JUDGMENT P.K. Bahri, J.
(1) This is a suit seeking relief of perpetual injunction against defendant No. 2, restraining it from forfeiting or determining the perpetual lease deed dated February 14, 1966 regarding residential plot of land bearing No. B-1/67, Safdarjung, Enclave, New Delhi and for grant of mandatory injunction requiring the defendant No,1, Delhi Development Authority to accord the accessory sale permission in accordance with its public policy and in consonance with the terms of the lease deed so that the sale deed could be executed by defendant No. 2 in favor of the plaintiff in respect of the aforesaid properly. Relief of mandatory injunction is also sought against defendant No. 2 for executing the sale deed of this property in favor of the plaintiff after the necessary permission has been granted by defendant No. 1. The plaintiff also seeks perpetual injunction against defendant No. 2 restraining him from transferring, assigning or alienating in any manner whatsoever the property in question in favor of anyone. In the alternative, plaintiff has claimed a decree for a sum of Rs. l,65,000.00 as damages.
(2) Defendant No. 2 has suffered ex-parte proceedings in this case whereas defendant No. I who was contesting the suit and had filed the written statement, did .not comply with the order of the Court dated March 19, 1987 made in the application under Order 11 Rules 12, 14 and 15 of the Code of Civil Procedure and thus vide order dated November 20,1989, Sunanda Bhandare, J. had struck off the defense of defendant No. 1.
(3) The facts of the case in brief are that vide perpetual lease deed, copy of which is Ex. P. 21, the President of India had granted leasehold right in the plot in question in favor to defendant No. 2 and admittedly defendant No. 2 bad constructed a residential house and obtained necessary completion certificate from defendant No. 1. The lease deed was executed on February 14, 1966. The defendant No. 2 somewhere in the year 1971 had approached the husband of the plaintiff for obtaining some loan and offered to mortgage bids property as a security for the loan. Defendant No. 2 approached the Lt. Governor, the Chairman of D.D.A. for getting permission to mortgage the property. However, no such permission was granted and the defendant No. 2 entered into an agreement with the plaintiff where the defendant No. 2 agreed to sell the property in question to the plaintiff after the necessary permission was obtained from the D.D.A. in accordance with the terms of the lease deed and the plaintiff agreed to the advance to the defendant a sum of Rs. l,47,000.00 on January 3, 1972. Thus an agreement was executed on February 8, 1972 and defendant No. 2 was paid Rs. 25.000.00 on January 3, 1972 and Rs. l,12,000.00 on February 8, 1982. It was agreed that the plaintiff would give Rs. 10.000.00 more as loan to defendant No. 2 and the said amount was paid by monthly Installments of Rs 500.00 each commencing from March 15, 1972. So it was averred that in fact whole of the sale consideration which was termed as a loan, stood paid to defendant No. 2 and it was agreed between plaintiff and defendant No. 2 that the plaintiff would pay Rs 750.00 per mensum as rent which will -offset the interest of the same amount on the loan of Rs 1, 47,000.00 taken by defendant NO. 2 from the plaintiff. It is pleaded by the plaintiff that after the expiry of period of 10 years from the date, of the execution of lease deed. an application was given to the D.D.A. on March 5, 1976, requiring the D.D A. to grant the necessary permission for sale of the property by defendant No 2 in favor of the plaintiff Vide letter dated June 28, 1976, the D D.A. required the plaintiff's attorney and husband to furnish the copy of the agreement dated February 8,-1972 and the same was furnished to the D D.A. vide letter dated August 30, 1976. Vide notice dated November 4, 1976. the defendant No. 8. D D A. required defendant No. 2 to show cause as to why action be not taken for cancelling the lease as he had sold the property to the plaintiff without obtaining previous sanction of the D.D A. in breach of the terms of the lease deed Defendant No. 2 is stated to have sent replies controverting the allegations and the plaintiff is also stated to have met the authorities of the D.D.A and explained the necessary position and insisted that necessary sanction be granted apart from withdrawing the show cause notice. Vide letter dated May 16, 1977, defendant No. 1 required the plaintiff to submit certain more documents in order to enable the D.D A to consider the request of the plaintiff and defendant No. 2 for granting permission for sale of the property The plaintiff sent the necessary documents vide letter dated June 9, 1977. It is alleged that in spite of the plaintiff visiting the office of D.D A, the said defendant sat over the papers and did not care to decide the application seeking permission for the sale of the property by defendant No. 2 in favor of the plaintiff. It was av(r)rred in the plaint that the officials of the D.D.A. were taking the view that ia order to assess the unearned increase in the value of the property, they would be taking the present value of the property and not the value of the property at the time when the application was made seeking permission of the authorities for selling the property. It is alleged that despite various reminders issued and legal notices served on the D D.A., it has failed lo grant the necessary permission. Hence the necessity arose for filing the suit. lt was also alleged in the plaint that the D.D.A. was sitting over the papers in collusion with defendant No. 2, perhaps wants to wriggle out of the agreement for sale made in favor of the plaintiff.
