Andhra Pradesh High Court - Amravati
Smt D Sailaja, Chittoor Dist vs B Papaiah Naidu, Chittoor Dist on 31 December, 2019
Author: M. Venkata Ramana
Bench: M. Venkata Ramana
MVR,J
C.M.A.No.451 of 2017
1
HON'BLE SRI JUSTICE M. VENKATA RAMANA
C.M.A.No.451 OF 2017
JUDGMENT:
This Civil Miscellaneous Appeal is directed against the order of the Court of learned V Additional District Judge, Chittoor, at Tirupathi, in I.A.No.120 of 2017 in O.S.No.51 of 2017.
2. The defendant is the petitioner. The respondent is the plaintiff.
3. The respondent instituted the suit against the petitioner for the following reliefs:
'a. To declare the plaintiff's title over the plaint B-schedule property;
b. directing the defendant to deliver the vacant possession of the plaint B-schedule property to the plaintiff and in default plaintiff be put in possession of the plaint B-schedule property by removing super structures over the same by process of court.
c. directing the defendant to pay compensation of Rs.1,00,000/- for damaging the plaint B-schedule property and for the mental and physical agony and torture suffered by the plaintiff due to the illegal and high handed acts of the defendant;
d. directing the defendant to pay the costs of the suit.'
4. The dispute is in respect of plaint 'B' schedule property. It is described in the plaint schedule as under:
"Chittoor District, Sri Balaji Registration District-Tirupati, erstwhile Tirupati Sub-District, presently Tirupati Rural Sub-District, Tirupati Rural Mandal, Avilala Gram Panchayath, No.49 Avilala Revenue village accounts, Survey No.477/2(I), House plot No.34, admeasuring an extent of 1500 sq.feet or 166.67 sq.yards measuring East to West 50 feet and North to South 30 feet, bounded on MVR,J C.M.A.No.451 of 2017 2 East - Land of Uddagiri Rangaiah Chetty West - Layout Road North - Plot No.33 of V.Suseelamma South - Plot No.35 of plaintiff"
5. It is a part and parcel of 'A' schedule property, as per the plaint averments.
6. Plaint 'A' schedule is as under:
"Chittoor District, Sri Balaji Registration District-Tirupati, erstwhile Tirupati Sub-District, presently Tirupati Rural Sub-District, Tirupati Rural Mandal, Avilala Gram Panchayath, No.49 Avilala Revenue village accounts, Survey No.477/2(I), House plot Nos.34 and 35, admeasuring an extent of 3000 sq.feet or 333 1/3 sq.yards measuring East to West 50 feet and North to South 60 feet, bounded on East - Land of Uddagiri Rangaiah Chetty West - Layout Road North - Plot No.33 of V.Suseelamma South - Plot No.36"
7. Pending disposal of the suit, the respondent sought a temporary injunction restraining the petitioner from making further constructions in plaint 'B' schedule property till disposal of the suit, filing I.A.No.120 of 2017 in the suit.
8. In the enquiry before the trial Court in the above petition for temporary injunction, both parties relied-on not only pleadings but also affidavits filed by them, apart from Ex.P1 to Ex.P8 by the respondent and Ex.R1 to Ex.R7 by the petitioner.
8. The case of the respondent, as seen from the plaint and the affidavit filed in support of I.A.No.120 of 2017 referred to above, in brief, is:
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(a) An extent of Ac.2.00 cents in Sy.No.477/2(I) of Avilala village near Tirupathi, was self-acquired property of Mr.D.R.Kumaraswamy Reddy.
He sold away an extent of Ac.1.00 out of it under the original of Ex.B1 sale deed on 16.05.1983 in favour of one Mr.V.Rajendra Prasad, S/o.Gangaiah Naidu within specified boundaries and delivered possession of the same on the same day. He also sold away remaining extent of Ac.1.00 out of Ac.2.00 to Smt.B.Padmaja Rani, W/o.B.Anjaneyulu. Both of them converted this entire extent of Ac.2.00 into house plots. They formed a 20 ft. road in between these two extents of Ac.1.00 each though there was no such facility earlier or in the shape of a cart track or rastha.
