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Bombay High Court

MOHAMMAD HAFIJUL MOHAMMAD AIHAR SHAIKH AND ANRversusSLUM REHABILITATION AUTHORITY (SRA) AND OTHERS

Decided
Disposal
Disposed Off

Holding

Pendency of a motion under Order VII Rule 11 does not by itself bar the grant of ad‑interim relief; the trial court’s order refusing such relief was erroneous.

Summary

The appellants, Mohammad Hafijul Mohammad Aihar Shaikh & Anr., appealed against the trial court's refusal to grant ad‑interim relief in a suit concerning the allotment of a flat under the Slum Rehabilitation Authority scheme. The trial court had denied the relief on the ground that a separate notice of motion under Order VII Rule 11 of the CPC, challenging the suit's maintainability, was pending. The appellants argued that pendency of that motion should not bar interim protection and relied on the Supreme Court’s decision in Asma Lateef v. Shabbir Ahmad, which holds that a court must form a prima facie view on maintainability before refusing interim relief. The High Court held that the trial court erred, quashed its order, and directed the trial court to decide the pending motions while maintaining the status‑quo. Consequently, the appeal was allowed and the interim application was disposed of.

Issues considered

  • The pendency of a notice of motion under Order VII Rule 11 (maintainability) precludes the grant of ad‑interim relief in a civil suit.

Legislation cited

Subjects

  • interim relief
  • maintainability
  • Civil Procedure Code
  • Order VII Rule 11
  • preliminary issue
  • prima facie satisfaction
  • status quo
  • Slum Rehabilitation Authority

Judgment

         Digitally
         signed by                                                                   901-AO-899-26.DOC
         MEERA
MEERA    MAHESH
MAHESH   JADHAV
JADHAV   Date:
         2026.09.02
         16:21:31
         +0530
                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                              CIVIL APPELLATE JURISDICTION

                                         APPEAL FROM ORDER NO.899 OF 2026


                      Mohammad Hafijul Mohammad Aihar
                      Shaikh & Anr.                                      ...Appellants
                            Vs.
                      Slum Rehabilitation Authority & Ors.               ...Respondents

                                                       WITH
                                        INTERIM APPLICATION NO.6922 OF 2026

                                                        ----------
                      Mr. Pradeep Thorat a/w Mr. Shubham Dubey and Ms Aditi S. Naikare i/b Mr.
                      Ashutosh Shukla for Appellants.
                      Mr. Sushil Mishra i/b Mr. Sanjay Mishra for Respondent No.4.
                                                        -----------

                                                      CORAM:        AARTI A. SATHE, J.
                                                      DATED:        2nd SEPTEMBER 2026

                      P.C.


                      1.      This Appeal from Order has been filed under Order XXXIII Rule 1 of

                      the Civil Procedure Code 1908 (CPC), challenging the order dated 28 th

                      August 2026 passed by the Learned Judge, Bombay City Civil Court,

                      Dindoshi Court (Trial Court), in Notice of Motion No.2917 of 2026 in L.C.

                      Suit No.1811 of 2026 whereby, the Trial Court has refused the ad-interim

                      reliefs in the aforesaid Notice of Motion (hereinafter referred to as the

                      impugned order).

                      2.      On perusal of the impugned order, it is seen that the Trial Court has

                      refused to exercise its jurisdiction and denied ad-interim reliefs as prayed for



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only on the ground that Defendant No.4 in the Suit (Respondent No.4

herein), has filed another Notice of Motion under Order VII Rule 11 of the

CPC on the ground of maintainability of suit. The Trial Court on the

aforesaid basis has held that considering that the said Notice of Motion is

pending disposal, ad-interim relief could not be granted to the Appellant. In

view thereof, prayer for ad-interim protection was rejected and the Notice of

Motion was adjourned to 29th August 2026.

3.      Learned Counsel appearing on behalf of the Appellants, Mr. Thorat,

submitted that the approach adopted by the Trial Court was erroneous,

inasmuch as the pendency of the Notice of Motion under Order VII Rule 11

of the CPC, could not be a ground for refusing to grant the ad-interim relief

as prayed for. He further submitted that, in the facts and circumstances of

the present case, considering the competing claims of the Appellant and

Respondent No.4 in respect of the allotment of a flat under the Slum

Rehabilitation Authority (SRA) Scheme, for which a lottery was conducted,

the pendency of the Notice of Motion under Order VII Rule 11 of the CPC, in

the Suit could not be a ground for declining ad-interim relief, particularly

when refusal of such relief would cause prejudice and irreparable loss and

harm to the Appellants. He has sought to place reliance on the decision of

the Supreme Court in the case of Asma Lateef & Anr Vs. Shabbir Ahmad &

Ors.1, wherein the Supreme Court has held that it would be inappropriate for

a court to abstain from recording its prima facie satisfaction on the question


1 (2024) 4 Supreme Court Cases 696


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of maintainability, yet, proceed to grant protection pro tem on the

