Reportable

IN THE SUPREME COUR OF INDIA

CIVIL APPELLATE JURISDICTION

I.A. Nos. 4 – 6 of 2012  IN

CIVIL APPEAL Nos. 1175 - 1177 OF 2012

Margret Almeida & Ors., Etc. Etc. ….Appellants

Versus

Bombay Catholic Coop. Housing  Society Limited & Ors.      ….Respondents

J U D G M E N T

Chelameswar, J.

This is an Application filed with the prayer as follows:

‘In  the  above  facts  and  circumstances,  the  Applicants  /  Appellants  most  respectfully  pray  that  the  Hon’ble  Court  may be pleased to:

a) Clarify  the  order  dated  30.01.2012  passed  by  this  Hon’ble Court in Civil appeal No.1175-1177 of 2012  titled as  “Margret  Almeida  & Ors.  Etc.  Etc Versus  The Bombay Catholic Co-operative Housing Society  Ltd. & Ors. Etc. etc.” as sought in Para 6; and / or

b) Pass  such  other  further  or  other  reliefs  as  the  Applicants / Appellants may be found to be entitled  under  the  facts  and  circumstances  stated  hereinabove.”

2. By the Judgment dated 30-01-2012 C.A.Nos.1175 – 1177 of  

2012  were  disposed  of  setting  aside  the  Judgment  dated  

29-08-2011 of a Division Bench of the Bombay High Court.  The  

said  Judgment  was  rendered  in  a  batch  of  connected  matters,  

arising out of two suits No.144 & 145 of 2010, on the original side  

of the Bombay High Court.  The question before the Division Bench  

was whether the two suits were maintainable in view of Section 91  

of  the  Maharashtra  Cooperative  Societies  Act,  1960.   It  appears  

from  the  Division  Bench  Judgment  of  the  High  Court  that  the  

learned Trial Judge not only held that the suits are maintainable,  

but  also,  granted  interim  order  in  favour  of  the  plaintiffs  

(appellants/ petitioners herein), directing the parties to the suits to  

maintain status quo during the pendency of the suits.

3. In view of the conclusion of the Division Bench that the suits  

were  not  maintainable,  the  Division  Bench  recorded  an  order  of  

dismissal of the suits.   

4. While allowing the appeals, this Court directed, at paras 41  

and 42 of the Judgment, as follows:

“41. Coming to the question of the interim order in view of  our conclusion that the suits in question are maintainable and  having regard to the fact that the suits are to be tried by the  High Court in exercise of its original jurisdiction, we do not  propose to pass any interim order and leave it open to the  High Court to consider the applications filed by the plaintiffs  for  interim  orders  in  accordance  with  law  and  pass  appropriate  orders.   The  principles  governing the  grant  of  interim orders are too well settled and we need not expound  the same once again.  However,  we would like to indicate  that on the question of the existence of a prima facie case in  favour of the plaintiffs, the following factors are germane and  require to be examined.  Having regard to the content of the  plaint, we are of the opinion that the nature of the legal right,  the  plaintiffs  claim for  seeking  the  relief  such  as  the  one  sought in the suits necessarily depends upon the byelaws of  

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the Society, the rights and obligations of the various classes  of its members with respect to the property in dispute.  The  High  Court  may  examine  the  above  aspects  before  passing an appropriate interim order.

42. In view of the above, we also deem it proper to direct all  the parties to maintain status quo as on today for a period of  two weeks to enable the Bombay High Court to examine the  applications of the plaintiffs for interim orders  and pass  appropriate orders in accordance with law.”

(Emphasis supplied)

And hence, the present Application.

5. The  learned  senior  counsel  for  the  Applicants  Mr.  Mukul  

Rohtagi, argued that the appellants (plaintiffs) had an interim order  

of  status quo in  their  favour granted by the learned Trial  Judge  

while  holding  that  the  suits  are  maintainable  and  rejected  the  

objection  to  the  contra  by  the  defendants.   Aggrieved  by  the  

decision  of  the  learned  Trial  Judge,  the  defendants  carried  the  

matter  in  appeal  before  the  Division  Bench  of  the  Bombay High  

Court.   Appeals  were  allowed  by  the  Division  Bench,  on  an  

erroneous  appreciation  of  the  legal  position  regarding  the  

maintainability of the suits.  In view of the Judgement of this Court  

dated 30-01-2012, it is for the Division Bench of the Bombay High  

Court, to consider whether the interim order granted by the learned  

single Judge, to maintain  status quo during the pendency of the  

suit, is to be sustained or not.  The above extracted portion of the  

Judgement of this Court wrongly recorded that the application of  

the plaintiffs (appellants herein) for interim orders is required to be  

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considered, whereas, as a matter of fact, the appellants herein were  

granted  interim  order  by  the  learned  Trial  Judge  and  it  is  the  

respondents  herein,  who  are  challenging  the  grant  of  such  an  

interim order  and,  therefore,  the  Judgment  of  this  Court  dated   

30-01-2012, is required to be clarified accordingly.

6. On  the  other  hand,  the  learned  senior  counsel  Mr.  C.A.  

Sundaram, appearing for  respondent,  argued that in  view of  the  

fact  that  the  appeals  preferred  by  the  respondents  before  the  

Division Bench of the Bombay High Court were allowed dismissing  

the  suits,  the  interim order  granted  during  the  pendency  of  the  

suits, by the learned single Judge of the Bombay High Court, lapsed  

with the dismissal of the suits and, therefore, this Court, rightly,  

opined  that  the  application  of  the  plaintiffs  for  interim orders  is  

required to be considered afresh.

7. We agree with the submission  made by the learned senior  

counsel  Mr.  Mukul  Rohtagi.   The  erroneous  conclusion  of  the  

Division Bench cannot operate to the prejudice of the plaintiffs, who  

successfully demonstrated before this Court that the order of the  

Division Bench cannot be sustained.  The settled principle of law is  

that the actus curiae neminem gravabit - ‘act of the court shall not  

harm anybody’.  In  South Eastern Coal Fields Limited Vs State of   

M.P., (2003) 8 SCC 648, this Court held:  

“27. That no one shall suffer for an act of the court is not a  rule confined to an erroneous act of the court; the act of the  court embraces within its sweep all such acts as to which  the court may form an opinion in any legal proceeding that  

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the  court  would  not  have  so acted  had it  been correctly  appraised of the facts and the law.  The factor attracting  applicability of the restitution is not the act of the court  being wrongful or mistake or error committed by the  court; the test is whether on account of an act of the  party persuading the court to pass an order held at the  end as not sustainable has resulted in one party gaining  an advantage which it would not have otherwise earned;  or the other party has suffered a impoverishment which it  would not have suffered but for the order of the court and  the act of such party.”

(Emphasis supplied)

Therefore,  we  are  of  the  opinion  that  the  matter  should  be  

considered by the Division Bench of the Bombay High Court and  

decide whether the interim order granted by the learned Trial Judge  

is sustainable.   

8. The application is accordingly allowed and the Judgement of  

this Court dated 30-01-2012 stands modified, as indicated above.

………………………………….J. ( P. SATHASIVAM )

………………………………….J. ( J. CHELAMESWAR )

New Delhi; February 24, 2012.

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