IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A No.746 of 2011 Dated: 27-09-2011 Between: Chintalapudi Sarojini and others. ….Appellants. And Karnati Veerabhadram and others. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.ANo.746 of 2011 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is directed against the Orders passed by the Judge, Family Court-cum-Additional District Judge at Khammam in I.A.No.208 of 2011 in O.S.No.27 of 2011 on 04.07.2011. The appellants herein are the petitioners and they have filed a petition under Order 39 Rules 1 and 2 CPC for grant of temporary injunction against the respondents restraining them and their men etc., from alienating the petition schedule property and making further constructions over the petition schedule property and inducting third parties into the petition schedule property. The parties in the appeal are being referred to as mentioned in the petition before the lower Court. According to the petitioners, they have filed the suit for declaration and recovery of possession with a consequential relief of perpetual injunction against the respondents. They are the absolute owners of the petition schedule property and the respondents have trespassed into the petition schedule property and dispossessed them and constructed some structures highhandedly without any right or title what so ever over the petition schedule property and are trying to alienate the petition schedule property to 3rd parties to get wrongful gain and cause irreparable loss to the petitioners and which leads to multiplicity of proceedings. The prima-facie case and balance of convenience are in their favour and if the respondents succeeded in their efforts in continuing the construction and alienating the petition schedule property to 3rd parties, irreparable loss and injury would be caused to the petitioners. Counter was filed by the respondent Nos.1, 4 to 9 and 11 denying the material averments made in the petition and pleaded that the petition is liable to be dismissed in limini for suppression of the material facts besides contradictory and inconsistent pleadings taken by them. According to them, the 2nd respondent died on 20.05.2009, but the petitioners knowing fully well about the said fact have filed the suit against the dead person and obtained status quo Order. They further pleaded that the petition for multiple reliefs is not maintainable. According to them, they are the owners and possessors of the petition schedule property by virtue of registered document and they entrusted the property to the 9th respondent for development by executing development agreement-cum-General Power of Attorney in his favour. On the strength of the same, the 9th respondent is making construction of apartment by obtaining necessary permission from the concerned Municipal authorities. Since 9th respondent has already commenced development of the petition schedule property by making constructions and which are at the final stage and he also sold away his entire share to different persons and received money from the purchasers and spent the same for the construction of the apartments, and it would cause irreparable loss and injury if injunction is granted against them. They further pleaded that the purchaser are pressing 9th respondent for completing the construction and there is every possibility of their approaching the Court for default in making construction and for damages. The 10th respondent has filed separate counter pleading that the petitioner Nos.1 and 2 are not the owners of the petition schedule property and their claim over the petition schedule property is illusionary, imaginary and without any proof and they are not entitled for any relief. During the course of enquiry, Exs.A.1 to A.4 were marked on behalf of the petitioners and Exs.B.1 to B.12 were marked on behalf of the respondents. Taking into consideration of the said pleadings and documentary evidence, the lower Court has held that the prima- facie case, balance of convenience and irreparable loss are not in favour of the petitioners and thereby dismissed the petition and vacated the staus-quo Order granted dated 24.03.2011. Aggrieved by the same, the present appeal is filed by the petitioners therein. Learned Senior Counsel Sri.E.Manohar appearing for the appellants has pleaded that the prima-facie case, balance of convenience are in favour of the petitioners and if the respondents are permitted to proceed with the construction and create 3rd party rights over the petition schedule property pending disposal of the suit, it would cause irreparable loss and injury to the petitioners, as such the petitioners are entitled for interim injunction as prayed for. Learned counsel for respondents on the other hand has pleaded that the lower Court has rightly held that the petitioners have failed to establish the prima-facie case, balance of convenience and irreparable loss and supported the dismissal of the petition by the lower Court. The petitioners have filed the suit seeking for the relief: (a) “to declare that the plaintiffs are title holders and owners of suit schedule property of item Nos.1 and 2. (b) To direct the defendants 1 to 9 to deliver vacant possession of the suit property to the plaintiffs after dismantling structures made by them and there on costs and in the event of their failure to dismantling structure at their costs the possession of the suit schedule property may be delivered to the plaintiffs along with structure there on. (c) Perpetually