JUDGMENT - R.K. JOSHI, J.:---The Municipal Corporation of Greater Bombay, the original defendant, is the appellant before this Court. The respondent (plaintiff) had taken out a notice of motion for an injunction restraining the Corporation from pulling down and/or demolishing the plaintiffs balcony in dispute. The rule having been made absolute by the learned Judge of the City Civil Court, Bombay , the Corporation has come in appeal. 2. The few facts giving rise to this appeal would be, briefly, stated thus. Thus plaintiff claims to be in occupation and possession of a flat bearing No. 1 on the 1st floor in a building know as Gangotri Co-operative Housing society standing on the 5th Road, Khar , Bombay. The balcony is said to be of 11x 8-9. By an application dated 30th of August, 1971, the plaintiff moved the Corporation for an enclosure of this balcony with grills and windows for the purpose of safety and security. He clearly mentioned in the application that there is a brick masonry wall upto a height of 3 feet. Singularly enough, he did not care to mention the dimension of the balcony or the nature of the work which he proposed to carry out, except the details noted above. To this application the Assistant Engineers of the Corporation granted the permission by this reply dated 10th of September, 1971 but, guardedly enough, the permission runs thus :--- .........I have to inform you that there is no objection to enclose the balcony at 1st floor with 3-0 height brick masonry walls and rest with grills or with glazed shutters with 13 louvers. Pausing for a while here, may it be mentioned that the permission by no stretch of imagination, even remotely, refers to the construction nor does it refer to the raising of walls of more than 3 ft., in height. The dimensions of the balcony are also not given. Be that as it may, on getting this reply the plaintiff, according to him, completed the work somewhere in October 1971 however, the Corporation denies this fact. 3. On or about 5th of September, 1972, the Secretary of this Housing Society orally complained to the corporation that some construction in this building on the first floor was going on, probably it refers to the construction in dispute. 3. On or about 5th of September, 1972, the Secretary of this Housing Society orally complained to the corporation that some construction in this building on the first floor was going on, probably it refers to the construction in dispute. The plaintiffs gravamen was that some of his wellwishers, who are occupants of the second and/or 4th floor of this very building, were at the bottom of this mischief and uncalled for intimation to the Corporation but the Corporation has denied these statements of the plaintiff. 4. It is but natural that on going some such complaint or intimation the Corporations Officers should inspect the site and according to the Corporation its officers visited the site on 14th of September, 1972. This date has become somewhat debatable but I would point out in due course that even on the broad test of probability, apart from what the record of the Corporation ravels, the subsequent visit must have been by or about 14th or 15th of September, 1972. In the subsequent record of the Corporation it is stated that the visit was by 20th but very little turns on it. The officers who visited the site found the work to still in progress. Therefore, it issued a notice under section 354-A of the Bombay Municipal Corporation Act on 15th of September, 1972. In response to this notice, the plaintiffs submission was that it was not altogether a new construction as such but amounted to a negligible act of carrying out certain minor repairs. The repairs were either to replace broken glasses or worn out panes and there was no necessity for the Corporation to resort to such a coercive measure of issuing a notice under section 354-A. Within four days of this notice and on the 19th of September, 1972, a written complaint was received by the Corporation, from the President of this Society. The President in his letter makes a reference to his interview with the Corporation authorities on the 5th of September, 1972 in connection with the unauthorised construction on the terrace of the society and the assurance given by the corporation to demolish the same but as nothing was heard further in the matter, the President repeated his request and made query as to how the permission was granted by the corporation to the plaintiff for constructing the terrace without the sanction of the society. He also implored the Corporation to let him know what action was being taken in the matter. 5. Resuming the issuance of the notice under section 354-A given by the Corporation, and referred to little earlier, the plaintiff, by his reply dated 26th of September, 1972 reiterated his old stand and asserted that he had carried out nothing but a construction under the permission granted by the Corporation on 10th of September, 1971. Being not satisfied with this reply, the Corporation issued notice under section 351 of the Act on the 9th of October, 1972. A somewhat detailed reference to the contents of this notice would be necessary at this stage. 