Dipak Kumar Sen, J.
1. Dr. Ashis Ranjan Das, the plaintiff, instituted this suit on the 24th July, 1981 against Rajendra Nath Mullick the sole defendant, claiming, inter alia, (a) a decree for specific performance of an agreement between the parties for a lease of a portion of premises No. 2 Auckland Place, Calcutta, to be executed by the defendant in favour of the plaintiff, (b) mandatory injunction directing the defendant to execute and register in favour of the plaintiff a lease in the form set out in Annexure B to the plaint or in such other form as may bs prescribed, (c) in default, the Registrar, Original Side of ihis Court be directed to execute and register such lease in favour of the plaintiff, (d) in the alternative, a decree for Rupees 29,000/- and a further decree for Rupees 1,00,000/- or (e) alternatively, an enquiry into the compensation and a decree for the sum as may be ascertained on such enquiry and other reliefs.
2. The plaintiff's cause of action is materially as follows:--
The defendant is the owner of the said premises No. 2 Auckland Fiance, Calcutta, which includes a plot of land measuring about 4 cottahs 5 chattacks and 7 sq. ft.
3. The plaintiff and the defendant arrived at an agreement on or about the 30th Aug., 1978 for grant of a building lease of the said plot of land by the defendant to the plaintiff for a period of 50 years from execution with option to the plaintiff of renewal thereof for further 20 years at a rent of Rs. 900/-per month payable according to the English calendar for the first two years and thereafter at the rate of Rs. 1,500/- per month for the next ten years with provision for further increase thereafter as also a premium of Rs. 50,000/- to be paid by the plaintiffto the defendant at or before the execution of the lease.
4. It was also agreed that the plaintiff would construct a four storeyed building on the said plot and would make over possession of a fiat in the second floor thereof fos the use and occupation of the defendant. It is alltged that the said agreement was entered into between the parties orally and is implied from their course of dealings thereafter.
5. On the same day, that is the 30th Aug., 1978, subsequent to the said agreement the plaintiff it is alleged paid Rs. 29,000/-in part payment rf the said premium to the defendant who accepted the same.
6. At the material time there was a motor garage in the said plot owned by one Gonzales. The plaintiff alleges that the defendant persuaded Gcnzales to vacate the said plot whereafter the possession thereof was delivered to the plaintiff on or about the 8th Sept., 1978.
7. On or about the 29th May 1981, a draft lease was sent to the Advocate of the defendant for approval and return, but the defendant thereafter avoided the execution of the lease on diverse pretexts,
8. The case of the defendant is that there has been no concluded contract between the parties and that the plaintiff is not entitled to specific performance.
9. The defendant alleges that in or about 1978 the parties had negotiations for grant of a building lease by the defendant to the plaintiff of the said plot on inter alia the following terms and conditions:--
(a) The plaintiff could construct a 4 storeyed building on the said plot within 4 years from the date of the contract and the entire second floor containing 2 self-contained flats would be given to the defendant;
(b) The lease would be for 50 years certain with an option for renewal for a further period of 20 years;
(c) The monthly rent to be agreed upon would be subject to an increase at the rate of 15% every 10th year for certain term and 20% afier every 10 years for an option period;
(d) A premium would be paid by the plaintiff to the defendant.
10. A draft of the proposed terms and conditions of the lease was made over by the defendant to the plaintiff in June or July 1978.
11. It was tentatively agreed that the premium payable by the plaintiff to the defen-dant would be between Rs. 1.5 Lakhs and Rs. 2,00,000/- and that the rent would be approximately Rs. 1,000/- per month subject to periodic increases.
12. The defendant alleges that before finalisation of the terms and conditions on or about the 30th Aug., 1978 the defendant obtained a loan of Rs. 29,000/- from tha plaintiff and it was agreed that the said loan would be adjusted against the premium on finalisation of the agreement of lease.
13. The defendant alleges that since July,1981 the defendant was obstructed by tha plaintiff from having access to the said plot and that the plaintiff, its servants and agents trespassed into the said plot wrongfully. The defendant lodged complaints to tha police and instituted criminal proceedings before the Executive Magistrate, Calcutta.
14. It is alleged that the said Gonzales surrendered the possession of the said plot of land to the defendant and not to the plaintiff.
15. It is alleged that the plaintiff has since taken forceful possession of the said plot wrongfully since the middle of Jan.,1982 and has put up bamboo structures and tin shades thereon and is utilising the same by letting it out for parking of cars. It is contended that the plaintiff has no right, title and interest in the said plot and should not be permitted to continue in wrongful possession thereof.
16. In this application of the defendanton a notice dated the 23rd Feb., 1982, inter alia, the following orders have been prayed for:--
(A) A Receiver over the said plot.
(b) An injunction restraining the plaintiff from making any or further construction in the said plot till the disposal of the suit.
(c) An injunction restraining the plaintiff from parking or allowing the parking of vehicles in the said plot till the disposal of the suit.
(d) An injunction restraining the plaintiff from realising any fee for parking of vehicles in the said plot.
(e) The Receiver be directed to realise all fees for parking of vehicles in the said plot and to invest the same.
17. The plaintiff has affirmed an affidavit on the 12th March, 1982 which has been filed in opposition to the petition. It is, inter alia, alleged in this affidavit that after the defendant persuaded the said Gonzales to vacate the said plot of land possession thereof was duly delivered to the plaintiff inpart performance of the said lease. The plaintiff alleges further that he has constructed the fencing demarcating the said plot from the rest of the premises and has constructed a gate for the purpose of egress and ingress to the same. The plaintiff denies having put up any bamboo structures or tin sheds in the said plot and alleges that temporary constructions were already there before he came into the possession of the plot.