(4) If one peruses the contents of the plaint, it will be evident that the plaintiff has bought relief of specific performance of agreement for sale coupled with the reliefs of injunctions, as indicated above although the plaintiff has not couched the relief in the language required for getting the relief of specific performance of agreement. But that would not make any difference because the court has to construe the whole of the plaint in order to determine as to what proper and legal relief has been sought in the plaint.
(5) The most important documents in the present case are the certified copy of the lease deed (Ex. P. 21) and the correspondence exchanged between the plaintiff on the one side and D.D.A. on the other side, which are exhibits PW5/1 to Public Witness 5/l8. It is true that vide letter dated November 4.1976 scivedondclcndantNo.2 and copy of the same being sent to the plaintiff, the D.D.A. had expressed the intention to cancel the lease deed on the ground that defendant No. 2 in contravention of the terms of the lease deed had without prior .permission of the D.D.A. transferred the property in. favor of the plaintiff and the documents executed between the plaintiff and the defendant No. 2 showing the transaction of loan were infact fake documents while the real intention of the parties was to sell the house to the plaintiff without taking necessary permission from the D.D.A. A copy of the said notice is Ex. P. 3. The copy of the reply given by defendant No. 2 to this notice is Ex Public Witness 5/4. However, no action was taken by the D.D.A. in pursuance of this notice for cancelling the lease deed and thereafter a letter, copy of which is Ex. Public Witness 5/5, dated May 16, 1977 was issued for getting information as io whether the loan taken from the Government has been repaid or not and the affidavit of the purchaser that she has no house or plot in Delhi was also to be furnished. Ex Public Witness 5/6 is the copy of the affidavit given by the plaintiff to the Dd A. in this connection Incase the DD.A. was keen to cancel the lease on the ground of alleged breach oi the terms of the lease deed, there was no reason, for the D.D.A. to have issued the letter, copy of which is Ex Public Witness 5/5, dated May 16, 1977. The only inference which could be drawn is that the D.D.A. had waived the previous notice and was now taking steps to consider the request of the plaintiff and defendant No. turn granting the permission for sale of the property.
(6) Under the terms of the lease deed, the D.D.A. could cancel the lease deed in case of breach of any term of the lease deed by there is no law that D.D.A. must be deemed to have cancelled the lease deed once it is shown that the terms of the lease deed have been breached The direction was with the DD.A. to cancel the lease deed if any breach of the terms of the lease deed was noticed. The D D A. had thought fit to send a show cause notice for cancelling the lease deed but later on by sending another letter requiring more information which could enable it to grant permission to sell the property, D DA. dad abandoned its right to cancel the lease deed on the alleged breach of the terms of the lease deed.
(7) The most important clause in the lease deed is Clause (4), which funs as follows: "(4)(a) The lessee shall not Sell, transfer, assign or otherwise part with the possession of the whole or any part of the residential plot except with the previous consent in writing of the Lesser which he shall be entitled to refuse in his absolute discretion. Provided that such consent shall not be given for a period of ten years from the commencement of the lease unless., in the opinion of the Lesser, exceptional circumstances exist for the grant of such conset. Provided Further that in the event of the consent being given, the Lesser may impose such terms and conditions as he thinks fit and the Lesser shall be entitled to claim and recover a portion of the unearned increase in the value (i.e. the difference between the premium paid and the market value) of the residential plot at the time of the sale, transfer.a8signmentorpariing with the be possession, the amount to be recovered being fifty per cent of the unearned increase and the decision of the Lesser in respect of the market value shall be final and binding. Provided Further that the Lesser shall have the pre,emptive right to purchase the property after deducting fifty percent of the unearned increase as aforesaid. (b) Not with standing anything contained in. Subclause (a) above, the Lesser may, with the previous consent in writing of the Chief Commissioner of Delhi there-in-after called "the Chief Commissioner mortgage or charge the residential plot to such person as may be approved by the Chief Commissioner in his absolute discretion. Provided that, in the event of the sale or fore-closure of the mortgaged or charged property, the Lesser shall be entitled to claim and recover the fifty percent of the unearned increase in the value of the residential plot as aforesaid, and the amount of the Lesser's share of the safe unearned increase shall be a first: charge, having priority over the said mortgage or charge. The decision of the Lesser in respect of the market value of the said residential plot shall be final and binding on all parties concerned. Provided Further that the Lesser shall have the preemptive right to purchase the mortgaged or charged property after deducting fifty per cent of the unearned increase as aforesaid."
(8) According to this clause, Delhi Development Authority could grant permission to fell the property in a fit case even prior to expiry of the period of ten years but after the expiry of period often years the Delhi Development Authority had two options open to it either lo grant the permission subject to payment of 50% portion of the unearned increase in the value, i e., the difference between the premium paid and the market value at the time of sale of the properly or the Delhi Development Authority could exercise its pre-emptive right to purchase the property after deducting 50% of the unearned increase as aforesaid. The Delhi Development Authority had not taken any decision till the filing of the suit or till date on the application moved before it for getting the necessary permission by virtue of Clause (4) of the lease dead.
