Jayanta Kumar Biswas, J. - (1.) The plaintiff in CS No. 83 of 2006 has taken out this interlocutory application dated April 26th, 2006 for the following reliefs : "(a) An order of permanent/perpetual injunction restraining the respondents hereof, their men, agents, assignees, associates, nominees, representatives, officers and/or sub-ordinates from giving any effect to the said inserted Clauses (e), (f) and (g) of Chapter-III and interpolated, variation, omitted, deleted and/or changed portions of the schedule Third, Fourth and Fifth of the said purported Deed of Conveyance dated 4th August, 2004 being annexure "M" hereof as indicated in the Schedule being annexure "L" hereof and/or to rely thereon in any manner whatsoever; (b) An order of temporary injunction restraining the respondents, their men, agents, assignees, associates, nominees, representatives, officers and/or sub-ordinates from giving any effect to Clauses (e), (f) and (g) of Chapter- III and interpolated, variation, omitted, deleted and/or changed portions of the Schedule Third, Fourth and Fifth of the said purported Deed of Sale dated 4th August, 2004 being annexure "M" as indicated in the Schedule being annexure "L" hereof and/or to rely thereon in any way and/or in any manner, whatsoever pertaining to the residential block of the said premises No. 33, Shakespeare Sarani, Kolkata-700 017; (c) Ad-interim order of injunction in terms of prayers (b) and (c) above; (d) Receiver/Special Officer; (e) Costs; (f) Such further or other order or orders be made and/or directions be given as this Hon'ble Court may deem fit and proper." I am told that no ad interim order was made in this application. Affidavits have been exchanged, and the application has come up for final hearing. The suit was initiated on February 28th, 2006 praying for : "(a) Leave under Order 2 Rule 2 of the Civil Procedure Code; (b) A decree of declaration that the portion of the executed deed which was different from the Deed of Sale as approved by the plaintiff, namely. Clauses (e) , (f) and (g) of Chapter-III, Schedule Third, Fourth and Fifth and other omissions and alterations indicated in Annexure "E" and contained in Annexure "F" hereto be declared void and of no effect whatsoever; (c) A decree of declaration that the executed Deed of Conveyance dated 4th August, 2004 to the extent of Clauses (e), (f) and (g) of Chapter-III and the inserted and omitted portions of Schedule Third, Fourth and Fifth thereof be adjudged void and the Court may order the aforesaid portion of the said Deed of Conveyance to be delivered up and cancelled and the omitted Clause-VI of Chapter-II be incorporated therein; (d) A decree of Perpetual injunction restraining the defendants from giving any effect to Clauses (e), (f) and (g) of Chapter-III and the schedule Third, Fourth and Fifth of the said Deed of Sale dated 4th August, 2004 and/or to rely thereon in any manner; (e) Receiver; (f) Injunction; (g) Costs; (h) Further and other reliefs." The case of the plaintiff is that the clauses in question were incorporated in the deed of conveyance dated August 4th, 2004 by exercising fraud. It has alleged that the first and second defendants fraudulently incorporated the clauses in the deed that was executed and presented for registration on August 4th, 2004. Counsel has argued that from the draft of the deed it will appear that the clauses had not been mentioned therein. She says that the contesting defendants have incorrectly stated in their opposition that the draft deed was modified on several occasions. Her contention is that since the building concerned was to be used exclusively for residential purposes, there was no scope to incorporate such clauses as the ones in question. The clauses in question read as follows : "(e) The Vendor shall be at liberty to cause to be changed the nature of use or occupancy group in respect of any Unit or other portions and areas forming part of the Vendor's Allocation in such manner as the Vendor may deem fit and proper and to own use enjoy and/or transfer the same as such and the Purchaser shall not be entitled to raise any objection or dispute to the same. (f) The Purchaser shall not be entitled to use the land described in the Fifth Schedule hereunder written and also shown in the plan annexed hereto, being Annexure. "A" duly bordered thereon in "GREEN" and belonging to the Vendor exclusively. (g) The roof over the lift machine rooms and staircases room lying at a portion of the roof over the seventh floor of the residential Building shall exclusively belong to and be owned used and enjoyed by the Vendor alone. The Vendor shall at all times have one key to the entrance of the roof over the seventh floor of the residential building."
(2.) In my considered view the plaintiff has failed to make out any prima facie case for temporary injunction restraining the first defendant from giving effect or further effect to the three clauses in question of the deed of conveyance which is not under challenge. The admitted position is that the plaintiff duly executed the deed and presented it for registration. It is true that in the copy of the draft deed produced by the plaintiff nothing was mentioned about the clauses. But that fact in my considered view loses significance at this stage in the face of the case of the contesting defendants that the terms and conditions of the draft deed were modified from time to time. Above all, at this stage of the suit it is very difficult to accept the case of the plaintiff that it did not notice the clauses in question in the deed of conveyance when it signed the deed in the process of execution thereof. In my opinion, on the admitted facts it cannot be said the plaintiff has made out a prima facie case for temporary injunction.
(3.) Besides, I am of the view that the balance of convenience and inconvenience is entirely against making an order of injunction against the first defendant. In terms of the arrangements connected with disposal of the property she acquired absolute right, title and interest in four flats located in the building. She obtained permission from the municipal corporation for changing user of two flats from residential to commercial. Regarding the remaining two flats she has not yet obtained any permission for changing user. The plaintiff has already challenged the permission granted by the corporation, and the writ petition concerned is pending decision. Needless to say that if the first defendant is not entitled in law to get permission for changing user of her flats, then the terms and conditions in the clauses in question cannot confer right on her to obtain permission. Therefore, it is irrelevant for the present purpose whether the terms and conditions contained in the clauses are contrary to any law. In my view, if an order of injunction is made, then the first defendant is bound to suffer a greater loss and prejudice than the one the plaintiff may suffer, if she succeeds in the suit, in the absence of any temporary injunction. I think the loss, injury and prejudice that the first defendant will suffer, if an injunction is made, cannot be compensated in terms of money alone, apart from the fact that it will be very difficult to quantify the amount of compensation.;