Bombay High Court
ARUNA CHUNILAL SATRA AND ORS.versusMUMBAI MUNICIPAL CORPORATION AND ORS THR COMMISSIONER
- Decided
- Disposal
- Dismissed
Holding
The appeal is dismissed; the trial court’s order that the structure is not a tolerated structure and must be demolished is upheld.
Summary
The appellants, co‑owners of a plot in Bandra, sought an interim injunction to prevent demolition of a ground‑floor brick‑masonry structure they claimed was a tolerated structure existing before 1962. The municipal corporation, relying on a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888, argued the structure was unauthorised and must be removed. The trial court rejected the appellants’ interim relief, holding the structure was not tolerated and that the parties had failed to comply with the 2001 consent order requiring demolition of temporary structures. On appeal, the High Court examined the assessment records, the 2001 consent terms, and the discretion exercised by the trial court under the CPC. Applying precedents such as *Ramakant Ambalal Chokshi v. Harish Ambalal Chokshi* and *Wander Ltd. v. Antox India (P) Ltd.*, the Court found no arbitrariness or perversity in the trial court’s decision and dismissed the appeal, confirming that the structure must be demolished and no interim injunction will be granted.
Issues considered
- Whether the ground‑floor structure qualifies as a tolerated structure under the Mumbai Municipal Corporation Act and the 1962 assessment datum.
- Whether the trial court erred in refusing the appellants’ interim injunction to restrain demolition.
- Whether the parties complied with the 1 August 2001 consent order obligating demolition of temporary structures.
- Whether the appellate court may interfere with the trial court’s discretionary order under Order 39/43 of the CPC.
- Whether the notice under Section 351 of the MMC Act was valid without a personal hearing to Respondent No 3.
Legislation cited
- Code of Civil Procedure, 1908 — s. 104, Order 39, Order 43, Order XLIII Rule 1(r)
- Maharashtra Shops and Establishments Act, 1948
- Mumbai Municipal Corporation Act, 1888 — s. 351, 475-A
Subjects
- tolerated structure
- unauthorised structure
- demolition order
- interim injunction
- municipal corporation
- consent order
- assessment records
- Section 351 MMC Act
- Section 475‑A MMC Act
- CPC discretion
- appellate jurisdiction
Judgment
08-AO-707-26.DOC
JYOTI IN THE HIGH COURT OF JUDICATURE AT BOMBAY
RAJESH CIVIL APPELLATE JURISDICTION
MANE
Digitally signed
by JYOTI RAJESH
MANE APPEAL FROM ORDER NO. 707 OF 2026
Date: 2026.09.08
17:35:00 +0530 WITH
INTERIM APPLICATION NO. 5240 OF 2026
Aruna Chunilal Satra and Others. ...Petitioner
Versus
Mumbai Municipal Corporation and others
thr. Commissioner ...Respondents
_______
Mr. A.R.Gole a/w. Ms. Vishwali Botle, for Petitioner.
Ms. Smita V. Tondwalkar, for Respondent Nos.1 and 2.
Mr. Bhavin Gada a/w. Mr. Dhavanl Visawadia a/w. Ms. Dharmi Savla, i/b.
Harakhchand & Co. for Respondent No.3.
_______
CORAM: AARTI SATHE, J.
DATE: 01 September 2026
P.C.
1. This Appeal from Order has been filed under Order XLIII Rule 1(r) read
with Section 104 of the Code of Civil Procedure, 1908 (CPC) taking exception to
the order dated 13th October 2025 passed by the learned City Civil Court,
Dindoshi Bench (hereinafter referred to as the “Trial Court”) in Notice of Motion
No. 3325 of 2025 in S.C. Suit No. 8630 of 2025 (hereinafter referred to as the
“impugned order”), inter-alia rejecting the aforesaid Notice of Motion filed by the
Appellants and rejecting the interim reliefs as sought by the Appellants in the said
Notice of Motion.
2. Briefly, the facts are as follows:-
i. The Appellants and Respondent No. 3 are co-owners of land bearing Survey
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No. 277, Hissa No. 2 (Part) and bearing CTS No. B/962, admeasuring 565.20 sq.
meters in the Revenue Village at Bandra Taluka, situated at the junction of
Cemetery Road, St. John Baptist Road, Mount Mary Steps, Bandra West, Mumbai-
400050 (hereinafter referred to as the “suit property”). The Appellants are in
occupation of the 1st and 2nd floor of the budling on the suit property and 3
commercial galas on the ground floor.
ii. On 24th September 1962, an agreement for sale was executed by and
between the erstwhile owners and Kuverbai Punshi Bharmal and Keshavji Sojpal,
who were the Original Plaintiffs in Suit No. 5757 of 1998 (renumbered as Suit No.
4227 of 2024), as purchasers in respect of the suit property. On 1 st December
1962, a deed of conveyance was registered in respect of the suit property, and the
same was registered with the Sub-Registrar of Assurances under Serial No. 2820 of
1962.
iii. It is the Appellants’ contention that sometime in the year 1984-85, it was
agreed between the Appellants and Respondent No. 3 that the suit property should
be redeveloped, and the suit structure (Brick masonry wall and GI roof
admeasuring 8 metres*7.6 metres, with 2.4 metres height, on north-east corner of
the suit property) would not be demolished. It is further the Appellant's contention
that since the Appellants had more share of the suit property, the expenses of
redevelopment would not be shared in equal proportion, and the Appellants would
be entitled to occupation of the suit structure. On 23rd October 1992, Intimation
of Disapproval (IOD) was obtained in respect of the suit property, and building
plans were approved on 23rd October 1992.
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iv. In the year 1998, the predecessor of Respondent No. 3 filed Suit No. 5757
of 1998 before this Court, claiming that the Appellants were in excess of their
entitlement to the suit property. The suit has been re-numbered as Suit No. 4227
of 2024 and is pending adjudication before this court. Respondent No. 3’s
predecessor had thereafter taken out Notice of Motion No. 2691 of 1998 in Suit
No. 5757 of 1998 (renumbered as Suit No. 4227 of 2024)
v. On 5th October 1998, the advocate for Respondent No. 3’s predecessor
addressed a letter to the Appellants, contending that Respondent No. 3, along with
his family members and the Appellants were in joint occupation of the suit
structure.
