V. Eswaraiah, J.
Heard the both the learned counsel appearing for the appellant/1st defendant as well as the 1st respondent/plaintiff.
2. The appellant is the 1st defendant in O.S. 151 of 2006 filed by the 1st respondent/sole plaintiff on the file of the III Additional Chief Judge, City Civil Court, Hyderabad against the appellant herein and respondents 2 to 73 herein. Respondents 2 to 73 are shown in the present appeal as not necessary parties.
3. The appellant herein is referred to as ?the 1st defendant? and the 1st respondent herein is referred to as ?the plaintiff? for the sake of convenience.
4. The suit has been filed for declaration that the plaintiff is the absolute owner of the plaint schedule land of an extent of Ac.3.34 guntas equivalent to 18634 sq.yards bearing Sy.No.403 (new) corresponding to old Sy.No.129, being plot No.19 of erstwhile Jubilee Hills Municipality, presently part of Hyderabad Municipal Corporation Area, T.S.No.1/1/2, Ward No.8, Block No.2, situated at Road No.10, Banjara Hills, Hyderabad, bounded by North-Road No.10, East-40 ft.Road, South-Valley and West-Neighbours? property, and consequently, directing the defendants to put the plaintiff in possession of the plaint schedule property. The 1st defendant filed written statement.
5. The plaintiff filed I.A.1303/2006 in O.S.151/2006 under Or.39 Rules-1 and 2 for grant of temporary injunction, restraining the 1st defendant from changing the nature of the petition schedule property by making any construction or otherwise. The 1st defendant filed an application in I.A.1774/2006 under Or.7 Rule-11 CPC to reject the plaint, contending that the suit is not maintainable. Both the said applications i.e. I.A.1303/2006 and I.A.1774/2006 were heard together and by order dated 29.08.2006, the Court below dismissed the I.A.1774/2006 filed by the 1st defendant seeking to reject the plaint and allowed the I.A.1303/2006, granting temporary injunction restraining the 1st defendant from altering the nature of the suit schedule property pending the suit, and also directed the parties to get ready for the trial in the suit expeditiously.
6. Thereafter, the 1st defendant filed I.A.3446/2007 under Or.39 Rule-4 read with Sec.151 CPC for modification of the temporary injunction order, granted by the Court below on 29.08.2006 in I.A.1303/2006 subject to the condition of giving an unconditional undertaking to the Court below by the 1st defendant to the effect that in the event of the suit being decreed in favour of the plaintiff, the 1st defendant shall demolish and remove any construction that may be carried out on the plaint schedule property and restore the plaint schedule property to its present condition at the cost of the 1st defendant and without claiming any compensation from the plaintiff. It is also stated that the 1st defendant was willing to give the said undertaking in any other form that is acceptable to the Court below. The said I.A.3446/2007 has been dismissed by the Court below by the impugned order dated 04.04.2008. Aggrieved by the said order, the present civil miscellaneous appeal has been filed.
7. It is the case of the plaintiff that the suit schedule property was originally owned by one Sri Rai Ekanath Prasad and he died leaving behind his wife Smt.Lakshmi Bai as the sole surviving heir, who succeeded to the said property, and the said Smt.Lakshmi Bai sold the said property under the registered sale deed dated 7th Khurdat 1356 Fasli in favour of one Sri Syed Azam Ali and the name of the said Sri Syed Azam Ali was mutated in the revenue records and the said Sri Syed Azam Ali, by declaration dated 01-03-1950 sold the said property in favour of Sri Abdul Razak and the said Sri Abdul Razak by a Hiba, gifted the said property in favour of his daughter Smt.Niazi Begum and the said Niazi Begum accepted the gift (Hiba) and since then, she was in possession and enjoyment of the said property and her possession was also recognized, showing her as enjoyer of the said property in the Town Survey Land Records. Smt.Niazi Begum died on 27.02.1990 leaving behind her daughter, the plaintiff herein namely Smt.Yaseen Begum. Thus, it is the case of the plaintiff that she has succeeded the schedule property with absolute rights.
