Temporary injunctions should consider prima facie cases, balance of convenience, and irreparable injury.

1. This miscellaneous appeal under O.43 R.1(r) of the CPC is at the instance of the defendant challenging the order of temporary injunction dated 29.4.2017 passed by the trial Court in C.S. No.30A / 2017.

2. The respondent (plaintiff) has filed the suit and an application for temporary injunction with the plea that suit property was purchased by his grand - father Chunnilal and his sons Jamnalal, Kanhaiyalal and Biharilal. Chunnilal had died 60 years back. Kanhaiyalal and Biharilal were unmarried and had died without leaving any heir. Hence Jamnalal became sole owner, who had also died in 1995 leaving behind the appellant, respondent and their three sisters. It was further pleaded that after reconstructing part of the suit house appellant is residing therein and he has kept tenant in the half portion and he wants to raise construction on the remaining open land without the permission of the respondent, though no partition of the property has taken place. Hence injunction was sought to restrain the appellant from damaging or reconstructing the suit property.

3. The appellant by filing the reply to the application for temporary injunction, had raised the plea that the suit house is not ancestral property and he is residing in the house for last 60 years and has otherwise perfected his title by way of adverse possession and the back portion of the house is in dilapidated condition, therefore, reconstruction is required, for which the permission from the Municipal Corporation has been taken.

4. The trial court by the order under challenge finding prima facie case and balance of convenience in favour of the respondent and considering the issue of irreparable injury, has granted the temporary injunction by directing the appellant not to damage or raise any new construction in the suit house.

5. Learned counsel for the appellant submits that the appellant is in possession of the suit house for last 60 years and front portion has already been reconstructed, in which the appellant is residing and a part has been let out and the rear portion is in dilapidated condition requiring reconstruction, therefore, the court below ought not have granted temporary injunction. He further submits that the suit for declaration and permanent injunction originally filed, is not maintainable without there being a relief of partition and that the appellant has already filed the affidavit of undertaking before this court that he will demolish and remove the construction in case if the suit is decreed.

6. Learned counsel for the respondent opposing the appeal has submitted that respondent being a co - owner has share in each inch of the suit property and the appellant cannot be permitted to demolish or raise any construction. He further submits that the undertaking given by the appellant is not acceptable because it will create complications in future in respect of partition of the suit property, which also has been claimed by amending the plaint.

7. I have heard the learned counsel for the parties and perused the record.

8. This being an appeal against the order of trial court granting temporary injunction, the scope of interference is limited. Supreme Court in the matter of Skyline Education Institute (Pvt.) Ltd. Vs. S.L. Vaswani and Anr. reported in AIR 2010 SC 3221 after considering the earlier judgments in the matter of Wander Ltd. Vs. Antox India (P) Ltd. reported in 1990 Supp SCC 727 , in the matter of N.R. Dongre Vs. Whirlpool Corporation reported in 1996 AIR SCW 3514 and Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals reported in 2001 (5) S