Case Note & Summary
The appellant, Mrs. Dhanvanti Premsagar Seth, filed a suit in the City Civil Court at Dindoshi seeking an injunction to restrain the Municipal Corporation of Greater Mumbai and others from taking action pursuant to a notice dated 10.05.2016 issued under Section 351 of the Mumbai Municipal Corporation Act, 1888 (MMC Act), and an order dated 09.09.2016 passed in pursuance thereof. The appellant claimed that she was the owner of Garage No.4 in New Kavita Co-operative Housing Society Ltd., Santacruz (W), Mumbai. She contended that a similar notice had been issued on 28.04.2010, to which she had filed a reply with requisite documents, and thereafter no action was taken. She alleged that the fresh notice was issued at the instance of the landlord, who wanted to redevelop the property and was pressuring her to vacate. The trial court rejected the ad interim relief without assigning detailed reasons. The appellant appealed to the High Court. The High Court observed that the trial court had not considered the appellant's submissions or the fact that the earlier notice had been dropped. The court noted that the balance of convenience was in favor of the appellant, as the demolition would cause irreparable loss, while the Corporation could wait for the hearing of the notice of motion. The High Court allowed the appeal, set aside the impugned order, and directed the trial court to hear the notice of motion afresh and decide it on merits within four weeks. The court also directed the parties to maintain status quo regarding the structure until the disposal of the notice of motion.
Headnote
A) Municipal Law - Section 351 of the MMC Act, 1888 - Interim Injunction - The appellant sought to restrain the Municipal Corporation from acting on a notice under Section 351 of the MMC Act, 1888, alleging that a similar earlier notice had been dropped after the appellant's reply. The trial court rejected the ad interim relief without considering the appellant's submissions. The High Court held that the trial court ought to have considered the prima facie case and balance of convenience, and that the earlier notice not being acted upon created a legitimate expectation that the structure was not unauthorized. The appeal was allowed and the trial court was directed to hear the notice of motion afresh. (Paras 1-6) B) Civil Procedure - Interim Relief - Rejection without Hearing - The trial court rejected the ad interim relief without hearing the appellant on merits. The High Court held that such rejection was improper as the court must consider the pleadings and documents before refusing interim relief. The matter was remanded for fresh consideration. (Paras 4-6)
Issue of Consideration
Whether the trial court was justified in rejecting the ad interim relief sought by the appellant restraining the Municipal Corporation from taking action pursuant to a notice under Section 351 of the MMC Act, 1888, when a similar earlier notice had been dropped.
Final Decision
The appeal is allowed. The impugned order dated 27.09.2016 is set aside. The trial court is directed to hear the notice of motion afresh and decide it on merits within four weeks. The parties are directed to maintain status quo regarding the structure until the disposal of the notice of motion.
Law Points
- Section 351 of the MMC Act
- 1888
- cannot be used to revive a stale notice
- balance of convenience and prima facie case must be considered for interim injunction
- trial court must not reject ad interim relief without hearing the applicant.