(b) Sri V.Rajendra Prasad, appointed Sri B.Anjaneyulu, H/o.Smt.Padmaja Rani as his General Power of Attorney under a registered document dated 07.01.1987 authorising him to sell the plots so laid, belonging to him in this lay out. An extent of Ac.0.27 cents covering plot Nos.23 to 24 was sold to Smt.Suseelamma under the original of Ex.R1 sale deed dated 06.10.1983. Along with the plaint, a rough sketch (Ex.P8) is appended showing the location of these plots of this lay out. Sri Rajendra Prasad had sold away plot Nos.34 and 35 shown in the rough sketch to the respondent under a registered sale deed dated 20.08.1987, a registration copy of which is Ex.P2 and possession of these plots was also delivered there-under, to him.
(c) Smt. Suseelamma, the purchaser under the original of Ex.R1 dated 06.10.1983 sold plot No.28 to Smt.Kamalamma of 186 2/3 sq. yards under the original of Ex.P3 sale deed dated 09.07.1986 and delivered possession of the same to her. Suppressing the sale, Smt.Suseelamma on 06.10.1983 under the original of Ex.R1 sale deed sold an extent to Smt.M.Reddemma, as if conveying Ac.0.27 cents, under MVR,J C.M.A.No.451 of 2017 4 the original of Ex.R2 sale deed, which she had purchased from Sri Rajendra Prasad.
(d) Smt.M.Reddemma under the original of Ex.R3 sale deed dated 15.02.2003 conveyed the entire extent purchased from Smt.Suseelamma in favour of Smt.S.Praveena and two others, who in turn, alleged to have had sold to the appellant plot No.34 and a part of plot No.33 on 15.04.2005, under the original of Ex.R5 sale deed. The claim of the appellant of purchasing these plots is not correct and basing on the sale deed and alleged permission obtained from Avilala Gram Panchayat as well as authorities of Tirupathi Urban Development Authority(TUDA), the appellant tried to raise constructions in the plot, which the respondent objected.
(e) Thereupon, the appellant laid O.S.No.427 of 2016 on the file of the Court of Principal Junior Civil Judge, Tirupathi, where she sought a temporary injunction in I.A.No.754 of 2016, that was dismissed on contest, by an order dated 31.01.2017.
(f) Since the appellant continued to make constructions in this plot, which otherwise belonged to the respondent, he is constrained to lay the suit for the reliefs stated above and to stop such construction temporary injunction against the appellant is also requested.
9. The appellant resisted the petition in the trial Court, filing a counter denying the case set up by the respondent. She asserted that she is the absolute owner of the property that was purchased under the sale deed dated 15.04.2005 from the rightful owner and is enjoying it exercising right of ownership. She also contended that the relief for temporary injunction is barred as per order XXXIX Rule 1 and 2 CPC and that there has been inordinate delay of one year in filing such a petition.
MVR,J C.M.A.No.451 of 2017 5 She also asserted that she has spent huge amount to raise constructions in the property and any interim order would seriously affect her rights.
9.1. While admitting that the original owner in respect of this property being Sri Rajendra Prasad from whom Smt.Suseelamma had purchased it is stated that from her, Smt.Reddemma purchased this plot of Ac.0.27 cents who sold the same to Smt.Praveena and two others.
9.2. She further contended that she purchased the plots from Smt.Praveena and two others, when she is constructing a residential house after obtaining appropriate permissions from Gram Panchayat as well as TUDA. She also alleged that on 01.07.2016 at about 3.30 p.m., when she and her men were cleaning the plot inside the compound wall to mark for raising concrete pillars, the respondent along with his followers tried to interfere with her peaceful possession and enjoyment resorting to highhanded acts, which she could thwart.
9.3. Stating that the respondent is a real estate dealer, who did not have any right, title, interest or possession in respect of this property in dispute and she being a law abiding citizen, she was constrained to file O.S.No.427 of 2016 for permanent injunction and other reliefs on the file of the Court of learned Principal Junior Civil Judge, Tirupathi, against the respondent. Thus stating, the appellant requested to dismiss the petition for temporary injunction.
