How prima facie case is to be judged is laid down in the case of K. Karunanidhi v. R. Renganathan, , wherein it observed thus:
"The rule that before the issue of a temporary injunction, the Court must satisfy itself that the plaintiff has a prima facie case, does not mean that the Court should examine the merits of the case closely and come to a conclusion that the plaintiff has a case in which he is likely to succeed. This would amount to prejudging the case on its merits. All that the Court has to see is that on the face of it the person applying for an injunction has a case which needs consideration and which is not bound to fail by virtue of some apparent defects. The balance of convenience also has to be looked into."
What do you mean by prima facie case is laid down by the Apex Court in the case of Martin Burn Ltd. v. R. N. Banerjee, whereinit has been observed as under:
". . . . . While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence let it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record."
Bombay High Court
Shri Dashrath Sahadeo Khade vs The Municipal Corporation Of ... on 27 July, 2004
Equivalent citations: 2005 (1) BomCR 334, 2005 (1) MhLj 413
1. This appeal is directed against the order dated 10th January, 2003 passed by the City Civil Court, Bombay while disposing of Notice of Motion No. 3361 of 2002 in L.C. Suit No. 4626 of 2002.
2. The appellant is the original plaintiff ("plaintiff" for short). The plaintiff has challenged notice under section 351 of the Bombay Municipal Corporation Act, 1888 ("BMC Act," for short) issued by the Corporation dated 30tg July, 2002 and the final order passed by the Assistant Commissioner, F/South Ward dated 19th August, 2002 contending it to be bad and illegal.
The Facts:
3. Plaintiff's case as per statements made in the plaint is as follows:
Plaintiff is a tenant of one Ismail Ebrahim Bika Patel of shop No. 11-11E located in the compound of Dharamshi Mansion since 1974. His landlord is one Ismail Ebrahim Bika Patel. This shop is located at 20 ft. entrance gate of Dharamshi Compound. Sometime before 1961-60, the landlord constructed shop covering one of the wicket gates admeasuring 7 ft. x 3.4 ft. x 11 ft. It was carrying on business under the name and style as "Shandar Foot Wear" in the said shop. In 1974, said Smt. Ganoobai Motijan surrendered her tenancy to the landlord. Plaintiff was thereafter inducted as tenant in the said premises. Since then plaintiff is carrying on his business in the said premises as tenant under the name and style as "Shandar Foot Wear".
4. The plaintiff has Shops and Establishments Licence issued in the name of Smt. Ganoobai.
5. It appears that the occupants of the building known as 'Dharamshi Mansion' made complaint to the Corporation contending that the stall/shop of foot wear established and run by the plaintiff is illegal. It appears that based on this complaint the said stall was removed by the officials of the Corporation on 13th January, 2000 without issuing any notice to the plaintiff. The plaintiff, therefore, on 15the January, 2000 filed suit being Case No. 833 of 2000 to seek directions against the Corporation in the matter of reconstruction of the shop or stall. The Bombay City Civil Court at Mumbai by order dated 4th May, 2000 directed the Corporation to allow reconstruction of the demolished stall within one month. Accordingly, plaintiff re-constructed the shop/stall as per liberty granted by the trial Court. That is how new stall came up on the site. The original shop or stall came to be restored to its original position. However, liberty was reserved in favour of the Corporation to take action, if the Corporation entertained belief that the said stall was not in existence in the year 1961-62 i.e. on the date of datum line.
6. After reconstruction of the stall, the Corporation issued another notice to the plaintiff dated 30th July, 2002 to show cause as to why the said stall should not be removed being an unauthorised construction. Reply to the show cause notice was given by him. The Assistant Commissioner of the Corporation, F/South Ward, Mumbai after hearing the plaintiff rejected his contentions and passed final order dated 19th August, 2003 directing removal of the said stall.
7. The plaintiff not satisfied with the order of the Corporation has filed suit being L.C. Suit No. 4626 of 2002 to challenge notice dated and also moved notice of motion being Notice of Motion No. 3361 of 2002 to seek interim relief.
