ORDER : ANANT RAMANATH HEGDE, J. This petition is filed assailing the order dated 03.09.2024, passed in Miscellaneous Appeal No.22 of 2024, on the file of II Additional Senior Civil Judge, Hubballi. 2. In terms of the said order, appeal filed by the defendant challenging the order of temporary injunction passed by the Trial Court in O.S.No.753 of 2023, on the file of Principal Civil Judge, Hubballi, is reversed. The injunction granted against the defendant is vacated. 3. The Trial Court had restrained the defendant from putting up the structure in the suit schedule property. The Appellate Court has vacated the injunction order. 4. The plaintiff has filed the present petition. The parties to the proceeding are referred to as per their designation in the suit. 5. The Court on 09.10.2024 passed the following order when the case was listed for preliminary hearing. “Parties are directed to maintain status quo till the next date of hearing.” 6. It is noticed from the said order that the prayer seeking temporary injunction is not decided on merits and order is granted only till next date. Thereafter, said order was extended from time to time till next date of hearing. 7. In this background, the defendant filed an application under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908, (for short ‘Code’) to vacate the interim order granted by this Court. 8. With the consent of the learned counsel for the petitioner and respondent, this petition is heard on merits. 9. Certain facts are admitted. 10. The defendant is the member of the plaintiff-Housing Co-operative Society. The defendant applied for a site under the plaintiff. The site was allotted to the defendant and a registered lease cum sale agreement was executed on 17.06.1994. This fact is not in dispute. The Clauses No.3, 6 and 7 in the lease cum sale agreement are relevant for the adjudication of this case. 11. Plaintiff on 27.04.2018 issued a notice to the defendant asking the defendant to handover the lease-cum-sale agreement as well as the possession of the property. 12. The plaintiff-Society urged two grounds to seek possession; a. That the building is not constructed within 10 years from the date of execution of lease-cum-sale agreement: b. The defendant suppressed the fact that family member was possessing a site within Hubballi- Dharwad Corporation limit and was not eligible to apply for the site. 13. 12. The plaintiff-Society urged two grounds to seek possession; a. That the building is not constructed within 10 years from the date of execution of lease-cum-sale agreement: b. The defendant suppressed the fact that family member was possessing a site within Hubballi- Dharwad Corporation limit and was not eligible to apply for the site. 13. Citing aforementioned two reasons, the plaintiff-Society claimed that the possession of the property. Since the defendant did not handover the possession and title deed the plaintiff filed a suit in O.S.No.753 of 2023, on the file of learned Civil Judge, Hubballi, for declaration and mandatory injunction. 14. The suit is filed on the premise that the defendant has violated the terms and conditions of lease cum sale agreement dated 17.06.1994. 15. The plaintiff sought temporary injunction to restrain the defendant from putting up the structure in the suit property. 16. The Trial Court granted temporary injunction in favour of the plaintiff and against the defendant and restrain the defendant from putting up the structure in the suit property. 17. The First Appellate Court on an appeal filed by the defendant vacated the temporary injunction. 18. The Trial Court assigned the following reasons while granting injunction: “18. If the temporary injunction is granted for a short term, the defendant will be restrained from constructing the building over the suit property. If the temporary injunction is not granted, the plaintiff will be (sic) construct the building over the suit property and it will be causing irreparable loss to the plaintiff. If plaintiff succeeds in the suit, the balance of convenience lies in favour of the plaintiff. The defendant has not furnished any documents for having taken permission from the competent authority for constructing building i.e. building licence or permission from the Hubballi- Dharwad Urban Development Authority or the Hubballi-Dharwad Municipal Corporation. Since the rights of the plaintiff and the rights of the defendant are in controversy, the rights of the larger interest need to be taken care of at this point of time. Hence, the I.A.No.2 filed by the plaintiff u/O 39 R 1 and 2 can be allowed. Accordingly, points No.1 to 3 are answered in the Affirmative.” 19. The Appellate Court held that the plaintiff has not established possession of the property. Hence, the I.A.No.2 filed by the plaintiff u/O 39 R 1 and 2 can be allowed. Accordingly, points No.1 to 3 are answered in the Affirmative.” 