10. Learned trial Judge, upon considering the material on record as well as contentions of both the parties, accepted the version of the respondent and granted temporary injunction as requested, restraining the appellant from raising any constructions or structures in plaint 'B' schedule property. It is against this order, this CMA is preferred by the appellant.
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11. Sri K.S.Gopala Krishnan, learned counsel representing Sri T.C.Krishnan, learned counsel for the appellant strenuously contended assailing the order of the trial Court, being improper, perverse and against the material on record. The thrust of his argument is with reference to permitting the constructions in plaint 'B' schedule property, subject to furnishing an undertaking by the appellant to remove the structures or make good the loss if any to the respondent in case of the appellant failing to establish her claim. In these circumstances, it is contended for the appellant that the material on record did not make out either prima facie case or balance of convenience in favour of the respondent nor he would suffer irreparable loss and injury if the temporary injunction, as sought, is not granted. Thus contending, learned counsel requested to allow this C.M.A. setting aside the order of the trial Court.
12. Sri Virupaksha Dattatreya Gowda, learned counsel for the respondent supported the order under appeal contending with reference to the material on record and pointing out that the appellant did not have any claim to the plaint 'B' schedule property, even in admitted situation and thus, requested not to interfere with the order under appeal.
13. Now, the following points arise for determination:
1. Whether the respondent made out a prima facie case and balance of convenience in his favour and against the appellant in respect of the plaint 'B' schedule property?
2. Whether the respondent would have suffered irreparable loss and injury in the event of refusal to grant temporary injunction in his favour and against the respondent?
3. Whether the order of the learned trial Judge is justified and appropriate?
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14. POINT No.1: Before adverting to the facts in issue and the material on record, it is desirable to consider the legal position relating to grant of temporary injunction particularly, in the context of the present case, as to application of Order XXXIX Rule 1(c) CPC. Learned counsel for the appellant relied on DALPAT KUMAR AND ANOTHER v. PRAHLAD SINGH AND OTHERS1, in this regard, where in the scope of Order 39 Rule 1(c) has been clearly explained. It is desirable to extract relevant portions of this decision of Hon'ble Supreme Court, which are as under:
"Order 39, Rule 1(c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing...or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit until the disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission Clause (c) was brought on statute by Section 88(i)(c) of the Amending Act 104 of 1966 with effect from February 1, 1977. Earlier thereto there was no express power except the inherent power under Section 151, C.P.C. to grant ad interim injunction against dispossession. Rule 1 primarily concerns with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court in exercise of the power of granting ad interim injunction is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of 1 AIR 1993 SC 276 MVR,J C.M.A.No.451 of 2017 8 his being entitled to the relief asked for by the plaintiff/defendant; (2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it."
......
the Court would be circumspect before granting the injunction and look to the conduct of the party, the probable injuries to either party and whether the plaintiff could be adequately compensated if injunction is refused ....
The phrases "prima facie case"; "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice."
15. The role of the appellate Court when discretion is exercised by the trial Court in granting an equitable relief of temporary injunction to interfere is also stated in WANDER LTD. AND OTHERS v. ANTOX INDIA P. LTD.2 relied on for the respondent. The observations in para-9 of this ruling are apt to extract here under:
"9.In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not 2 1990(SUPP) SCC 727 MVR,J C.M.A.No.451 of 2017 9 be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph :
... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case."
16. Bearing in mind these principles of law, the material on record has to be evaluated.
17. The parties are admitting that Sri V.Rajendra Prasad and V.Padmaja Rani had purchased Ac.1.00 each from erstwhile owner of Ac.2.00 in Sy.No.477/2(I) of Avilala village. Ex.P1 is the registration extract of the sale deed under which Sri V.Rajendra Prasad purchased his share of Ac.1.00 on 16.05.1983, for valuable consideration. This entire Ac.2.00 has been converted into plots. Ex.P8 is the rough sketch depicting the location of these plots. It is not in dispute as such. The contents of Ex.R5 the registration extract of the sale deed relied on by the appellant, refers to an approved lay out of this area as Ganesh Nagar of Tirupathi Urban Development Authority.