8. It is stated that the plaintiff was in possession and enjoyment of the schedule property in her own right, and when she permitted some persons whom she engaged as Watchmen to erect some temporary structures, she was wrongly dispossessed by the defendants during December, 2005 highhandedly and by use of force and they have dismantled the temporary structures and the plaintiff being pardanishan woman and having no outside support became a mute spectator to the said illegal and highhanded acts. It is stated that the defendants executed documents dated 14.12.2005 in favour of the 1st defendant, asserting their title to the said property and therefore, the plaintiff was compelled to approach the Court seeking appropriate remedies, declaring that she is the absolute owner of the plaint schedule property and for recovery of possession.
9. It is further stated by the plaintiff that earlier defendants 3 to 20 filed O.S.971/1985 on the file of the II Additional Judge, City Civil Court, Hyderabad, seeking declaration that they are the owners of the plaint schedule property and for perpetual injunction restraining the plaintiff?s mother Smt.Niazi Begum from interfering with their possession and for entering their names in the revenue records and the same was decreed by judgment dated 28.11.1985 and the said judgment is the product of collusion and fraud on the process of the Court. It is stated that the said suit was filed based on agreement of sale dated 14.02.1973 said to have been executed by the mother of the plaintiff, though there was no such agreement. It is further stated that however, pursuant to the said judgment and decree dated 28.11.1985, no sale deed was executed, and therefore, the plaintiffs in the said suit i.e. defendants 3 to 20 cannot have any title. In so far as the claim of defendants 21 to 72 is concerned, it is stated that they are claiming the suit schedule property pursuant to the agreement of sale dated 20.02.1972, based on which, a suit O.S.312/1994 was filed on the file of the V Additional Judge, City Civil Court, Hyderabad for partition, which was compromised on 11.07.1994 allotting specific extents to each of the defendants therein.
10. It is stated that the defendants Nos. 58 to 72 filed O.S.1775/1997 on the file of the IV Senior Civil Judge, City Civil Court, Hyderabad seeking declaration of title and ownership and perpetual injunction against the defendants therein including the plaintiff herein showing her as 33rd defendant therein in respect of the same suit schedule property, and the said suit was subsequently withdrawn on 06.02.2006 on the ground that the claims have been settled/adjusted out of the Court. It is further stated that the 2nd defendant is said to have been GPA Holder of the plaintiff, and defendants 2 to 20, without having any valid title, have conveyed the property in favour of the 1st defendant by an agreement of sale-cum-GPA dated 14.12.2005. It is stated that the 2nd defendant had no power to join in the execution of the said document.
11. The 1st defendant filed written statement. It is the case of the 1st defendant that admittedly, the plaintiff is claiming title through her mother, who died on 27.02.1990 and a suit O.S.971/1985 was filed by the 19 defendants against the mother of the plaintiff on the file of the II Additional Judge, City Civil Court, Hyderabad, which was decreed on 28.11.1985 as under:
?This suit coming on this day for disposal before me in the present of B. Sreeram Reddy, advocate for the plaintiffs, Sri R. Ravinder Reddy, Advocate for the defendant and the defendant having admitted the suit claim, this court doth order and decree:
1. The plaintiffs are hereby declared as owners of the land bearing Survey No.403, Plot No.19, admeasuring Ac.6-03 guntas situated at Road No.10, Banjara Hills, Hyderabad