19. The Appellate Court held that the plaintiff has not established possession of the property. The Appellate Court also held that scope under Order XLIII Rule 1 of Code though limited, cannot be a moot spectator when the order of the Trial Court is arbitrary, capricious and perverse. Accordingly, injunction order is vacated. 20. Learned counsel appearing for the plaintiff Shri Sunil S. Desai., raised the following contentions: a. The defendant-allottee was required to put-up the structure in the suit property within 10 years from the date of allotment and construction is not put up; b. Under bye-law of the plaintiff-Society, the Society has the power to confiscate the property and cancel the allotment, in case the terms and conditions of the allotment are violated; c. The defendant was required to take approval from the Society before putting up the structure and no such approval is obtained; d. The defendant has put-up the structure after issuance of notice by the plaintiff in the year 2018 and much of the construction has come up during the pendency of the proceeding, as such, the defendant cannot claim any equity; e. The Appellate Court is not justified in vacating the interim order on the premise that the plaintiff has not established the possession; and the plaintiff need not establish the possession because, the plaintiff claims that the possession is already handed over to the defendant and defendant has violated the terms and conditions of the allotment; f. The defendant has not obtained any permission to construct the building from the Airport Authority of India, which is the requirement given the location of the suit property. 21. 21. Learned counsel for the defendant raised the following contentions: a. There is no clause in the lease-cum-sale agreement executed by the plaintiff-Society, which mandates the allottee to put-up the structure within 10 years from the date of allotment; b. There is no clause in the bye-law, which enables the Society to confiscate the land and to claim possession of the land or to cancel the allotment; c. The Hubli-Dharwad Corporation has granted permission to put up the structure and the construction is being made in accordance with the applicable Rules and Regulations relating to the construction of the building; d. The Trial Court has not assigned any valid reasons to grant injunction; and it has granted injunction only on the premise that, in case injunction is granted, the defendant will be restrained from putting up the structure for a short period, which cannot be the basis to grant temporary injunction; e. The Appellate Court has rightly held that the order passed by the Trial Court is perverse and accordingly, allowed the appeal and vacated the interim injunction order. 22. The Court has considered the contentions raised at the Bar and perused the records. 23. The dispute arises on account of notice dated 27.04.2018 issued by the plaintiff-Society. Notice records two reasons for the plaintiff-Society to seek possession of the property- (a) The building is not constructed within 10 years from the date of allotment; (b) The defendant is ineligible for allotment of site. 24. Learned counsel for the petitioner/plaintiff had urged that the defendant-allottee was required to put-up the structure within 10 years from the date of the lease- cum-sale agreement. This contention cannot be accepted. No such clause is incorporated in the lease-cum-sale agreement. 25. Learned counsel for the petitioner would also submit that the bye-law enables the Society to cancel the allotment in case of building being not constructed within 10 years from the date of allotment. This contention is again untenable as there is no such Clause in the bye-law which enables the Society to take the possession of the property in case the building is not constructed within 10 years. 26. On the other hand, the clause in the agreement would indicate that there is no mandate for the allottee to put up the structure within 10 years. The relevant Clause is Clause No.7 reads as under: 27. 26. On the other hand, the clause in the agreement would indicate that there is no mandate for the allottee to put up the structure within 10 years. The relevant Clause is Clause No.7 reads as under: 27. The aforementioned Clause would indicate that in case the site or the building is to be sold or mortgaged, then the person who will purchase the property or the person who seeks to mortgage the property should seek prior permission of the Society. 28. From the aforementioned Clause, it is explicitly clear that the site can be vacant even beyond 10 years. Thus, the contention that the defendant has violated the terms and conditions by not putting up the structure within 10 years has to be rejected in toto. 29. Learned counsel for the petitioner would urge that Clause No.3 of the agreement has to be read along with Clause No.7 to hold that the construction should come up within 10 years. This Court is unable to accept the said contention. The reason is the Clause No.3 even if it is read independently or even if it is read along with Clause No.7, does not indicate any such mandate on the part of the allottee to put-up the structure within 10 years. Clause No.3 reads as under: 30. Clause No.3 would only indicate that the person who puts-up the structure in the property has to abide by the terms and conditions imposed by the Commissioner, Hubli-Dharwad Urban Development Authority on 31.12.1991. Thus, the contention that Clause No.3 and Clause No.7 if read together mandates the allottee to put-up a structure within 10 years from the date of allotment is incorrect and rejected. 