18. By virtue of original of Ex.R1, an extent of Ac.0.27 cents was sold in favour of Smt.Suseelamma by Sri Rajendra Prasad in his extent of Ac.1.00. This Ac.0.27 cents, according to the respondent, covers plot Nos.28 to 33, shown in Ex.P8 plan. Smt.Suseelamma sold plot No.28 as MVR,J C.M.A.No.451 of 2017 10 per Ex.P3 to Smt.Kamalamma within specified boundaries, showing plot No.29 on the south, under a sale deed dated 09.07.1986 covering an extent of 186 2/3 sq. yards. Earlier to it, on 20.08.1987 the original owner Sri V.Rajendra Prasad through his GPA, viz., B.Anjaneyulu, who is the husband of Smt.B.Padmaja Rani, purchaser of another extent of Ac.1.00 from Sri Kumaraswamy Reddy, had sold plot Nos.34 and 35 for valuable consideration and Ex.P2 is the registration extract of this sale deed.
19. As seen from the boundaries of the plot stated in Ex.P2, there is a clear reference of plots 34 and 35, being a vacant site. The boundaries on south and north are described as plot No.36 and plot No.33 belonging to Smt.Suseelamma. Thus, the location of these plots 34 and 35 is well described in Ex.P2. Apart from it, the boundaries in Ex.P2 indicate that plots were laid in the entire land assigning specific and individual numbers to all of them. It is further to be noted that the sale covered by Ex.P2 was subsequent to the sales in favour of Smt.Suseelamma by Sri Rajendra Prasad, covered by Ex.R1 and sale of plot No.28 by Smt.Suseelamma, in favour of Smt.Kamalamma covered by Ex.P3, on 06.10.1983 and 09.07.1986 respectively. Thus, the material on record clearly indicates that plot No.34 was already sold by virtue of the sale covered by Ex.P2 in favour of the respondent, on 20.08.1987, by Sri Rajendra Prasad.
20. However, as seen from Ex.R2 the sale in favour of Smt.M.Reddemma on 31.07.1998 Smt.Suseelamma, had sold the entire extent of Ac.0.27 cents, which she had purchased from Sri Rajendra Prasad, covered by Ex.R1. The boundaries in Ex.R2 for this extent of Ac.0.27 cents refer to the rastha towards west and the site belonging to Sri Rajendra Prasad to the north and south. Prima facie consideration of MVR,J C.M.A.No.451 of 2017 11 the recitals in Ex.R2 indicates that the sale in favour of Smt.Kamalamma by Ex.P3 in respect of plot No.28 was not disclosed therein. It further indicates that the sale of plots 34 and 35 in favour of the respondent covered by Ex.P2 was not disclosed in it and without describing the boundaries, as such. It is a serious suppression of facts, according to the respondent.
21. Smt.Reddemma did not retain this property and had sold away whatever extent she had purchased from Smt.Suseelamma in favour of Smt.S.Praveena, Smt.P.Sailaja Prabhakar and Sri M.Viswanatham on 15.02.2003 under the original of Ex.R3, rectification deed of which is Ex.R4. Same boundaries as are observed in Ex.R2 are mentioned in respect of the plot covered by Ex.R3 and describing as an extent of Ac.0.27 cents. Thus, same status was maintained five years later, i.e., in between Ex.R2 and Ex.R3 transactions.
22. As seen from Ex.R5 registration extract of the sale deed in favour of the appellant, dated 15.04.2005, plot No.34 in full extent and the southern half of plot No.33 are stated to have had been sold there under. The southern boundary of this plot is described as belonged to Sri Uddandi Siva Prasad and northern boundary, referring to remaining half of plot No.33 is described, which the vendor, under the original of Ex.R5 had sold to one Smt.Kethineni Smitha.
23. Thus, as seen from these documents, the sale of Ac.0.27 cents by Smt.Suseelamma in favour of Smt.M.Reddemma though she had no such extent by then on account of sale of plot No.28 in favour of Smt.Kamalamma covered by Ex.P3, is the root cause for this dispute.
