Restrictive height covenants running with land enforceable by successors without specific assignment if annexed via chain of title; suppression of facts and approbation disentitle interim equitable relief.

JUDGMENT:

MILIND N. JADHAV, J.

1. Heard Mr. Tulzapurkar, learned Senior Advocate for Applicant / Plaintiff and Mr. Seervai, learned Senior Advocate for Defendant.

2. Plaintiff – Society filed the present Suit seeking permanent injunction against Defendant – Society and declaration of the restrictive covenant in Indentures dated 15.10.1943 and 25.07.1944 as void, invalid and unenforceable.

3. Interim Application No.731 of 2025 is filed for interim reliefs whereas Interim Application No.4573 of 2025 is filed for grant of leave under Order II, Rule 2 of the CIVIL PROCEDURE CODE , 1908 and to amend the Suit Plaint by Plaintiff – Society.

4. Interim Application No.6242 of 2025 is filed by Defendant – Society for condonation of delay in filing Written Statement under Order VIII Rule 1 of the CIVIL PROCEDURE CODE , 1908.

5. By consent of the parties, all three (3) Interim Applications are taken up for hearing. Parties are referred to as ‘Plaintiff’ and ‘Defendant’ for convenience.

6. For the reasons stated, Interim Application No.4573 of 2025 is allowed in terms of prayer clause “a”. Amendment is permitted to be carved out within one week from today. Reverification stands dispensed with. Additional Written Statement only to the extent of the amendment as permitted is allowed to be filed on service of the amended Plaint in accordance with law.

7. For the reasons stated, Interim Application No.6242 of 2025 is allowed. Delay of 125 days stands condoned. Written Statement is directed to be taken on record by the Department.

8. Interim Application No.731 of 2025 for interim reliefs is taken up for hearing.

9. The relevant facts necessary for adjudication for grant of interim reliefs in the present case are as follows:-

9.1. Plaintiff – Society is a Co-operative Housing Society duly registered under Registration No. BOM/HSG/-220 of 1962 under the Maharashtra Co-operative Societies Act, 1960. It is Plaintiff’s case that prior to 1950, Govindram Brothers Private Limited was the owner of land admeasuring 3,016 square yards situated at Altamount Road, Mumbai and out of the 3,016 square yards of land, Govindram Brothers Private Limited sold and conveyed a portion thereof admeasuring 1,900 square yards to Seksaria Industries Private Limited.

9.2. That by registered Agreement / Indenture dated 05.04.1963, Seksaria Industries Private Limited sold, conveyed and transferred land admeasuring 1,588.642 square meters i.e. equivalent to 1,900 square yards bearing Cadastral Survey No.5/664 of Malabar and Cumballa Hill Division to Plaintiff – Society (for short “the suit property”) upon which a building comprising ground plus three (3) storey was constructed by Plaintiff – Society and since then it is in lawful possession and occupation thereof.

9.3. It is Plaintiff’s case that its building constructed on the suit property is more than 60 years old and has deteriorated over a period of time. In view thereof, Plaintiff – Society resolved to undertake redevelopment of the suit property. As part of redevelopment process, Plaintiff – Society conducted a title search by its Advocate to ascertain and confirm its title to the suit property