vi. Thereafter, on 1st August 2001, Notice of Motion No. 2691 of 1998 in Suit
No. 5757 of 1998 (renumbered to Suit No. 4227 of 2024) was disposed of by a
consent order, wherein it was agreed that in the building to be constructed on the
suit property, Shop No. 6 on the ground floor would be owned and occupied by
the Appellants as agents of the Court Receiver of this Court, and that the 3 rd and 4th
floors would be owned and occupied by Respondent No. 3 as agent of the Court
Receiver of this Court. It was also agreed that the shops on the ground floor were to
be owned by the division agreed that was agreed in the consent order/ minutes of
the order. The Appellants and Respondent No. 3 had further agreed that they
would demolish all temporary structures in their possession within a period of 8
weeks from the date of the said order. It is the Appellants’ contention that however,
the suit structure was not agreed to be removed/demolished. It was further agreed
that the Appellants and Respondent No. 3 would be at a liberty to apply for and
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obtain part occupation certificate for the 2nd floor from Respondent No. 1-
Corporation.
vii. Thereafter, sometime in the year 2003, Respondent No. 3 filed Writ
petition No. 1736 of 2003 and contended therein that the suit structure had been
constructed after 1998 by the Appellants.
viii. On 20th November 2007, a City Survey Plan in respect of the suit property
H/Ward, Ward No. 1035(4), Street No. 17C was conducted. On 11 th December
2008 Respondent No. 1-Corporation addressed a letter to Respondent No. 3's
architect in reply to the letter dated 6 th September 2008 and informed them that
the issue of commencement certificate for the entire work/building which was
proposed to be built on the suit property would be considered only after
compliance of the following terms:-
a. Unauthorised structure facing John Baptista Road was to be removed.
b. Plastic sheet (Tadpatri) cover between back of the building and
southern boundary of the suit property was to be removed.
c. Brick wall touching outside of Shop No. 7 and road level was to be
removed.
ix. On 22nd April 2009, Respondent No. 3 preferred Notice of Motion No.
1580 of 2009 in Suit No. 5757 of 1998 (re-numbered to Suit No. 4227 of 2024)
wherein it was submitted that the suit structure was unauthorised and liable to be
demolished.
x. On 9th July 2009, an order of even date was passed in the aforesaid Notice
of Motion No. 1580 of 2009, whereby this Court passed the following order:-
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“The Notice of Motion has been filed essentially in order to ensure due
implementation of an order dated 1 August 2001 that was passed by consent of
parties. By the order of the Court, the Court Receiver was appointed as
Receiver of the unconstructed third and fourth floors of the property with a
power to appoint the Plaintiffs as agents and to construct the third and fourth
floors at the cost of the Plaintiffs. Permission was granted to the Plaintiffs to
occupy the same as agents of the Receiver without security and royalty. The
Plaintiffs were to carry out construction under the supervision of their
Architect. The Consent Terms also provided that the Plaintiffs and the
Defendants shall demolish the temporary structures in their possession and
remove their articles lying therein. It is not necessary to burden the order with a
detailed reference to the Consent Terms save and except to observe that the
Consent Terms bind all the parties and continue to hold the field. Difficulties
have arisen in the implementation of the Consent Terms. On 3 rd December
2003, a further order was passed by this Court by consent of parties; again with
a view to ensure that the work of construction is completed without
impediment. That object has still not been realised. It would be necessary to
clarify that both the orders dated 1 st August 2001 and 3rd December 2003
shall be regarded and treated as being in force in effect and save and except for
the modification which is issued hereinafter with the consent of the parties,
parties shall continue to abide by the previous directions.
After considerable amount of debate between the Learned Counsel, it has been
agreed that the following order may be passed by the Court by consent, with a
view to facilitate the fulfilment of the Consent Terms dated 1ª August 2001:
(i) Shri N.N. Shrikhande is appointed for the purpose of over all supervision of
and control over the work that is to be carried out of the construction on the
third and fourth floors, in accordance with the Consent Terms dated 1 st August
2001;
(ii) The costs, charges and expenses payable to Shri N.N. Shrikhande shall be
borne by the Plaintiffs;
(iii). Shri N. N. Shrikhande is requested to ensure that the work of construction
is carried out in accordance with the sanctioned plan and to ensure compliance
therewith;
(iv) On behalf of the Defendants, it has been stated that (a) The brick wall
touching: Shop No.7 shall be removed together with the door in any event
within a period of eight weeks from today; (b) A duplicate key to the grill on
the staircase shall be handed over to the Plaintiffs within one week from today;
(c) The articles on the terrace shall be removed immediately upon the receipt of
the commencement certificate; and (d). The monsoon sheds which have been
placed on the site with the permission received from the Municipal
Corporation, shall be removed by 1st November 2009;
(v) Shri.N.N. Shrikhande would be at liberty to issue suitable directions to the
parties to ensure that the construction work is carried out strictly in accordance
with the sanctioned plan. All necessary directions may be issued to the parties
in order to facilitate. the work of construction, including in regard to ingress
and egress to the site and keeping the compulsory open space free of
obstruction. The parties would be at liberty to place their problems before the
Architect for expeditious solution;
(v) The Plaintiffs have assured the Court that the construction shall be
completed within a period of eighteen months of the receipt of the
commencement certificate or within such lesser period as may be allowed by
the Municipal Corporation;
(vi) The Court Receiver, it is clarified, shall ensure all necessary assistance to
Shri Shrikhande in order to enable Shri Shrikhande to complete the task and to
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abide by these terms. The Motion is disposed of by consent in these terms.”
By way of the aforesaid order, Mr. N. N. Shrikhande was appointed as the
Court Commissioner for the purpose of overall supervision and control over the
work that was to be carried out for construction on the 3 rd and 4th floors on the
building proposed to be built on the suit property in accordance with the order and
the sanctioned plan.
xi. On 5th April 2010 a letter from Executive Engineer, Building Proposal
(W.S.) H/W Ward was sent to the Court Receiver of this Court in Suit No. 5757
of 1998, informing that further commencement certificate for the entire work
would be considered only after the following conditions were fulfilled:-
a. Ground floor structure made up of brick wall masonry and
patrashed as a roof constructed at south east corner of the plot
B/962, i.e., at the Junction of Kadeshwari Road and St. John
Baptista Road was totally removed.
b. Fresh demarcation of road line of all the roads abutting the plot
were carried out to ascertain the exact plot boundaries and also the
encroachment, if any, within the suit property.
xii. It is Respondent No. 3’s contention that on 10 th February 2011 there was a
certified copy of a City Survey Plan which showed the suit structure as being newly
constructed. Further, on 31st August 2011, a letter was submitted by the Court
Commissioner Mr. Srikhande to the Court Receiver of this Court, submitting as
follows:-
a. The Court Commissioner submitted that it appeared that unless any
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statutory provisions were involved the demolition of structure (Ground floor
structure made up of brick wall masonry and patrashed as a roof constructed
at south-east corner of the suit property) was the only balance item of work for
getting commencement certificate.
