1 ca 1751-2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1751 OF 2010 IN APPEAL FROM ORDER NO. 908 OF 2010 IN NOTICE OF MOTION NO. 2980 OF 2007 IN B.C.C.C. L.C. SUIT NO. 3215 OF 2007 M/s.Saifee Foundation Trust ...Appellant vs. Subhash Sakharam Karte & Anr. ...Respondents Mr.A.S. Vraizee for the Appellant. Smt.K.K. Soran for Respondent No.2. CORAM : B.R. GAVAI, J. DATED : JANUARY 5, 2011 P.C :- 1 Matter was called out in the morning. None appeared for the respondent no.1, as such, it was kept in the second half. 2 ca 1751-2010 2 Heard the learned Counsel for the applicants as well as respondent no.2. 3 From the perusal of the order impugned itself, it would reveal that the learned trial court has found that the plaintiff (respondent no.1) had failed to produce any document to establish that the suit structure was situated in the slum area and that it was in existence prior to 1st January, 1995. However, in spite of the said finding, the trial court has granted an injunction and has allowed the notice of motion on the ground that the matter needs to be inquired and decided at the stage of suit, as to whether the structure is situated in the declared slum or is protected or not. 4 For granting ad-interim under Order 39 Rules (1) and (2) of the CPC, the onus is on the parties seeking injunction to prove the tests of prima facie case, the balance of convenience and irreparable injury. Unless the plaintiff is in a 3 ca 1751-2010 position to establish the prima facie case, an order of injunction should not be granted. 5 In this view of the matter, I am inclined to allow Civil Application and grant stay to the effect and operation of the order impugned in the present appeal. 6 Civil Application is allowed. (B.R. GAVAI, J.)