(9) It is really surprising that the officials of the Delhi Development Authority are sitting over the papers and keeping the interested parties in suspense for years together without taking any firm decision on the request being made to ihe Delhi Development Authority is terms of the lease deed. In the present case, the defense of the Delhi Development Authority already stands struck off. So the pleas taken by the Delhi Development Authority in the written statement cannot be given any importance and now iris not open to counsel for the "DDA to argue that the transaction entered into between the plaintiff and defendant No. 2 in respect of the property in question bad violated any terms of the lease deed. Be that as it may, the violation of the terms of the lease deed could have enable the Delhi Development Authority to cancel the lease deed after giving show cause notice. In the present caie, Delhi Development Authority had purported tn issue a show cause notice on the allegation that the transaction entered into between, the plaintiff and defendant No. 2 amounted to breach of the terms of the lease deed but sit did not pursue the said notice to its logical conclusions and rather bad abandoned the said notice by issuing the other letter mentioned above, requiring the submission of affidavit by the plaintiff and a certified showing that the property is no longer under mortgage with the Government of India -with a view to consider the request of the parties for granting permission for sale of the property. In case Delhi Development Authority was keen to pursue the show cause notice toils logical conclusions for cancelling the laase, there could be no occasion for the Delhi Development Authority to have issued the second letter. Now the Delhi Development Authority cannot fall back upon the original show cause notice and contend before this Court that Dda is entitled to cancel the lease deed on the basis of the said show cause notice. The agreement entered into between the plaintiff and defendant No. 2 (Ex. Public Witness 5/20) is an agreement for sale of the property. The sale consideration of R¯ l,47,000.00 has been paid to defendant No. 2 although it was menfioned in the agreement that he same would be treated as a loan if the sale permission was not to be granted by the DDA. The possession of the property was also given to the plaintiff although the plaintiff was termed as tenant in the said property at the rental of Rs. 750.00 per mensum, which was adjustable against the interest of Rs.750.00 per mensum agreed to be paid on the consideration advanced to defendant No. 2 which was termed as a loan.
(10) Learned counsel for defendant No.1 has vehemently argued that the contents of the agreement show that in fact no loan has been given and no tenancy has been created and in fact the agreement for sale had been made and possession of the premises has been transferred to the plaintiff on the basis of this agreement and this was in clear violation of the terms of the lease deed. It may be so. As already held by me above, the Delhi Development Authority cannot take advantage of this breach of the terms of the lease deed and deny the approval for sale to the parties on this score, inasmuch as it had itself waived its notice issued for cancelling the lease deed.-
(11) In view of the above discussion, I hold that the plaintiff is entitled to have the relief of specific performance as well as the injunctions against the defendants. The questions arises as to what particular year should be taken for determining the unearned increase in the value of the property. The application was made in the year 1976.. So the Delhi Development Authority was entitled to have the unearned increase determined on the basis of the market .value of the. year 1976 but the plaintiff has on her own offered to pay the unearned increase of the value of the property,in the year 1978.
(12) The plaintiff has also proved on record the policy decision of the Dda as issued in the newspapers, copy of which is Ex. Public Witness 5/19. In this it was mentioned that it has come to the notice of the Delhi Development Authority that certain allottees have transferred, sold, assigned or parted with the possession of their flats without prior approval of the Lesser and as a number of representations have been received for regulation of the said transactions, such persons were required to give applications for obtaining permission to sell and is was mentioned that the transactions will be regularised by charging 50% of the unearned increase in the value of the land and a penalty equivalent to 25% of the assessed unearned increase in the value of the land on the date of the application for regularisation. The counsel for the defendant has contended that this policy decision,is applicable only to flats and not to the land granted under various lease deeds. I do not think that there is any difference in the actual impact of the policy decision of the Delhi Development Authority vis-a-vis the flat or the open land. After all in both types of matters, lease deeds prescribe same type of conditions for grant of permission. Hence under this policy decision also the plaintiff is entitled to now have this sale permission from the Delhi Development Authority on the basis of the application moved by the plaintiff and defendant No. 2 in the year 1976.
(13) I decree the suit in favor of the plaintiff and against the defendants and grant mandatory injunction requiring defendant No. 1 to accord within three months from today, the necessary permission for selling the properly subject to payment of 40% of the unearned increase in the value i.e., the difference between the premium paid and the market value of the year 1978. I further decree the suit for relief of specific performance of agreement of sale against defendant No.2 with the direction that within one month of Delhi Development Authority granting the permission as indicated above, defendant No 2 shall execute and get registered the necessary sale deed in respect ofthe property in question in favor of the plaintiff and on his failure to do so the plaintiff can apply in execution to this Court for getting the sale deed executed and registered through the Court.
(14) However, I leave the parties to bear their own costs in this case.