MVR,J C.M.A.No.451 of 2017 12
24. Prima facie consideration of such material as rightly observed by the learned trial Judge indicates that the appellant cannot have such, which her predecessors never had. Particularly, in the presence of Ex.P3 and more importantly Ex.P2 covering plots 34 and 35 in favour of Smt.Kamalamma and the respondent respectively, the contention of the appellant that she is the owner of plot No.34 cannot stand. The appellant is disputing the sale in favour of Smt.Kamalamma under the original of Ex.P3 and also under the original of Ex.P2 in favour of the respondent, on the ground that GPA in favour of Sri B.Anjaneyulu is not filed.
25. Contentions are advanced on behalf of the appellant that a prima facie case need to be considered not merely basing on establishment of title prima facie, but also basing on the possession of the property in dispute. Legal position considered above affirms this contention. However, in the backdrop of the material available in this case, merely because the appellant is in possession of plaint 'B' schedule property, where she has raised certain structures, it cannot immediately lead to such an inference of having prima facie case in her favour. The reason is that all these plots remained vacant sites, till the cause for this dispute arose. In this context, reference to the suit filed by the appellant against the respondent in O.S.No.427 of 2016 and Ex.P6 the order in I.A.No.764 of 2016 in the above suit passed by the learned Principal Junior Civil Judge, Tirupathi, is appropriate. Upon consideration of the same material in the nature of sale documents discussed supra, it was observed in Ex.P6 order that the appellant failed to make out her right, title and possession to plaint 'B' schedule property. In the circumstances, effect of Ex.P2 and Ex.P3 transactions cannot be lightly brushed aside, at the instance of the appellant, who MVR,J C.M.A.No.451 of 2017 13 claims to have purchased the disputed plot, two decades after these transactions.
26. This inference is further fortified as to the possible mischief played by sale transaction went on in between Smt.Suseelamma and Smt.Reddemma as per Ex.R2. Ex.P2 and Ex.P3 can also be usefully considered in this context as already discussed depicting location of plot Nos.33 and 28 as well as plot No.29 of Smt.Suseelamma. They support the inference prima facie that the plots purchased by the respondent are immediately to the south of the plot of Smt.Suseelamma, bearing No.33 and southern boundary of plot No.36 of these two plots. Therefore, the material on record thus, makes out the claim of the appellant in respect of plot No.34, to have right and interest prima facie is not correct. Mere occupation of the land and raising certain structures cannot lead, to hold that the appellant had purchased plaint 'B' schedule property validly.
27. Prima facie case is thus established by the respondent on account of these circumstances in his favour and as rightly observed by the learned trial Judge.
28. Contentions are advanced on behalf of the appellant that in view of the structures raised by her in plaint 'B' schedule property, which is also vouched by the preliminary report filed by the commissioner appointed in this case, to permit and allow her to continue the construction work subject to furnishing an undertaking for removal of the same or not to claim the same, if her case is not ultimately accepted by the Court. Thus, it is sought that upon recording such undertaking, the temporary injunction granted by the trial Court be modified or dissolved. In support of such contention, reliance is placed on behalf of MVR,J C.M.A.No.451 of 2017 14 the appellant in ARCHIDIOCESS OF HYDERABAD v. J.JASWANTHA RAO3, and KOLLADA SATYAM v. RAMISETTY PRAKASA RAO4.
29. These two rulings were considered in a later judgment of this Court when was at Hyderabad in MOKKAPATI HARIHARA PRASAD v. NALAKUDITI NAGESWARA RAO AND OTHERS5 observing in paras-20 and 21 as under:
"20. Another contention urged by the learned counsel is that in view of undertaking given by him in the lower Court, temporary injunction ought not to have been granted. He relied upon the decision in The Archidiocess of Hyderabad v. Jaswantha Rao, 1981 (2) ALT 475 and K. Satyam v. Ramisetty Prakasa Rao, 1990 (1) An.W.R. 622. In the first case, the Court below declined to give injunction accepting the unconditional undertaking given by the defendant that he will demolish the building built on the vacant land at his expense without insisting upon the equity in his favour in case the plaintiff succeeds in the suit and this Court upheld the order of the lower Court. In fact, this Court while relying on S. Rama Lingaiah v. The Kurnool Dist. Gorakshana Maha Sangam, 1970 (1) APLJ 205 explained that Rama Lingaiah's case, 1970 (1) APLJ 205 does not say that if the defendant undertakes to demolish the building, the injunction petition should invariably be dismissed and that what it held was that it was a relevant factor in favour of defendant while considering the balance of convenience. The Court also held that still the first question relating to the prima facie case remains for consideration of the Court. Thus, this case does not help the appellant.
