SEEMA ARSHAD ZAHEER AND ORS. versus MUNICIPAL CORPORATION OF GREATER MUMBAI AND ORS.

Citation: [2006] SUPP. 1 S.C.R. 865 · Decided: 05-05-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

SEEMA ARSHAD ZAHEER AND ORS. 
A 
v. 
MUNICIPAL CORPORATION OF GREATER MUMBAI AND ORS. 
MAY 5, 2006 
[S.B. SINHA AND R.V. RAVEENDRAN, JJ.] 
B 
Code of Civil Procedure, 1908: 
Order XXXJX Rule I-Temporary injunction-Grant of-Principles-
Power of appellate court to vacate temporary injunction-Defendant issued C 
show-cause notice to plaintiff to remove/pull down unauthorized and illegal 
structures constructed by him in the suit premises-Trial court granted 
temporary injunction restraining the defendants from taking action in 
pursuance of the said show-cause notice-However, High Court vacated the 
temporary injunction holding that the trial court had failed to consider D 
relevant material and proceeded in a vague manner-Correctness of-Held: 
Temporwy injunction may be granted when (i) prima facie case exists; (ii) 
balance of convenience is inf avour of the plaintiff and against the defendant 
and (iii) irreparable injwy would be caused to the plaintiff if temporary 
injunction is not granted-Exercise of discretion by granting a temporary 
injunction when there is ··no material", or refusing to grant a temporary E 
injunction by ignoring the relevant documents produced, is arbitrary, 
capricious or perverse-Jn the instant case, there was 'no material' to make 
out a prima facie case-Hence, High Court justified in vacating the temporary 
injunction-Mumbai Municipal Corporation Act, 1888, S. 351. 
The respondent-Corporation issued show-cause notices followed by final F 
orders under Section 351 of the Mumbai Municipal Corporation Act, 1888 to 
remove/pull down the unauthorized and illegal structures constructed by the 
appellants in the suit premises. The Commissioner of the Corporation, after 
considering the objections received in reply to the show-cause notices and 
the documents produced by the appellants, held that the appellants failed to G 
prove that the structure which was the subject-matter of the notice existed 
pri.or to the datum line (1.4.1962) or that it was subsequently constructed 
authorisedly. 
865 
H 
866 
SUPREME COURT REPORTS (2006] SUPP. I S.C.R. 
A 
Being aggrieved the appellants filed suits before the City Civil Court 
and obtained a temporary injunction restraining the respondent-Corporation 
from taking action in pursuance of the said show-cause notices. However, the 
High Court vacated the temporary injunction holding that the appellants had 
failed to make out a primafacie case that the structure was authorized, or 
put up prior to 1.4.1962, and that the trial court had, without noticing and 
B drawing correct inferences from the documents, had proceeded in a vague 
manner. Hence the Special Leave Petition. 
Dismissing the petition, the Court 
HELD: I. The discretion of the Court is exercised to grant a temporary 
C injunction only when the following requirements are made out by the plaintiff: 
(i) existence of a prima facie case as pleaded, necessitating protection of the 
plaintim rights by issue of a temporary injunction; (ii) when the need for 
protection of the plaintiffs' rights is compared with or weighed against the 
need for protection of the defendant's rights or likely infringement of the 
D defendant's rights, the balance of convenience tilting in favour of the plaintiff; 
and (iii) clear possibility of irreparable injury being caused to the plaintiff if 
the temporary injunction is not granted. In addition, temporary injunction 
being an equitable relief, the discretion to grant such relief will be exercised 
only when the plaintifrs conduct is free from blame and he approaches the 
Court with clean hands. (879-B-C] 
E 
Wander Ltd v. Antox India P. Ltd, (1990( Supp. SCC 727 and Laxmikant 
V. Patel v. Chetanbhai Shah. (2002( 3 SCC 65, referred to. 
2. It is true that in cases relating to orders for demolition of buildings, 
irreparable loss may occur if the structure is demolished even before the trial, 
F and an opportunity to establish by evidence that the structure was authorized 
and not illegal. In such case, where prima facie case is made out, the balance 
of convenience automatically tilts in favour of the plaintiff and a temporary 
injunction will be issued to preserve status quo. But where the plaintiffs do 
not make out a primafacie case for grant of an injunction and the documents 
G produced clearly show that the structures are unauthorized, the Court may 
not grant a temporary injunction merely on the ground of sympathy or 
hardship. To grant a temporary injunction,

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