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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.  

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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.

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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  

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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  

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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.

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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  

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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  

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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)

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…………………………….J. (Kurian Joseph)

New Delhi, October  09, 2015.

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