b. The Court Commissioner further observed that even three years ago
this particular item was the only item withholding municipal permission.
xiii. Further, in another letter dated 12th September 2011, the Court
Commissioner Mr Srikhande wrote to the Court Receiver of this Court that the
demolition of unauthorised shed, i.e., the suit structure was the only item
remaining which was withholding Municipal permission. Thereafter, on 29th
October 2012, the Court Receiver of this Court addressed a letter of even date to
Assistant Commissioner of Police, Bandra, asking them to take necessary steps to
demolish the unauthorised suit structure as per law under intimation to his office.
xiv. On 28th August 2017, the Designated Officer of Respondent No. 1-
Corporation issued a notice under Section 351 of the Mumbai Municipal
Corporation Act, 1888 (hereinafter referred to as the “MMC Act”) in respect of the
suit structure, calling upon the Appellants to show cause as to why the suit
structure should not be demolished. It is Respondent No. 3's contention that the
said show-cause notice was received only by the Appellants and not by Respondent
No. 3.
xv. On 1st September 2017 and 19th September 2017, the Appellants through
their advocates addressed a response to Respondent No.1-Corporation and
Respondent No. 2, submitting as to why the suit structure was not an unauthorised
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structure and was in fact a tolerated structure, i.e., it existed prior to 1961-62. On
23rd July 2018 the Appellants were informed by the Assistant Assessor and
Collector at H/W Ward by a letter of even date that the first date of the assessment
of property Ward No. H-1035 (4AB), SAC HW-0401620060000, i.e., of the suit
structure was prior to 1961-62. It is pertinent to note that it is the Appellants’
contention that the assessment records conclusively prove that the suit structure
was in existence from the year 1961-62.
xvi. Thereafter, on 24th July 2018 the Appellants filed an additional reply of even
date and forwarded a letter dated 23rd July 2018 received from the Assistant
Assessor and Collector H/W Ward to contend that the same would conclusively
prove that the suit structure was in existence from the period prior to 1961-62.
xvii. On 3rd August 2018 a speaking order was passed by the designated officer of
Respondent No. 1-Corporation holding that the suit structure was a tolerated
structure, in view of the assessment remark dated 23 rd July 2018, as the structure
was in existence prior to 1961-62. It is Respondent No. 3's contention that the said
speaking order was passed without hearing Respondent No. 3.
xviii. On 10th March 2022 Respondent No. 3 preferred Writ Petition No. 1736 of
2023 before this Court challenging the speaking order dated 3 rd August 2018
passed by the Designated Officer of Respondent No. 1-Corporation in respect of
the suit structure on the ground that the same was passed without hearing
Respondent No. 3. The primary ground raised in the Writ Petition was that an
opportunity of personal hearing was not granted to Respondent No. 3 before
passing the speaking order dated 3rd August 2018.
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xix. On 23rd June 2022 Respondent No. 3 preferred Interim Application No.
118 of 2022 in Suit No. 5757 of 1998 (re-numbered to Suit No. 4227 of 2024)
seeking an identical prayer for demolition of the suit structure. It is the Appellants’
contention that Respondent No. 3 had alleged that he was unable to obtain
commencement certificate for construction of 3 rd and 4th floors on the building
proposed to be built on the suit property, as the suit structure was not yet
demolished.
xx. On 21st March 2023, an order of even date was passed by this Court
directing Respondent No. 1-Corporation to file an additional affidavit indicating
whether, subject to all the other compliances, commencement certificate could be
granted to Respondent No. 3 for construction of 3 rd and 4th floors of the building
proposed to be built on the suit property. On 10 th April 2023 an additional
affidavit was filed by Shri. Asif Shaikh, Assistant Engineer (BP), H/W Ward which
inter-alia stated that in consideration of the earlier permissions and subject to
compliance of the conditions stipulated in the IOD, Respondent No. 3 could be
granted permission for construction of 3 rd and 4th floors of the building proposed to
be built on the suit property, despite the presence of the suit structure. The
relevant paras of the aforesaid affidavit are reproduced below:-
1. I say that by Order dated 21.03.2023 passed by Shri. B.P. Colabawalla J.,
Hon'ble Court has directed "to file a further short affidavit indicating whether
subject to all other compliances, permission can be granted to the Plaintiffs for
construction of 3rd and 4th floor of the suit premises despite there being a
structure identified as permanent shed with brick masonry walls && G.L. sheet
roof admeasuring 8 meters x 9,60 meters x 2.40 meters."
2. I say that in compliance of aforesaid Order dated 21.03.2023 I am filing
further Affidavit in Reply. I further say that to avoid the repetition, the contents
of earlier Affidavit in Reply dated 05.04.2023 has to be considered part and
parcel of present Affidavit in Reply.
3. I say that considering the earlier permissions granted and Subject to requisite
compliance as per IOD conditions, permissions can be granted to the Plaintiffs
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for construction of 3rd and 4th floor of suit premises despite there being a
structure identified as permanent shed with brick manosnry wall. && GI.
Sheet Roof taking Cognizance of the said shed in FSI, as per the Provisions of
DCPR 2034.
4. In view of the above, the application is liable to be dismissed against
Corporation.
xxi. On 9th May 2025, an order was passed by the Division Bench of this Court
in Writ Petition No. 1736 of 2023 preferred by Respondent No. 3, remanding the
matter back to Respondent No. 1-Corporation for fresh hearing, thereby setting
aside the speaking order dated 3rd August 2018. On 15th May 2025, in the said
remand proceedings, written submissions were filed by Respondent No. 3 before
the Designated Officer of Respondent No. 1-Corporation, and further, written
submissions were filed by the Appellants on 21 st May 2025 before the Designated
Officer of Respondent No. 1-Corporation. Further, additional written submissions
dated 26th May 2025 were filed by Respondent No. 3, and on 27 th May 2025,
additional written submissions were filed by the Appellants before the Designated
Officer of Respondent No. 1-Corporation. On 25 th July 2025, further additional
written submissions were filed by the Appellants before the Designated Officer of
Respondent No. 1-Corporation. It is Respondent No. 3's contention that the
written submissions dated 27th May 2025 and 25th July 2025 filed by the
Appellants were not served upon Respondent No. 3.
xxii. On 14th August 2025, a speaking order was passed by the Designated
Officer of Respondent No. 1-Corporation pursuant to the order dated 9 th May
2025 passed by the Division Bench of this Court. The speaking order held as
follows:-
After hearing of Architect, Petitioner and the Respondent, this department
concludes as follows:
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1. As per the city survey plan submitted by the complainant/petitioner dated
10/12/2010, it is indicated that the Notice structure is a new construction.
