Someone Is Building on or Selling Your Property? How to Get an Urgent Stay

In property disputes, the most damage is often done in the first few days: a wall is built on disputed land, a family member sells a shared plot, a tenant is forced out, or someone takes physical possession. Once construction is complete or the property is sold to a third party, undoing it can take years. An injunction, commonly called a stay order, is the legal tool for stopping it in time.

What an injunction does

An injunction is a court order directing a person to do, or more commonly to stop doing, something. In property matters it is used to:

• stop construction on disputed land;
• prevent dispossession of a person in possession;
• restrain the sale, transfer or mortgage of disputed property; or
• preserve the existing position (the status quo) until the case is decided.

Temporary and permanent injunctions

A permanent injunction is granted at the end of the suit. Because suits take time, the plaintiff usually also asks for a temporary injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, which protects the property while the case is pending.

What the court looks at

Courts consider three well-established questions:

1. Prima facie case: on the documents and facts, is there a serious question to be decided in your favour?
2. Balance of convenience: would refusing the injunction cause you more hardship than granting it would cause the other side?
3. Irreparable injury: would you suffer a loss that money compensation cannot properly make good?

The court also expects the person seeking an injunction to come with clean hands, to disclose all relevant facts, and to act without delay.

Ex parte orders in urgent cases

Normally the other side is given notice before an injunction is granted. Where the purpose would be defeated by the delay, for example where construction is happening that very week, the court can grant an ex parte injunction without first hearing the other side. Under Order XXXIX, Rule 3 CPC, the court must record its reasons, and the plaintiff must promptly send the other side copies of the application and documents. The court is then required to try to dispose of the application within thirty days.

Documents to gather

• Title documents: sale deed, will, partition deed or allotment letter
• Revenue records: jamabandi, mutation entries and site plan
• Proof of possession: electricity and water bills, property tax receipts, photographs
• Evidence of the threatened act: dated photographs or videos of construction, notices, messages or advertisements of sale

Expecting the other side to go to court first? File a caveat

If you expect someone to approach the court for an injunction against you, you can file a caveat under Section 148A CPC. The court must then give you notice before passing any order on their application. A caveat remains in force for ninety days.

Breach of an injunction

Disobeying an injunction has consequences. Under Order XXXIX, Rule 2A CPC, the court can order attachment of the property of the person in breach and civil detention.