"Plaintiff seeking restraining order is required to prima facie prove title on property in dispute: Calcutta High Court

"Plaintiff seeking restraining order is required to prima facie prove title on property in dispute: Calcutta High Court

The Calcutta High Court in its recent order held that a plaintiff seeking restraining order against the defendant from constructing on a property is required to prima facie prove that he has title to it or is entitled to possession details thereof. The Court in the present case was dealing with an issue of declaration of title and of partition of a property that was claimed to be jointly owned and possessed.

The subject matter in dispute is a joint property on which the respondents allegedly started construction in spite of it being a subject matter of a partition suit. The issue before the court was to determine the considerations that need to be taken into account while granting or refusing to grant an ex parte interim order of injunction to such construction.

Reliance was placed on the case Morgan Stanley Mutual Fund vs Kartick Das which narrated three following considerations that needs to be taken into account by the court before granting ex parte interim injunction: firstly, the seriousness of the mischief that will ensue to the plaintiff; secondly, balancing the justness of refusing ex parte injunction and granting the same; thirdly, the time when the plaintiff first time noticed the complained act; fourthly, any acquiescence by the plaintiff; fifthly, good faith of the plaintiff in making the application; sixthly, prima facie case is made out which means it should appear on record that there is a bonafide contest between the parties and serious questions is required to be tried. It was also noted that general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court. However, even if granted, ex parte injunction would be for a limited period of time.

The Court further relied on Sopan Maruti Thopte vs Pune Municipal Corporation and noted that the plaintiff needs to show some right, title or interest in the property in order to obtain an ex parte injunction. In this case, the appellants, in their pleading asserted their title as well as produced record of rights to assert their possession. On the other hand, the respondents could not prove at that stage on affidavit evidence, that the assertion of title had got absolutely no basis and that the appellants were devoid of any right whatsoever to the property.

The court also emphasized on the doctrine of "balance of convenience" where it noted,

"If injunction was refused and the respondents continued with the construction and ultimately, the appellants were able to establish their title, it may not be possible for the court to easily reverse the effect of construction and restore the land or property to the said position it was prior to the construction. On the other hand, if an injunction was granted and ultimately the appellants lost, it would be open to the court to consider award of damages to the respondents for being unable to make construction during this period."

As the inconvenience would be greater to the appellant if all probabilities of the case is looked into, the court set aside the order of the lower court that turned the appellant's prayer of injunction.