A plaintiff alleging fraud must establish a prima facie case, balance of convenience, and potential irreparable harm to obtain an ad-interim injunction under the Code of Civil Procedure.

JUDGMENT :

Biswaroop Chowdhury, J:

The petitioner before this Court is a plaintiff in a Suit for declaration cancellation of document and permanent injunction and is aggrieved by the Order dated 04-09-2023 passed by the Learned District Judge at Howrah in Misc Appeal No. 145 of 2023 arising out of Title Suit No. 433 of 2023 pending before Learned Civil Judge Senior Division 2nd Court at Howrah. By Order dated 04-09-2023, Learned District Judge rejected the prayer for ad-interim injunction made by the plaintiff/petitioner.

The case of the petitioner/plaintiff in the application under Order 39 Rule-1 and 2 of the Code of Civil Procedure before Learned 2nd Civil Judge Senior Division at Howrah in Title Suit No-433 of 2023 may be summed up thus.

1. The plaintiffs brought the suit against the defendants for declaration cancellation of document and permanent injunction

2. The facts stated by the plaintiff in the plaint are as follows:-

a) The subject matter of the suit is all that piece and parcel of makorari mourasi bastu land measuring about 8 katha 5 chittak 19 sq ft. along with G+8 storied building which is standing thereon comprised in and situated at 5/1 Rose Merry Lane Police Station-Golabari District-Howrah. PIN-711101, within HMC ward No. 13.

b) The subject matter of the present suit is all that piece and parcel of self contained flat being no. 3C on the 3rd floor measuring about 985 sq ft comprised in and situated at 5/1 Rose Merry Lane Police Station – Golabari, District-Howrah PIN-711101 within HMC Ward No-13.

c) The subject matter of the present suit is also purported agreement for sale dated 06-05-2015 registered on 11-05-2015 which is recorded in Book, No-I CD. Volume No-17, pages from 4860 to 4895, being no. 04942 for the year 2015 registered in the office of District Sub-Registrar Howrah executed by plaintiff and defendant no-1 in favour of the defendant no-3 and 4 where defendant no-2 is confirming party.

d) The plaintiff since long is involved in the business of real estate and promotion of building and earned some reputation. During this time defendant no-1 picked up acquaintance with the plaintiff and in course of time good relationship developed between plaintiff and defendant no-1. The defendant no-1 in course of relationship became aware of the fact that the plaintiff is suffering from serious physical problem and a chronic patient of neurosis. After coming to know about the said fact, the defendant no-1 somehow convinced the plaintiff to purchase A-schedule property in the joint name of the plaintiff and the defendant no-1.

e) Although power of attorney was executed by the erstwhile owner in favour of the plaintiff but the said, property was subsequently purchased by virtue of Deed of Sale dated 03.02.2012 registered in the office of DSR. Howrah recorded in Book No-1 Volume No.2 pages from 8490 to 8517 being no. 855 for the year 2012 in the joint name of the plaintiff and the defendant no-1.

f) It is the plaintiff who exclusively made construction of multi storied building by making a construction of G+8 floor at the said property by incurring own expenses.

g) At no point of time the defendant no.2 was appointed as developer in respect of the suit property, nor there was/is any development agreement between the defendant no-2 with the plaintiff and defendant no-1. The defendant no. 2 has never acted as developer in respect of the suit property.

h) The defendant no-1 entered into a collusive and illegal document with the defendant no-3 and 4 in hand in gloves in between the parties and such agreement for sale dated 06.05.2015 registered on 15-05-2015 in favour of the defendant no-3 and 4 and was in facts and substances being created by the defendant no-1 inter se in collusion and conspiracy in between them. In the said document defendant no-2 company has been shown as developer of the A schedule property As a matter of fact no development agreement in any manner whatsoever was ever created in favour of the concerned defen