Appeal was filed on 5-9-2009 and in this Appeal, the appellants present petitioners took up various grounds including trial Court's failure in appreciating the fact that earlier suit being R.S.C. No. 552 of 2008 cannot be said to be a different and trial Court's failure to appreciate that the principle waiver was applicable and the trial Court's failure in not appreciating the fact that negative covenants were not enforceable and trial Court's failure that before starting the restaurant, the plea of nuisance cannot be proved or believed. (XX) The Appellate Court vide its order dated 6-2-2010 dismissed the Appeal and confirmed the order dated 21-8-2009 in R.C.S. No. 579 of 2008, and therefore, the present petition is filed. (XXI) The premises in question are premises admittedly having two parts, namely, residential and commercial. (XX) The Appellate Court vide its order dated 6-2-2010 dismissed the Appeal and confirmed the order dated 21-8-2009 in R.C.S. No. 579 of 2008, and therefore, the present petition is filed. (XXI) The premises in question are premises admittedly having two parts, namely, residential and commercial. The premises have shops in its commercial unit and thus, the Flat Owners Association which is said to be "Gulab Tower Condominium", members of this condominium are collectively responsible for the maintenance, and common facilities. (XXII) The condominium is admittedly not a co-operative society nor is it a non-trading corporation and it is governed by the provisions of Gujarat Ownership of Flats Act, 1973. (XXIII) There is no dispute that covenant which is required to be interpreted or relied upon for the purpose of deciding the controversy is Clauses 23 and 24, which read as under : "Clause 23 : Each and every flat-owner of the "Gulab Avenue" building shall use the flat only for residential purpose and shall not use the same for any other public, commercial or entertainment purpose viz. Hotel, restaurant, club, sanatorium, hospital, tuition class, nursery, play houses, video parlour, commercial guest house, etc. so as to cause nuisance to the neighbouring flat-owners. Clause 24 : The purchaser of shop on the ground floor of "Gulab Avenue" is not to use his premises for Pan-Masala stall, Tea-Coffee hotel - Milk Dairy-using huge frying pan or baking kiln (‘bakery ni bhathi') or such gadgets and apparatus for preparing bakery items causing filth and nuisance and existing floor level is not to be lowered in any manner." 14. In view of the aforesaid backdrop of indisputable facts, question arises as to whether the trial Court as well as Appellate Court was justified in granting prohibitory orders against the present petitioners. 15. The facts remained to be noted that the present petitioners have not in terms pressed into service provision of Section 34 of the Specific Relief Act for resisting the prayer of temporary injunction against starting of restaurant. 16. Section 34 of the Specific Relief Act, reads as under ; "Sec. 34. 15. The facts remained to be noted that the present petitioners have not in terms pressed into service provision of Section 34 of the Specific Relief Act for resisting the prayer of temporary injunction against starting of restaurant. 16. Section 34 of the Specific Relief Act, reads as under ; "Sec. 34. Discretion of Court as to declaration of status or right - Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entided, and the plaintiff need not in such suit ask for any further relief : Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation - A trustee of property is a "person interested to deny" a titled adverse to the title of someone who is not in existence, and whom, if in existence, he would be a trustee." 17. Thus, it is a statutory provision where under the Legislature has restrained the Courts from making any declaration where the plaintiff being able to seek further relief, then mere a declaration of title, omits to do so. In the instant case, the perusal of relief and prayers in the plaint would go to show that the plaintiffs have omitted to make any further prayer seeking permanent injunction or prohibitory order permanently restraining the present petitioners from putting up restaurant in the premises and have rested only by seeking declaration that defendants are not entitled to put up restaurant in the premises. In other words, it can be said that the plaintiffs have though sought prayer of declaration qua defendants' lack of entitlement in putting up restaurant in the premises, have failed in praying further relief seeking restraining the defendants from putting up restaurant on the basis of that declaration. In my prima facie view, this omission on the part of the plaintiffs dis entitled them from seeking even declaration in light of the plain and simple language of provisions of Section 34 of the Specific Relief Act, 1963. 18. In my prima facie view, this omission on the part of the plaintiffs dis entitled them from seeking even declaration in light of the plain and simple language of provisions of Section 34 of the Specific Relief Act, 1963. 