2. That the defendant be and is hereby restrained perpetually from interfering with the above suit land.
3. That the names of plaintiff be ordered to be entered in the revenue records in respect of the above suits lands.
4. That there shall be no order as to costs.?
Thus, it is the case of the 1st defendant that pursuant to the said judgment and decree dated 28.11.1985, the plaintiffs therein who are defendants Nos.3 to 20 herein acquired the right, title and interest and continued their possession over the plaint schedule property and the said judgment has become final, which was binding on the mother of the plaintiff, so also her legal heir i.e. the plaintiff and therefore, the present suit filed by the plaintiff is barred by limitation, which was filed after a period of 12 years from the date of the said judgment and decree passed in O.S.971/1985. It is stated that pursuant to the right and title acquired in their favour by way of judgment and decree in O.S.971/1985, defendants Nos.3 to 20 have executed the sale deed in favour of the 1st defendant on 17.12.2005, which was preceded by the execution of the Agreement of Sale-cum-General Power of Attorney dated 14.12.2005. Thus, it is stated that the sale deed dated 17.12.2005 was also executed in favour of the 1st defendant after receiving the entire sale consideration of Rs.9 crores and 10 lakhs by the vendors who are the decree holders in O.S.971/1985, and the 1st defendant was also put in possession of the plaint schedule property.
12. It is stated that the period of limitation to set aside the decree in O.S.971/1985 expired in three years in view of Article 59 of the Schedule to the Limitation Act, 1963 and even assuming for arguments sake that there was any legal infirmity in the transfer of ownership effected pursuant to the judgment, the period of limitation for filing a suit to establish the title of the plaintiff expired in 12 years, that is to say, by the end of November, 1997. It is stated that on the day of institution of the present suit on 25.04.2006, the plaintiff had no legal right to sue for a declaration of her alleged ownership of the plaint schedule property and the plaint does not disclose any cause of action to institute the suit based on the alleged title to the plaint schedule property. The plaintiff has not produced any document of title as understood in law to establish her alleged title to the plaint schedule property. Even in support of her claim to remain in physical possession of the plaint schedule property upto December 2005, she has not filed any document. In so far as the contention that the name of the plaintiff?s mother was still shown as enjoyer of the plaint schedule property, it is stated that the entry in the Town Survey Register arose in respect of its File No.731/1074/80 five years prior to passing of the decree in O.S.971/1985 and it is to be noted that the said decree in O.S.971/1985 contemplates deletion of the plaintiff?s mother?s name from the Town Survey Register. The contention that the judgment in O.S.971/1985, dated 28.11.1985 has been obtained by playing fraud and collusion is denied.
13. It is stated that the suit filed by the plaintiff is barred by time as prescribed by Article-65 of the Schedule to the Limitation Act, 1963. It is stated that as the defendants Nos.21 to 72 were also disputing the title of the defendants Nos.3 to 20 to the plaint schedule property, the 1st defendant, as a matter of business prudence, decided to acquire their right, title and interest in the plaint schedule property without entering into litigation with them, it also purchased the right of defendants Nos.21 to 72. It is stated that pursuant to the Agreement of Sale-cum-GPA executed by defendants Nos.3 to 12 which was duly registered on 14.12.2005, the 1st defendant issued a public notice in the daily newspapers viz., Deccan Chronicle, Eenadu and Siasat Daily, inviting claims or objections from the public, and the 2nd defendant was the attorney of the plaintiff and he agreed to join as a confirming party to the said Agreement of Sale-cum-GPA and the 2nd defendant as a GPA of the plaintiff, merely reaffirmed the decree in O.S.971/1985 which contemplated deletion of the plaintiff?s mother?s name from the Town Survey Records, and thereafter, obtained sale deed dated 17.12.2005.
14. It is stated that the plaintiff was not in possession of the plaint schedule property during 2005 and she was never dispossessed by use of any force. It is further stated that in fact, the plaintiff executed an affidavit dated 21.11.1995, disclaiming any right, title or interest in the plaint schedule property, stating that neither her maternal grandfather Abdul Razzak nor her mother Niazi Begum had any title, possession over the said land and they were never in possession of the said property and the plaintiff has no way concerned to the said property. Thus, it is the case of the 1st defendant that the plaintiff has no cause of action to file the suit and the suit is barred by limitation and the plaintiff was never in possession of the plaint schedule property and there is no equity in favour of the plaintiff and the suit is an abuse of the process of the Court. Had she been really dispossessed during December, 2005, she would have filed a police complaint. There was no protest or any police complaint. Therefore, it cannot be said that she was dispossessed by use of force.
