Temporary injunction: urgently stopping construction, sale or entry on a property

What it is

An injunction is a court order that tells a person to do, or not to do, something. The Specific Relief Act, 1963 says preventive relief is given at the court's discretion, by an injunction that is either temporary or perpetual (Section 36).

• A perpetual injunction is the final order, made at the end of the suit after the court has heard the case on its merits (Section 37(2)).
• A temporary injunction lasts until a stated time or until the court orders otherwise. It can be granted at any stage of a suit, and the procedure for it is set by the Code of Civil Procedure, 1908 (Section 37(1)). The Code gives the court the power to grant it so that the ends of justice are not defeated (Section 94(c)).

In daily speech it is often called a stay order or an interim injunction. Its job is simple: keep things as they are while the court decides who is right, so that the winner does not win an empty case.

When it applies

A temporary injunction is usually sought when someone is about to do something to a property in dispute that would be hard to undo:

• building on land you say is yours, or on a common passage;
• selling, gifting or mortgaging a property that you say is yours, or in which you have a share;
• entering or taking over a property in your possession;
• demolishing a wall, structure or part of a building;
• blocking a path or access you have long used;
• in a tenancy, disturbing the tenant's possession or cutting off supplies. See landlord cut the power or water.

It is not the right tool if you have already been thrown out of the property. Then a suit to get possession back may be the remedy, and under Section 6 of the Specific Relief Act it must be filed within six months of losing possession. See property legal notice.

Where it cannot be granted. Section 41 of the Specific Relief Act lists cases where an injunction cannot be granted. Among them: to stop someone from bringing or pursuing a criminal case; to stop a continuing breach you have accepted for a long time; where another usual remedy would certainly give equally good relief; where your own conduct makes you undeserving of the court's help; where you have no personal interest in the matter; and where it would impede or delay an infrastructure project listed in the Act's schedule.

What the court looks at

Courts have held that a temporary injunction is decided on three questions. The application and the evidence with it must answer all three.

1. Is there a strong enough case at first sight? Not proof of everything, but enough on the papers — title deeds, possession records, photos — to show there is a serious question to be tried.
2. Will the harm be hard to undo? If the building goes up or the property is sold, will money afterwards be enough to put it right? For land and homes, often it will not.
3. Where does the balance of convenience lie? Which side will suffer more if the court gets the interim decision wrong: you, if the order is refused, or the other side, if it is granted?

Courts also look at how quickly you came to court and whether you have been fully honest in the application. Hiding a relevant fact can cost you the order.

The steps and the timeline

1. Collect the proof (immediately). The advocate needs your title or possession documents, dated photos and videos of what is happening, any approval or notice the other side has shown, and any messages or legal notices exchanged. If construction is under way, photograph it every day.

2. The suit and the application (often within days). The advocate drafts:

• the plaint, your written claim, which starts the suit (Section 26, Code of Civil Procedure), usually asking for a perpetual injunction (Section 38), a mandatory injunction to undo something (Section 39), a declaration of title or possession, as the facts require;
• an application for a temporary injunction, supported by your affidavit.

A suit about rights in immovable property is generally filed in the court where the property is (Section 16). Facts in the plaint are supported by an affidavit (Section 26(2)), so what you swear must be true.

3. The first hearing. In real urgency, the court can make a short order before hearing the other side, and then require them to be served and heard soon after. Otherwise it issues notice and hears both sides first.

4. The other side replies. They file their objections and documents. Both advocates argue the three questions above.

5. The order. The court grants the injunction, with or without conditions, or refuses it. A grant may require you to give an undertaking or security. The suit itself then goes on to trial.

If the order is disobeyed. Report it to your advocate at once, with photos. Under Section 94(c), the court can commit the person who disobeyed to civil prison and order their property attached and sold.

If you are on the other side. If you expect someone to seek an injunction against you, a caveat lodged in the court under Section 148A means the court must give you notice of the application before acting on it. It lasts ninety days. If an injunction is granted against you on insufficient grounds, you can claim compensation under Section 95. If you have been served with the suit itself, see written statement.

Business property. In a commercial dispute under the Commercial Courts Act, a suit normally waits for pre-institution mediation, but not when it seeks urgent interim relief (Section 12A).

Documents needed

• Title documents: sale deed, gift deed, partition deed, will with probate, allotment letter.
• Proof of possession: property tax and electricity bills, revenue or municipal records, a rent agreement if you are a tenant.
• A site plan, survey map or approved building plan.
• Dated photos and video of the threatened act, and of the property before.
• Any notice, letter or message to or from the other side.
• For a threatened sale: whatever shows it — an advertisement, a broker's message, an agreement to sell.
• Names and contact details of witnesses.

Typical cost

• The advocate's fee for the suit and the injunction application. The advocate quotes their own fee after seeing your papers, before you pay anything. Urgent filing and contested hearings take more work. eMunshi does not set the fee.
• Court fees, set by each state's court-fee law, depending on what the suit claims and its value. They are shown at filing.

What the advocate does

• Reads your papers and tells you honestly whether the three questions can be answered in your favour.
• Drafts the plaint and the injunction application, and your supporting affidavit.
• Files urgently where needed and asks for an order before the other side is heard.
• Argues the application, and answers the other side's objections.
• Acts quickly if the order is disobeyed, or if it needs to be varied.
• Carries the suit through to the final decree.

Before it reaches court

A property legal notice is often the first step, but if construction or a sale is imminent, do not wait for a reply: go to court. If there has been forced entry or threats, a police complaint can go in alongside the civil case. If you want to talk it through first, a 30-minute call with an independent advocate from our panel starts at ₹999.