6. The Corporation pointed out to the plaintiff that contrary to the provisions of section 347 of the Act, he had commenced to erect or erected new work comprising of B.M. Walls and partly frame-work with shutters with A.C. Sheet roof admeasuring 11x 8 on the premises in dispute. It called upon the plaintiff to make his submission in writing on or before 23rd of October, 1972 and to produce all the documentary evidence in his possession before the Assistant Engineers (Building and Factories) to convince him that the structure was not unauthorised. It gave an ultimatum that if no sufficient cause was shown to his satisfaction, he should show cause why the work should not be pulled out at his (Plaintiffs) costs. To this notice the reply given by the plaintiff on 21st of October, 1972 was on old lines to which a reference is already made. He again resorted to the permission given by the Assistant Engineers on the 10th of September, 1971 and repeated that what he had done was to carry out certain repairs and to replace certain frames which had given way due to monsoon but is this reply he made one significant statement that on or about 14th of September, 1972 the Overseers of the Corporation who has visited the site had examined this work to be a new one. It is quite natural that the Corporation should lay emphasis on this date, viz 14th September, 1972, for the visit of its officers and this date seems to be correct because the very next day the Assistant Engineer has issued another notice under section 354-A of the Act. It is quite natural that the Corporation should lay emphasis on this date, viz 14th September, 1972, for the visit of its officers and this date seems to be correct because the very next day the Assistant Engineer has issued another notice under section 354-A of the Act. As I am on the point, I may mention here that the reference to a subsequent date of the alleged visit being 20th, in one of the documents contained in the record, pertains to the second visit. In the concluding portion the plaintiff capitalises the spite of his neighbours and emphasises his bona fides. 7. Preceded by this exchange of correspondence, came the institution of the plaintiffs suit on 14th of August, 1973 for various reliefs of permanent injunction restraining the Corporation from demolishing or pulling down the balcony and impugning the validity of the notices issued under sections 351 and 488 of the Act. On the very day a notice of motion was taken out ant it appears that an ex parte rule was issued. The Corporation put in appearance and by its affidavit denied various allegations made by the plaintiff characterising the alleged construction to be nothing short of repairs and inter alia maintaining that it was an unauthorised construction recently made and the permission which was banked upon was transgressed practically in every direction. 8. It appears that when this litigation was in progress and after the reply was filed, the officers were taken a little a back as to how such a permission could be granted or was granted and the scrutiny of its own record indicated to them the permission ought not to have been granted to the plaintiff because the construction would be falling within the set back line. When the officers realised their oversight or mistake, on a scrutiny of the entire record, by letter dated 9th of May, 1973, they revoked the permission granted. This revocation opened a new avenue to the plaintiff for agitating some additional grounds. 9. On 28th of May, 1973 the plaintiff replied to this letter on the old lines and denied the new construction falling in the set-back line. This revocation opened a new avenue to the plaintiff for agitating some additional grounds. 9. On 28th of May, 1973 the plaintiff replied to this letter on the old lines and denied the new construction falling in the set-back line. Being not satisfied with this reply, on 13th of August, 1973, a notice under section 488 of the Act was issued communicating to the plaintiff that the municipal staff would visit the site for the purpose of inspection, survey and execution of the necessary work. The very next day , the plaintiff approached the Court and, as stated earlier, obtained interim injunction. 10. The defendant has filed or put in its affidavit by way of a reply to the notice of motion taken out by the plaintiff and also filed a written statement to the suit. The defendant also requested the Court to treat the written statement as an affidavit. In this written-statement the Court to treat the written statement as an affidavit. In this written-statement-cum-affidavit, no doubt, an additional ground is taken that the construction in dispute was falling in the set-back line and a good deal of arguments seemed to have been addressed to the learned Judge as to whether the Corporation should be permitted to introduce a new case and to defeat the equities of the plaintiff but to this aspect I would advert in due course. 11. The learned trial Judge, as I read his order, seems to have been impressed mostly by the initial permission granted, the silence of the corporation for over a year or so and the alleged introduction of a new case taken for the first time in the written-statement that the construction would be falling in the set-back line. On going through the affidavits of the parties as well as the photographs and the plans, without scrutinising them in greater detail as to whether the plaintiff had approached the Court with clean hands, the learned Judge left this important question open by observing that at the interim state the decision thereof was not called for. In his opinion, the plaintiff has made out a prima facie case and the stand taken by the Corporation was nothing but shifting of the ground from time to time and in asmuch as, it had revoked its own notice at certain stage. On some such consideration the learned trail Judge made the rule absolute. 12. In his opinion, the plaintiff has made out a prima facie case and the stand taken by the Corporation was nothing but shifting of the ground from time to time and in asmuch as, it had revoked its own notice at certain stage. On some such consideration the learned trail Judge made the rule absolute. 