-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 353 OF 2009 APPEAL FROM ORDER NO. 353 OF 2009 APPEAL FROM ORDER NO. 353 OF 2009 IN B.C.C.Short Cause Suit No. 7 of 2009 1. Sonu Babu Bhambid & Ors. .. Appellants. V/s. 1. Dream Developers & Ors. .. Respondents. --- Mr. A.K.Singh i/by Lex Remedeum for the Appellants. Mr. P.S.Dani i/by M/s. Mehta & Co. for the Respondents. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 08th APRIL, 2009 DATED : 08th APRIL, 2009 DATED : 08th APRIL, 2009 P.C. : P.C. : P.C. : 1. Heard the learned counsel for the respective parties. 2. The appellants take exception to the order dated 16.02.2009 passed by the learned Judge of the City Civil Court, Bombay below Notice of Motion Exh. 5 in S.C. Suit No. 7 of 2009, whereby the appellants application for temporary injunction, restraining the respondents from carrying on construction on C.T.S. No. 82 situate at Mulgaon, Andheri (E), pursuant to the sanction plan dated 19th of July, 2007 came to be rejected. -: 2 :- 3. The appellant nos. 1 to 34 are the slum dwellers, residing on C.T.S. No. 61 situate at village Mulgaon. The appellant no. 35 is Durganagar Rahivasi Sangh. The owners of C.T.S.No. 61 are Kavasajee Nuseervaji Dinshaw and Mr. Mikky R. Patel. Respondent no.1 is a partnership firm and respondent no.2 is the active partner of respondent no.1. Respondent no.3 is a trust, claiming to be the owner of the land surrounding C.T.S. No. 61. The respondent no.3 is the owner of C.T.S. no. 82 and intended to purchase the land bearing C.T.S. No. 61, as it was in the vicinity of its other land. It was agreed in between respondent nos. 1 and 3 that the respondent nos. 1 and 2 to arrange to sell the land bearing C.T.S. No. 61 to respondent no.3 by making payment and the slum situated on C.T.S. no. 61 to be shifted on C.T.S. No.82, owned by the respondent no.3 at the cost of respondent nos. 1 and 2. Accordingly a Memorandum of Understanding/Agreement (hereinafter called as "the said agreement") was executed on 30.06.2005 between the respondent nos. 1 and 2 and respondent no.3. It is the case of the appellant that the respondent nos. 1 and 2 have entered into the said agreement with slum dwellers and agreed to provide 225 sq.ft. carpet area residential flat on C.T.S. no. 82 by shifting the appellants from C.T.S. No.61. It is a further case of the appellants that the respondent nos. 1 -: 3 :- and 2 instead of constructing the residential premises, as agreed, started construction on the commercial premises on C.T.S. No. 82 with intention to deprive the appellants from their lawful rights as per the agreement and therefore, the appellants filed the above suit for declaration that the agreement between slum dwellers and respondent nos. 1 and 2 is lawful and binding on the respondents and the appellants are entitled to the accommodation of 225 sq.ft. residential area. The notice of motion at Exh. 5 was filed for temporary injunction, restraining the respondents from constructing commercial premises on C.T.S. No. 82. 4. The case of the respondents that they intended to develop C.T.S. no. 82 under D.C. Regulation 33(10) so as to provide residential flats on said C.T.S. number to the occupants of C.T.S. No. 61 so as to hand over vacant possession to the respondent no.3. This was possible if C.T.S. no. 61 is declared as slums under the provisions of Slums Act and under the memorandum of understanding, it was sole obligation on the part of the occupants of C.T.S. No. 61 to obtain eligibility certificate from the competent authority. It is a further case of the respondents that under that agreement, in case occupants of C.T.S. No.61 fails to obtain necessary certificate the said agreement was to ipso facto come to an end and the -: 4 :- occupants will not have any right against the respondent no.1. It was a further specific contention that C.T.S. No. 81 was in Special Industrial Zone and the appellants were aware of this position at the time of entering into the agreement. As it was not possible to implement the S.R.A. Scheme on C.T.S. No. 82, there is no alternative but to develop the said C.T.S. number by constructing commercial building and accordingly the permission was obtained for user of the C.T.S. No. 82 in local commercial zone. The learned counsel for the respondents also pointed out several defects in the plaint presented by the appellants. 5. The learned Judge of the City Civil Court after hearing the parties and perusal of the documents on the record held that the appellants have not made out a prima facie case for grant on interim relief. It was further held that the balance of convenience is also does not lie in their favour and consequently, rejected the said notice of motion. 6. Having gone through the impugned order alongwith the relevant documents and having heard the learned counsel for the respective parties, I find no merit in this appeal from order. Under clause (3) of the said agreement, it was responsibility and obligation of the occupant of the C.T.S. -: 5 :- No.61 to obtain eligibility certificate from the competent authority and in case of failure to get such certificate the agreement was to come to an end and the occupants will not have any right against the respondent nos. 1 and 2. The occupants had also given consent of their participation into the S.R.A. Scheme under the DC regulation 33(10). It is not disputed that the occupants have not obtained eligibility certificates in terms of the said agreement. It is also not disputed that the C.T.S.No. 61 was not declared as slum and therefore, C.T.S.No. 82 cannot be developed under the S.R. A. Scheme. In these circumstances, I find prima facie substance in the contention of the respondents that the said agreement is automatically cancelled and therefore, question of its performance does not arise. 7. Be that as it may, there is no dispute that the C.T.S. no. 82 was falling under I-3 Industrial Zone and the occupants of CTS No. 61 were aware of the same. In view of the above, the construction of the residential flats is not permissible on the C.T.S. No.82. The construction of the residential premises would have been possible only in case of implementation of S.R.A.Scheme on C.T.S. No.82. In the absence of eligibility certificate from the competent authority the respondents have no alternative but to develop C.T.S. No.82 by constructing commercial -: 6 :- building. In the above circumstances, I find substance in the respondents’ case that the said agreement cannot be enforced by directing them to construct residential premises on C.T.S.No. 82. The performance of the suit agreement in view of the above facts has become impossible and therefore, in my view the appellants cannot claim temporary injunction against the respondents to restrain them from constructing commercial premises on C.T.S. No.82. 8. The trial court found several defects in the plaint presented by the appellants. Out of 66 occupants on C.T.S.No. 61, the suit is filed by 35 occupants. Vakalatnama is, however, signed by 46 persons. Some of the appellants have not signed the Vakalatnama and some of the persons who signed the Vakalatnama are not the appellants. It is not the grievance of the appellant that they are being dispossessed from C.T.S.No.61. The appellants’ suit is said to have filed in a representative capacity. However, no leave under order 1 rule 8 of the C.P. C.is obtained. In the above circumstances, the trial court held that the appellants are not entitled for discretionary relief of temporary injunction. I do not find any error in the said finding. 9. Apart from the above, one more circumstances which -: 7 :- dis-entitles the appellants from claiming the interim injunction against the respondents is that the appellant nos.2, 5 and 18 accepted Rs.Fifteen lakhs each from the respondents and surrendered their tenements and rights under the said agreement. The appellant nos. 3, 17,18 and 19 agreed to accept commercial premises of 224 sq. ft. area by modifying the terms and conditions of the agreement. 10. Taking over all circumstances into consideration, in my opinion, the appellants are not entitled to temporary injunction as claimed by them by filing notice of motion and the trial court has rightly refused the temporary injunction to them. I find that the appeal is devoid of any substance and the same is, therefore, dismissed. (R.V.MORE,J.) .....