- (1.) The Court: This is an application for return of the plaint fled in the above suit to the plaintiff. In this suit the plaintiff is seeking decree for specific performance of the Memorandum of understanding dated 30th August, 1990 and in the alternative an enquiry into the damages suffered by the plaintiff and decree for the sum found due thereon.
(2.) By the subject Memorandum of understanding, which is in writing. the defendant, described therein as assignor, agreed to assign in favour of the plaintiff, described therein as assignee, the perpetual lease-hold right of the defendant in respect of premises No. 8/2, Palm Avenue, Calcutta-700019, which premises is situate outside the jurisdiction of this court. The said Memorandum of understanding provides, inter alia, the following clauses:- "The Assignee, his nominee or nominees will be entitled to use and utilise the portion assigned or part thereof as he/they may choose or like without any need for any consent from the Assignor or the Head Lessor or the Superior Landlord and the Assignee his nominee or nominees shall always be entitled to demolish, alter and to erect and build any structure or building of any description that the Assignee his nominee or nominees may lawfully choose and shall enjoy the benefits thereof including the power to further assign without any need for any consent and/or injunction from the Assignor or the Head Lessor or the Superior landlord." "The Assignee, his nominee or nominees will be entitled to mutate their names in the Calcutta Municipal Corporation or with any other Authorities." "The Assignee, his nominee or nominees will be entitled to demolish, alter erect and build any structures and building of any description that he/they may lawfully choose and get necessary sanction of plan of such building/s from the Calcutta Municipal Corporation without any consent and/or any objection from the Assingnor or the Head lessor or the Superior Landlord and shall enjoy all benefits thereof including the right to further assign the lease hold right" "As a gesture of goodwill the Assignor has agreed to help the assignee without any obligation for obtaining vacant possession of the said premises at extra cost to the Assignee, his nominee or nominees, as the case may be, at the time of execution and registration of the Deed of Assignment."
(3.) In paragraph 6 of the plaint filed in the above suit. it has been alleged: "The said premises is being possessed and/or occupied by several trespassers and/or occupiers without any right, title and interest therein and the possession of such trespassers and occupiers are illegal and wrongful". And in paragraph 19 of the plaint it was contended:- "The plaintiff has not claimed any relief regarding possession of premises No. 8/2, Palm Avenue, Calcutta-700019 in the present suit. The plaintiff prays for leave of this court under Order 2, Rule 2 of the Code of Civil Procedure, 1908 for instituting appropriate legal proceeding in appropriate forum.";