Case Note & Summary
The Bombay High Court considered three interim applications arising from a suit between two cooperative housing societies concerning the enforceability of a restrictive covenant limiting construction height to 30 feet. The Plaintiff Society instituted the suit seeking a declaration that the restrictive covenant contained in the Indentures dated 15 October 1943 and 25 July 1944 was void, invalid and unenforceable, along with a permanent injunction restraining the Defendant from interfering with the proposed redevelopment of its property. The Court allowed the Plaintiff's application under Order II Rule 2 of the Code of Civil Procedure, 1908, permitting amendment of the plaint and dispensing with reverification. It also condoned a 125-day delay in filing the Defendant's Written Statement under Order VIII Rule 1 of the Code of Civil Procedure, 1908, directing that it be taken on record. Thereafter, the Court proceeded to hear the Plaintiff's application for interim injunction, examining the factual background relating to the redevelopment proposal, the Defendant's reliance on the restrictive covenant, and the rival claims arising from the parties' chain of title. The judgment primarily addresses the procedural applications while laying the foundation for adjudication of the substantive issues concerning the validity, enforceability, and effect of the restrictive covenant on the Plaintiff's redevelopment project.
Headnote
Civil Procedure Code, 1908 — Order II Rule 2 — Order VIII Rule 1 — Amendment of Plaint — Condonation of Delay — Restrictive Covenant — Interim Injunction — Redevelopment of Cooperative Housing Society — The High Court of Judicature at Bombay, in its Ordinary Original Civil Jurisdiction, heard three interim applications arising out of a suit seeking declaration that restrictive covenants contained in the Indentures dated 15.10.1943 and 25.07.1944 were void, invalid and unenforceable and for permanent injunction restraining the Defendant from interfering with redevelopment of the Plaintiff Society's property — Interim Application No.4573 of 2025 was filed by the Plaintiff under Order II Rule 2 of the Civil Procedure Code, 1908, seeking leave to amend the plaint — Interim Application No.6242 of 2025 was filed by the Defendant under Order VIII Rule 1 of the Civil Procedure Code, 1908 seeking condonation of delay in filing Written Statement — The Court allowed amendment of the plaint, dispensed with reverification, and permitted filing of an Additional Written Statement confined to the amendment — Delay of 125 days in filing the Written Statement was condoned and the Written Statement was directed to be taken on record — The Court thereafter proceeded to consider Interim Application No.731 of 2025 seeking temporary injunction restraining the Defendant from obstructing redevelopment beyond the height of 30 feet — The Plaintiff contended that the restrictive covenant was unenforceable, obsolete and incapable of being enforced by the Defendant, whereas the Defendant asserted that the covenant formed part of the chain of title, ran with the land and continued to bind the Plaintiff's property — Interim Applications for amendment and condonation of delay allowed; Interim Application for interim relief heard on merits.
(Paras 3 to 10).
Issue of Consideration
Whether the Plaintiff was entitled to interim injunction and whether amendment of the plaint under Order II Rule 2 CPC and condonation of delay in filing the Written Statement under Order VIII Rule 1 CPC should be allowed in a suit involving the enforceability of a restrictive covenant.
Final Decision
The Court allowed Interim Application No. 4573 of 2025 by permitting amendment of the plaint and condoned the delay of 125 days in filing the Defendant's Written Statement by allowing Interim Application No. 6242 of 2025. However, Interim Application No. 731 of 2025 seeking interim injunction was not granted, the Court holding that the Plaintiff failed to establish a prima facie case, and directed that the issues relating to the validity and enforceability of the restrictive covenant be decided at trial.
Law Points
- Order II Rule 2 of the Civil Procedure Code
- 1908 (CPC) -- Order VIII Rule 1 of the CPC -- Principles of interim relief under CPC -- Interpretation of restrictive covenants in property law -- Maharashtra Co-operative Societies Act
- 1960
Case Details
2026 LawText (BOM) (02) 54
Suit No. 21 of 2025 with Interim Application Nos. 731 of 2025, 4573 of 2025, and 6242 of 2025
Mr. Virag Tulzapurkar, Senior Advocate a/w. Mr. Amit Mehta and Mr. Vedant Rane, Advocates i/by Mr. Amit Mehta for Applicant/Plaintiff, Mr. Navroz Seervai a/w. Mr. Naushad Engineer, Senior Advocates a/w. Mr. Pranav Narsaria, Mr. Abha Gokhale, Advocates i/by Desai & Diwanji for Defendant
New Deluxe Co-operative Housing Society Ltd.