18. The plaintiff alleges that it is the defendant who intended to occupy the said plot forcibly after the possession thereof was made over to the plaintiff and that the plaintiff had to lodge complaints to the police and initiate proceedings under Section 144 of the Cr. P. C. The plaintiff alleges further that the defendant knew long ago that the said plot was being utilised for parking of cars upon payment of fees,
19. The plaintiff alleges that he has been in continuous possession of the said plot since Sept., 1978 without any objection from the defendant and that the defendant did not institute any legal proceedings, for recovery of possession of the said plot. It is contended that the defendant is not entitled to make the application in the suit instituted by the plaintiff.
20. The defendant has affirmed an affidavit on the 1st April, 1982, which has been filed in reply to the said affidavit of the plaintiff, It is, inter alia, stated in this affidavit that the constructions were made by the plaintiff in the said plot only since the middle of Jan., 1982.
21. At the hearing learned counsel reiterated the respective contentions in the pleadings. Documents were brought to the notice of the Court on behalf of the defendant to show that there was no concluded contract between the parties and that the case of the plaintiff as recorded in the correspondence from time to time indicated that the terms of the contract were never finalised.
22. Learned counsel for the plaintiff contended that irrespective of merits, the defendant was not-entitled id ask for interlocutory reliefs in the suit of the plaintiff,
23. If support of such contention learned counsel for the plafntiff cited:
(a) Suganda Sai v, Sulu Bai, reported in AIR 1975 Kant 137. In this case the plaintiff instituted a suit in the Munsiff's Court for a permanent injunction restraining the defendants from interfering wiih the possession of the premises in disputes, but did notapply for any interlocutory relief. Later, the defendant No. 1 made an application in the suit for an injunction restraining the plaintiff from interfering with her possession of the property in dispute.
On a revision from an order allowing the. application it was held by the Karnataka High Court that the cause of action of the defendant No. 1 was different from that of the plaintiff and had arisen later. Following two English decisions it was also held that only where the relief claimed by the defendant arose out of the plaintiff's cause of action or was incidental to it that the defendant could apply for an interlocutory injunction against the plaintiff.
(b) Carter v. Fey, reported in 1894 (2) Ch. 541. In this case the plaintiff's action was for a perpetual injunction restraining the defendant from carrying on a particular business within a certain limit in Winchester. On the same day the plaintiff moved for an, interlocutory injunction. The defendant entered appearance and thereafter, gave a notice, for an interlocutory injunction restraining the plaintiff from using the name of the defendant in carrying on the business of ths plaintiff. Both the motions were dismissed in the first Court. On an appeal by the defendant Lindley L. J. held that the defendant was not entitled to any interlocutory injunction and observed as follows:--
'The question is whether a defendant whois in a hurry is entitled to apply by way ofmotion in the plaintiff's actioti for an injunction without waiting to deliver a counterclaim or issuing a writ in a cross-action,where the relief which he seeks is not in anyway comprised in or incidental to the plaintiff's cause of action. In the present casethe plaintiff only claims an injunction to restrain the defendant from carrying on abusiness within a certain limit.'* * * * *
The defendant's claim is not for any relief arising out of or incidental to the relief Sought to be obtained by the plaintiff in his action.
* * * * * * If the defendant's application for an injunction were in any way connected with or Incidental to the object and purpose of the plaintiff's action, he would have good ground for his contention; but it has really nothing to do with the relief sought by the plaintiff,'
'The question is this --- whether the defendant can move for an injunction against the plaintiff without filing a counter-claim or issuing a writ in a cross-action. In myopinion, he can in some cases, but only in cases where the defendant's claim to relief arises out of the plaintiff's cause of action, or is incidental to it.'
24. Relying on the above decisions learned counsel for the plaintiff contended that the defendant's cause of action, if any, was in tort, viz., trespass by the plaintiff in the defendant's land whereas the cause of action of the plaintiff was an agreement of which specific performance was being claimed.
25. In the facts it appears that the subject matter of the suit j. e., the said plot, is admittedly in the possession of the plaintiff. It is also admitted that no lease has yet been executed in favour of the plaintiff and that the plaintiff has not paid the premium nor is paying the rent which is payable according to him. The plaintiff being in possession is enjoying the fruits of the property by collecting parking fees. The defendant has been totally deprived of the use of the said land.
26. Hence, if the defendant had been in possession of the land in dispute the plaintiff would have been entitled to apply for orders restraining the defendant from altering the character of the property. Such a relief would arise out of the plaintiff's cause of action. The plaintiff being in possession of the property, in the instant case there is no reason why the defendant should be held disentitled from claiming the said relief and a claim to such relief in my view must be held to arise out of the plaintiff's cause of action and in any event incidental thereto. If the suit fails the defendant will have a right to obtain possession of the property in the condition as it was originally. It is also open to the defendant to make a counter-claim by amending his written statement or by way of an additional written statement.
27. The plaintiff has come to this Court seeking the equitable relief of specific performance. He must do equity himself and not alter the character of the property till he succeeds in the suit.
28. For the reasons above, the application is allowed. There will be an injunction restraining the plaintiff from making any further construction in the said plot till the disposal of the suit In the event the defendant makes a counter-claim in the suit the defendant will be at liberty to apply for further interim orders.
29. Costs: costs in the cause.
30. There will be a stay of operation of the order for one week from date. The ad-interim order will continue. In the event the plaintiff makes any alteration or repais to the existing structures, in the said plot in the meantime the same should be done on a reasonable notice to the defendant.
31. Liberty to apply.