Accordingly, this office sent a letter to the City Survey Department along with
the said plan submitted by the complainant/petitioner vide reference no. (viii)
and (ix), requesting clear and specific remarks regarding the status of the
Notice structure. In response, this office received a letter from the City Survey
Department bearing Ref. No. न.भू.बां द्रा 'वी '
वी र्ड/न.भू.क्र.वी /१९६२/मो जणी /२०२५/ज यक क्र. २३५१ dated 31/07/2025, stating
that, "The City Survey Department is responsible solely for land measurement
and survey-related matters. The department does not maintain any official
record regarding the period during which the said structure was constructed.
However the structure is show existing as on 2010 as new structure.
2. In accordance with the Speaking Order dated 03/08/2018 issued by this
office, and Based on the assessment remarks provided by the Assessment
Department dated 23/07/2018, it was stated that the notice structure was
constructed prior to 1961-1962. Accordingly, the assessment remarks were
taken into consideration, and the notice structure was considered as tolerated
structure in speaking order dtd.03/08/2018. However the then Asstt. Engineer
has not taken cognizance on the Ex. Engineer (B.P) approvals, remarks of
1992, 1998 &2010. Where in th notice structure is not shown/reflected in the
approved plans, EE BP record of 1992/1998, Further in 2008.2010 due to
existence of the notice structure the further CC for entire work above 2nd floor
can not be granted.
3. As per the order dated 21/03/2023 passed by the Hon'ble High Court in
Interim Application No. 118 of 2022 in Suit No. 5757 of 1998, the Court has
directed the Municipal Corporation of Greater Mumbai (AM.C.G.M.) to file
an additional affidavit indicating whether, subject to all other compliances, a
Commencement Certificate can be granted to the complainant for the
construction of the third and fourth floors of the suit building, notwithstanding
the existence of the subject structure on the property. This affidavit has been
necessitated us the Hon'ble Court is of the view that once this question is
clarified, the entire dispute between the plaintiff and the defendant may be
resolved amicably. As per above order of the Hon'ble High Court, Shri. Asif M.
Shaikh Asst. Engineer (Building Proposal) H/West Ward has filed an additional
affidavit dated 10/04/2023 of the respondent on behalf of M.C.G.M. The said
affidavit further states that considering the earlier permission granted and
subject to requisite compliances as per 1.0.D. conditions, permission can be
granted to the Plaintiffs for construction of 3rd and 4th floor of the suit
premises despite there being a structure identified as permanent shed with
brick masonry wall and G.I. shect roof taking into cognizance of the said shed
in F.S.1., as per provisions of the DCRP 2034, But same can be taken as
additional FSI area on premium payment. And it does not prove the
authenticity of the notice structure.
4. The Notice structure existed prior to 1961-62. However, as per the approval
of the Building Proposal Department in the year 1992, the said structure was
not in existence on the site at that time, nor is it reflected in the approved plans
of 1992 and-1998.
5. Thereafter, as per the remarks of the Building Proposal Department in 2008,
the unauthorized structure was found to be existing on the site. Consequently,
the Department refused to grant any further Commencement Certificate until
the removal of the said Notice structure. This confirms the existence of the
structure in the year 2008.
6. As per the City Survey plan of 2010, the existing structure is a new
construction, and as per the letter dated 31/07/2015 the said structure is shown
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on site, thereby establishing its existence during the period from 2008 to 2010.
7. As per complaint the notice u/s 351 of MMC Act was issued to the sald
structure on 28/08/2017 in response of this office notice, noticee as produce
the assessment record of 1961-62 and hence, the Designated Officer/ Assistant
Engineer has pass speaking order on 03/08/2018 stating that the notice
structure is in tolerated category. But as per the report of EEBP the structure
was not in existence during 1992 to 1998. Hence it is not showing continuous
existence of the nofice structure since 1961-1962. Hence the structure cannot
be put in tolerated category.
Order
In view of the above, it is clear that the said structure has not been in
continuous existence since 1961-62 i.e. did not exist during the period from
1992 to 1998. Although records indicate its existence between 2008 and 2010,
the same cannot be construed as placing the structure in the tolerated category.
Furthermore, as per the affidavit dated 10/04/2023 of the Assistant Engineer,
Building Proposal Department, filed on behalf of the Municipal Corporation of
Greater Mumbai (MCGM), the sald structure can be taken into FSI calculation
but it does not prove its authenticity. It needs additional FSI for the same. Now
as per notice issued by this office under section 351 of MMC Act the question
is that whether the said structure is tolerated or not and hence, in view of above
I am of the opinion that the said structure is not of tolerated category and
needs to the demolished. Hence, I passed the order that the notice structure
does not proves its continues existent since 1961-1962 and hence, not in
tolerated category and unauthorized needs to be demolished.
In view of the above, you are hereby called upon to remove the notice structure
which is described in the notice within 15 (Fifteen) days from receipt of this
order, failing which the same will be demolished by this office entirely at your
risk and cost without giving any further intimation which may please be noted.
Further. note that under section 475-A of M.M.C. Act, you shall be punished
with imprisonment for a term which shall not be less than 01 (One) month but
which may extend to 01 (one) year and with a fine which shall not be less than
Five thousand rupees but which may extend to Twenty Five thousand rupees
and in the case of continuing offence with further daily fine which may extend
to Five hundred rupees.
xxiii. On 8th September 2025 LC Suit No. 2076 of 2025 along with Notice of
Motion was filed by the Appellants before the Trial Court challenging the speaking
order dated 14th August 2025 passed by the Designated Officer of Respondent No.
1-Corporation under Section 351 of the MMC Act.
xxiv. On 10th September 2025 Notice of Motion No. 3225 of 2025 along with
an affidavit in support of the aforesaid Notice of Motion was preferred by the
Appellants before the Trial Court. On 11 th September 2025, ad-interim reliefs as
sought by the Appellants were rejected by the Trial Court. Thereafter, on 17 th
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September 2025, the Appellants preferred Appeal from Order (St.) No. 31048 of
2025 before this Court, challenging the ad-interim order dated 11 th September
2025 passed by the Trial Court. This Court by order dated 17 th September 2025
disposed of the aforesaid Appeal from Order and directed Trial Court to dispose of
the Notice of Motion within a period of 4 weeks from the date of the order. It
further stipulated that if the said order was adverse to the Appellants, the same
would be stayed for a further period of 2 weeks from the date of passing the said
order in order to enable the Appellants to take recourse to a superior court. The
order dated 17th September 2025 passed by this court is reproduced below:-
P.C . :
1. Not on Board. Mentioned by way of filing praecipe dated 17.09.2025.
Perused the praecipe.
