In CMPMO No.182 of 2022-In order to succeed in getting relief of injunction, one has to show existence of prima-facie case, balance of convenience and irreparable loss in his favour: Himachal Pradesh HC
Justice Satyen Vaidya [22-12-2022]

Read Order: Jai Singh v. RAJEEV And Ors

LE Correspondent 

Shimla, December 23, 2022: While considering a property dispute between two real brothers, the Himachal Pradesh High Court has opined that injunction being a discretionary and equitable relief, courts have to analyse the entire available material to assess the existence of prima-facie case, irreparable loss and balance of convenience

Justice Satyen Vidya clarified, “Preventive relief of injunction is granted at the discretion of the Court. Section 36 of Specific Relief Act vests the courts with power to grant injunction at its discretion. Whereas perpetual injunction can be passed in terms of provisions of Section 41 of the Specific Relief Act. Temporary injunctions are governed by provisions of CPC.”

The respondents-plaintiffs had filed their respective suits against the defendant on the identical cause of action. Their grievance was that the suit land was joint between the plaintiffs, defendant and other co-sharers. No partition had taken place and the defendant had started raising construction thereon, which according to them was prejudicial to their rights.

Along with their respective suits, the plaintiffs also filed applications for interim injunction, restraining the defendant from raising any construction on the suit land till final disposal of the suits. The applications for interim injunction filed by both the plaintiffs were dismissed by the trial Courts. However, in separate appeals preferred by plaintiffs under Order 43 Rule 1 (r) CPC interim injunction had been granted in favour of the plaintiffs and against the defendant, whereby the defendant had been restrained from raising construction on the suit land.

Aggrieved against such orders, the defendant had approached the High Court.

The Bench asserted the factual aspect that the co-owners including the parties to the suits had their separate possessions on separate parcels of land and they had also raised constructions of their respective houses/buildings.

“In order to succeed in getting the relief of injunction, one has to qualify three way test. He has to show existence of prima-facie case, balance of convenience and irreparable loss in his favour. Thus, the courts while deciding the prayer for interim injunction have to assess the facts and circumstances of each case at the touch stone of aforesaid principles”, the Bench said.

Noting that the equity between the co-sharers is settled by looking at the entire land vis-à-vis its location, value and potentiality etc., the Bench took note of the fact that the co- owners were holding their separate possession of separate parcels of land and such arrangement was existing for about three decades.

As the field map revealed that the total length of the suit land abutting the road was approximately 120 meters, the High Court inferred that the defendant was not trying to cover the length of the suit land abutting the road more than his share.

In this case, there was absence of any objective comparison of suit land with other parts of the land in joint property and the conduct of plaintiffs smacked some ulterior purpose than the assertion of any legal right as no other co-owners had raised any objection to the construction being raised by defendant. 

“In the first instance, Kishori Lal filed suit. His interim application was dismissed by learned trial Court on 30.3.2022. Thereafter, on the identical cause of action, plaintiff Rajeev filed suit on 4.4.2022. Such conduct of plaintiffs is sufficient to question their bonafide”, the Bench said.

The High Court was of the view that the photographs placed on record showed that the defendant had raised construction upto plinth level and by placing restraint on further construction till indeterminate period, defendant would not only be deprived from his right to have his house/building, it would lead to his financial loss as the construction prices are escalating day by day.

Considering that in partition proceedings, the plaintiffs were not likely to loose all equities, keeping in view the largeness of the joint land,the Bench allowed the application while dismissing the applications of plaintiffs in their suits for interim injunctions.