assumption that the question of maintainability has to be decided as a

preliminary issue under Order 14 Rule 2 of CPC. He submitted that the

Supreme Court in the aforesaid decision has held that the same would

amount to an improper exercise of power and if the court is of the opinion at

the stage of hearing the application for interim relief that the suit is barred

by law or is otherwise not maintainable, it cannot dismiss it without framing

a preliminary issue after the written statement is filed, but can most certainly

assign such opinion for refusing interim relief. He submits that in the facts of

the present case, the Trial Court has not considered the aforesaid settled

position and has refused ad-interim relief only on the basis of the pendency

of the Notice of Motion under Order VII Rule 11 of CPC. Relevant paragraph

of the decision of the Supreme Court in Asma Lateef & Anr (Supra) is

reproduced hereinbelow:-

               “50. Although not directly arising in the present case, we also wish to
               observe that the question of jurisdiction would assume importance
               even at the stage a court considers the question of grant of interim
               relief. Where interim relief is claimed in a suit before a civil court and
               the party to be affected by grant of such relief, or any other party to
               the suit, raises a point of maintainability thereof or that it is barred by
               law be preceded by formation and recording of at least a prima facie
               satisfaction that the suit is maintainable or that it is not barred by law.
               Such a satisfaction resting on appreciation of the averments in the
               plaint, the application for interim relief and the written objection
               thereto, as well as the relevant law that is cited in support of the
               objection, would be a part of the court's reasoning of a prima facie
               case having been set up for interim relief, that the balance of
               convenience is in favour of the grant and non-grant would cause
               irreparable harm and prejudice. It would be inappropriate for a court
               to abstain from recording its prima facie satisfaction on the question
               of maintainability, yet, proceed to grant protection pro tem on the
               assumption that the question of maintainability has to be decided as a
               preliminary issue under Order 14 Rule 2 CPC. That could amount to
               an improper exercise of power. If the court is of the opinion at the



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               stage of hearing the application for interim relief that the suit is
               barred by law or is otherwise not maintainable, it cannot dismiss it
               without framing a preliminary issue after the written statement is
               filed but can most certainly assign such opinion for refusing interim
               relief. However, if an extraordinary situation arises where it could
               take time to decide the point of maintainability of the suit and non-
               grant of protection pro tem pending such decision could lead to
               irreversible consequences, the court may proceed to make an
               appropriate order in the manner indicated above justifying the course
               of action it adopts. In other words, such an order may be passed, if at
               all required, to avoid irreparable harm or injury or undue hardship to
               the party claiming the relief and/or to ensure that the proceedings are
               not rendered infructuous by reason of non-interference by the court.”



4.      Per contra, learned Counsel appearing on behalf of Respondent No. 4

submitted that the reliefs sought by the Appellants in the Suit cannot be

entertained, inasmuch as the said reliefs are in the nature of determining the

eligibility of Respondent No. 4 and his claim for inclusion of his name in

Annexure-II for the purpose of allotment of a flat under the SRA Scheme. He

further submitted that the Notice of Motion filed by the Appellants under

Order VII Rule 11 of the Code of Civil Procedure, 1908, would have to be

heard and, in view thereof, the Trial Court has rightly declined grant of ad-

interim reliefs in favour of the Appellants.

5.      Heard learned Counsel on behalf of the parties. I am of the view that

not exercising jurisdiction by the Trial Court only on the basis of the

pendency of the Notice of Motion under Order VII Rule 11 on the ground of

jurisdiction, is an incorrect approach which has been undertaken by the Trial

Court in refusing the ad-interim reliefs. Considering the fact that the issue of

maintainability had to be decided and the Trial Court had to come to atleast

a prima facie finding as to whether the ad-interim relief ought to be granted



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or not to the Appellants, which the Trial Court has not done in the facts of

the present case, and also considering the decision of the Supreme Court in

Asma Lateef & Anr (Supra), the view taken by the Trial Court to my mind is

an erroneous and incorrect view. Further, the pendency of an application

under Order VII Rule 11 does not by itself, extinguish or suspend the

Plaintiffs’ (Appellants herein) right to seek interim protection in a subsisting

suit. The application under Order VII Rule 11 and the prayer for interim

relief require consideration on their respective parameters. The Trial Court

was therefore required to consider whether the Plaintiffs (Appellants herein)

satisfied the settled requirements for grant of interim relief, notwithstanding

the pendency of the Notice of Motion under Order VII Rule 11 of the CPC.



6.       In view of the aforesaid, I am inclined to allow this Appeal from Order

and set aside the impugned order dated 28 th August 2026 passed by the Trial

Court. This Appeal from Order is therefore allowed in the aforesaid terms.



                                       ORDER

(i)      The impugned order dated 28th August 2026 is hereby quashed and set

aside.

(ii)     The Trial Court to decide expeditiously Notice of Motion No.2917 of

2026 alongwith Notice of Motion No.2892 of 2026 filed by Respondent No.4

on the next date of hearing, i.e., 22 nd September 2026. No adjournments to

be sought by either parties on the said date.


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(iii)   Till the hearing of the aforesaid Notices of Motion, status-quo to be

maintained.

7.      Appeal from Order accordingly stands disposed of.

8.      In view of the disposal of the Appeal from Order, Interim Application

does not survive and accordingly stands disposed of.




                                                (AARTI A. SATHE, J.)




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