restraining the defendants, their men, servants, subordinates and all other persons claiming through them for inducting and alienating the suit property in favour of the III parties and making further constructions in the suit schedule property.” In the said suit the petitioners have filed the present application for grant of injunction restraining the respondents from alienating the petition schedule property and making further constructions and inducting third parties into the petition schedule property. The respondents’ counsel pleaded that the petition with multiple prayers is not maintainable. In the present petition, the petitioners have prayed for three reliefs. As per Rule 55 of Civil Rules Practice, there shall be separate application in respect of each and distinct relief prayed for. Therefore, the present application with three reliefs prima-facie is not maintainable. Since the petitioners are seeking for temporary injunction they have to prove prima-facie case, balance of convenience and irreparable loss. The petitioners in order to establish their title over the petition schedule property got marked Exs.A.1 to A.4. Exs.A.1 and A.2 are the General power of attorney executed by them, Ex.A.3 is the copy of the plaint in O.S.No.100 of 2010 and Ex.A.4 is the certified copy of Pahani for the year 1961-62 in the name of Kesar Singh. To establish the petitioners’ right over the property, the only document available is Ex.A.4, which is Pahani of the year 1961- 1962. The said document prima-facie is not helpful to the petitioners to establish their right or possession over the suit schedule property as on the date of filing of the suit i.e. in the year 2011. On the other hand, the petitioners are not disputing about the possession of the respondents over the petition schedule property and also their making constructions over the said property by the date of filing of the suit. According to the respondents, the 9th respondent is making construction in pursuance of the development agreement executed by other respondents, which is Ex.B.3. The 9th respondent has obtained Ex.B.2 approved plan for making construction from the concerned Municipality. While the construction is in progress, the petitioners have filed the present application for stopping the said construction. Since the petitioners are seeking for relief of delivery of vacant possession of the petition schedule property by demolishing the constructions made thereon, even if the constructions are made by the respondents over the said property, the petitioners can as well obtain possession of the petition schedule property by demolishing the said structures raised by the respondents. As such the balance of convenience is not in favour of the petitioners. With regard to irreparable loss caused to the petitioners, admittedly the respondents are in possession of the property and making construction over the petition schedule property by obtaining necessary approval from the Municipality. If they are stopped from making further construction, they would be put to irreparable loss and in case the petitioners succeeds in the said suit, they can be compensated by awarding damages for the structures built thereon by the respondents. In “ECE INDUSTRIES LIMITED V. S.P. REAL ESTATE DEVELOPERS PRIVATE LIMITED AND ANOTHER[1]” the Apex Court observed that “it is well settled that when construction has been made on a land, which is of considerable magnitude, and when the plaintiff shall not face any substantial injury, if no order of injunction is granted because of payment/deposit of the entire amount payable by the defendant to the plaintiff under the Agreement, though belatedly, we are of the view that the Court will not, as a matter of course, pass an order of injunction against the other property restraining the other party from raising any construction on the suit property till the disposal of the suit.” In the present case as admitted by the petitioners, a substantial construction was made by the respondents over the petition schedule property and if they are prevented at this stage, they will be put to irreparable loss. On the other hand, even if the constructions are made, no irreparable loss is going to be caused to the petitioners as they can receive vacant possession as prayed for, if ultimately the suit is decreed in their favour. According to the respondents, they have sold some of the flats to the purchasers and taken advance from them and spent the said amount in the construction. Since the respondents have already made alienations and if any sales are made by the respondents after filing of the suit, they are hit by doctrine of lispendence. Senior Counsel appearing for the petitioners has pleaded that when the suit is already filed, the respondents have to be restrained from making any further alienations in respect of the suit schedule property as it would lead to multiplicity of litigation. Any alienations made by the respondents subsequent to filing of the suit would be subject to result of the suit and the said transactions would be hit by lispendence and there is no need to mention the same. Therefore, in the above circumstances, the lower Court has rightly rejected to grant injunction against the respondents. We do not find any reason to interfere with the said findings recorded by the lower Court. In the result, the Civil Miscellaneous Appeal is dismissed without costs. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:27-09 -2011 Ksp [1] 2009 (7) SCJ 648