2. Heard Mr. Apte, learned Senior Advocate for Applicants / Appellants; Mr.
Suryavanshi, learned Advocate for Respondent No.1 and Mr. Gada, learned
Advocate for Respondent Nos.2 and 3.
3. Interim Application is filed for impugning ad-interim order dated
11.09.2025 passed by the learned Trial Court in Interim Application (Stamp)
No.31049 of 2025. The lis pertains to challenge to notice issued under Section
351(A) of the Mumbai Municipal Corporation, Act 1888 to the notice
structure / tolerated structure of the Plaintiff before the Trial Court. It is
vehemently opposed by private Respondents represented by Mr. Gada.
4. However considering that challenge is to the ad-interim order rejecting ad-
interim relief, without opining anything on merits or giving any prima facie
imprimatur of this Court, it would be in the interest of justice if the learned
Trial Court is directed by this Court to determine the Notice of Motion /
Interim Application seeking interim relief expeditiously and finally strictly in
accordance with law.
5. One of the reason which compels this Court to pass this order is in view of
the substantive challenge maintained by the Plaintiffs to the subject notice
before Trial Court.
6. Needless to state that private Respondent who are equally interested in
prosecuting the matter shall be heard strictly in accordance with law and only
after hearing all parties, learned Trial Court shall pass a reasoned speaking order
for interim relief.
7. Hearing shall be done by the Trial Court as expeditiously as possible and in
any event within a period of four weeks from today. If the said order is adverse
to Plaintiffs, same shall be stayed for a further period of two weeks from the
date of passing the order in order to enable the Plaintiffs to take recourse to the
superior Court.
8. All questions of parties before me are expressly kept open including that of
the private Respondents as also the Municipal Corporation
9. In view of the above, no coercive steps shall be taken against Plaintiffs’ notice
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structure while adhering to the directions contained hereinabove.
10. Needless to state that since ad-interim relief is passed on Stamp number of
the proceedings, Plaintiffs are permitted to remove the office objections before
the Trial Court within a period of one week from today positively. I am also
informed that since objections were not removed, the reasoned / speaking ad-
interim order is not uploaded and not made available to the Court. In that view
of the matter, the aforesaid direction is passed.
11. I am also informed that Registrar in the City Civil Court is on leave / absent
for a period of one week. If that is the case, the Deputy Registrar or any other
Authorised Officer on his behalf shall take cognizance of this order forthwith
and ensure that Plaintiffs are able to remove the office objections.
12. Copy of this order shall be placed before the Principal Judge of the Trial
Court for compliance.
13. Appeal from Order and praecipe are both disposed. In view of disposal of Appeal
from Order, Interim Application is also disposed.
xxv. Affidavits-in-reply and rejoinders were filed sometime in October 2025 in
Notice of Motion No. 3225 of 2025, and the said Notice of Motion filed by the
Appellants was rejected by the Trial Court by order dated 13 th October 2025. It is
being aggrieved by the aforesaid order dated 13 th October 2025 passed by the Trial
Court in Notice of Motion No. 3225 of 2025 that the present Appeal from Order
is sought to be preferred.
3. Learned counsel Mr. A.R. Gole, along with Ms. Vishwali Botle appeared on
behalf of the Appellants, Ms. Smita Tondwalkar appeared on behalf of Respondent
No. 1-Corporation and Respondent No. 2, and Mr. Bhavin Gada, along with Mr.
Dhaval Visawadia and Mr. Dharmi Savla, instructed by Harakhchand & Co.
appeared on behalf of Respondent No. 3.
4. Learned Counsel on behalf of the Appellants submitted that the impugned
order passed by the Trial Court was unsustainable and passed without considering
the documents on record, inasmuch as it decided the question of tolerated status of
the suit structure on the basis of consent terms dated 1 st August 2001 entered into
between the parties, and on the basis of building plans of the year 1992-98, which
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according to learned counsel on behalf of the Appellants, were completely
irrelevant documents ignoring Respondent No. 1-Corporation’s own assessment
records, which showed that the suit structure was a tolerated structure. It was
further submitted that Respondent No. 1-Corporation’s own assessment records
establish that the suit structure was a tolerated structure, which was evidenced by
the letter dated 23rd July 2018 from the Assistant Assessor and Collector H/W
Ward, which certified that the first date of assessment of property Ward No. H-
1035 (4AB), SAC HW0401620060000 was prior to 1961-62, and further, the
assessment remark dated 3rd February 2025 certified afresh that the suit structure
assessed in the earlier SAC No. HW0401620060000 was in existence prior to
1961-62. It was further his submission that the property tax and receipts in respect
of the suit structure which were issued from 1967 onwards continued to show the
suit structure, and the Appellants had continued to pay property tax thereon
without there being any dispute raised by Respondent No. 1-Corporation or
Respondent No. 3. It was therefore submitted that the Trial Court’s finding that
the property tax bills show different dates and hence needed to be discarded was an
incorrect approach sought to be taken by the Trial Court. It is the Appellants’
contention that the assessment records of Respondent No. 1-Corporation
themselves go to prove that the suit structure was a tolerated structure, and taking a
contrary view by the Trial Court to deny injunction to the Appellants was arbitrary
and misplaced.
5. Learned counsel on behalf of the Appellants also submitted that the circular
dated 31st January 1967 issued by Respondent No. 1-Corporation clearly provides
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the category of tolerated structures and prescribes the manner of identification
thereof. The contents of the aforesaid circular are reproduced below:-
MUNICIPAL CORPORATION OF GREATER MUMBAI
NOICE/40088/I OF 31-1-67
Sub:-Unauthorised (a) Semi
permanent structures and
(b)Huts and Zavli sheds for
non-residential purposes such as
shops, cabins, garage, etc.
When complaints are received from the public seeking us to take action for
removal of unauthorized structure of the type mentioned above in Suburbs and
Extended Suburbs, difficulty arises us to what should be considered as
acceptable proof for determining when the structure was constructed. Quite
often parties produce old receipts or some other evidence which cannot be
considered to be quite reliable. It has been verified that the assessment of semi-
permanent structures was first taken up from 1-04-1962 and that of huts and
Zavli sheds from 17-4-1962. In view of this, if a structure has been existing
whether ‘semi-permanent or ‘huts’ and ‘Zavli sheds’ prior to 1-04-1962 or 17-
4-1962, respectively, it will not be difficult to verify in every such case that it
was existing before these respective dates as thereafter, it would come under
assessment
Under the circumstances, M.C. has decided that for tolerating unauthorized
structures of non-residential users, the datum lines should be as follows:
(a) Semi-permanent structures 1.4.1962
(b) Huts and Zavli shed 17.4.1964
If a complaint is received about a non-residential structure of either of the
above types and it is not found to be on the assessment record on the above
respective dates, it should be deemed to be a structure that came later to the
relevant date mentioned above and action for removal taken, irrespective of
rent, receipt or any such evidence produced by the party to show that the
structure was standing before 1-04-1962 or 17-4-1962.
