THE HON'BLE SRI JUSTICE B.PRAKASH RAO And THE HON'BLE SRI JUSTICE R.KANTHA RAO CIVIL MISCELLANEOUS APPEAL NO.1240 OF 2009 JUDGMENT: (Per the Hon’ble Sri Justice R.Kantha Rao) Aggrieved by the order dated 05.10.2009 in I.A.No.2141 of 2009 in O.S.No.44 of 2009 on the file of the III Additional District Judge, Kakinada, the present appeal is filed. The second and third respondents/defendants in the Court below are the appellants herein. The plaintiffs instituted a suit for partition claiming 4/6th share in the schedule mentioned properties and also sought for cancellation of a registered partition deed dated 30.04.2008 on which reliance has been placed by the appellants. In the said suit, the plaintiffs filed I.A.No.2141 of 2009 seeking temporary injunction, pending disposal of the suit, restraining the appellants from alienating the schedule mentioned properties and also restraining them from making any constructions in the scheduled mentioned properties. The petition was opposed by the appellants/defendants 2 and 3 on the ground that they had already made construction to a considerable extent spending huge amounts and if they are restrained by the order of injunction. It causes undue hardship to them and also irreparable loss. The second respondent/defendant filed an affidavit on behalf of the defendants in the Court below to the effect that in the event of the suit being decreed, they will not claim equities in the schedule mentioned properties and they also gave a separate undertaking to that effect. However, the learned trial Court repelled all the contentions raised by the appellants herein and granted temporary injunction as prayed for in favour of the plaintiffs. Feeling aggrieved, the defendants/respondents preferred the present appeal. Heard the learned counsel on either side and with their consent, we had taken up the disposal of the Civil Miscellaneous Appeal itself. Learned counsel appearing for the appellants would submit that since substantial portion of construction has been made by them and in view of the undertaking given by them before the Court below, temporary injunction ought not to have granted by the Court below in favour of the respondents pending disposal of the suit. Learned counsel representing the respondent/plaintiff on the other hand would submit that by setting up the forged Will the defendants are claiming the schedule mentioned properties in their entirety and since it becomes very difficult when once constructions were made in the schedule mentioned property to worn out the rights of the parties in the event a decree for partition is passed in their favour and therefore, the order passed by the trial Court is justified and it needs no interference. At the outset we may state that the appellants were not altogether strangers to the schedule mentioned property. Even according to the respondents, they are the co-sharers having right in the scheduled mentioned property. The learned Court below ought to have seen that normally, an injunction cannot be granted against a co- sharer. Further, the appellants gave a categorical undertaking that in case a decree for partition is passed in favour of the respondents, they will abide by the ultimate decision of the Court and the proceedings that would take place consequent on passing of the decree and that they will not claim any equities in the schedule mentioned property. Further, the disposal of the suit, which is filed in the year 2009, will take considerable time and it causes hardship to a co-sharer if he is restrained from carrying out any activity in the joint property. Therefore, the balance of convenience is in favour of the appellants. The appellants, in our considered view, would be put to irreparable loss on account of the grant of injunction by the trial Court. While granting or refusing injunction, the Court has to take into account the comparative loss and in the instant case, we have no hesitation to hold that the learned trial Court committed error in granting injunction in favour of the respondents and the said order is liable to be set aside in this appeal. Accordingly, the order passed by the trial Court in I.A.No.2141 of 2009 in O.S.No.44 of 2009 is set aside. The temporary injunction granted on 05.10.2009 is hereby vacated. The Civil Miscellaneous Appeal is allowed. There would be no order as to costs. We also direct that the trial Court has to take up the trial of the suit, as expeditiously as possible. _________________ (B.PRAKASH RAO, J) ________________ (R.KANTHA RAO, J) 31st March 2010 RRB