Judgment : K.R. Mohapatra, J. : Order dated 22.04.2014 passed by the learned Civil Judge (Senior Division), Berhampur in I.A. No. 92 of 2013 arising out C.S. No. 361 of 2013 dismissing the interlocutory application filed under Order 39 Rule 1 and 2 read with Section 151 of the C.P.C. by the plaintiff is under challenge in this appeal. 2. In this appeal, the plaintiff is the appellant and the defendants are the respondents. The appellant filed C.S. No. 361 of 2013 in the court of learned Civil Judge (Senior Division), Berhampur on 14.06.2013 for a decree of specific performance of contract executed between the appellant and respondents, or in the alternative, to pass a decree directing the defendants to pay a sum of Rs.15,73,000/-towards construction and labour charges as per the estimation of the Civil Engineer and for mental agony of the plaintiff. She further claimed Rs. 50,000/-towards litigation expenses and also prayed for a decree of permanent injunction against the respondents not to proceed with the construction work causing damage to the appellant’s building and common joint wall. 3. The case of the appellant as enumerated in gist is that one Prafulla Kumar Nanda (father-in-law of the appellant) and his brother (Prabodh Kumar Nanda) were the joint owners of a building which includes the suit plot. By virtue of a registered deed of partition bearing no. 939 dated 24.06.1967, there was a partition between two brothers and the entire building was partitioned between two brothers by constructing a common wall in between. While the matter stood thus, after the death of Prabodh Kumar Nanda in the year 2000, his legal heirs sold their share of the building to the respondent no. 1 by virtue of a registered sale deed in the year, 2003. It is alleged that on 28.7.2012, the respondents started demolition of the old structure of the building by using bulldozer which caused damage to the portion of the building fell to the share of the appellant. When the appellant protested the same, the respondent no. 2 gave a declaration in writing on 31.7.2012 that he would reimburse the damage or loss, if any, caused to the building properly. As there was damage to the common wall, the appellant repaired the same by spending a sum of Rs.4,900/-. Subsequently, the respondents reimbursed the same on 09.05.2013. When the appellant protested the same, the respondent no. 2 gave a declaration in writing on 31.7.2012 that he would reimburse the damage or loss, if any, caused to the building properly. As there was damage to the common wall, the appellant repaired the same by spending a sum of Rs.4,900/-. Subsequently, the respondents reimbursed the same on 09.05.2013. Since the dissension continued between the parties with regard to demolition and damage caused to the building of the appellant, the respondent no. 2 gave a further declaration in writing on 14.06.2013 that he would reimburse the entire loss, if any, caused to the building for demolition of the old structure they had purchased and construct a new building thereon. It is further alleged that the appellant got the loss and damage caused to the building which were assessed by a competent Civil Engineer to the tune of Rs. Rs.5,73,000/-. As the respondents did not keep their promise, the appellant filed the aforesaid suit seeking a decree of specific performance of contract executed between them and a decree of permanent injunction against the respondents not to proceed with the construction work. 4. The appellant filed I.A. No. 92 of 2013 under Order 39 Rule 1 and 2 read with Section 151 of the C.P.C. for an order of temporary injunction restraining the respondents from making further construction of the building they have undertaken. The respondents contested the said petition and filed their objection pleading, inter alia, that they are absolute owners of the property situated to the north side of the suit house of the appellant and they have started construction after obtaining prior approval from the Berhampur Development Authority in the month of May, 2013. They have taken all precautionary measure to avoid any loss or damage of the suit house of the appellant. The appellant is in no way affected and there is no loss or damage to the suit house for the construction work they have undertaken. The respondents have undertaken the construction to run an Eye Hospital, which is for the larger interest of the public. The appellant filed the suit along with the misc. case belatedly for extracting money from the respondents. The respondents have undertaken the construction to run an Eye Hospital, which is for the larger interest of the public. The appellant filed the suit along with the misc. case belatedly for extracting money from the respondents. As she has no prima facie case, the balance of convenience does not lie in her favour and she would not suffer any loss or damage or much less any irreparable loss, if the respondents proceeded with the construction of the building. On the other hand, if the respondents are restrained from completing construction of the building in the midway, they would suffer irreparable loss and injury substantially. Hence, they prayed for dismissal of the said petition. 5. The lis is essentially a suit for damage quantifying the same to be Rs. 15,73,000/-along with litigation expenses of Rs. 50,000/-. Though the appellant alleged that damage to the suit house caused due to demolition of the old structure purchased by the respondents and construction of a new building in the said space, the respondents strongly refuted the same. As such, it is a matter of adjudication by leading cogent and convenience evidence by the parties. Hence, there is a fair issue to be decided in the suit. Thus, the appellant has a prima facie case in her favour. 6. It is alleged by the appellant that the respondents started demolition of the old structure on 28.7.2012 by using bulldozer for which there was a damage to the common wall and she repaired the same by spending a sum of Rs. 4900/-. Subsequently, the respondents reimbursed the same on 09.05.2013. It is also not disputed that the appellant started construction in the month of May, 2013 after obtaining due permission and approval of the plan from Berhampur Development Authority. It is further alleged by the respondents that after proceeding with the construction of the new building substantially for opening an Eye Hospital, the appellant filed the aforesaid suit along with an application under Order 39 Rule 1 and 2 read with Section 151 of the C.P.C. restraining the respondents from proceeding with the construction work. 7. During course of hearing, learned counsel for the respondents submitted that construction work of the building is almost completed and finishing of the interior part of the building is going on. 7. During course of hearing, learned counsel for the respondents submitted that construction work of the building is almost completed and finishing of the interior part of the building is going on. The appellant did not show her promptness in approaching the civil court either at the time when demolition of the old structure was started or when the construction work was started by the respondents in the month of May, 2013, she filed the suit on 26.12.2013. At this stage, if the respondents are restrained from proceeding with the construction work, then they will be put to more inconvenience than that of the appellant. Moreover, it would benefit to the none, if the construction work is stopped in the midway, more particularly when the respondents gave a declaration on 14.6.2013 to reimburse any loss or damage caused to the appellant for the construction they have undertaken. As such, the balance of convenience does not lie in favour of the appellant. 8. Though the appellant has sought for a decree of Rs. 15,73,000/-towards loss and damage caused to her building and has quantified the loss in terms of money, it can never be said to be an irreparable loss. In such view of the matter, when the appellant fails to satisfy the ingredients so far as the balance of convenience and irreparable loss are concerned, she is not entitled to equitable relief or temporary injunction by restraining the respondents from proceeding with the construction work. Accordingly, the impugned order passed by the learned Civil Judge (Senior Division), Berhampur needs no interference by this Court as a result of which the appeal fails and the same is accordingly dismissed, but in the circumstance, no order as to cost.