As the case may be, it should be noted that these orders should not be
applied to unauthorized structures, sheds, or hut required to be removed for
any development works.
(Emphasis supplied)
6. It was therefore submitted that the binding nature of the circular itself has
not been taken into consideration by the Trial Court, and therefore the impugned
order ought to be set aside. It was also contended that once the assessment records
of Respondent No. 1-Corporation themselves establish that the suit structure was a
tolerated structure, then to hold anything to the contrary would amount to
discarding the sanctity of the documents issued by Respondent No. 1-Corporation.
Learned counsel on behalf of the Appellants also submitted that the order dated
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14th August 2025 itself proceeds on an erroneous footing that the letter dated 31 st
July 2025 issued by the City Survey Department stated that it maintains no record
of the period of construction of the suit structure, however, the suit structure is
shown as an existing structure as on 2010 in the category ‘new structure’. Learned
counsel submits that this was a misreading of the letter dated 31 st July 2025. On
the aforesaid grounds, the counsel submitted that the impugned order was vitiated
and not based on a prima facie view of all the documents.
7. Per contra, learned counsel on behalf of Respondent No. 3 has submitted
that the plans which were put up for sanction in respect of the suit property in the
year 1985, 1986, and 1992 did not show/ specify the suit structure. He further
submitted that the contention of the Appellants that the said plans did not consist
of the suit structure only because it was not a RCC structure is a baseless and
dishonest attempt on the part of the Appellants to mislead this Court, and the same
is contrary to Development Control and Promotion Regulations (DCPR) 2034. It
was further his contention that the suit structure was constructed by the Appellants
being a shed with brick masonry wall and GI roof in the year 1998, which was
illegal and unauthorized, and that the suit structure fell on the suit property which
was jointly owned by the Appellants and Respondent No. 3. It was further
submitted that as per the Maharashtra Shops and Establishments Act, 1948 insofar
as the registration certificate dated 27th May 1999 of the suit structure was
concerned, the same showed as “new”. It was further submitted that in Suit No.
5757 of 1998(renumbered to Suit No. 4227 of 2024), wherein Respondent No. 3
had filed Notice of Motion No. 2691 of 1998 and order dated 1 st August 2001 was
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passed in terms of the minutes of the order and clause 3 of the minutes of the
order, it was specifically stated that within 8 weeks of the order, the Appellants and
Respondent No. 3 shall demolish all temporary structures in their possession and
remove their articles lying therein. The relevant clause 3 of the minutes of the
order is reproduced below:-
Within 8 weeks from today the Plaintiffs and Defendants shall demolish the
Temporary Structures in their possession and remove their articles lying herein.
8. It was therefore contended by learned counsel on behalf of Respondent No.
3 that in spite of the aforesaid order dated 1 st August 2001 being passed by this
Court, wherein parties by consent had agreed to demolish the suit structure, the
same has not been done so far by the Appellants. It was further submitted that in
the City Survey Plan dated 20th November 2007 in respect of the suit property, the
suit structure was not reflected, and this further goes on to establish that the suit
structure was never in existence. It was further submitted that pursuant to the
order dated 9th July 2009 passed by this Court with a view to facilitate the
implementation and fulfillment of the consent order dated 1 st August 2001, Mr. N.
N. Shrikhande was appointed as the Court Commissioner for the overall
supervision and control over the work that was to be carried out in respect of the
3rd and 4th floors pursuant to the consent terms, and pursuant thereto the aforesaid
Court Commissioner by his letters dated 31st August 2011 and 12th September 2011
submitted as follows:-
Letter dated 31st August 2011
"It is to be mentioned here that as far as this office is concerned, further
commencement certificate for the entire work will be considered only after
1) Ground floor structure made up of brick wall masonry and patrashed as a
roof constructed at the south east corner of the plot B/962 i.e at the Jn. of
Kadeshwari Road and St.John Baptista Road is totally removed".
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Letter dated 12th September 2011
"the demolition of unauthorized shed is the only item remaining which is
withholding municipal permission"
9. Further there were also letters issued by the Executive Engineer, Building
Proposal (W.S.) H Ward to the Court Receiver of this Court in Suit no. 5757 of
1998 (re-numbered to Suit No. 4227 of 2024) wherein also it was informed that
the suit structure was required to be demolished. It is therefore Respondent No. 3’s
contention that the aforesaid correspondence and the view taken by the Court
Commissioner clearly establish that the suit structure was an illegal structure and
was clearly unauthorized. It was further submitted that order dated 3 rd August 2018
was passed by the Designated Officer of Respondent No. 1-Corporation without
giving an opportunity of hearing to Respondent No. 3, and the said order
considering the suit structure as a tolerable structure was passed on the basis of the
letter dated 23rd July 2018. This, according to Respondent No. 3 could not be the
only basis on which the suit structure could be considered as a tolerable structure.
Further, Respondent No. 3 contended that the order dated 3 rd August 2018 was a
subject matter of challenge before this Court, and the matter was remanded back to
the Designated Officer of Respondent No. 1-Corporation on 9 th May 2025 for a
fresh hearing. In the remand proceedings, various written submissions were filed,
and by order dated 14th August 2025 the Designated Officer of Respondent No. 1-
Corporation has come to a clear conclusion that the suit structure has not been in
existence since the year 1961-62. The relevant findings in the aforesaid order are
reproduced in paragraph 2(xxii) above.
10. Learned counsel has also sought to place reliance on the decision of the
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Supreme Court in the case of Ramakant Ambalal Chokshi Vs Harish Ambalal
Chokshi & Others1 to contend that the Appellate Court cannot interfere with the
exercise of the discretion of the Trial Court and substitute its own discretion, except
where the discretion has been shown to have been exercised arbitrarily or
capriciously or perversely, or where the Court has ignored the settled principles of
law regulating grant or refusal of interlocutory injunctions. He has therefore
submitted that the Trial Court on the basis of the evidence placed on record and
submissions advanced on behalf of the parties has arrived at a reasoned conclusion
and on a proper application of mind has come to the conclusion of rejecting Notice
of Motion No. 3225 of 2025 challenging the speaking order dated 14th August
2025 passed by the Designated Officer of Respondent No. 1-Corporation.
