1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1356 OF 2008 IN APPEAL FROM ORDER NO.1105 OF 2008 Ideal Co-operative Housing Society Ltd. ..Applicant V/s M/s.Beam Advertising Services ..Respondents Mr.S.N.Vaishnawa with Mr.R.D.Dave i/b.M/s.N.N.Vaishnawa & Co., Advocate, for the applicant Mr.R.R.Sharma, Advocate, for the respondents CORAM : R.M.SAVANT, J. DATE : 6TH JANUARY, 2009 P.C. . The above Appeal from Order filed by the applicant/appellant has been admitted. The plaintiffs i.e.the respondents herein have filed Short Cause Suit No.41/2008 for an injunction so as not to disturb possession of the plaintiffs in respect of the hoarding site in the appellants/defendants-society without following the due process of law. 2 2. The plaintiffs i.e.the respondents herein were allowed the site for hoarding by an Agreement dated 1st April, 1974, initially for a period of five years and thereafter, renewed after every five years till 31st July, 2007. The defendants-society on the said lease period of the plaintiffs coming to an end, issued an advertisement on 10th December, 2007, calling for offers for the said hoarding site. Offer of one Goodluck Advertising offering yearly compensation of Rs.5,04,000/- was the highest and the same was accepted by passing a Resolution in the General Managing Committee Meeting of the defendants-society. It appears that thereafter, on 8th April, 2008 an Agreement was entered into between the defendants-society and the said Goodluck Advertising. Prior thereto the said M/s. Goodluck Advertising deposited with the defendants-society the security deposit of Rs.1,00,000/- and thereafter, have also made further deposits of Rs.2,00,000/- on 30th April, 2008 and two deposits of maintenance charges on 2nd June, 2008 of Rs.21,000/- each. 3. It is the case of the appellant/defendant-society that since the period of lease of the plaintiff has expired on 31st July, 2007, the 3 plaintiff has no right to continue with the hoarding site in question after the said date. It is further submitted on behalf of the appellant that the site in question which was advertised has already been handed over to the said M/s.Goodluck Advertising which is now displaying this advertisement on the said hoarding. The learned counsel for the appellant drew my attention to the letter of the advocate for the plaintiff dated 20th August, 2008, wherein the advocate of the plaintiff has stated that someone else's hoarding is found on the site in question which according to the advocate, was without his client's consent and knowledge. It would therefore have to be held that implicit in the said statement is the acceptance of the fact that the plaintiffs are no more displaying the advertisement on the said hoarding site and are therefore not in possession of the said site. The learned counsel for the appellant/defendant-society submitted that the rights of the appellant/defendant-society to get the best offer for the hoarding site cannot be interferred in the manner sought by the plaintiff. 4. Per contra, it is submitted by the learned counsel for the 4 respondents/plaintiffs that the plaintiffs own the hoarding structure in question on which the advertisements are displayed and further submitted that the plaintiffs are in possession of the site in question since long past. The learned counsel for the respondents submitted that the documents which have been relied upon in this Court i.e. the Agreement with the M/s. Goodluck Advertising and the receipt produced by the appellants were not before the Trial Court when it passed the impugned order and therefore, they cannot be taken into consideration. In my view, considering the tests laid down for the grant of injunction and considering the facts of the instant case wherein admittedly the lease period of the plaintiffs has come to an end on 31st July, 2007 as also the fact that the plaintiffs have admitted that the advertisement is being displayed by someone else on the hoarding site, the Trial Court in my view, has erred in granting the relief as prayed for in the Notice of Motion. The documents though not produced in the Trial Court have been referred to in the pleadings filed by the appellants in the Trial Court. 5. The learned counsel for the respondents relied upon the 5 Judgment of the Hon'ble Apex Court reported in A.I.R 1989 SC 2097 and the Judgment of the learned Single Judge of this Court reported in A.I.R 1996 Bombay 93 in support of his submission that since the plaintiffs are in settled possession, they can only be dispossessed by due process of law. In view of the fact that this Court has come to the conclusion that the plaintiffs are no more in possession of the hoarding site in question, the Judgments cited on behalf of the plaintiffs has no application. There is an ad-interim order operating in favour of the appellant which is passed on 23rd October, 2008. In that view of the matter, the relief in terms of prayer clause (a) of the Civil Application is granted. The Civil Application is accordingly disposed of. (R.M.SAVANT, J.)