The judgment emphasizes the importance of harmonious interpretation of agreements and highlights the defendant's rights to construct on the property as per government bye-laws.

IA 3181/2018 (for exemption)

1. Allowed, subject to just exceptions.

2. The application is disposed of.

CS(OS) 96/2018 & IA 3180/2018 (u/O XXXIX R -1 & 2 CPC)

3. The plaintiff has instituted the present suit:

(A) for permanent injunction to restrain the defendant from (i) constructing a lift blocking the plaintiffs’ balcony and compromising the privacy of the first floor of property No. J-1908, Chittaranjan Park, New Delhi; (ii) undertaking construction of additional floors thereby seeking to usurp the 33% right of the plaintiffs in the land underneath the property; (iii) constructing additional floors without ascertaining whether 44 year old building can bear additional construction; (iv) undertaking further construction until and unless copies of appropriate applications and requisite permissions obtained for the said construction are brought on record; and,

(B) for mandatory injunction directing the defendant to remove the illegal construction already made.

4. Needless to state that the suit is accompanied with an application under Order XXXIX Rules 1 and 2 to stop all construction activity.

5. The case of the plaintiff is:

(i) that the defendant as the sole owner of the property No. J-1908, Chittaranjan Park, New Delhi, then comprising only of ground floor, on 3rd June, 1993 entered into a Collaboration Agreement with a Builder for constructing a full first floor and a second floor (ad-measuring 650 sq. ft.) and a drawing room (ad-measuring 450 sq. ft) on the ground floor and in which Agreement the defendant was described as the ‘first party’ and the Builder as the ‘second party’ and the relevant clauses of which Collaboration Agreement, insofar as relevant for the present purposes, are as under:-

“4. That the constructed area shall be divided by the owner and the builder in the following manner:-

(a) The party of the first part i.e. owner shall get the following constructed areas.

(i) Complete Ground Floor with 33% undivided and unspecified share in the land measuring 233 sq. yds. in case of natural calamities or otherwise which has already made having three bedrooms, drawing dining, one kitchen and two bedrooms (approx. 1250 sq. ft.).

(ii) Complete second floor i.e. 650 sq. ft. approx. with 33% undivided and unspecified share in the land measuring 233 sq. yds. in case of natural calamities or otherwise.

(iii) Front lawn and back courtyard

(iv) Terrace on the top floor with full sole occupancy and including construction/demolition/any additional floors and when Govt. Bye-laws permit. The party of the part i.e. Owner will have rights to use/sell or dispose off the terrace in any manner, they so desire. However, builder will construct common utilities like water storage tank, plus servant toilet on top beneath the water storage tanks or at other place with the consent of the owner for common use.

(v) Common passage and staircase in driveway without any hindrance.

(b) The following constructed area along with the undivided share as per details below shall go to the party of the second part i.e. builder as their share.

(i) Complete first floor with 33% undivided share in the land measuring 233 sq.yds. in case of natural calamities.

(ii) One servant toilet in top floor for common use and using rights of second floor terrace for T.V Antenna, water tank etc.

(iii) Common passage and staircase without any hindrance.

(iv) One scooter parking area in the driveway.

(v) One servant room in between first or second floor i.e. in annexe portion of second floor without blocking sencity of building.

10. That second party can extend the first floor according to his choice and can extend first floor from shaft front elevation in back whatever technically possible as per MCD Bye-laws at his own cost, risk and responsibilities and first party has no objection in it. Second party will entirely be responsible for any legal proceedings penalty or other expenses or liabilities paid to MCD or any other Department.”

(ii) that an Agreement to Sell dated 15th June