21. In Kollada Satyam v. Ramisetty Prakasa Rao, 1990 (1) An.W.R. 622 also the Court below refused injunction in view of the unconditional undertaking given by the defendant to demolish the building without insisting on any equity in case the plaintiff succeeds in the suit. This Court, after noticing Rama Lingaiah's case, 1970 (1) APLJ 205 upheld the order of the lower Court refusing the injunction. Apart from the legal position, in 3 1981(2) ALT 475 4 1990(1) ANWR 622 5 1993(3) ALT 76 MVR,J C.M.A.No.451 of 2017 15 this case, there is no such undertaking much less unconditional. What all the appellant has stated in his counter is that he will complete the construction to avoid waste of the material, subject to the result of the suit. It is unimaginable how this can be construed as unconditional undertaking to demolish the building in the event of success of the plaintiff. Even without such averment in the counter, any construction made will always be subject to the result of the suit. So, we have no hesitation in rejecting this contention as without substance."
30. In view of these observations in this ruling of Division Bench of this Court, the offer of such an undertaking, will have certain bearing on considering balance of convenience and not otherwise. Kollada Satyam's case relied on for the appellant, can have no bearing on facts in this case.
31. Further reliance is placed on behalf of the appellant in the same context in ECE INDUSTRIES LIMITED v. S.P.REAL ESTATE DEVELOPERS P.LTD.AND ANOTHER6. In given facts and circumstances, in para-19 in this ruling, it was observed that when substantial construction has been made on the suit property in respect of which crores of money have been invested by the defendants-respondents, the plaintiff-appellant will not suffer any substantial injury, if the construction work is not stopped, by issuing an order of injunction. It was also observed basing on the facts that in the event of suit being decreed in favour of the appellant-plaintiff, he could be compensated in damages or the defendants-respondents could be directed to pull down the construction, directing delivery of vacant possession to the plaintiff-appellant.
32. Thus, in terms of balance of convenience having regard to the irreparable loss and injury, the defendants would suffer if constructions 6 (2009)12 SCC 773 MVR,J C.M.A.No.451 of 2017 16 being made by them are stopped, such observations are made. Similar are not the facts and circumstances in this case.
33. By virtue of Ex.R6 order, the case of the appellant was already rejected by a competent civil Court, when she sought a temporary injunction against the respondent for valid reasons. It is an undisputed fact that the appellant went on with the construction in the property and material on record makes out that such construction is of recent origin. Resistance offered by the respondent at the earliest point of time before regular columns or pillars were raised when markings were yet to be given for such purpose on the vacant site. But, the appellant went on with construction and had chosen to file the suit referred to above, where she was not successful in her initial attempt to get temporary injunction, against the respondent. Further action taken by her to raise constructions in the circumstances, was uncalled for, having regard to litigious nature of right claimed by her to the site, which is plaint 'B' schedule property.
34. As seen from the order of the learned trial Judge in this case, the appellant continued the construction work and on the request on behalf of the respondent, the trial Court had also directed learned Commissioner to revisit the property and record his observations.
35. Thus, the material on record makes out that all these activities of the appellant were invited by her, to her peril and not otherwise. A contrived situation is created by her and she is trying to draw benefit out of it, offering an undertaking as referred to supra and to set aside the order passed by the trial Court. A party cannot take advantage of an intentional wrong committed by her to her advantage, to drive her adversary to a most disadvantageous position. In fact, it speaks of MVR,J C.M.A.No.451 of 2017 17 conduct of the appellant and when she is requesting an equitable relief, this conduct demonstrates that she did not deserve exercise of discretion in her favour in equity, by the Court.
