Possession cannot be disturbed without due process of law, and the exercise of discretion in granting injunctions must consider established possession and potential irreparable harm.

JUDGMENT :

M. S. Sonak, J.

1. Heard learned Counsel for the parties.

PRELIMINARIES

2. The learned Counsel for the parties state that both these Appeals can be disposed of by a common judgment and order, since they challenge the order dated 11 February 2019 disposing of Notice of Motion No. 1115 of 2005 in Suit No. 3553 of 2004, along with Notice of Motion No. 1320 of 2013.

3. There was a 315-day delay in instituting Appeal No. 45 of 2023 (earlier Appeal (ST) No. 29 of 2020). By order dated 10 January 2023, a Co-ordinate Bench declined to condone the delay and, consequently, this Appeal was dismissed. However, the Municipal Corporation of Greater Mumbai (MCGM) took the matter before the Hon’ble Supreme Court via Civil Appeal No. 4936 of 2023. This Appeal was allowed by order dated 07 August 2023. The delay was condoned, and Appeal (ST) No. 29 of 2020, instituted by MCGM, was restored to the Court’s file for a decision on the merits, along with Appeal No. 347 of 2019. The Hon’ble Supreme Court requested this Court to hear both the Appeals simultaneously on the appointed date or as expeditiously as possible.

4. On 28 March 2025, the Co-ordinate Bench posted both these Appeals for final disposal on 02 May 2025, but the matters came before the Bench comprising M. S. Sonak and Jitendra Jain, JJ., only on 13 June 2025. On this date, they were posted for final disposal on 22 August 2025. After that, the matters came up before this Bench on 24 November 2025 and were posted for final hearing on 27 November 2025. The matters were heard on 27 and 28 November 2025, and upon conclusion of the arguments, were reserved for orders.

5. As mentioned earlier, both the Appeals contest the learned Single Judge’s impugned order dated 11 February 2019, which permitted Notice of Motion No. 1115 of 2005 filed by the Respondent No. 1, Mahendra Builders and Others (Plaintiff), and dismissed Notice of Motion No. 1320 of 2013 filed by the Appellant, the Empire Building Occupants Welfare Association (Defendant No. 3), in Suit No. 3553 of 2004. Consequently, for convenience, we refer to Mahendra Builders and Others as the Plaintiff, MCGM as Defendant No. 1, and the Empire Building Occupants Welfare Association as Defendant No. 2.

GENESIS

6. The suit and consequently these Appeals concern Plot No. A1 at DN Road bearing C. S. No. 1390 of 4th Division and Cadastral Survey No. 1/1389 of 4th Division, admeasuring about 1298.01 square yards (suit property). There is a building known as ‘Mahendra Chambers’ situated thereon. The building was earlier known as the ‘Empire Building’.

7. The suit property was leased by the trustees of the improvement trust of the city of Bombay (predecessors of MCGM) for the term of 99 years to Lallubhai Dharamchand and Others, effective from 1901. The Lessees assigned the same to Bikaji Taraporwala, who constructed the building on the said property. Upon his demise, the executors of Taraporwala’s will surrendered the lease in favour of the MCGM and secured in their favour two leases with respect to the original Plot A and B-1 (Narayana Trust) for the unexpired period of the original lease, i.e., 37 years and 6 months, until 13 December 2000. Plot A was subdivided into Plots A1 and A2, of which the suit property is Plot A1. The learned Counsel for the parties made it clear that neither in the suit nor in this Appeal are we concerned with Plot A2.

8. By indenture of assignment or deed of transfer dated 20 January 1966, the surviving executors