18. The Counsel for the petitioners has rightly relied upon the decision of the Apex Court in case of State of M.P. v. Mangilal Sharma (supra), wherein, the Apex Court has observed as under : "4. It appears to us that the Courts below did not go by even the basic principles of law. A suit for mere declaration to any legal character is maintainable under Section 34 of the Specific Relief Act, 1963, though it has been held that the Sections is not exhaustive. There is a proviso to the Sections which bars any such declaration where the plaintiff, being able to seek further relief, omits to do so. Section 34, in relevant part, is as under : "34. Discretion of Court as to declaration of status of right - Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief : Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so." 5. Normally, in a case like the present one the plaintiff when seeking relief of declaration that he continues to be in service would also seek consequential reliefs of reinstatement and arrears of salary. This the respondent as plaintiff did not do so as the Government not being a private employer would certainly respect a mere decree of declaration. This in fact the appellant did and the respondent has been reinstated. Moreover, once the Government servant is appointed to his post or office, he acquires a status and his rights and obligations are no longer determined by consent of both parties but by statute or statutory rules which may be framed by the Government. The legal position of a Government servant is more one of status than of contract. Moreover, once the Government servant is appointed to his post or office, he acquires a status and his rights and obligations are no longer determined by consent of both parties but by statute or statutory rules which may be framed by the Government. The legal position of a Government servant is more one of status than of contract. In Roshan Lal Tandon v. Union of India (supra) this Court observed that the hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties and that the emoluments of the Government servant and his terms of service are governed by status or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is, therefore, quite clear that the appellant has rightly reinstated the respondent in service as the decree gave a declaration to his legal status of having remained a Government servant throughout as if the order of termination of service never existed. It was not necessary for the respondent to seek relief of arrears of salary in a suit for declaration as he may be satisfied with a mere relief for declaration that he continues to be in service. Of course, if he afterwards claims arrears of salary in a suit for the period prior to the relief of declaration he may face the bar of Order 2, Rule 2 of the Code of Civil Procedure. 6. A declaratory decree merely declares the right of the decree-holder vis-a-vis the judgment-debtor and does not in terms direct the judgment-debtor to do or refrain from doing any particular act or thing. Since, in the present case decree does not direct reinstatement or payment of arrears of salary the executing Court could not issue any process for the purpose as that would be going outside or beyond the decree. The respondent as a decree-holder was free to seek his remedy for arrears of salary in the suit for declaration. The executing Court has no jurisdiction to direct payment of salary or grant any other consequential relief which does not flow directly and necessarily from the declaratory decree. The respondent as a decree-holder was free to seek his remedy for arrears of salary in the suit for declaration. The executing Court has no jurisdiction to direct payment of salary or grant any other consequential relief which does not flow directly and necessarily from the declaratory decree. It is not that if in a suit for declaration where the plaintiff is able to seek further relief he must seek that relief though he may not be in need of that further relief. In the present suit the plaintiff while seeking relief of declaration would certainly have asked for other reliefs like the reinstatement, arrears of salary and consequential benefits. He was, however, satisfied with a relief of declaration knowing that the Government would honour the decree and would reinstate him. We will, therefore, assume that the suit for mere declaration filed by the respondent-plaintiff was maintainable, as the question of maintainability of the suit is not in issue before us." 19. The Apex Court has in case of Ramsharan v. Smt. Gangadevi, reported in 1973 (2) SCC 60 , vide dealing with old provisions of Section 42 of the Specific Relief Act, 1877, which is similar pari materia with the provisions of Section 34 of the Specific Relief Act, 1963 has held that the suit for declaration of ownership without prayer for possession held not maintainable. 