A temporary injunction can be granted even without a title declaration if a prima facie case and the balance of convenience are established, as potential harm to possession is a significant factor.

ORDER

T. Amarnath Goud, J. - Heard learned counsel Mr. S. Lodh, for the petitioner-defendant and Mr. S. Bhattacharjee, learned counsel for the respondent-plaintiff. The arguments advanced before the learned Court below by both the parties are reiterated.

2. This appeal has been filed under Order-XLIII Rule-1(r) of the Code of Civil Procedure, 1908 against the order dated 14.06.2023 passed in Civil Miss 35 of 2023 arising out of T.S. 11 of 2023 passed by the learned Civil Judge Senior Division, Court No.2, North Tripura, Dharmanagar.

3. The facts in brief are that the respondent No. 1 filed a suit in the Court of the learned Civil Judge Senior Division, North Tripura, for perpetual and prohibitory injunction with some other consequential relatives. Along with the said suit he filed an application under Order-39, Rule 1 and 2 of the Code of Civil Procedure, 1908 for restraining the appellant and his men and agents from entering into the suit land. According to the respondent No. 1 he is the joint owner of the suit land as the name of his deceased father was reflected in the records of right and he claim is based on the said entry in the records of right when the said respondent in the injunction petition stated that he along with his mother transferred their share of land in the plot number of the suit land to his wife. The appellant contest the same and he stated that the respondent No.1 has no right, title, interest and possession over the suit land and he also failed to make out any prima facie case in his favour and for the balance of convenience and inconvenience was not in his favour. The learned Court below after hearing the injunction petition did not appreciate the pleadings and the documents filed before it and in gross violation of natural justice and settled law of the land passed the order of injunction against the present appellant.

4. Hence the present appeal has been preferred before this Court for redress.

5. The learned Court below after hearing the parties and on perusal of the material evidence on record has observed as under:

'Thus, the petitioner is still a co-sharer of the suit land and he has the locus standi to file an application praying for injunction against any third party. Hence, I hold that basing on Khatian no. 3516/1 of Mouja: Dharmanagar, the petitioner has prima facie case here.

Secondly, if the position of the suit land, the land purchased by respondent no.1 and the common path falling under RS plot no. 6404 as shown in page no.8 of registered gift deed no. 1-01461 dated 17.07.2013 is taken to be the correct position of the aforesaid pieces of land, respondent no.1 would suffer no loss if temporary injunction is granted restraining him from entering into the suit land as he can directly go to the common path situated on the Western side of the land purchased by him in auction. On the other hand, if by chance or by evil motive respondent no.1 enters into the suit land, the right of peaceful possession of the suit land by the petitioner would be affected. Hence, I hold that the petitioner has balance of convenience in his favour in the instant case.

Thirdly, Ld. Counsel for respondent no.1 has rightly pointed out that in para no. 14 of the original application, the petitioner has stated that he has filed the original suit for declaration and other consequential reliefs, but in para no. 22 of the plaint, only a decree of perpetual injunction has been prayed for. However, in my considered opinion, order XXXIX rule 1 of CPC does not lay down that temporary injunction may be prayed for and granted only when the relief of declaration of title is prayed for inthe original suit.

Order XXXIX rule 1 of CPC lays down