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
- Code of Civil Procedure, 1908 — s. Order 14 Rule 2, Order VII Rule 11, Order XXXIII Rule 1
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
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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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