20. The Allahabad High Court in case of Mohd. Ibrahim Khan v. Pateshwari Prasad Singh, reported in AIR 1960 All. 252 , as observed as under : "(7) There is another ground on which this appeal is not entertain able. The suit was for declaration only and we are of opinion that in a suit for a mere declaration no ad-interim injunction can be passed. If the plaintiff himself is in possession of the property, as he has contended, and is exercising complete control over it, even if the sales are effected by some persons who have no right, his rights can in no way be affected; and in case he is not in possession, then he should have filed a suit for possession. In case, though he was in possession, he did apprehend any interference from the defendant, then in that case along with the declaration his consequential relief should have been for mandatory injunction restraining the defendant from interfering with the possession of the plaintiff. In case, though he was in possession, he did apprehend any interference from the defendant, then in that case along with the declaration his consequential relief should have been for mandatory injunction restraining the defendant from interfering with the possession of the plaintiff. If there was no such apprehension, the plaintiff cannot now say that he is being affected by the alienation by the opposite party. We are definitely of opinion that in a suit for a declaration simpliciter such injunctions should not be issued." 21. The Gujarat High Court in State of Gujarat v. Mohant Ranchhoddas Guru Atmaramdasji, reported in AIR 1974 Guj. 115 , observed as under: " The Government has the right to take all property within its jurisdiction by escheat for want of an heir or successor and as bona vacantia for what of a rightful owner. Therefore, the property of an intestate dying without leaving lawful heirs, and the property of a dissolved corporation passes to the Government by escheat or as bona vacantia. The property taken by escheat or as bona vacantia belongs to the Government, subject to trusts and charges, if any, previously effecting it. It was this incident of sovereignty of the former Ruler of Baroda which finds expression in the said Baroda Rules. The distinction between escheat and bona vacantia, in my opinion, does not have any significance so far as the applicability or otherwise of proviso to Section 42 is concerned. For having omitted to pray for possession as a consequential relief, flowing into the foot-steps of declarations sought by him in respect of the suit properties mentioned by him in Schedule ‘B' to the plaint, the plaintiff's claim in that behalf must fail." 22. Thus, the aforesaid decisions go to show that where plaintiff is capable of praying relief of permanent injunction and he omits to seek that relief and rests his case only for seeking declaration then in that case, the Court would not grant him that declaration. This proposition of law sought to be made inapplicable in the present case by learned Advocate for the original plaintiffs-present respondent on the plea that the citations relied upon by the petitioners, Advocate are the cases wherein the final decisions were under scrutiny. This proposition of law sought to be made inapplicable in the present case by learned Advocate for the original plaintiffs-present respondent on the plea that the citations relied upon by the petitioners, Advocate are the cases wherein the final decisions were under scrutiny. In the instant case, the question is only qua interim orders and plaintiffs' possibility of seeking amendment in the plaint and making further relief of permanent injunction may dissuade this Court from accepting this plea or else it would result into rejection of the suit itself while considering the interlocutory order, which has been time and again disapproved by the Courts and in support thereof Advocate for the plaintiffs, present respondents has relied upon the authorities cited hereinabove. This Court is of the considered view that the ground of challenge to the present order on account of provisions of Section 34 of the Specific Relief Act is a ground which cannot be brushed aside lightly by any Court as it goes to the root of the jurisdiction of the Court in granting interim relief to the plaintiffs who have not prayed for substantive relief of permanent injunction. The omission of the present respondents-original plaintiffs in seeking further relief and resting their case by seeking relief of declaration only, despite their being capable of being further relief in the form of permanent injunction would directly hit by the provisions of Section 34 of the Specific Relief Act but this Court is not inclined to accept this submission on the part of the petitioners, original defendants, at this stage in this petition as this petition is under Art. 227 of the Constitution of India, wherein this Court is required to take into consideration the aspect that this plea had not been raised by the present petitioners before the trial Court or the Appellate Court, and therefore, the same at this stage, in my view, would not be available to the present petitioner to press into service for assailing the order impugned in this petition as this Court is of the view that the plea of the petitioners on the basis of Section 34 of the Specific Relief Act is not accepted at this stage on account of it being not taken before the trial Court or the Appellate Court, this Court need not elaborately dwell upon the decisions cited by learned Advocate for the respondents in support of his submission that at the interlocutory stage the maintainability of the suit may not be gone into by the High Court. Besides the Court needs to borne in mind that plaintiffs have not claimed any title or ownership rights over the premises in question, had it been so than plaintiffs were obliged to seek further relief for possession etc. but in the instant case the plaintiffs have sought declaration that defendants on account of negative covenant in their agreement are restrained from putting restaurant in the shops owned by them. Be that as it may, this Court is not accepting submission of the petitioners on the ground of Section 34 of Specific Relief Act. It may not require any further elaboration at this stage. 