Aruna Chunilal Satra and Ors v. Mumbai Municipal Corporation and Ors Thr Commissioner

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 11th September 2025, ad-interim reliefs as sought by the Appellants were rejected by the Trial Court. Thereafter, on 17th September 2025, the Appellants preferred Appeal from Order (St.) No. 31048 of 2025 before this Court, challenging the ad-interim order dated 11th September 2025 passed by the Trial Court. This Court by order dated 17th 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 . :

¶1Not on Board. Mentioned by way of filing praecipe dated 17.09.2025. Perused the praecipe.

¶2Heard 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.

¶3Interim 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.

¶4However 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.

¶5One 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.

¶6Needless 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.

¶7Hearing 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.

¶8All questions of parties before me are expressly kept open including that of the private Respondents as also the Municipal Corporation

¶9In view of the above, no coercive steps shall be taken against Plaintiffs' notice structure while adhering to the directions contained hereinabove.

¶10Needless 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.

¶11I 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.

¶12Copy of this order shall be placed before the Principal Judge of the Trial Court for compliance.

¶13Appeal 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 13th October 2025. It is being aggrieved by the aforesaid order dated 13th 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.

¶3Learned 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.

¶4Learned 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 1st August 2001 entered into between the parties, and on the basis of building plans of the year 1992-98, which 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.

¶5Learned counsel on behalf of the Appellants also submitted that the circular dated 31st January 1967 issued by Respondent No. 1-Corporation clearly provides 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)

¶6It 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 14th August 2025 itself proceeds on an erroneous footing that the letter dated 31st 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 31st 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.

¶7Per 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 1st August 2001 was 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.

¶8It was therefore contended by learned counsel on behalf of Respondent No. 3 that in spite of the aforesaid order dated 1st 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 1st 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 31

st 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". Letter dated 12

th September 2011

"the demolition of unauthorized shed is the only item remaining which is withholding municipal permission"

¶9Further 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 3rd 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 3rd 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 9th 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.

¶10Learned counsel has also sought to place reliance on the decision of the 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 14 th August

2025 passed by the Designated Officer of Respondent No. 1-Corporation. ANALYSIS AND FINDINGS

¶11I 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 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 23rd 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 1st 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 9th 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 3rd 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 3rd and 4th floors on the suit property. The Trial Court has also considered that the documents of assessment 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.

¶12I 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 23rd 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 3rd 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 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.

¶13I 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 the fresh speaking order dated 14th 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. …

¶21With 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."

¶22This Court, while arriving at the above findings, relied on its earlier judgment in Printers (Mysore) (P) Ltd. v. Pothan Joseph, wherein it was held 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." …

¶24In 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.

¶25What 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.

¶26The 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.

¶27In 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.

¶28In 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 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."

¶29This 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.

¶30This 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.

¶31The 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.

¶14I 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 3rd and 4th floors on the suit 3 2010 SCC OnLine Bom 248 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.

¶15Considering 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.

¶16In 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.

¶17In 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.)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 707 OF 2026 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 JYOTI RAJESH MANE by JYOTI RAJESH MANE Date: 2026.09.08 17:35:00 +0530 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 1st 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. 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 Appella