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Tuesday, October 13, 2015

issue raised in the petitioners’ C.A.No.5514 of 2012 regarding the petitioners’ entitlement to ad-interim relief under Section 9A(2) of the Code of Civil Procedure (Maharashtra Amendment) during the consideration of preliminary issue under Section 9A(1) of the Code. As the Notice of Motion is still pending in our opinion, it will not be appropriate to express any opinion either way. Suffice to say that the objection raised on behalf of the defendant to which we have referred above, has some substance. It also appears that the commencement certificate for plinth was granted in December 2007 and neither in the 2007’s suit nor in this suit there is any order made in relation to construction. In our opinion, therefore, the learned Single Judge was perfectly justified in declining to make any ad-interim order in favour of the plaintiffs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                   INTERLOCUTORY APPLICATION NO. 6 OF 2012

                                     AND

                   INTERLOCUTORY APPLICATION NO. 7 OF 2014

                                     IN

                        CIVIL APPEAL NO. 5514 OF 2012

                                    WITH

                      REVIEW PETITION (C) NO. 2246/2015

                      IN CIVIL APPEAL NO. 5514 OF 2012



RAZIA AMIRALI SHROFF

AND OTHERS                              PETITIONERS

                                   VERSUS

M/S NISHUVI CORPORATION

AND OTHERS                              RESPONDENTS



                                  O R D E R

M. Y. EQBAL, J.

      Delay in filing the review petition is condoned.

2.    By this review petition, the petitioners are  seeking  limited  review
of the judgment dated 8th April, 2015 passed by this Court in  Civil  Appeal
No.5514 of 2012 and other connected matters (reported in (2015) 6  SCC  412)
to the extent that the said judgment  has  not  considered  or  decided  the
issue  raised  in  the  petitioners’  C.A.No.5514  of  2012  regarding   the
petitioners’ entitlement to ad-interim relief under  Section  9A(2)  of  the
Code of Civil Procedure (Maharashtra Amendment) during the consideration  of
preliminary issue under Section 9A(1) of the Code.

3.    A separate interlocutory application being I.A. No.6 of 2012 had  been
filed  praying  therein  that  pending  the  appeal  this  Court  may   pass
appropriate order to restrain the respondents,  their  agents,  servants  or
representatives from carrying out any development  or  any  construction  or
creating any rights, title or interest in favour of any third party.

4.     Mr.  Shekhar  Naphade,  learned  senior  counsel  appearing  for  the
petitioners, drew our attention to paragraph 7 of the  review  petition  and
submitted that review petitioners have categorically stated in the  petition
that they are not seeking review of the judgment insofar  as  it  interprets
Section 9A(1), CPC (Maharashtra Amendment) but are seeking  review  only  to
the limited extent of non-grant of ad-interim relief under Section 9A(2)  of
CPC (Maharashtra Amendment).  Mr. Naphade, learned senior  counsel,  further
submitted that the main grievance of the petitioners is  that  their  prayer
for ad-interim injunction was not considered and decided by this Court.

5.     On  the  other  hand,  Mr.  C.A.  Sundaram,  learned  senior  counsel
appearing for the respondents, drew our attention to several  orders  passed
by the High Court and this Court had submitted that  as  a  matter  of  fact
Notice of Motion pressed by the petitioners was  not  granted  by  the  High
Court and the Notice of Motion is  still  pending  for  consideration.   The
petitioners have come only for the  ad-interim  relief  before  this  Court,
which cannot be interfered with at this stage.

6.    We have  considered  the  submissions  made  by  the  learned  counsel
appearing for the parties and have also gone through the  orders  passed  by
the High Court and of this Court.  From perusal of the  record,  it  reveals
that when the Notice of Motion (being 3616 of 2010) was moved,  the  learned
Single Judge of the Bombay High Court passed the following order:

“The Defendants shall file their Affidavit-in-Reply within  two  weeks  from
today.  Rejoinder, if any, within two weeks thereafter.

2.  Place the Notice of Motion  for  hearing  and  final  disposal  on  28th
February, 2011.”



7.    The said order of learned Single Judge dated 24.1.2011 was  challenged
before the Division Bench of the High Court being  Appeal  (Lodging)  No.662
of 2011 in Notice of Motion No.3616 of 2010.  The  Division  Bench  disposed
of the appeal holding that the Notice of Motion is pending  and,  therefore,
the learned Single Judge was perfectly justified in declining  to  make  any
interim order in favour of the plaintiffs.   The  order  dated  15th  March,
2012 passed by the Division Bench is quoted hereinbelow:

“Delay in filing the appeal is condoned.

2.    By this appeal, the original plaintiffs make a grievance  against  the
order dated 24th January, 2011 passed by the learned Single  Judge  of  this
Court in Notice of Motion No.3616/2010, in Suit No.2901/2010.   That  Notice
of Motion was taken out by the plaintiffs seeking  certain  interim  reliefs
to operate during the pendency of the suit.   The learned  Single  Judge  by
that order has directed the defendants to file reply  to  the  affidavit  in
support of Notice of Motion and has directed that the of  Notice  of  Motion
to be placed for final hearing.

