Interim construction may be permitted only on the demolished dwelling’s footprint, verified by local inspection.

The plaintiff/respondent no. 1 and the defendants were in occupation of separate portions of the suit property, although it had not been partitioned by metes and bounds.

The appellant, defendant no. 16, claimed a co-sharer’s interest under a gift deed executed by defendant no. 17, the original owner.

A structure in which defendants nos. 1 and 17 had resided was demolished by defendant no. 1.

The plaintiff sought an injunction, apprehending that the appellant’s proposed construction would prejudice the plaintiff’s rights as a co-sharer.

The Trial Court made the ad interim injunction absolute, disposed of the injunction application, and dismissed the appellant’s application under Order XXXIX Rule 4 CPC to vacate the injunction.

The appellant appealed, challenging the order as cryptic and seeking permission to build on the portion where the demolished structure had stood.

1. Whether the Trial Court’s order making the ad interim injunction absolute and dismissing the application under Order XXXIX Rule 4 CPC could stand when it did not address the parties’ submissions and relied on an extraneous consideration.

2. Whether the appellant could be permitted to construct on the portion where the demolished structure had stood, and what inquiry was required before deciding that question.

Order XXXIX Rule 4 CPC provides the procedural basis for an application to discharge, vary, or set aside an injunction order.

An injunction application and an application under Rule 4 must be adjudicated on their merits, with the parties’ material submissions addressed; a decision based on a consideration not germane to those applications is insufficient.

Where the proposed construction concerns property held in co-shares, the court may require a local inspection to identify the relevant portion and determine whether it corresponds to the area previously occupied by the demolished structure, before considering any modification of the interim order.

Any construction permitted must remain within the identified area and comply with law and the duly obtained sanctioned plan.

The High Court found the Trial Court’s order cryptic because it did not address the parties’ arguments or pleadings and relied instead on the existence of alternative non-suit plots, an irrelevant consideration for deciding the injunction applications.

The appellant claimed through a gift deed from the original owner, and it was admitted that the demolished structure had been occupied by defendants nos. 1 and 17.

Given the plaintiff’s existing occupation of another portion and the parties’ separate occupation of parts of the property, the Court considered it equitable to assess whether construction could be confined to the site of the demolished structure.

Because the precise area was uncertain, the Court directed a local inspection, followed by a fresh determination on the merits.

The Trial Court was directed to rehear both the plaintiff’s temporary injunction application and the appellant’s application under Order XXXIX Rule 4 CPC, appoint an Advocate Commissioner to inspect the property in the parties’ presence, and determine whether the proposed construction site was where the demolished structure had stood.

The Trial Court may then modify the ad interim order as necessary to permit construction strictly within that area and in accordance with law and a duly obtained sanctioned plan.

The High Court expressed no final view on the merits; there was no order as to costs.