Bombay High Court, Ordinary Original Civil Jurisdiction (Milind N. Jadhav J., 11 February 2026) — Interim Applications Nos. 731, 4573 and 6242 of 2025 in Suit No. 21 of 2025, New Deluxe Co-operative Housing Society Ltd. v. Pemino Co-operative Housing Society Ltd. The Plaintiff-Society sought a temporary injunction restraining interference with its appointment of a Developer, execution of a redevelopment agreement, and obtaining approvals for redevelopment of its Altamount Road building beyond a 30-feet height restriction which the Defendant traced to restrictive covenants in Indentures dated 15.10.1943 and 25.07.1944. Holding (prima facie, interim stage): (i) the 30-feet restriction is expressly incorporated in the 25.07.1944 Indenture, and the Plaintiff's registered Indenture dated 05.04.1963 took the land subject to all stipulations, covenants and restrictions therein, so the covenant stands reflected in the Plaintiff's own chain of title; (ii) absence of a specific assignment of the covenant in favour of the Defendant is no bar where successive conveyances incorporate the earlier Indentures and convey the property with all rights, liberties, easements, advantages and appurtenances — express reiteration in every deed is not a sine qua non; the 1972 conveyance to the Defendant expressly adopted the binding effect and benefits of the 26.04.1945 Indenture, hence the covenant prima facie stands preserved and transmitted to successors-in-title including the Defendant (relying on Princy & Anr. v. Jose, Kerala HC); (iii) want of privity of contract is no bar — the covenant constitutes an equitable interest in land which passes because it inheres in or is annexed to the land; who may enforce it is a triable issue. A party cannot approbate and reprobate: the Plaintiff, having accepted title under its 1963 deed containing the covenant (and not challenging that deed), is prima facie bound by its terms (doctrine of election); its initial denial of any covenant, abandoned only after confrontation with its own title deeds, and the consequent suppression of material facts, meant it did not approach with clean hands and cannot claim interim relief in equity — such a suit amounting to abuse of process. Change of neighbourhood does not automatically render the covenant obsolete (doctrine of obsolescence left to trial), though the missing plan annexed to the 1943 Indenture raises triable issues. On limitation, following Daya Singh v. Gurudev Singh and Geeta Patkar, the right to sue under Article 58, Limitation Act 1963 accrued only in 2024 upon the Defendant's clear and unequivocal threat (legal notice 16.04.2024; Public Notice 22.08.2024); mere existence of a covenant in old documents creates no cause of action, so the Suit is not rejectable at the threshold — limitation remaining a mixed question with all contentions open. The reliefs sought being final-relief in nature, whose grant would irreversibly alter the property's status before trial, and there being no strong prima facie case, balance of convenience lying against the Plaintiff, and risk of irreparable prejudice to the Defendant coupled with the Plaintiff's less-than-honest conduct, Interim Application No.731 of 2025 was dismissed with all rights kept open for trial; the Plaintiff remains free to redevelop up to the 30-feet restriction. Interim Application No.4573 of 2025 (leave under Order II Rule 2 CPC and amendment) and Interim Application No.6242 of 2025 (condonation of 125 days' delay in filing the Written Statement under Order VIII Rule 1 CPC) were allowed.