15. While considering the application filed by the 1st defendant in I.A.1774/2006 for rejecting the plaint under Or.7 Rule-11 CPC and the I.A.1303/2006 filed by the plaintiff for grant of temporary injunction under Or.39 Rules-1 and 2 CPC, the Court below, by order dated 29.08.2006, held that the plaint cannot be rejected under Or.7 Rule-11(d) CPC on the ground that the issue as to whether the suit is barred by law has to be gone into in the suit only. Thus, while dismissing the application i.e. I.A.1774/2006, allowed the I.A.1303/2006, granting temporary injunction, restraining the 1st defendant from altering the nature of the suit schedule property pending suit on the ground that if ultimately the suit is decided in one way or the other, both the parties will be put to prejudice, in the sense, the 1st defendant may sustain huge loss in multiple of crores and it will not be able to make out a case to work out equities in its favour, if the construction is made pending suit. Accordingly, the Court below was of the opinion that it is a fit case where the 1st defendant should be restrained from altering the nature of the property.
16. Thereafter, the 1st defendant filed I.A. 3446 of 2007 under Or.39 Rule-4 CPC for modification of the order of temporary injunction dated 29.08.2006 passed in I.A.1303/2006, contending that the injunction order passed by the Court below is causing great hardship to the 1st defendant inasmuch as the defendant?s project to set up a 5 star hotel on the plaint schedule property is held up and it will not be possible to commence construction for a number of years considering the time that will be taken up not only in the trial Court but also in the subsequent appeals. The delay in the implementation of the project will result in loss of crores of rupees to the defendant No.1 for which there will be no legal remedy if the suit is ultimately dismissed. It is further stated that if ultimately the suit is decreed, the 1st defendant does not wish to burden the Court with the necessity of having to work out the equities between the parties in respect of any construction that may be carried out during the pendency of the suit, by giving an unconditional undertaking to the Court that in the event of the suit being decreed in favour of the plaintiff, the 1st defendant shall demolish and remove any construction that may be carried out on the plaint schedule property and restore the plaint schedule property to its present condition at the cost of the 1st defendant, and without claiming any compensation from the plaintiff. The 1st defendant is also prepared to give undertaking in any form that is acceptable to the Court. Accordingly, the 1st defendant prayed that in the interests of justice, law and equity that subject to such an undertaking from him, the injunction granted on 29.08.2006 in I.A.1303/2006 be modified, permitting him to raise constructions on the plaint schedule property.
17. The plaintiff filed counter in the said application stating that the contention of the 1st defendant that the injunction order passed by the Court below is causing great hardship for the 1st defendant?s project to set up 5 star hotel and that it will not be possible to commence the construction for a number of years considering the time that will be taken up not only in the trial Court but also in the subsequent appeals is nothing but a misleading statement. The Court below, while passing the injunction orders in I.A.1303/2006, had taken the prima facie case, balance of convenience and irreparable injury into consideration and after weighing pros and cons had passed the order dated 29.08.2006. No grounds have been made out by pleading any new facts or bringing into picture any new facts that warrant modification of the earlier orders. The application filed under Or.39 Rule-4 CPC is maintainable only when it is shown and demonstrated that there is any change of circumstances warranting such modifications. Without pleading any new facts or any change in the circumstances, the 1st defendant cannot be permitted to invoke the Or.39 Rule-4 CPC. The contention that the interim order of injunction is causing great hardship, as it was disable to set up a 5 star hotel on the plaint schedule property is wholly incorrect. Except pleading that the 1st defendant intends to set up a 5 star hotel, it failed to produce any evidence in support of the said assertion. The 1st defendant neither made any application to the concerned authorities nor got permission to make any construction. The agreement holder is not entitled to make any construction in the plaint schedule property. The Agreement of Sale-cum-GPA obtained by the 1st defendant from other defendants is in violation of the provisions of the Urban Land (Ceiling & Regulation) Act, 1973. At any rate, the 1st defendant is not entitled for the suit property and it is the plaintiff or on her failure, it is the State that would be entitled for the suit property. The claim of the 1st defendant to set up 5 star hotel cannot be countenanced. The plaintiff always ready and willing to proceed with the trial and the 1st defendant do not have any title to the property and no order from the competent authority under Urban Land (Ceiling & Regulation) Act, 1973 is produced and the 1st defendant did not produce any evidence to show that it is entitled to make any construction and that it had necessary statutory sanction to do so.