8. The aforesaid notice of motion, after hearing the plaintiff, came to be rejected vide order dated 10th January, 2003.
8. The aforesaid notice of motion, after hearing the plaintiff, came to be rejected vide order dated 10th January, 2003.
9.Being aggrieved by the said order of rejection the plaintiff has preferred this appeal from order.
The Submissions:
10. At the outset, learned counsel for the appellant submits that the suit shop is in existence since 1961-62. The original owner of the said shop was Smt. Ganoobai Motijan of Dharamshi Compound, Currey Road. This shop premises was assessed by the Municipal Corporation way back in the year 1961-62. The plaintiff has annexed one of the tax receipts issued by the Corporation in the name of the owner showing his residential address thereon as Masjid Street, Mumbai. According to the plaintiff, the said municipal tax receipt specifically indicates that the suit shop was constructed prior to 1961-62. Copy of the said receipt was produced on record of the trial Court. The copy thereof is also produced on the record of this appeal.
11. Per contra, Mr. walawalkar, learned counsel appearing for the Corporation and Mr. Sawant, appearing for respondent Nos. 2 and 3 both tried to support the action of the Corporation. They submit that so far as the documents in question are concerned, they do not relate to the stall in question. They also relied upon the findings recorded by the trial Court holding that the said assessment tax receipt or extract from the Municipal Register does not relate to the suit shop as such these documents jointly or severally cannot be relied upon.
12. In rejoinder, learned counsel for the appellant submitted that there is no other stall in existence in the Dharamshi Compound as such at this stage these documents cannot be brushed aside.
Consideration:
13. Having herd rival parties, at this stage this Court has to consider whether the order of the trial Court suffers from any perversity. Whether the view taken by the trial Court is a reasonable and possible view. Whether plaintiff has established prima facie case. How prima facie case is to be judged is laid down in the case of K. Karunanidhi v. R. Renganathan, , wherein it observed thus:
"The rule that before the issue of a temporary injunction, the Court must satisfy itself that the plaintiff has a prima facie case, does not mean that the Court should examine the merits of the case closely and come to a conclusion that the plaintiff has a case in which he is likely to succeed. This would amount to prejudging the case on its merits. All that the Court has to see is that on the face of it the person applying for an injunction has a case which needs consideration and which is not bound to fail by virtue of some apparent defects. The balance of convenience also has to be looked into."
What do you mean by prima facie case is laid down by the Apex Court in the case of Martin Burn Ltd. v. R. N. Banerjee, whereinit has been observed as under:
". . . . . While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence let it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record."
Keeping the above principles in mind, let me turn to the documentary evidence available on record. The fate of this appeal revolves around two documents, namely, tax receipt and certified extract of the assessment register issued by the Corporation. It appears that the municipal tax receipts are issued on the basis of register maintained by the Corporation, the plaintiff in order to comment his case applied to the concerned ward Office of the Municipal Corporation for supplying him certified extract of their register. On 2nd February, 2000, the concerned assessment department supplied certified extract of Municipal Assessment Register showing existence of the suit shop since prior to 1961-62.
14. The aforesaid documents produced on record establish existence of stall since prior to 1961-62. Supporting document is also filed on record to establish existence of the stall prior to 1961-62. At this stage, these two documents by themselves are sufficient to demonstrate prima facie that the said shop must have been in existence since 1961-62.
15. None of the respondents could establish that any other stall other than the stall in question was or is in existence in Dharamshi Compound. In absence of any evidence in this behalf the natural legal inference at this stage would be that the said documents relate to the stall in question. The documents are issued by the Corporation. It is for the Corporation to explain to which structure these documents relate. No evidence or explanation in this behalf has been given by the Corporation. In this view of the matter, at this stage these documents cannot be discarded. The reasons given by the trial Court and the findings recorded in this behalf are unsustainable rather perverse. If these documents are taken into account, then these documents themselves are sufficient to demonstrate existence of the suit shop. It is, therefore, not necessary to go to the other documents as the other documents are subsequent to 1961-62. Those documents are relevant only to establish possession of the plaintiff since 1974 which is not in dispute.
16. In the result, impugned order is quashed and set aside. Appeal is allowed.
17. Trial Court is directed to proceed with hearing of the suit being L. C. Suit No.4626 of 2002 and dispose it of treating as expedited suit on its own merits.
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