HON’BLE Ms. JUSTICE G. ROHINI Civil Revision Petition No. 2943 of 2011 Dated: 19.09.2011 Between: N.Srinivas Rao … Petitioner And B.Praveen and 4 others. … Respondents HON'BLE MS JUSTICE G.ROHINI Civil Revision Petition No. 2943 of 2011 O R D E R: The revision petitioner is the plaintiff in O.S.No.2689 of 2006 on the file of the Court of the VIII Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar. The suit is filed against the defendants/respondents herein seeking a decree for cancellation of the registered Development Agreement cum General Power of Attorney dated 12.05.2003. Pending the suit, the revision petitioner/plaintiff filed I.A.No.194 of 2008 under Order 39 Rules 1 and 2 of C.P.C. seeking temporary injunction restraining the defendants from proceeding with further construction in the suit schedule property. After hearing both the parties, the said application was dismissed by order dated 27.07.2009. Aggrieved by the same, the revision petitioner filed CMA.No.732 of 2009 in the Court of the I Additional District and Sessions Judge, Ranga Reddy District. By order dated 30.10.2009, though the lower appellate Court directed that status quo should be maintained by both the parties up to 09.12.2009, there was no further extension and ultimately CMA.No.732 of 2009 was dismissed by judgment dated 30.05.2011. Hence, the present revision petition by the plaintiff. The learned counsel for the petitioner while submitting that the defendants/respondents herein have been proceeding with construction work in the suit schedule property, contended that unless and until the respondents are restrained from making further constructions, the cause in the suit stands frustrated and therefore it would be in the interest of justice to direct both the parties to maintain status quo till the suit is decided on merits. In support of his submission the learned counsel placed reliance upon the judgment of the Division Bench in Mohammed M.Khalid and another v. Shaheen Hussain Khan and another[1]. Learned counsel also contended that the finding recorded by the lower appellate Court that the building complex that was undertaken by the defendants was almost in the finishing stage and ready for sale is factually incorrect and therefore the conclusion that the petitioner/plaintiff failed to make out a case to show that any immense loss would be caused in the event of not granting the interim injunction is untenable. I have also heard the learned counsel for the respondents and perused the material available on record. As could be seen, the main suit was filed by the revision petitioner/plaintiff claiming that he was the absolute owner and possessor of the suit schedule land and that he had entered into a Development Agreement cum General Power of Attorney with the defendants/respondents herein. It was pleaded that the defendants failed to construct the building within the time schedule agreed upon and therefore, as per the terms of the agreement they were liable to pay the prevailing market rental value for 37% share of the plaintiff. It was alleged that though the defendants expressed that as they were unable to make the construction the agreement should be deemed to have been cancelled contrary to the same they started construction work in November, 2006. Contending that the Development Agreement dated 12.05.2003 was time bared and the defendants were not entitled to make any construction and that they should not be allowed to act as GPA holders on behalf of the plaintiff, the main suit has been filed for cancellation of the Development Agreement cum General Power of Attorney. According to the defendants the plaintiff himself did not cooperate to proceed with the construction. The trial Court held that there was no proof to support the contention of the plaintiff that the agreement was cancelled in the month of September, 2003. Thus the application for temporary injunction was dismissed observing that unless a detailed enquiry was conducted in the main suit, it cannot be concluded that the defendants had acted contrary to the terms and conditions agreed upon. On appeal, the lower appellate court after referring to the relevant terms of the Development Agreement, opined that as per the agreement, time was not the essence of the contract and that in the event of failure to handover super built up area to the plaintiff to the extent of his share within 12 months, Clause 22 of the agreement provided for payment of prevailing market rental value of 37% of the share of the plaintiff. It was observed by the lower appellate Court that the plaintiff could not produce any material to show that the suit agreement stood cancelled in the month of September, 2003 nor there was any material to show that the defendants were intimated about the cancellation of the agreement. It was also observed that the plaintiff did not take any steps for delivery of possession pursuant to the alleged cancellation of the agreement and that there was no material to substantiate the allegation of the plaintiff that the defendants had changed the nature of the construction of the complex from residential to commercial. Accordingly, the appeal was dismissed holding that the plaintiff/revision petitioner had failed to make out either prima facie case or balance of convenience for grant of temporary injunction. On a careful consideration of the material available on record, I do not find any justifiable reason to interfere with the said concurrent findings recorded by the Courts below. However, the learned counsel for the petitioners vehemently contended that the lower appellate Court ought not to have dismissed the appeal relying upon the photographs, the genuineness of which is in dispute. It is true that on the basis of the photographs produced by the defendants the lower appellate Court observed that the building complex was almost in the finishing stage and ready for sale. However, I do not find any substance in the submission of the learned counsel for the revision petitioner that the appeal was dismissed merely on that ground. As noticed above, clear findings were recorded by the Courts below that the petitioner had failed to make out prima facie case and that the balance of convenience was not in his favour. It is also relevant to note that except for a period of about six weeks, during which period an order of status quo was in operation, there was no order at any point of time restraining the defendants from proceeding with construction in the suit schedule property. Admittedly, the suit schedule property is in possession of the defendants. In the totality of facts and circumstances of the case, it cannot be held that if temporary injunction restraining the defendants from proceeding with further construction in the suit schedule property is not granted, the plaintiff would suffer irreparable injury. However, as held by the Division Bench in Mohammed M.Khalid’s case (1) supra, apart from the prima facie case, balance of convenience and irreparable loss which have to be satisfied for grant of temporary injunction, it is also necessary for the Court to consider and visualize what consequences would follow if temporary injunction is granted or not granted. In the present case since the construction that has been taken up by the defendants is a residential housing complex, in the event of the houses so constructed are sold, the third parties’ interest would be involved complicating the issue that requires consideration in the suit. Hence, following the above Division Bench decision, I deem it appropriate to restrain the respondents from creating any third party interest in and above the suit schedule property so as to avoid further complications and multiplicity of proceedings. Accordingly, the orders of the Courts below shall stand modified and the respondents/defendants are hereby restrained from creating any third party interest in and above the suit schedule property till the disposal of O.S.No.2689 of 2006 on the file of the Court of the VIII Additional Senior Civil Judge, Ranga Reddy District. There shall also be a direction to the trial Court to dispose of the main suit following due process of law as expeditiously as possible preferably within a period of three months from the date of receipt of this order. The Civil Revision Petition is accordingly disposed of. No costs. _______________ G. ROHINI, J Date: 19.09.2011 KLP [1] 2010 (4) ALD 183 (DB)