12. Mr. Kothari, appearing for the Corporation, has mainly raised 3-4 points. In the first instance, he pleaded that when the plaintiff has approached the Court founding his entire claim on the original application for permission to have the balcony closed for preventing theft or as a measure of safety and security, he should have kept himself within the bounds of the permission granted by the Corporation. The two documents, viz., the application dated 30th of August, 1971 and the permission of 10th of September, 1971 virtually clinch the entire controversy. Argues Mr. Kothari further that if they were to succeed in convincing this Court that the plaintiff has outstepped the permission granted to him by suppressing certain facts, then certainly he is not entitled to the reliefs and his notice of motion ought to have been dismissed in limine on this very ground. In this context he points out to me how many material facts were suppressed by the plaintiff and virtually by misleading the Corporation had obtained the permission in question. No doubt, he complemented the plaintiff for his sagacious misrepresentation but at the same time, with respects, submitted that the lower Court throughout its judgment has confused balcony for a terrace or vice versa. The permission is in fact for pulling-weather a shed which was never sought for and a bare glance at the photographs which were placed on the record would convince even a layman that the construction was unauthorised and it can have no origin in the permissions relied upon. The third argument was with reference to the plans of the building which were sanctioned by the Corporation. In the plans the measurements of the balcony required to be kept open were given as 10½ X 2-4 but by no stretch of imagination it could be said that the permission was intended to be given by the Corporation for the construction of the present structure which is admittedly 11x 8. In the plans the measurements of the balcony required to be kept open were given as 10½ X 2-4 but by no stretch of imagination it could be said that the permission was intended to be given by the Corporation for the construction of the present structure which is admittedly 11x 8. If in the initial application the plaintiff had been clear enough to mention that he intended to cover the entire structure 11x 8 with A.C sheets, the Corporation would have thought twice and would have never ventured to grant such a permission. Exploiting the existence of an open terrace and the restrictive permission, the plaintiff has misused the authority given to him. The portion on which the construction is carried out is not a balcony as such but an open terrace. Said Mr. Kothari further that the delay on the part of the Corporation stands plausibly explained away by the development referred to in the foregoing paragraphs. Commenting upon the learned Judges approach of the Corporation shifting the ground, it was urged that at the interim stage what was of considerable importance for the learned trial Judge was to find out whether the plaintiff has made out any prima facia case. If the present construction could not be sustained on the permission repeatedly resorted to and if it was found to be unauthorised, apart from the question whether it is hit by the set back-line or not, the relief ought to have been refused. No doubt, this is a discretionary relief but the record as well as the approach of the learned trial Judge, with respects, speaks that the discretion has been used injudiciously. 13. While meeting, the various arguments of Mr. Kothari the learned Advocate for the plaintiff (respondent) submitted that the facts are not so simple as put forth by Mr. Kothari for the Corporation . On complementing him for over simplifying the matter, argued the learned Advocate of the plaintiff further that the facts are controversial and no Judge would be able to make up his mind at this stage whether the plaintiff is in the right or wrong. In such circumstances and when in particular no prejudice in likely to be caused to the Corporation, there will be no harm in maintaining the status quo. In such circumstances and when in particular no prejudice in likely to be caused to the Corporation, there will be no harm in maintaining the status quo. Given a chance, he would produce all the requisite evidence, both oral and documentary , not only establishing his bona fides but hid case. Even if this Court were not to be with him on some of these submissions, the learned Advocate for the plaintiff urged that this Court should be slow to interfere with the discretionary measure and if it were to feel that some injustice is being done to the Corporation . It may give a suitable direction to the lower Court to expedite the hearing and dispute it of at the earliest. 14. It is needless to recount what I have observed in the forgoing paragraphs as most of these facts are undisputed or otherwise duly proved by the correspondence, affidavits and replied or rejoinders. The sheet-anchor of the plaintiffs claim in his application for permission of 30th of August, 1971 and the Corporations permission, The next important ground pressed into service by the plaintiff is that in 1972 what he was virtually carrying out were the repairs or to reinstates the old structure. The argument, as presented, may sound to be attractive. I have already reproduced the relevant portions of these two documents, and I have no hesitation in concluding that the plaintiff has misled the Corporation while obtaining this permission. If, really, it was his intention to have a cover over a place of 11x 8 nothing should have prevented him to place his cards on the table. He could have as well justified the proposed action on the ground of safety, security and fear of theft. These grounds are likely to appeal even to a common man and the corporate body would have been too glad to grant permission if it did not offend the rules for the preservation of the peace in the plaintiffs family and his property but the cryptic lines in the letter for permission are self-eloquent and call for no comments. He desires to close the balcony with grills and windows and refers to the existence of masonry wall upto a height of 