ANALYSIS AND FINDINGS
11. I have considered the rival submissions and perused the impugned order
along with the relevant documents. At the very outset, it is an undisputed fact that
the suit property was jointly owned by the Appellants and Respondent No. 3, and
the only bone of contention in the present case is in respect of the suit structure,
which Respondent No. 3 contends is unauthorized/illegal. A perusal of the
documents indicates that though the suit structure was earlier considered a
tolerated structure, however, the Trial Court, on the basis of perusal of the letter
dated 23rd July 2018 issued by the the Assistant Assessor and Collector at H/W
Ward has on a prima facie basis rightly come to the conclusion that the first
assessment was of the year 1961-62, which was applicable in respect of the original
1 Civil Appeal No. 13001 of 2024 @ Special Leave Petition (Civil) No. 252 of 2023
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structure and not to subsequent changes which were made on the suit property, i.e.,
the suit structure, which is unauthorized/illegal. This finding, to my mind, cannot
be disturbed, inasmuch as the Trial Court has also considered that though in the
order dated 3rd August 2018 heavy reliance was placed on the letter dated 23 rd July
2018, the said order was a subject-matter of challenge before this Court, and this
Court by order dated 9th May 2025 remanded the matter for a fresh hearing,
considering the rival claims regarding the legality of the suit structure. Further, the
Trial Court has also based its conclusion on the order dated 1 st August 2001 passed
by this Court in Notice of Motion No. 2691 of 1998 in Suit No. 5757 of 1998
(renumbered to Suit No. 4227 of 2024), wherein by consent it was the agreed that
the Appellants and Respondent No. 3 would demolish from the suit property all
the temporary structures in their possession and remove their articles lying therein.
Further, to facilitate these minutes of order, this Court by further order dated 9 th
July 2009 appointed Mr. N.N. Shrikhande as the Court Commissioner for the
purpose of overall supervision and control over the work that was to be carried out
in respect of the 3 rd and 4th floors on the suit property in accordance with the
consent order dated 1st August 2001. In fact, the letters which have been issued by
the Court Commissioner and also by Court Receiver of this Court to Assistant
Commissioner of Bandra Police and by the Executive Engineer, Building Proposal
of Respondent No. 1-Corporation to the Court Receiver of this Court have
specifically mentioned that the suit structure ought to be removed, and it is only
thereafter the construction would commence for the 3 rd and 4th floors on the suit
property. The Trial Court has also considered that the documents of assessment
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show that some receipts relate to a structure which is prior to 1961-62, and some
receipts are after 1970-71, and they show different SAC numbers. The Trial Court
has therefore taken into consideration all the aforesaid documents to come to the
conclusion that the suit structure cannot be a tolerated structure, and hence rightly
dismissed Notice of Motion No. 2691 of 1998 in Suit No. 5757 of 1998
(renumbered to Suit No. 4227 of 2024) filed by the Appellants, refusing to grant
them injunction.
12. I am of the view that the consent terms which form part of the order dated
1st August 2001 had put an onus on both the parties to remove the temporary
structures in their possession, and this has not been complied with so far, which the
Trial Court has taken into consideration before passing the impugned order. The
Appellants’ contention therefore, that only because the letter dated 23 rd July 2018
from Assistant Assessor and Collector at H/W Ward certified that the first date of
assessment was prior to 1961-62 and the assessment remark dated 3 rd February
2025 showed that the suit structure was in existence prior to 1961-62 the suit
structure to be treated tolerated is erroneous, inasmuch as, the same could not be
the only basis on which the suit structure could be held as a tolerated structure, as
there were discrepancies in the said documents, particularly the assessment remark
dated 3rd February 2025, which clearly records that the structure under reference
seems to have been assessed under SAC HW-0401620060000. In my view, all
these contentions regarding the legality of the suit structure on the basis of
documents can be examined and gone into detail at the time of trial of the
proceedings. However, the impugned order passed by the Trial Court has, on
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examination of all these documents, come to a prima facie view, which to my mind
is not a view which can be termed as arbitrary or perverse, and would be a plausible
view which the Trial Court has come to after consideration of all documentary and
factual material on record and proper application of mind. I am further of the view
that applying the principles of Wander Ltd. v. Antox India (P) Ltd.2, while
considering an application under Order XXXIX Rules 1 and 2 of the CPC,the
appellate court would not ordinarily interfere with the exercise of discretion by the
court of first instance or substitute its own discretion, except where such discretion
has been exercised or has been shown to have been exercised arbitrarily, or
capriciously, or perversely, or where the Court has ignored the settled principles of
law regulating grant or refusal of interlocutory injunctions, and the facts of the
present case do not warrant any interference with the impugned order of the Trial
Court as the impugned order is a well-reasoned and well-considered order.
13. I am further of the view that once the consent terms made it obligatory on
the part of the Appellants and Respondent No. 3 to demolish the temporary
structures on their possession, which admittedly the Appellants have not done so
far, would by itself be a ground on which the Trial Court has rightly refused the
injunction as sought by the Appellants. It is also an admitted fact that in the plans
submitted by the Appellants in years 1985, 1986, and 1992 the suit structure has
not been shown, which itself shows that the very existence of the suit structure was
always in doubt. The Trial Court, therefore, on a prima facie view, has rightly come
to the conclusion that the suit structure was erected after the datum line, and hence
2 1990 Supp SCC 727
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the fresh speaking order dated 14 th August 2025 which was passed post the
direction of this Court by order dated 9th May 2025, has held that the suit structure
was not in existence prior to the datum line. The Trial Court, therefore, on an
appreciation of the entire factual conspectus and the evidence on record has passed
a reasoned order, which does not warrant any interreference, and most certainly
cannot be termed as an arbitrary or perverse order. I am therefore in agreement
with submission made on behalf of Respondent No. 3 that the present Appeal from
Order deserves to be dismissed, and am further of the view that the reliance of
Respondent No. 3 on the case of Ramakant Ambalal Chokshi Vs Harish Ambalal
Chokshi & Others (supra) is apposite to the facts of the present case and upholds
the view as laid down in Wander Ltd. v. Antox India (P) Ltd. (supra). The relevant
paragraphs of the decision rendered in Ramakant Ambalal Chokshi Vs Harish
Ambalal Chokshi & Others (supra) are reproduced below –
16.4. Injunction was granted by the trial court by way of a well-reasoned order
after taking into consideration all the detailed facts and contentions of both the
parties. The appellate court should remain slow in substituting its own
discretion with the one exercised by the court of first instance unless the
exercise of discretion by the first court was shown to be malicious, capricious,
perverse or having been exercised in ignorance of the settled principles of law
regulating the grant or refusal of interlocutory injunctions.