3.    Grievance of the appellants is that by this order, the learned  Single
Judge has declined to pass any ad-interim order in favour of the appellants-
plaintiffs without giving any reason for doing so.

4.    In order to find out whether the plaintiff would be  entitled  to  any
ad-interim order to operate during the hearing of the motion, we  heard  the
learned counsel for the appellants.  It is clear from the  record  that  the
defendant has raised objection to the maintainability  of  the  suit  itself
and a preliminary issue as to the maintainability of the  suit  is  also  on
the question whether the suit is filed within the period of limitation,  has
been framed.  We find that the plaintiffs had admittedly  filed  a  suit  in
the year 2007 claiming the same reliefs.  During the pendency of that  suit,
the present suit was filed.  Thereafter, the 2007  suit  was  withdrawn  but
the Court has not granted any liberty to the plaintiff to  file  a  suit  on
the same cause of action.

5.    It was contended on behalf of the plaintiffs relying on  the  judgment
of the  Supreme  Court  in  the  case  of  Vimlesh  Kumari  Kulshrestha  vs.
Sambhajirao and another [(2008) 5 Supreme Court Cases 58] that when  a  suit
on the same cause of action is filed during the pendency  of  the  suit,  no
liberty of the  Court  is  to  be  secured  while  withdrawing  the  earlier
instated suit.

6.    Our attention on behalf  of  the  defendandants  was  invited  to  the
provisions of Section 12 of the CPC which lays down:-

      “Where a plaintiff is precluded by rules from  instituting  a  further
suit in respect of any particular cause of action, he shall not be  entitled
to institute a suit in respect of such cause  of  action  in  any  Court  to
which this Code applies.”

Our attention was also invited to the provisions of Rule 1 of Order II  lays
down:-

      “Every suit shall as far as practicable be  framed  so  as  to  afford
ground for final decision upon  the  subjects  in  dispute  and  to  prevent
further litigation concerning them.”

Our attention was also invited to the  provisions  of  Rule  1  Order  XXIII
which lays down:-

      “At any time after the institution of a suit,  the  plaintiff  may  as
against all or any of the defendants abandon his suit or abandon a  part  of
his claim.”

      It was contended that when at a point of  time  there  are  two  suits
pending based on the same cause of action, withdrawal of any  of  the  suits
without securing liberty from the Court  to  institute  a  fresh  suit  will
result in the  plaintiffs  abandoning  his  claim  against  the  defendants.
Therefore, if the first suit is  withdrawn,  the  second,  the  second  suit
would not be maintainable.   It  was  also  pointed  out  to  us  that  even
according to the averments in the plaint and plaintiffs became aware of  the
Consent Terms in the year 2000 whereas the suit has been instituted  in  the
2010.  Therefore, the issue whether the suit is filed within the  period  of
limitation has been raised.  Our attention is also invited  to  the  portion
of the paragraph 12 of affidavit of the Power  of  Attorney  Holder  of  the
plaintiffs dated 15th September, 2011 wherein it  has  been  stated  that  a
revalidated I.O.D. was issued on 19th December, 2007 and defendant has  been
granted plinth Commencement Certificate.  It was pointed out that  the  work
has commenced from 2007 and in the earlier instituted suit also,  there  was
a Notice of  Motion  taken  out  seeking  interim  reliefs  but  during  the
pendency of that suit, no interim  relief  or  ad-interim  relief  was  ever
granted.

7.    As the Notice of Motion is still pending in our opinion, it  will  not
be appropriate to express any opinion either way.  Suffice to say  that  the
objection raised on behalf of  the  defendant  to  which  we  have  referred
above,  has  some  substance.  It  also  appears   that   the   commencement
certificate for plinth was granted in  December  2007  and  neither  in  the
2007’s suit nor in this  suit  there  is  any  order  made  in  relation  to
construction.  In our opinion,  therefore,  the  learned  Single  Judge  was
perfectly justified in declining to make any ad-interim order in  favour  of
the plaintiffs.

8.    The appeal is, therefore, disposed of.”



8.    In the facts and circumstances of the case, we do not find any  reason
to pass an ad-interim order as prayed  for  by  the  petitioners/applicants,
which has already been  declined  by  the  High  Court.   However,  we  give
liberty to the petitioners to move their Notice of Motion No.3616  of  2010,
which is pending consideration by the High Court.  Needless to say  that  if
the aforesaid Notice of Motion is  pressed  by  the  petitioners,  the  same
shall be heard while deciding the preliminary issue  as  contemplated  under
Section 9A of the Civil Procedure Code (Maharashtra Amendment).

9.     With  the  aforesaid  direction,  this  review   petition   and   the
interlocutory application stand disposed of.

10.   I.A.No.7 of 2014

      We have perused the application and also the prayer made  therein  for
initiating proceedings under the provisions of Section 195 and  340  of  the
Code of Criminal Procedure.  Considering the entire facts of  the  case  and
the order passed today, we do  not  find  any  merit  in  this  application.
Hence, the same is dismissed.



                                                              …………………………….J.
                                                                (M.Y. Eqbal)


                                                              …………………………….J.
                                                             (Kurian Joseph)
New Delhi,
October  09, 2015.










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