23. This brings the Court to consider as to whether the trial Court was justified in granting interim relief of prohibiting the petitioners from putting up restaurant in light of the covenants pressed into service by the plaintiffs and whether the Appellate Court was justified in confirming the same while dealing with the appeal challenging the said decision, preferred by the present petitioners. 24. 24. The Court is mindful of the fact that the challenge to these two orders is under Art. 227 of the Constitution of India, and therefore, there exists very limited scope of interference with the impugned orders. 25. The Court has adequate power and rather duty under Art. 227 of the Constitution of India to quash and set aside the orders which are passed contrary to the expressed provisions of law and in ignorance or avoiding the glaring facts of the case. The avoidance on the part of the trial Court of glaring facts going to the roots of the controversy would vitiate the order which cannot be sustained under the scrutiny of under Art. 227 of the Constitution of India which would per se render the order perverse. 26. In the instant case, the entire controversy was hinging on tenuous interpretation of negative covenant Nos. 23 and 24 of the contract. It is very important fact to be borne in mind that the plaintiffs were seeking relief for enforcing negative covenants in the contract between the defendants and third party i.e. the builder-developer on the ground that they have a right to seek enforcement of the negative covenants which is incorporated in the contract between the defendants and developer for the benefit of other owners and occupiers of the building. 27. It is by now established principles of law that covenants in contract and agreements are to be read as they are written, and especially when they are to be considered for granting interim relief, the Courts are not to go on its wider interpretation which is subject-matter of leading evidences by either side for justifying their version of interpretation. In the instant case, the covenants were not subject-matter of interpretation by parties to the agreement in fact, it was a third party who was seeking enforcement of negative covenants in the contract against the present petitioners. 28. The Courts are under obligation to restrict themselves to the plain language of the clauses of the contract and covenants. The question of interpretation of the clauses can never be dependant upon any extraneous help or aid in absence of any ambiguity in the covenants and clauses of the contract. This principal was required to be borne in mind by both the Court below while examining the covenant Nos. 23 and 24 of the contract. 29. The question of interpretation of the clauses can never be dependant upon any extraneous help or aid in absence of any ambiguity in the covenants and clauses of the contract. This principal was required to be borne in mind by both the Court below while examining the covenant Nos. 23 and 24 of the contract. 29. The plain reading of covenant No. 23, which is in respect of flat owners go to show that the author of the covenant was aware about the word ‘restaurant', and therefore, the flat owners were specifically restrained from putting up restaurant, guest houses, etc. in the flat premises, while casting covenant No. 24, which is in respect of shops, the author has expressly omitted mentioning of word ‘restaurant', and therefore, on a plain reading of these two covenants, one cannot say that so far as Clause 24 is concerned, the shop owners are prohibited from putting up restaurant in the premises of shops. The plain reading of covenant No. 24 would go to show that what is restricted is, putting up of betel-leaf shop or stall ("Pan Galla" in colloquial), Tea stalls (Chai Galla) and huge frying pan for backing or frying items and boiling milk so as to cause and create filth in surrounding area. The scope of these restrictions could not have been expanded in any manner, at least while considering the case for granting interim relief in absence of any substantive prayer in the plaint itself. 30. The absence of word "restaurant" in that Clause 24 and its occurrence in Clause 23 left no manner of doubt that the parties to agreement did not intend to prevent restaurant being put up in the premises. The plain reading of Clauses 23 and 24 did not leave any scope of further aid to be taken for its interpretation least at the stage of considering question of interim relief in the matter. The aid of "Gala's Dictionary was out of question at that stage to establish that word "Hotel" would mean "Restaurant" also. Had it been question of interpretation of Clauses 23 and 24 on account of any ambiguity in their plain reading leading to any absurd situation then only outside aids like dictionary or lexicon would have been justified. But in the instant case there exist no ambiguity at all shutting scope of any outside aid for interpretation of Clauses 23 and 24. But in the instant case there exist no ambiguity at all shutting scope of any outside aid for interpretation of Clauses 23 and 24. 