3. Relying upon these representations and feeling that they are not unusual, the Corporation has granted the permission in the routine. He desires to close the balcony with grills and windows and refers to the existence of masonry wall upto a height of 3. Relying upon these representations and feeling that they are not unusual, the Corporation has granted the permission in the routine. I am unable to read in this permission that the plaintiff was given the liberty of converting the so-called balcony into a weather-shed or to erect a structure of 11x8. A bare glance at the photographs brought before the Court and showed to the learned trail Judge points out to the naked eye how the plaintiff has transgressed the ambits of the permission given to him. No argument is needed to tell the Court that this was all done in good faith or just to close the balcony for the sake of safety. The original plans which are a part of the record throw a flood of light on the dimensions. A terrace on the first floor is shown in the plans. The side wall of this flat is raised to a height of more than 3 feet. The construction is nothing but an advantage of one more room to the flat already in existence, may be with an opening towards the road but with glass panels of shutters. Close the windows and what the plaintiff gets is an additional room. It would certainly be a construction of a building within the meaning of the Corporation Act and it is needless to add, having regard to the original plans and the surroundings, that the Corporation would have never given such a permission. This is a case in which the plaintiff has grossly misused the permission granted to him. He has approached the Court screening many material facts and now he is trying to seek equitable relief. It is elementary that one who seeks equity must come to the Court with clean hands. On this very ground the order of the learned trial Judge deserves to be quashed without further comments. 15. As the point has been argued at great length by both the sides, I may make certain observations, making it clear at the same time that they are being made without prejudice to their respective claims which they may press into service at the final hearing. The various argument put forth by the learned Advocate for the plaintiff do not appeal to me. The various argument put forth by the learned Advocate for the plaintiff do not appeal to me. The first point that the facts are controversial, is of little moment. Controversy could be easily raised. Triable issued could be introduced with a certainty by little sagacity but that does not make out a case for the plaintiff to grant such reliefs or to invoke equitable jurisdiction of the courts. Similarly the second point that the Corporation would be put to no loss or irreparable loss, deserves to be mentioned for being dismissed without further comments. It is not a question of any loss being caused to the Corporation. It is a question of running the administration and maintaining the order in the society. If the Corporation were to tolerate such unlawful erection or unauthorised structure and to give a long rope to the litigation, there would be no end to such matters. As a simple illustration, I may point out that if the other owner of the adjoining flat were to make a similar application he may probably accuse the Corporation of discrimination if it were to refuse permission to him. The question of set-back line may or may not be debatable but it is needless to canvas the same at this stage. I wish to make it clear that I am not resting may judgment on that ground alone although I find considerable substance in the submissions of Mr. Kothari for the Corporation. 16. The third point of the Corporation shifting its stand, fails to convince me. One cannot be obvious to the fact when the courts are dealing with litigations of Corporate bodies which has to handle hundreds of such cases every day, it is not unlikely that either through inadvertence on the part of the sub-ordinate or for want of timely scrutiny of the record some points escape its attention. In making these observations, I should not be misunderstood to lay down a proposition of law that the negligence on the part of the corporate body is an asset to it. What I desire to point out it is that in day to day work such a negligible lapse is inescapable and if it is explained to the satisfaction of the Court, it should not be lightly brushed aside. 17. What I desire to point out it is that in day to day work such a negligible lapse is inescapable and if it is explained to the satisfaction of the Court, it should not be lightly brushed aside. 17. The revocation of the permission under the circumstances, cannot be said to be unjust nor could it be capitalised much by the plaintiff. What ultimately it conveys to the plaintiff is that if he is interested in retaining the roof, he will have to comply with certain conditions enumerated in the letter of 9th May, 1973, which seems to have been typed on 26th April, 1973. This letter imposes a number of conditions and without complying with them the plaintiff wants to reap the advantages only. On the other hand, this letter to my mind, speaks a good deal of the efforts of the Corporation to try to evolve out a solution for the plaintiffs problem and to remove the wrong which is likely to be done to him in case of hasty action in demolishing the newly erected structure. If the plaintiff is so advised, I do not think that the gates of the corporation are closed to him. He may avail of it if he deems it proper but that is not for this Court to decide. 18. In the result, the appeal is allowed. The trial Courts order is set aside. The notice of motion is dismissed with costs throughout. The learned trial Judge is directed to expedite the hearing of the suit and to dispose it of as early as possible. Appeal allowed. -----