36. Further reliance is placed for the appellant in the judgment of this Court when at Hyderabad in C.M.A.No.3 of 2018 dated 13.08.2018 in R.LOKESWARI v. G.VENUGOPAL. Similarly, NARENDRA KANTE v. ANURADHA KANTE AND OTHERS7 is relied on for the appellant.
37. Reasons are assigned supra, whereby the present attempt of the appellant are held, being not feasible to accept.
38. Added to it, it was not offered in the trial Court, when the matter was pending stating that the appellant would remove the structures in case the suit is decreed in favour of the respondent nor to compensate by an appropriate measure. In such an event, the appellant cannot be permitted to come forward with such an offer at the appellate stage for the first time.
39. Referring to such contention, on behalf of the respondent, reliance is placed on MAHARWAL KHEWAJI TRUST, FARIDKOT v. BALDEV DASS8. In given facts and circumstances of the case, in para-10 of this ruling, it was observed:
"Be that as it may, Mr. Sachhar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the 7 2010(1) ALD 153 (SC) 8 AIR 2005 SC 104 MVR,J C.M.A.No.451 of 2017 18 respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same."
40. Therefore, extraordinary circumstances should be made out by the appellant offering exceptional reasons in this context to accept an offer to file undertaking. Such is not the situation in this case.
41. KEMPARASAIAH v. RAJASETTY9 is relied on for the respondent contending that though the suit did not have the relief for grant of permanent injunction, to maintain status quo and to preserve the property, in terms of Order 39 Rule 1(c) of CPC, a temporary injunction can be granted.
42. Having regard to the facts and circumstances of the case, when the appellant is proved prima facie that she has made deliberate attempt to go on with the construction, knowing well about nature of her claim and having regard to nature of relief sought in the main suit by the respondent to preserve the property in such situation, it is desirable that temporary injunction as granted by the learned trial Judge shall be maintained. In the absence of it, possibility of identity of plaint 'B' schedule property itself getting changed, creating almost an irreversible situation is perceptible. In such an event, since there are serious issues, 9 ILR 1987 KARNATAKA 2863 MVR,J C.M.A.No.451 of 2017 19 which required to be considered in the suit vis-à-vis the claims of both the parties, the course as adopted by the learned trial Judge, granting temporary injunction against the appellant and in favour of the respondent in respect of plaint 'B' schedule property is desirable and it shall be directed to continue.
43. Thus, on a careful consideration of entire material, not only that the respondent made out a prima facie case in his favour, but also balance of convenience. He would suffer such inconvenience, which cannot be compensated in terms of pecuniary damages and on comparative scale the balance tilts in his favour. Thus, the balance of convenience is in favour of the respondent. It is against the appellant. Thus, this point is held.
44. POINT No.2: In view of the findings on point No.1, it is the respondent, who would suffer irreparable loss and injury if the temporary injunction granted is not continued against the appellant and not vice-versa. Pecuniary damages will not adequately compensate the respondent in this process, particularly when the action of the appellant is in a way amounting to invasion of right and interest of the respondent, to plaint 'B' schedule property. Thus, this point is held.
45. POINT No.3: In view of the findings on points 1 and 2, since the respondent made out his prima facie case and balance of convenience and that he would suffer irreparable loss and injury in the event of failure to grant temporary injection to preserve and protect plaint 'B' schedule property, the order so passed by the learned trail judge in his discretion, impugned in this appeal, need not be disturbed.
46. In the result, this CMA is dismissed confirming the order of the Court of learned V Additional District Judge, Chittoor, at Tirupathi, in MVR,J C.M.A.No.451 of 2017 20 I.A.No.120 of 2017 in O.S.No.51 of 2017 dated 29.04.2017. There shall be no order as to costs. All pending petitions, stand closed.
____________________ M. VENKATA RAMANA, J Dt:31.12.2019 Rns MVR,J C.M.A.No.451 of 2017 21 HON'BLE SRI JUSTICE M. VENKATA RAMANA C.M.A.No.451 OF 2017 Date:31.12.2019 MVR,J C.M.A.No.451 of 2017 22 Rns