RAZIAAMIRALI SHROFF AND OTHERSversusM/S NISHUVI CORPORATION AND OTHERS

                        [2015] 12 S.C.R. 844


A             RAZIAAMIRALI SHROFF AND OTHERS
                                  v.
           M/S NISHUVI CORPORATION AND OTHERS
               (Interlocutory Application No.6 of 2012)
B
                                 And
              (Interlocutory Application No. 7 OF 2014)
                                  IN
                  (Civil Appeal No.5514 OF 2012)
c
                                 with
                (Review Petition (C) No. 2246/2015)
                                  IN
o                   Civil Appeal No.5514of2012
                        OCTOBER 09, 2015
            [M. Y. EQBAL AND KURIAN JOSEPH, JJ.]
          Review- Review petition - Non-grant of ad-interim relief
E   u/s. 9A(2) CPC (Maharashtra Amendment) by this Court-
    Review sought to a limited extent- Held: The petitioners had
    taken out Notice of Motion seeking interim reliefs before the
    Single Judge of the High Court and the same was rejected -
    In appeal, the. Division Bench upheld the said order since
F   the Notice of Motion was still pending consideration - Thus,
    in the facts and circumstances of the case, no reason to pass
    an ad-interim order as prayed for by the applicants-However,
    liberty given to the petitioners to move their Notice of Motion .
    which is pending consideration by the High Court - Thus,
G   the Review petition and the interlocutory application disposed
    of as also no merit in the application and also the prayer
    made for initiating proceedings under the provisions of s.
     195 and 340 .CPC - Code of Civil Procedure, 1908 - s.
H   9A(2).
                                 844
        RAZIA AMIRALI SHROFF v. MIS NISHUVI                      845
                  CORPORATION

     CIVILAPPELLATE JURISDICTION : I. A. Nos. 6 of 2012 A
and 7of2014 in Civil Appeal No. 5514 of2012

     From the Judgment and Order dated 15.03.2012 of the
High Court of Judicature at Bombay in Appeal (Lodging) No.
662 of 2011 in Notice of Motion No. 3616 of 2010 in Suit No.     B
2901of2010
                            WITH
     R. P. (C) No. 2246/2015 in C.A. No. 5514/2012

     Shekhar Naphde, Pravin H. Parekh, Sr. Advs., Sameer C,
Parekh, Ms. Shubangi Tuli, Amr Dave, Ms. Rukhmini Bobde,
Vishal Prasad (For M/s. Parekh & Co.), A.dvs. with them, for
the Appellants.

       C. A. Sundaram, Harin P. Rawal, R. Venkataramani, Sr.     D
Advs., Prashant G. Karande, P. M. Palshikar, Anish R. Shah,
Shivaji M. Jadhav, Yashraj Bundela,Anando Mukherjee,Advs.
with_ them, for the Respondents.

     The following order of the Court was delivered:             E
                          ORDER
     M. Y. EQBAL, J. 1. Delay in filing the review petition is
condoned.
                                                                  F
       2. By this review petition, the petitioners are seeking
limited review of the judgment dated 81hApril, 2015 passed by
this Court in Civil Appeal No.5514 of2012 and other connected
matters (reported in (2015) 6 sec 412) to the extent that the
said judgment has not considered or decided the issue raised G
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.                                                H
846        SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A        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
 B any rights, title or interest in favour of any third party.

           4. Mr. Shekhar Naphade, learned senior counsel
    appearing forthe petitioners, drew our attention to paragraph
    ·7 of the review petition and submitted that review petitioners
 C 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.
 D 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.

 E   . 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
 F 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
 G 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:
 H
        RAZIA AMIRALI SHROFF v. M/S NISHUVI                       847
           CORPORATION [M. Y. EQBAL, J.]

     "The Defendants shall file their Affidavit-in-Reply within A
     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."
                                                                   B
     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 of2010. The Division Bench disposed of
the appeal holding that the Notice of Motion is pending and, C
therefore, the learned Single Judge was perfectly justified in
declining to make any interim order in favour of the plaintiffs.
The o.rder dated 15th March, 2012 passed by the Division
Bench is quoted hereinbelow:
                                                                 D
      "Delay in filing the appeal is condoned.
     2. By this appeal, the original plaintiffs make a grievance
     against the order dated 241h January, 2011 passed by
     the learned Single Judge of this Court in Notice of Motion E
     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 F
     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 G
     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       H
848    SUPREME COURT REPORTS                    [2015] 12S.C.R.


A     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
B     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
c     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
D      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 defendants was invited
 E    ·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
 F       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
       ofOrderll laysdown:-
G
          "".:very 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."
 H
   RAZIA AMIRALI SHROFF v. MIS NISHUVI                              849
      CORPORATION [M. Y. EQBAL, J.]

Our attention was also invited to the provisions of Rule 1 A
Order XXlll 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."
                                                                    B
It was contended that when at a point of time there are
two suits pending based on the same cause of action,
withd ravyal 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,             C
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.              D
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              E
revalidated I. 0. 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              F
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 G
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
                                                                    H
850         SUPREME COURT REPORTS                     [2015] 12 S.C.R.


A           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.
 B
            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
 C 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
 D preliminary issue as contemplated under Seqtion 9A of the
    Civil Procedure Code (Maharashtra Amendment).

            9. With the aforesaid direction, this review petition and
      the interlocutory application stand disposed of.
 E
            10. l.A.No.7of2014

        We have perused the application and also the prayer
   made therein for initiating proceedings under the provisions
 F 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.
      Nidhi Jain                          Review Petition and IA disposed of.
 G