Pemino Co-operative Housing Society Ltd.
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil Suit seeking declaration that the restrictive covenants contained in the Indentures dated 15.10.1943 and 25.07.1944 are void, invalid and unenforceable, together with a permanent injunction restraining the Defendant from interfering with the Plaintiff Society's redevelopment of the suit property. The judgment also concerns interim applications relating to amendment of the plaint, condonation of delay, and interim injunction.
Remedy Sought
The Plaintiff sought: A declaration that the restrictive covenants contained in the Indentures dated 15.10.1943 and 25.07.1944 are void, invalid and unenforceable; A permanent injunction restraining the Defendant from interfering with redevelopment of the suit property; Interim injunction pending the suit; and Leave to amend the plaint under Order II Rule 2 CPC. The Defendant sought condonation of 125 days' delay in filing its Written Statement under Order VIII Rule 1 CPC.
Filing Reason
The suit was filed after the Defendant objected to the Plaintiff's proposed redevelopment by asserting a restrictive covenant prohibiting construction beyond 30 feet, thereby obstructing redevelopment of the Plaintiff Society's property.
Previous Decisions
No previous decisions mentioned; the judgment deals with interim applications at an early stage of the suit
Issues
Whether the Plaintiff was entitled to interim injunction restraining the Defendant from interfering with redevelopment of the suit property.
Whether amendment of the plaint should be permitted under Order II Rule 2 CPC.
Whether the delay of 125 days in filing the Defendant's Written Statement should be condoned under Order VIII Rule 1 CPC.
Submissions/Arguments
Plaintiff
Sought amendment of the plaint.
Contended that the restrictive covenant was unenforceable and did not prevent redevelopment.
Sought interim protection to proceed with redevelopment.
Defendant
Contended that the restrictive covenant formed part of the chain of title and continued to bind the Plaintiff's property.
Opposed interim relief.
Sought condonation of delay in filing the Written Statement.
Ratio Decidendi
he Court held that amendment of pleadings and condonation of delay should be allowed to facilitate complete adjudication of the dispute. On the question of interim relief, the Court found that the restrictive covenant was prima facie reflected in the Plaintiff's chain of title, that the issues regarding its validity and enforceability required trial, and that the Plaintiff failed to establish a prima facie case for grant of interim injunction
Judgment Excerpts
Held: Interim Application No.4573 of 2025 was allowed. Amendment of the plaint was permitted within one week and reverification was dispensed with.
Held: Interim Application No.6242 of 2025 was allowed. Delay of 125 days in filing the Written Statement was condoned and the Written Statement was directed to be taken on record.
Held: Interim Application No.731 of 2025 seeking interim injunction was heard on merits and the Plaintiff failed to establish a prima facie case for grant of interim relief. The issues regarding the validity and enforceability of the restrictive covenant were left to be decided at trial.
Procedural History
The Plaintiff instituted Suit No. 21 of 2025 seeking declaration and permanent injunction regarding a restrictive covenant. It filed Interim Application No.731 of 2025 seeking interim injunction and Interim Application No.4573 of 2025 seeking amendment of the plaint under Order II Rule 2 CPC. The Defendant filed Interim Application No.6242 of 2025 seeking condonation of delay in filing the Written Statement under Order VIII Rule 1 CPC. By consent, all three applications were heard together. The Court allowed the amendment application and the delay condonation application, but declined interim injunction, holding that the Plaintiff had not made out a prima facie case and that the substantive issues required trial.
Acts & Sections
- Civil Procedure Code, 1908: Order II, Rule 2, Order VIII, Rule 1
- Maharashtra Co-operative Societies Act, 1960: Registration provisions
