Substantially completed construction may be finished without prejudice or creation of special equity.

The appellant-defendant challenged the order dated 15 May 2026 passed by the Civil Judge (Senior Division), Ghatal, Paschim Medinipur, in Title Suit No. 73 of 2025, whereby the appellant’s application under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 (“CPC”) was dismissed and the ad-interim injunction was not vacated.

The Trial Court had observed that photographs filed by the plaintiffs indicated that construction had already progressed up to the roof level, but declined to vacate the injunction on the ground that mixed questions of fact and law were involved.

The appellant submitted that substantial construction of a single-storey structure had already been completed up to the roof level and undertook not to raise any construction above that level, seeking permission only to cast the roof and complete the ground-floor construction.

The plaintiffs opposed the prayer, alleging that the appellant had obtained a sanction plan after the ad-interim injunction was passed and had thereby violated the injunction order.

However, counsel for the plaintiffs conceded that these facts were not placed before the Trial Court when it passed the impugned order because the plaintiffs were then unaware of them.

Whether, in the circumstances, the appellant should be permitted to complete the construction of the ground-floor structure up to the roof level despite the subsisting ad-interim injunction?

Whether such permission should be granted subject to safeguards preserving the parties’ rights and permitting demolition if ultimately directed in the partition suit?

Whether the impugned order refusing to interfere with the ad-interim injunction under Order XXXIX Rule 4 CPC ought to be set aside?

The Court applied Order XXXIX Rule 4 CPC, which empowers the court to discharge, vary, or set aside an order of temporary injunction where circumstances justify such interference.

The Court further applied the equitable principles governing interim injunctions, particularly the assessment of the balance of convenience and inconvenience and the need to avoid disproportionate hardship where substantial construction has already taken place.

Interim relief may be moulded to preserve the subject matter and the parties’ rights; permission for construction may therefore be granted without prejudice to the final adjudication and without conferring any special equity on the party undertaking the construction.

The High Court noted that substantial construction had already been completed up to the roof level and that only finishing work remained.

Since there was no material demonstrating that the construction exceeded the appellant’s share in the suit premises, the balance of convenience favoured permitting completion of the existing ground-floor structure rather than compelling the appellant to leave the construction incomplete.

The plaintiffs’ allegation that the sanction plan had been obtained after the injunction was not treated as a basis to deny relief at the appellate stage because the plaintiffs acknowledged that those facts had not been before the Trial Court when the impugned order was passed.

The Court accordingly moulded the interim relief by permitting only limited construction up to the roof level, subject to strict compliance with the sanction plan and an express stipulation that the appellant would not claim special equity and would demolish the construction at personal cost if so directed in the final partition proceedings.

The appellant was permitted to complete construction up to the roof level of the ground floor by casting the roof, completing the walls, and affixing doors and windows, if necessary.

The construction had to be undertaken at the appellant’s own cost, strictly in accordance with the sanctioned plan, and without prejudice to the parties’ rights.

The appellant was barred from claiming special equity and was required to demolish the construction at personal cost if directed by the Trial Court at the final hearing of the partition suit.

CAN 1 of 2026 was consequentially disposed of, and the Trial Court was requested to decide the pending temporary injunction application expeditiously; the parties were permitted to place subsequent events on record through formal pleadings.

No order as to costs was made.