18. It is further stated that the 1st defendant is trying to play mischief on the process of the Court by offering an undertaking and obtain permission from the authorities by showing the authorities that it is entitled to make construction pursuant to the orders of the Court and thereby resort to illegal construction. The property cannot be put to use as it would be impossible to restore the land to the same position in the event of permission being granted by the Court. The undertaking that the 1st defendant will demolish and remove the construction and bring the plaint schedule property to its present condition at its? costs without claiming any compensation is incorrect and cannot be accepted. The undertaking as submitted is neither bona fide nor is being made pursuant to any authority conferred on the GPA holder to give such undertaking. The contention of the 1st defendant that it is prepared to give the said undertaking in any form is to be rejected. Except the alleged undertaking, no other circumstances are brought to the notice of the Court, and therefore, there are no grounds much less valid ground to modify the order dated 29.08.2006 passed in I.A.1303/2006 and hence the said petition is liable to be dismissed.
19. The Court below considered the rival contentions and dismissed the said I.A.3446/2007 by the impugned order dated 04.04.2008. The Court below rightly formulated the following points for consideration:
1. Whether the order of injunction dated 29-08-2006 granted in I.A.No.1303 of 2006 is liable to be discharged or modified?
2. Whether the unconditional undertaking given by the petitioner can be recorded to vary the injunction order granted earlier?
20. The perusal of the impugned order goes to show that the appellant/1st defendant obtained permission from the Department of Tourism under Ex.A1 letter dated 01.04.2006 for construction of 5 star hotel, Exemption from the Government under G.O.ms.No.890, dated 27.06.2007 under Ex.A2 and also Ex.A3 endorsement/approval from the Government of Andhra Pradesh dated 07.09.2007 for sanction of the building plans. The Court below held that the permission obtained from the Tourism Department vide Ex.A1 letter dated 01.04.2006 was prior to the passing of the injunction order and granting exemption under Urban Land (Ceiling & Regulation) Act, 1973 in G.O.Ms.No.890, dated 27.06.2007 vide Ex.A2 and the Endorsement/Approval of sanction of the building plans by the Government under Ex.A3 proceedings dated 07.09.2007 does not bring in any change in the circumstances. The change in the circumstances must be in relation to the nature of rights claimed by the parties to the property or the equation of balance of loss or disadvantage which arose from the circumstances subsequent to the order of temporary injunction. Exs.A2 and A3 does not create any further power on the 1st defendant to justify its claim against the plaintiff in the suit schedule property. So, these documents cannot be regarded as documents bringing a change in the circumstances of the case. The point projected by the 1st defendant that it will sustain heavy loss if the injunction is continued was already discussed by the Court in I.A.1303/2006 and that was negatived and to dilute the threat of loss that may be sustained by the 1st defendant, the Court below directed both the parties to get ready for trial of the suit expeditiously. Accordingly, the Court below held that the 1st defendant is unable to show any change of circumstances to discharge or vary the injunction order on the point No.1.
21. In so far as the contention on the point No.2 and that the injunction order is causing undue hardship to the 1st defendant, it is stated that the two judgments relied on by the 1st defendant viz. The Archidiocess of Hyderabad vs. Dr.J.Jaswantha Rao (1981 ALT 475) and Thomas Ben vs. Parvathy Ommini (AIR 1962 Kerala 16) are applicable under Or.39 Rules-1 and 2 CPC, but not for the modification of the orders under Or.39 Rule-4 CPC. Accordingly, the Court below declined to vary or discharge the temporary injunction granted in I.A.1303/2006 and dismissed the said application by the impugned order dated 04.04.2008.