…
21. With regard to (a), this Court held thus: (Wander case-, SCC p. 733, para
14)
"14.... In such appeals, the appellate court will not interfere with the
exercise of discretion of the court of the first instance and substitute its
own discretion, except where the discretion has been shown to have been
exercised arbitrarily or capriciously or perversely, or where the court had
ignored the settled principles of law regulating grant or refusal of
interlocutory injunctions. ...The appellate court will not reassess the
material and seek to reach a conclusion different from the one reached by
the court below.... If the discretion has been exercised by the trial court
reasonably and in a judicial manner the fact that the appellate court
would have taken a different view may not justify interference with the
trial court's exercise of discretion."
22. This Court, while arriving at the above findings, relied on its earlier
judgment in Printers (Mysore) (P) Ltd. v. Pothan Joseph, wherein it was held
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thus: (Printers case, SCC OnLine SC para 9)
"9.... as has been observed by Viscount Simon LC in Charles Osenton &
Co. v. Johnston-, the law as to reversal by a court of appeal of an order
made by a Judge below in the exercise of his/her discretion is well
established, and any difficulty that arises is due only to the application of
well-settled principles in an individual case."
…
24. In Evans case, Lord Wright made it clear that while adjudicating upon the
discretion exercised by the trial court, the appellate court is obliged to consider
the case put forward by the appellant in favour of its argument that the trial
court exercised its discretion arbitrarily or incorrectly in the circumstances.
25. What flows from a plain reading of the decisions in Evans and Charles
Osentonº is that an appellate court, even while deciding an appeal against a
discretionary order granting an interim injunction, has to:
(a) Examine whether the discretion has been properly exercised i.e. examine
whether the discretion exercised is not arbitrary, capricious or contrary to the
principles of law; and
(b) In addition to the above, an appellate court may in a given case have to
adjudicate on facts even in such discretionary orders.
26. The principles of law explained by this Court in Wander have been
reiterated in a number of subsequent decisions of this Court. However, over a
period of time the test laid down by this Court as regards the scope of
interference has been made more stringent. The emphasis is now more on
perversity rather than a mere error of fact or law in the order granting
injunction pending the final adjudication of the suit.
27. In Neon Laboratories Ltd. v. Medical Technologies Ltd., this Court held
that the appellate court should not flimsily, whimsically or lightly interfere in
the exercise of discretion by a subordinate court unless such exercise is palpably
perverse. Perversity can pertain to the understanding of law or the appreciation
of pleadings or evidence. In other words, the Court took the view that to
interfere against an order granting or declining to grant a temporary injunction,
perversity has to be demonstrated in the finding of the trial court.
28. In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan, this Court
emphasised on the principles laid down in Wander- and observed that while
the view taken by the appellate court may be an equally possible view, the mere
possibility of taking such a view must not form the basis for setting aside the
decision arrived at by the trial court in exercise of its discretion under Order 39
CPC. The basis for substituting the view of the trial court should be mala fides,
capriciousness, arbitrariness or perversity in the order of the trial court. The
relevant observations are extracted below: (SCC p. 230, para 20)
"20. In a situation where the learned trial court on a consideration of the
respective cases of the parties and the documents laid before it was of the
view that the entitlement of the plaintiffs to an order of interim
mandatory injunction was in serious doubt, the appellate court could not
have interfered with the exercise of discretion by the learned trial Judge
unless such exercise was found to be palpably incorrect or untenable.
The reasons that weighed with the learned trial Judge, as already noticed,
according to us, do not indicate that the view taken is not a possible
view. The appellate court, therefore, should not have substituted its
views in the matter merely on the ground that in its opinion the facts of
the case call for a different conclusion. Such an exercise is not the correct
parameter for exercise of jurisdiction while hearing an appeal against a
discretionary order. While we must not be understood to have said that
the appellate court was wrong in its conclusions what is sought to be
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emphasised is that as long as the view of the trial court was a possible
view the appellate court should not have interfered with the same
following the virtually settled principles of law in this regard as laid
down by this Court in Wander Ltd. v. Antox India (P) Ltd."
29. This Court in Shyam Sel & Power Ltd. v. Shyam Steel Industries Ltd.
observed that the hierarchy of the trial court and the appellate court exists so
that the trial court exercises its discretion upon the settled principles of law. An
appellate court, after the findings of the trial court are recorded, has an
advantage of appreciating the view taken by the trial Judge and examining the
correctness or otherwise thereof within the limited area available. It further
observed that if the appellate court itself decides the matters required to be
decided by the trial court, there would be no necessity to have the hierarchy of
courts.
30. This Court in Monsanto Technology LLC v. Nuziveedu Seeds Ltd.,
observed that the appellate court should not usurp the jurisdiction of the Single
Judge to decide as to whether the tests of prima facie case, balance of
convenience and irreparable injury are made out in the case or not.
31. The appellate court in an appeal from an interlocutory order granting or
declining to grant interim injunction is only required to adjudicate the validity
of such order applying the well-settled principles governing the scope of
jurisdiction of the appellate court under Order 43 CPC which have been
reiterated in various other decisions of this Court. The appellate court should
not assume unlimited jurisdiction and should guide its powers within the
contours laid down in Wander case.
14. I am further of the view that the reliance on the in Great Eastern Energy
Corporation Ltd. v. Jain Irrigation Systems Ltd.3 decision by learned counsel on
behalf of Appellants to contend that while granting interim injunction, the term
“prima facie case” also includes an exercise to be undertaken by the Trial Court as
to whether an arguable case exists, and also the material on the face of it shows that
triable issues are involved over and above the settled principles of irreparable injury
and balance of convenience, which has not been done in the present case is a
submission which deserves to be dismissed. This in view of the fact, that in the
present case, all three ingredients exist, as certainly the material on record show
triable issues as held by me in paragraph No. 12 above, and that by granting
injunction to the Appellants, Respondent No. 3 would face irreparable loss,
considering that they are unable to construct the 3 rd and 4th floors on the suit
3 2010 SCC OnLine Bom 248
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property on account of non-removal of suit structure by the Appellants in complete
contravention of the consent terms between the Appellants and Respondent No. 3.
The balance of convenience therefore lies in favour of Respondent No. 3. All these
aspects have been considered by the Trial Court and therefore the impugned order
does not warrant interference.
15. Considering the aforesaid facts and the settled position of law, I am of the
view that the impugned order has been passed after duly appreciating the facts and
the applicable law. The view taken by the Trial Court is a plausible view and does
not warrant interference by this Court in its appellate jurisdiction.
16. In view thereof, the Appeal from Order fails and is accordingly dismissed.
The Trial Court is directed to dispose of suit expeditiously. There shall be no order
as to costs.
17. In view of the dismissal of the Appeal from Order, pending Interim
Application(s), if any do not survive and are accordingly disposed of.
(AARTI SATHE, J.)
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