AO/450/2023
2023 Latest Caselaw 3202 UK

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                             A.O. No. 450 of 2023
                             Hon'ble Vivek Bharti Sharma, J.

Mr. Siddhartha Singh, counsel for the appellant.

2. Present Second Appeal is preferred against the judgment and decree dated 12.09.2023 passed by 2nd Additional Civil Judge (Senior Division), Dehradun in Original Suit No. 360 of 2023, whereby the application for temporary injunction filed by the plaintiff has been rejected.

3. Factual matrix of the case are that the respondents/defendants planned to construct the flats on a piece of land and for that purpose the map got sanctioned by the Mussorrie Dehradun Development Authority; that, the respondents/defendants entered into an agreement with the appellant/plaintiff to sell the roof rights of the building purposed to be constructed and approximately 88% of the consideration amount was paid through bank transaction, however, the building was not constructed and the respondent/defendant entered into another agreement to sell the same roof right to third party, therefore, the suit is filed seeking permanent injunction restraining the respondents/defendant to create third party interest on the roof rights of the building constructed by respondents/defendants.

4. Counsel for the appellant would submit that an application under Order 39 Rule 1 & 2 C.P.C. was moved by the appellant for ad-interim injunction in respect of the roof rights of the plaintiff/appellant proposed to be constructed, however, the trial court has dismissed the same vide order dated 12.09.2023. Feeling aggrieved, the appellant has filed the present appeal.

5. On the query of this Court, counsel for the appellant/plaintiff would fairly admit at Bar that the agreement to sell executed between the appellant/plaintiff and respondents/defendants was an unregistered document and the court fees was not paid thereupon. He would further admit that only relief for permanent injunction simpliciter against the respondents/defendants was sought for restraining them to create third party interest in respect of the roof rights and no consequential relief was sought in the suit.

6. Having considered the submissions and after going through the record available on file and in view of the fact that the suit was filed simpliciter for permanent injunction on the basis of an unregistered document on which the stamp duty had also not been paid and no consequential relief was sought by the appellant/plaintiff, thus, no prima facie case is made out in favour of the appellant/plaintiff.

7. For the aforesaid reasons, the appeal lacks merit and the same is, accordingly, dismissed in limine.

(Vivek Bharti Sharma, J.) 16.10.2023 Mamta