22. The learned counsel appearing for the appellant/1st defendant submitted that the Court below failed to consider the subsequent events and also the undertaking given by the 1st defendant, which are very much available on record and ought to have vacated the injunction order in view of the undertaking given by the 1st defendant. Though the 1st defendant established the changed circumstances, without any justification whatsoever, rejected the application of the 1st defendant for modification of the injunction order passed in IA.1303/2006. With regard to rejection of the undertaking of the 1st defendant by the Court below for modification of the temporary injunction on the ground that the 1st defendant ought to have given such an undertaking while considering the temporary injunction application, it is stated that the order in I.A.1303/2006 was passed without giving any reasonable opportunity for filing counter, and the arguments were only advanced in I.A.1774/2006 for rejection of the plaint, but, however, the two grounds for modification of the earlier order, available under Or.39 Rule-4 CPC are shown the changed circumstances as well as the cause of undue hardship by reason of the grant of injunction order, and therefore, the order under appeal requires to be modified.
23. On the other hand, Sri B.Adinarayanarao, learned counsel appearing for the 1st respondent/plaintiff submitted that the injunction order, granted earlier in I.A.1303/2006 dated 29.08.2006 has become final and in the absence of showing any changed circumstances and undue hardship subsequent to passing of the said injunction order, the appellant is not entitled for any modification of the order under Or.39 Rule-4 CPC.
24. Under Or.39 Rule-1 CPC a temporary injunction can be granted where in a suit, if it is proved by an affidavit or otherwise:-
(a) that any property in dispute in a suit in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors; or (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury or loss 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 the wasting, damaging, alienation, sale, removal or dispossession of the property or otherwise causing injury or loss as the Court thinks fit, until disposal of the suit or until further orders.
In the instant case, Or.39 Rule-2 CPC has no application, as the provision relates to grant of injunction to restrain repetition or continuance of breach of a contract, whether compensation is claimed in the suit or not. Or.39 Rule-1(b) and (c) also has no application to the present facts of the case and the plaintiff is entitled for the grant of temporary injunction, if she has made out a case under Or.39 Rule-1(a) CPC.
25. In the instant case, the grant of injunction is under Or.39 Rule-1(a) CPC i.e. to prevent the property of being wasted, damaged or alienated by any party, and the question of removing or disposal of the property does not arise. There is no question of any threatening the plaintiff to dispossess or otherwise cause injury or loss to her. If there is any likelihood or wasting the property or causing any damage to the property, the order of temporary injunction is liable to be granted, restraining the defendant, preventing the wasting and damaging the property.
26. The learned counsel appearing for the 1st defendant submitted that no grounds have been made out even for grant of temporary injunction as the plaintiff failed to establish prima facie case, balance of convenience and irreparable loss. The property is not being wasted or damaged and therefore, the temporary injunction could not have been granted. We are not inclined to consider the said contention of the learned counsel appearing for the 1st defendant with regard to legality or validity of the injunction order granted in I.A.1303/2006, dated 29.08.2006, as admittedly, no appeal has been filed against the said order and the said order has become final.
27. The application filed by the 1st defendant is under Or.39 Rule-4 CPC. Or.39 Rule-4 second proviso is extracted hereunder for the sake of convenience:
?Or.39 Rule-4: Order for injunction may be discharged, varied or set aside:- Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order;
(Provided that??first proviso?..)
Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party.
The Court is empowered to discharge, vary or set aside the order of injunction on an application made by any party, dissatisfied with the order of injunction, provided there is a change in the circumstances or the Court satisfies that the order has caused undue hardship to that party.
28. In the instant case, it is the contention of the learned counsel appearing for the 1st defendant that the 1st defendant had satisfactorily established both the ingredients with regard to change in the circumstances and also the hardship caused to the 1st defendant by reason of grant of injunction order. It is stated that if any one of the grounds is established, either change in the circumstances or cause of undue hardship to the party by reason of grant of injunction order, that party is entitled to seek variation or discharge or for setting aside the said order.