31. It is not in dispute that the defendant has obtained permission from the Hubli-Dharwad Municipal Corporation to put-up a structure. However, the learned counsel appearing for the plaintiff would submit that even after the permission is obtained, that permission has to be approved by the plaintiff- Society. He would refer to Clause No.6 of the said agreement. Clause No.6 reads as under: 32. Clause No.6 would indicate that the allottee to put-up a house in the property allotted, has to obtain permission of the Society by producing the sketch. Admittedly, this procedure is not complied. The question is, does it enable the Society to confiscate the land or to cancel the allotment? Clause No.6 reads as under: 32. Clause No.6 would indicate that the allottee to put-up a house in the property allotted, has to obtain permission of the Society by producing the sketch. Admittedly, this procedure is not complied. The question is, does it enable the Society to confiscate the land or to cancel the allotment? The answer is, No. The Clauses in the agreement do not indicate that the Society has the right to cancel the allotment in case the sketch is not approved by the Society. The bye-law also does not enable the Society to cancel the allotment in case the sketch of the building is not approved by the Society. 33. The next question is whether the defendant is eligible to hold the property as her husband was holding the property when the defendant applied for the allotment of site. 34. The bye-law would indicate that the person who is applying for site should be a siteless person. It also mandates that the members of the family of the applicant should not be having any site within the Hubli-Dharwad Corporation limit. The definition of “The family” is also found in the bye-law. 35. Whether the defendant by suppressing the fact that her husband possessed the property at the time of application or whether the husband was possessing the property is a matter that requires consideration at the time of trial. Assuming that the properties obtained or allotment is made because of the suppression of material fact, what is the consequence to follow is again has to be decided with reference to the Clauses in the bye-law as well as the Clauses in the lease cum sale agreement. Those questions should be decided by the Trial Court. 36. At this juncture, the question is whether the defendant should be restrained from putting up the structure. 37. The fact that the defendant was allotted the property is not in dispute. The defendant is put in possession of the property is also not in dispute. The defendant has obtained permission from Hubli-Dharwad Corporation to construct the building is also not in dispute. 38. 37. The fact that the defendant was allotted the property is not in dispute. The defendant is put in possession of the property is also not in dispute. The defendant has obtained permission from Hubli-Dharwad Corporation to construct the building is also not in dispute. 38. As already noticed, the Trial Court in paragraph No.18 of the said order, while granting injunction, has granted injunction without applying its mind and has granted injunction on a untenable ground that the construction will be stopped only for a short period and the balance of convenience is in favour of the plaintiff. 39. In addition to that, it is also required to be noticed that there is an inordinate delay on the part of the plaintiff in taking action against the defendant. The site is allotted in the year 1994 and to that effect lease cum sale agreement is also executed in the year 1994. The action is initiated in the year 2018. Whether at such a belated action can be initiated to seek possession is again a question that is being required to be decided by the Trial Court. 40. For the aforementioned reasons, the Court is of the view that the order granting temporary injunction against the defendant from putting up a structure in the property as per the plan approved by Hubli-Dharwad Municipal Corporation is untenable. 41. The Appellate Court is justified in vacating the injunction order. However, the finding of the Appellate Court that the plaintiff is not in possession of the property as such the plaintiff is not entitled to injunction may not be a correct reason as the suit is for declaration and possession. The reasons for sustaining the order of the Appellate Court are assigned above. 42. Accordingly, the Writ Petition is dismissed .