31. In my view, the trial Court has patently erred in enlarging the scope of negative covenants so as to cover into it the activities of restaurant which in my prima facie view was not barred or prohibited under covenant No. 24 of the contract. The question arises as to whether such a larger interpretation was warranted at the interlocutory stage in view of the plaint which contained averments qua nuisance also. 32. The decisions cited on the Bar on behalf of the learned Advocate for the petitioners with regard to nuisance would help the petitioner in contending that before the restaurant is started, the plaintiffs were not justified in calling upon the Court to act upon the apprehension of nuisance likely to cause on account of proposed restaurant, therefore, the trial Court was not justified in distorting the pleading by observing that the plaintiffs have not filed the suit claiming nuisance though in fact even a cursory glance at the plaint, would go that the suit is filed for apprehended nuisance likely to be caused on account of the proposed restaurant. The distortion of the trial Court so as to overcome the plea of nuisance required to be proved was second perversity which would deal serious blow to the order itself. 33. The trial Court at the time of interlocutory stage could not have expanded the scope of negative covenants at the instance of third party like present respondents-original plaintiffs. The negative covenants at the instance of third party are to be interpreted strictly on the basis of the language employed and especially when such a covenant has drastic effect of preventing the party from enjoying its property or putting the property to its legitimate use then, it was all the more incumbent upon the trial Court to be very slow in expanding the scope of covenant at the instance of third party. In my view, trial Court patently erred and was not justified ingoing of the tangent in interpreting and expanding scope of covenant No. 24 so as to read into it restriction upon defendants in putting up restaurant. In my view, trial Court patently erred and was not justified ingoing of the tangent in interpreting and expanding scope of covenant No. 24 so as to read into it restriction upon defendants in putting up restaurant. The Court is of the view that the nuisance likely to arise or cause on account of proposed restaurant could never have weighed with the trial Court as the pleadings of the parties themselves would go to show that, that was consideration, which was not warranted at the time when Court was considering the matter of interim relief at Exh. 5 stage. 34. The appellate Court in my view, could not have sustained the order of the trial Court and should have appreciated the inherent perversity of expanding the scope of negative covenants at the instance of third party resulting into depriving of defendants, one party to the covenant of their legitimate right to put the property to its legitimate use and thereby, subjecting them to suffer monetary losses and other losses without their being any adjudication upon the final list of the parties. 35. The appellate Court has patently ignored the principle of law that negative covenants in the contract when required to be interpreted at the instance of third party, no expansion or interpretation is warranted when the language employed does not suffer from any ambiguity. The appellate Court miserably failed in appreciating this aspect, and therefore, the order passed by the appellate Court also cannot be sustained. 36. The impugned orders as have been passed at the interlocutory stage, expanding the scope of covenant No. 24 at the instance of third party, resulting into greater losses and depriving the defendant of their right to put the premises for running the restaurant is patent perversity and renders them unsustainable in eye of law, and hence, they required to be quashed and set aside and accordingly, they are quashed and set aside. The petition is allowed. 37. The quashing and setting aside of this order would result into permitting the defendants in putting up restaurant strictly in accordance with rules and regulations and without causing nuisance and tilth to the residents and public at large and the same would be subject to final outcome of the suit pending before the trial Court. Rule made absolute. No costs. 38. Rule made absolute. No costs. 38. At this stage learned Advocate for the respondents submitted that this judgment be stayed for a period of six to eight weeks, to which learned Advocate for the petitioner Shri Shah objected on the ground that at the initial stage there was no injunction in the suit and petitioners are incurring loss as despite purchase of the premises and giving licence to a franchisee the business is not even commenced. This Court is of the view that the interim injunction is continuing since 2009, it would be in fitness of things that the same be continued till 6-3-2012. Petition allowed.