9 ao 1049.10.doc 1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1049 OF 2010 WITH CIVIL APPLICATION NO.1279 OF 2010 Narendra Talashikar & Ors. ... Appellants Vs. Shobhana Sahadev Shah & Ors. ... Respondents Mr. P.J.Thorat, advocate for Appellants. Mr. Sumeer Tendulkar, advocate for Respondent no.1 and 2. CORAM : J.H. BHATIA, J. DATE : 6th September, 2010. P. C. 1 Heard the learned counsel for parties. 2 The present Appellants are the original Defendant nos. 1 to 4. The Respondent nos. 1 and 2 are the original Plaintiffs. There is a chawl consisting of certain tenements belonging to the Plaintiffs. Besides the chawl, the Plaintiffs also hold other property including open land towards the back side of said chawl and also a theater. Some of the tenants residing in the chawl formed “Saraswati Sadan Co-operative Housing 9 ao 1049.10.doc 2 Society” which is Defendant no.4. The said Defendants put up a big board with name 'Saraswati Sadan Sahakari Gruha Nirman Sanstha Maryadit'. They also put up small iron poles with chains to stop any vehicles coming on the open land behind the said chawl. The Plaintiffs filed the suit for declaration and perpetual injunction and also for removal of the said board as well as small iron poles with chains. The Plaintiffs took out a Notice of Motion claiming interim injunction restraining the Defendants and their representatives from installing any iron pole or board of any nature making any construction on the suit property interfering with the management, control and administration of the suit property i.e. Saraswathi Building, Baithi chawl, patra shed shops and Deepak talkies on the land, city survey no.820, lower Parel Division. They also sought temporary mandatory injunction directing the Defendants to remove the iron poles and board installed by them without permission of the landlord. 3 The defence of the Defendants was that the board was put up by them only to indicate the address of the society and the iron poles and the chain are fixed only to stop nuisance of the vehicles of the people being parked in the area of the society. After hearing the parties, the trial court granted the Notice of Motion in respect of both the prayers. The Defendants have challenged that order in the present Appeal. 9 ao 1049.10.doc 3 4 The learned counsel for the Plaintiffs/Respondents contended that there are in all 46 tenements in the chawl, out of which eight are in possession of the Plaintiffs while others are occupied by the tenants. Only some of the tenants have formed the society and put up the board and they have also without any permission either from the landlord or from the Municipal Corporation, fixed the iron poles with chains around the open land belonging to the Plaintiffs behind the said chawl on which the tenants have no right. Admittedly, no permission was taken either for putting of the board or for erecting iron poles with chains. The board indicates that it is the Co-operative Housing Society for construction of Houses. It indicates that the property belongs to the said Co-operative Housing Society, which is not true. Therefore, there is apprehension in the mind of the landlord that an attempt is being made to grab the property or to oust the landlord. The existence of such a big board of the society itself may give an impression to the people that the property belongs to the society and therefore, the objection taken by the landlord/Plaintiff is justified. It appears that, besides this chawl the Plaintiff has several other properties on that land. It also includes a theater, where the people come to watch movie and park their vehicles on the open land with approval and permission of the landlord. The tenants living in the chawl cannot stop the landlords from the use of that open land for the purpose of 9 ao 1049.10.doc 4 parking vehicles of their customers. The learned counsel for the Defendants/Appellants contended that the said poles and chains are fixed only to protect the property. On the other hand, learned counsel for the Plaintiffs/Respondents contends that the Plaintiffs are capable to take care of and to protect their property and the tenants cannot be allowed to put up such fencing, which practically ousts the landlord and stops their customers from using that open land. I find substance in the contention of the Plaintiffs in the matter. 5 It is settled position of law that the relief of temporary injunction is discretionary in nature and normally the Appellate Court would not interfere in the discretion used by the trial court unless the order passed by the trial court is per se wrong, perverse or illegal. I do not find any such flaw in the impugned order. Therefore, Appeal from Order stands dismissed. 6 As the Appeal from Order is dismissed, the Civil Application also does not survive and stands disposed of accordingly. 7 The learned counsel for the Appellant seeks stay to the temporary injunction. Request turn down. (J. H. BHATIA, J.)