VERMA, J. - (1.) THE appellant is the plaintiff and has come up in appeal under Order 43 Rule 1 CPC against the order dated 25. 9. 2000 passed by the Additional District Judge No. 1, Jaipur City, Jaipur whereby the learned Addl. Distt. Judge has not only had dismissed the application for temporary injunction under Order 39 Rule 1 & 2 CPC filed by the plaintiff, but had still made certain orther observations, which according to the appellant were not required to be made on the application of interim injunction filed by the appellant.
(2.) THE plaintiff Ganpati Plaza Maintenance Society (here-in- after referred to as `the society') is a registered society, incorporated on 3. 7. 1998 with the main objects of maintenance and up-keep and security of Ganpati Plaza premises. To give effective control to Ganpati Plaza Maintenance Society, which was required to maintain the common areas, service and amenities and for which it is alleged that the control of fire fighting equipments, electrical installations, air conditioners, lifts, EPABX etc. was handed over to the society, price of which had already been charged by M/s. K. K. Complex Pvt. Ltd. from different buyer of spaces/premises in Ganpati Plaza. It is the case of the society that a proper agreement was executed and the common areas/installation as per agreement were handed over to the society since 1. 8. 1998 which included fire fighting equipments, electrical installations, air conditioners, lifts, EPABX etc. 11 drawings in this regard were also handed over to the society. M/s. K. K. Complex Pvt. Ltd. the defendant respondent, had constructed a multi storied commercial complex known as Ganpati Plaza having show-rooms, shops, offices, etc. and had sold the respective areas of such show-rooms, shops, offices etc. to the various buyers as per various agreements entered into with them. It was one of the terms of the agreement with the buyers that they will be responsible to form a society for maintenance, up-keep and security of the complex and all the buyers shall be bound to become the members of that society. The entire saleable area as per the approved plan had already been sold. The building comprises carpet area, built up area and super built up area, common area and facilities, like elevators, water tanks, pumps etc. and other community facilities. It was the case of the plaintiff that after selling the respective areas to the buyers, the ownership of super built area, common area and facilities could not vest in K. K. Complex as it was jointly and severally vesting in the buyers as their undivided proportionate share for which the price had been charged by K. K. Complex defendant at the time of purchase. In the document of sale-deed with the buyers, there was an agreement regarding formation of a Society for the purpose of maintenance and pending formation of such society or body corporate as per clause 38 and 39, the maintenance and upkeep was the responsibility of the promotor or its nominee i. e. K. K. Complex and the buyer had to pay the proportionate share in regard to the expenses incurred in maintenance of said complex. It was the case of the plaintiff that after entering into the agreement as a society with the promotor defendant, the society had incurred expenses on electrical charges, maintaining the air conditioners and paying water charges of the entire area including payment to the security personnel. The society had authorised Shri Sunil Jain and Shankar Parasnani, the defendants, as society agents and representatives for doing bank business and raising and accepting bills. According to the society one Bhim Sain Garg remained the President of the Society. Vide resolution dated 24. 8. 2000 the society had withdrawn the authority in favour of Sunil Jain and Shanker Parasnani, defendant Nos. 2 and 3 to act on behalf of society and injunction was sought against them as well restraining them to act on behalf of the society. The society had prayed injunction restraining the defendants respondents from doing any activity which may affect maintenance of the complex and working of the above society. It had also prayed that the defendant Nos. 2 and 3 be restrained from interfering in the business of the society and further not to collect any amount and to hand over all amounts to the petitioner society. The suit was contested by the defendants.
(3.) LEARNED trial Court while dismissing the application of the appellant under Order 39 Rules 1 and 2 had suo moto had directed the defendant No. 1 not to constitute any fresh society for maintenance of the premises of Ganpati Plaza, however, they will be guided and act as per the provisions of the clause 39 of the agreement. The plaintiff challenges this part of the order of the trial court which according to the plaintiff is beyond the pleadings and prayer made in the application. It is the case of the plaintiff that the trial court had not exercised the jurisdiction in accordance with settled principles of law and findings are perverse. The guidelines that whether the plaintiff seeking the temporary injunction had made out prima facie case; whether the balance of convenience was in its favour, and; whether in the absence of the injunction sought, the parties would suffer irreparable injury if the injunction is not granted, have not been adhered to by the trial court, it is so suggested by the learned counsel for the appellant. The cause of action had arisen in favour of the plaintiff on the notice and the direction having issued by K. K. Complex to the buyers not to deal with the society but to deal with K. K. Complex itself. ;