29. The learned counsel appearing for the 1st defendant also heavily relied upon a judgment of the Division Bench of this Court in the case of S. Rama Lingiah v. Kurnool Dt.G.M.Sangam (1970 APLJ 205) in support of this contentions. In the said case, the Kurnool District Gorakshana Maha Sangam, admittedly, was the owner of the suit schedule property therein, which was leased out in favour of S. Rama Lingiah for the construction of a Cinema hall. The said Gorakshana Maha Sangam Charitable and Religious Institution filed the suit, contending that the grant of lease, without the prior permission of the Commissioner, is illegal and therefore, the lessee is not entitled for construction of any Cinema theatre. The trial Court granted interim injunction in favour of the plaintiff from carrying out the construction work in the suit schedule site belonging to the plaintiff, pending disposal of the suit. Aggrieved by the same, the lessee filed the appeal on the file of this Court and the Division Bench of this Court, without expressing any opinion on merits of the case beyond stating that there is an arguable case on both sides, held that the grant of an interim injunction is not a matter of course and the Court will be reluctant to grant interim injunction unless a strong case is made out by the plaintiff. The plaintiff was not making use of the vacant land except granting the lease for construction of a cinema hall and the lease is also provided for possession being given to the lessee, who took possession of the property and interim injunction granted by the trial Court caused loss and injury to the lessee who has invested some money and the request of the lessee to accept the unconditional undertaking to the effect that the lessee will demolish the building and hand over the site to the plaintiff without insisting upon any equities, in case the plaintiff s
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ucceeds in the suit, the Division Bench of this Court held that on giving such an undertaking, the interim injunction is liable to be dissolved. 30. No doubt, the said order was passed in an appeal against the grant of injunction order. In the instant case, the 1st defendant filed an application for variation of the grant of temporary injunction. The learned counsel appearing for the 1st defendant submitted that the 1st defendant is entitled for variation of the temporary injunction as it has established the change in the circumstances, stating that the appellant obtained exemption under Urban Land (Ceiling & Regulation) Act, 1973 vide Ex.A2 G.O.Ms.No.890, dated 27.06.2007 as well as Endorsement/Approval for sanction of the building from the Government under Ex.A3, dated 07.09.2007, and therefore the said two letters have necessitated the variation of temporary injunction order in view of the change in the circumstances and apart from that the grant of temporary injunction is causing hardship to the 1st defendant. 31. We are of the opinion that the 1st defendant established the change in the circumstances as well as undue hardship caused to him by reason of grant of temporary injunction, and therefore, the 1st defendant, having dissatisfied with the order of the temporary injunction, rightly filed the said application for variation of the temporary injunction under Or.39 Rule-4 CPC, and more so, when the 1st defendant has given an unconditional undertaking that in the event of the suit being decreed in favour of the plaintiff, it shall demolish and remove any construction that may be carried out on the plaint schedule property and restore the plaint schedule property to its present condition at the cost of the 1st defendant and without claiming any compensation from the plaintiff, and without claiming any equities. In addition to the said undertaking, it is stated that the 1st defendant will also file an undertaking that it will not create any charge or encumbrance over the said property in any manner and the construction of the 5 star hotel will be carried out without raising any loan from any financial institution by pledging the suit schedule property in any manner, and therefore, there cannot be any objection for the plaintiff for variation of the said temporary injunction as it may not amount to wasting or damaging the said property, but it amounts to developing the said property. The 1st defendant sought permission to raise construction of a 5 star hotel in the schedule property as per sanctioned plan with his own funds. 32. Having regard to the facts and circumstances of the case and in view of offer of further undertaking by the 1st defendant as stated supra, We are of the opinion that no prejudice will be caused to the rights of the plaintiff if the temporary injunction order is modified, permitting the 1st defendant to proceed with the construction of 5 star hotel, subject to filing of an undertaking afresh by the 1st defendant before the Court below as indicated above. 33. Accordingly, the Appeal is allowed, and the impugned order dated 04.04.2008 passed in I.A.3446 of 2007 is set aside, and the said application in I.A.3446 of 2007 is allowed as prayed for, subject to condition of the 1st defendant furnishing an undertaking afresh as indicated supra to the satisfaction of the Court below, within a period of 10 days from the date of receipt of a copy of this order. No order as to costs.