IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 192 of 2011 Date of decision: 15.9.2011 Sushma Rani ….Petitioner Versus Mahesh Kumar & Ors. …..Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No. For the petitioner: Mr. Neel Kamal Sood, Advocate. For the respondents: Mr. Sanjeev Kuthiala, Advocate, for respondents No. 1 and 3. Respondent No.2 exparte. _____________________________________________________ Deepak Gupta, J(oral) 1. By means of this petition, the petitioner, hereinafter referred to as the plaintiff, has challenged the order dated 14.2.2011 passed by the learned District Judge, Una whereby he rejected the appeal of the plaintiff confirming the order dated 8.9.2010 whereby the learned trial Court had passed the order of status quo qua the suit property except Khasra Nos.1947/2/2 and 1947/2/3 which are in possession of respondent No.3 M/s Sai Atul Glass Industry. 2 2. The case of the plaintiff is that she, defendant No.1 Mahesh Kumar and defendant No.2 Tarsem Lal had purchased land from Ved Parkash and Ashok Kumar in equal shares and therefore, they were joint owners in the property. Admittedly, Tarsem Lal sold his share to defendant No.3 M/s Sai Atul Glass Industry. In a nutshell the case of the plaintiff is that partition has not taken place and thus defendant No.3 cannot be permitted to raise any construction on the land. 3. On the other hand, the case of the defendants is that the private partition took place between the parties which was recognized by the revenue authorities on 15th May, 2007 and mutation qua such private partition was attested on 22nd May, 2007. 4. Mr. Neel Kamal Sood, learned counsel for the plaintiff, urges that in fact no such order was passed on 15th May, 2007, therefore, any action taken subsequent thereto is totally illegal. At this stage, I am not going into the merits and rival contentions of the parties. The learned trial Court shall decide the same on the basis of evidence led before him. However, the main reason why both the Courts below have not granted interim injunction qua the land in possession of respondent 3 No.3 M/s Sai Atul Glass Industry is that respondent No.3 had spent a huge amount of approximately Rs.1 crore to set up the industry and the entire construction was almost complete by the time the plaintiff approached the Court. On this ground the Courts below have not come to the conclusion that there is balance of convenience in favour of the plaintiff. 5. From the material on record, it is apparent that the construction is virtually complete and the factory is almost at the stage of commencing of production. At this stage no stay order can be granted. This Court in a number of cases has held that the plaintiff in such a situation must approach the Court immediately when the construction is started and in case he waits and permits the defendant to spend huge amount of money then he cannot be granted any interim relief. In the present case, in case such an order is passed, defendant No.3 will suffer irreparable harm and injury, which cannot be compensated. Therefore, both the Courts below were justified in granting injunction except in respect of Khasra Nos. 1947/2/2 and 1947/2/3. 6. In view of above discussion, the petition is dismissed. It is, however, clarified that any observations made herein or by the learned Courts 4 below shall not affect the merits of the case and in case the plaintiff finally succeeds then defendant No.3 will not be permitted to take the pea that he should be compensated for the structure, if any raised by him. September 15, 2011 (Deepak Gupta) (vt) Judge