1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.470 OF 2010 Em-Vee Advertising Co., (Bombay) Pvt. Ltd. ...Appellant. v. Chandrashekhar Co-op. Hsg. Soc. Ltd. ...Respondents. Mr. N.A.Modi i/by S.T.Manek & Co.,adv. For the Appellant. Mr. G.S.Godbole i/by Ms.Manjiri Parasnis, advs. For the Respondents. CORAM : J.H. BHATIA, J. DATED : MAY 5, 2010 P.C. 1 Heard the learned counsel for the parties. 2 Plaintiff/appellant filed suit no.1693/07 in the City Civil Court, Bombay wherein notice of motion no.1789/07 was taken for temporary injunction. According to the plaintiff, it is in settled possession of the suit land on which hoarding of 45’ X 10’ and 24’ X 10’ are standing in the compound of the defendant/respondents society. According to the plaintiff, there is threat of forcible possession by the society, hence, the suit for perpetual injunction restraining the society from dispossessing it without following the due process of law. Defendants contested the notice of motion contending that in 1996, the plaintiff was granted licence by the society to erect the hoarding within the compound of the society on certain terms. That licence period had 2 come to an end. After expiry of that period, fresh agreement was entered into and that period has also come to an end in 2007. By efflux of time, licence came to an end and, therefore, plaintiff has no right to continue its hoardings within the compound of the society. Further it was contended that real dispute is between licensor and the licensee. Suit is not properly valued and, therefore, the Civil Court had no jurisdiction to entertain the suit. After hearing the parties, City Civil Court rejected the notice of motion. Hence, appeal by the plaintiff. 3 The learned counsel for the plaintiff/appellant relied upon authorities in AIR 1968 SC 620, 1989 Bombay Law Reporter SC (302) and AIR 1996 Bombay 98 in support of his contention that even a trespasser, who is in settled possession of the property is entitled to certain protection from the Court if there is threat of dispossession even from the rightful owner. On the other hand, the learned counsel for the defendant/respondent contended that the relief of temporary injunction for possession is discretionary and equitable in nature and if the plaintiffs seek equity from the Court, it has to come with clean hands. In the present case, plaintiffs did not disclose in the plaint how and in what circumstances, it had come in possession. It is material to note that the plaintiff did not refer to said agreement or licence or its expiry by efflux 3 of time. Even during the arguments before this Court, the learned counsel for the plaintiff/appellant insisted that it is not necessary under what right it is in position, if it can show that it is in settled possession of the property. However, when the learned counsel for the defendant contended that the defendant had pointed out before the trial Court also that in 1996 under an agreement of licence, plaintiff was allowed to erect certain hoarding within the compound of the defendant/society. On certain terms in 2002 fresh agreement was entered into and the licence was granted up to the year 2007. That period has come to an end and the learned counsel for the plaintiff could not point out that the plaintiff has any legal right to continue hoarding in the compound of the defendant/society. In fact, plaintiff was never and is not in possession of the land. Possession is with the society. Only a licence was given by the society to the plaintiff to erect commercial hoarding within the compound of the society and that licence has come to an end . In these circumstances, when the plaintiff has no right to continue its hoardings, there can be no justification for the civil Court to grant discretionary relief of temporary injunction in favour of the plaintiffs and against the society, which is lawful owner and in possession of the land within the compound of the society. It is well settled position of law that the 4 temporary injunction is discretionary in nature and it is also well settled that the appellate Court will not interfere in the discretion used by the trial Court unless it can be pointed out that the order passed by the trial Court was per-se illegal or wrong or that the trial Court had illegally refused exercise of jurisdiction. I do not find any such flaw in the impugned order rejecting the notice of motion. 4 Therefore, the appeal stands dismissed. As the appeal itself is dismissed, civil application no.613/2010 does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)