IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 14 OF 2008. SHRI JAYESH SURESH HORNEKAR .. Appellant Versus. MR.IRIS HENRIQUES PASSANHA AND ANR., .. Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar, Advocate for the appellant. Mr. J.E.Coelho Pereira, Senior Advocate with Mr. V. Korgaonkar, Advocate for the respondents. Coram :- R. C. CHAVAN, J Date : - 14th August, 2008. P.C. This appeal takes exception to the rejection of appellant's plaintiff's application for injunction in Special Civil Suit No.142/2007 by the learned Civil Judge, S. D., Margao. 2. The appellant claimed to be Lessee in respect of a shop in respect of which he has leave and licence agreement. The appellant came to the Court with the case that on 27.11.2007,he had been forcibly dispossessed by the respondents. On his application, the learned Civil Judge, had directed the police authorities to break open the lock of the shop to put the plaintiff back in possession. However, by the time, the police authorities reached on the third day i.e. on 30.11.2007, the respondents were found having their business there in the shop. The learned trial Judge eventually rejected the plaintiff's application for injunction. 3. I have heard learned Senior Counsel Shri Lotlikar for the petitioner and Shri J. E. Coelho Perreira, learned Senior Counsel for the respondents. Learned Senior Counsel for the petitioners placed reliance on judgment in the case of Dorab Cawasji Warden Versus Coomi Sorab Warden reported at AIR 1990 SC 867, where the Court was considering the case of entry of a stranger in dwelling house and, therefore, held that there was the need to issue injunction. In this context the Court observed in para 14 as under : " The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are : (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief." In the case of Krishna Ram Mahale Versus Shobha Venkat Rao reported at AIR 1989 SC 2097, on which the learned Senior Counsel placed reliance, an order directing repossession was passed after full trial and not at interlocutory stage. In the case of Indian Cable Co. ltd. Versus Sumitra Chakraborty reported at AIR 1985 Calcutta, 248, on which the learned Senior Counsel placed reliance pertained to a case of tenant protected by Rent Act, where the Court observed that it was a fit case to restore possession to tenant at interlocutory stage, and that a Civil Court does have power to issue temporary mandatory injunction. In that case, a tenant had been dispossessed. In the case of Baban Narayan Landge Versus Mahadu Bhikaji Tonchar reported at AIR 1989 SC 247, the question was of right to take water from well, and hence temporary mandatory injunction was found necessary. 4. The learned Senior Counsel for the respondents submitted that after coming up with a case of dispossession the plaintiff had not at all prayed for relief for being placed in possession in the plaint and had not sought any mandatory injunction in the prayers made. In the application for injunction however, the following prayer is made:- "Any other order/orders this Honorable court may deem fit as a consequential to the above prayers in the circumstances of the case i.e. by entering the shop by breaking the lock." 5. The facts of the case would show that the plaintiffs had been inducted as a licencee in the premises, though the plaintiff claims to describe himself as Lessee. Reference to Transfer of Property Act in the agreement, cannot be decisive of the matter, since it has been specifically agreed to in clause 12 of the agreement that no tenancy was sought to be created. The plaintiff claimed of having some dispute and was required to approach the District Court when electricity supply was disconnected. This had been just a month before the incident. In the context of this dispute, the plaintiff may have a case to say that he had not voluntarily vacated the premises, as has been sought to be made out by the defendants. All the same, this issue will have to be dealt with by the trial Court after considering evidence, which would be led at the trial. Grant of mandatory injunction directing the plaintiff being put again in possession, would have serious consequences and in the absence of clinching evidence to show that the plaintiff being thrown out of the possession,this may not be possible. It may be recalled that in AIR 1990 SC 867, quoted above, the Supreme Court ruled that the case, which plaintiff has to make out for a mandatory temporary injunction has to be of a higher standard than normally required for a prohibitory injunction. Further, in this case, plaintiff could quantify his business loss and seek to be compensated, if he proves that he was forcibly dispossessed. The learned Trial Judge cannot, therefore, be faulted for refusing to exercise his discretion in grant of injunction. 6. Appellate Courts ought to be circumspect in disturbing exercise discretion by the trial Court. The appellant had approached this Court way back in February 2008 and till today possession has not been restored to the appellant. In view of the fact that the appellant is out of possession for ten months now it would be appropriate for the appellant to await completion of trial. The loss that can be caused to the appellant, since he was running a shop, could be compensated in money, should he desire to claim it. The appeal is, therefore, dismissed. In the circumstances, the Trial Court shall endeavour to dispose of the suit before the close of Court's summer vacation in 2009. R. C. CHAVAN, J SMA