Bombay High Court
Prem Bhagwandas Harjani vs Naraindas Vensimal Harjani & Ors on 2 May, 2014
Author: Roshan Dalvi
Bench: Roshan Dalvi
(1) NMS 1435/13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Amk
NOTICE OF MOTION NO. 1435 OF 2013
IN
SUIT NO. 724 OF 2013
Prem Bhagwandas Harjani .. Applicant
In the matter between
Prem Bhagwandas Harjani .. Plaintiff
Vs.
Naraindas Vensimal Harjani & Ors. .. Defendants
Mr. Karl Tamboly i/b Harish Joshi & Co. for the Plaintiff/Applicant.
Mr. A. G. Shah for Defendant No.1.
Mr. D. D. Madon, Sr. Advocate a/w Mr. Chetan Kapadia, Mr. Tushar
Garodia for Defendant Nos.2 & 3.
CORAM : MRS. ROSHAN DALVI, J.
Date of reserving the Order : 28 th
APRIL, 2014.
Date of pronouncing the Order : 2 nd
MAY, 2014
.
ORDER
1. This Notice of Motion has been taken out for the appointment of Court Receiver and the usual injunctions as also for directing the defendants to deposit the amounts collected and received by them in respect of the suit property with interest @ 18% p.a. thereon in a suit for declaration challenging the sale and transfer of the suit property by defendant No.1 to defendant Nos.2 & 3 as invalid and for the consequential relief of injunction in respect of its alienation, further sale and creation of third party rights.
::: Downloaded on - 04/05/2014 00:43:16 ::: (2) NMS 1435/132. The suit property is the subject matter of a Testamentary Petition being the estate of one Vensimal Kalachand Harjani under whose will defendant No.1 purported to sell the suit property. The petition for probate is stated to have been filed by defendant No.1, 42 years after his death. The plaintiff sought the relief of injunction against further alienation in the testamentary suit. The relief came to be refused under the order dated 05.01.2011 of this Court in its T & I jurisdiction upon the ground that the property was sold in the year 2010. The plaintiff thereafter filed this suit for the grant of the injunction upon the same facts on 14.08.2013. The plaintiff applied for what was called "urgent ad interim reliefs" on 23.10.2013 in the aforesaid Notice of Motion taken out on 17.10.2013.
3. This Court by its order dated 23.10.2013 refused ad interim relief. The Court recorded that the same reliefs were sought from the Testamentary Court and which were rejected on the ground that the property had been sold in the year 2010 and that the Notice of Motion was not maintainable before the Testamentary Court. This Court further recorded that except for stating that the plaintiff is a 66 years old lady and was unwell, no reason as to why this Court was not approached in the last more than 2 ½ years is given. The Court, therefore, held that the plaintiff was not entitled to any urgent ad interim relief without giving an opportunity to the defendants to file their affidavit-in-reply. The defendants were directed to file their affidavit-in-reply. The Notice of Motion was adjourned.
4. The Defendants have filed their affidavit-in-reply. Defendant Nos.2 & 3 have taken up the issue of limitation. The issue has to be tried as the jurisdictional issue under Section 9A of the CPC. The issue has been ::: Downloaded on - 04/05/2014 00:43:16 ::: (3) NMS 1435/13 framed and directions for filing the oral and documentary evidence of the plaintiff has been passed on 04.04.2014 by this Court. The suit came to be adjourned for considering the admissibility of the documents of the plaintiff. Admissibility of the documents has been considered. The affidavit of evidence of the plaintiff has been accepted on record. The Commissioner has been appointed to record the cross-examination of the parties.
5. The plaintiff presses for interim relief under Section 9A (2) of the CPC. Section 9A (2) runs thus:
9A (2). Notwithstanding anything contained in sub-section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction. - Maharashtra Act (65 of 1977) (w.e.f. 19.12.1977).
6. The application taken out by the plaintiff by way of the above Notice of Motion is itself for interim relief in the suit. The plaintiff applied for what is popularly known on the original side of the Bombay High Court as ad interim reliefs. These are the reliefs of an urgent nature granted pending the disposal of the Notice of Motion which is an application for interim reliefs. The preliminary issue has to be decided pending such Notice of Motion which is the application for interim reliefs. Section 9A came to be enacted specifically so that the application for interim relief, which takes up a lot of judicial time, would not be considered until the Court satisfies itself that it has the jurisdiction to decide the suit. This would include the Court's jurisdiction if the suit is not barred by the law of limitation also. Since the Notice of Motion cannot be decided before the decision of the preliminary issue of jurisdiction under Section 9A, the Court may grant such interim relief as it may consider necessary pending the decision under preliminary issue.
::: Downloaded on - 04/05/2014 00:43:16 ::: (4) NMS 1435/137. The grant of such interim relief pending the preliminary issue is, therefore, dependent upon the Court. Sub-section 2 of Section 9A does not call for an application by the plaintiff. That application for interim relief is already made. It is in that application that the issue of jurisdiction can be raised. Once raised it is that issue which has to be decided.
Pending that decision if the Court by itself considers it necessary that some interim reliefs be granted, which would be on the facts and circumstances of each case, the Court is certainly empowered to grant.
8. Mr. Tamboly on behalf of the plaintiff would argue that the Court could so decide only if an application is made and the plaintiff is entitled to make an application upon certain additional facts. No further application for the grant of any interim relief is made. Additional facts are also not brought out on affidavit yet. The very first application for interim relief itself is pending. The urgent ad interim relief sought is refused. If the plaintiff has to be heard on the facts of the case, including additional facts, it would require hearing the above Notice of Motion itself which the Court cannot do. Hence the Court must grant interim relief, if any, under sub-section 2 of Section 9A only if it could be granted without hearing the Notice of Motion.
9. It may be that in a given case the plaintiff who applies for ad interim relief is not heard on the application because the defendant seeks to file an affidavit-in-reply which is allowed. In the affidavit-in-reply the defendant raises the issue of jurisdiction/limitation. The issue would be required to be framed, tried and decided. This would take up some time. In such a case the Court would be empowered to grant some interim reliefs (popularly called ad interim reliefs on the original side of the Bombay High ::: Downloaded on - 04/05/2014 00:43:16 ::: (5) NMS 1435/13 Court) in favour of the plaintiff even though otherwise the Notice of Motion would be kept pending. This would only be an equitable discretionary order. It would not entail the hearing of the Notice of Motion itself. It would be granted as deemed necessary by the Court.
10. In a suit such as this when the plaintiff sought the similar relief in a testamentary petition and sued 2 ½ years thereafter and moved for ad interim reliefs another 2 ½ months thereafter, the grant of not only ad interim but interim reliefs would elude the plaintiff. Laches would be one of the aspects on merits to be considered which has already been considered by this Court in this suit under its order dated 23.10.2013. Consideration of the facts of the case or even additional facts (which are yet not on record) would entail this Court to sit in appeal against the order dated 23.10.2013 which this Court cannot do.
11. Counsel on behalf of the plaintiff states that this is an application for interim relief upon changed circumstances. He contends that the defendants have issued letters of attornment to the tenants. The Notice of Motion was for injunction against creation of third party rights as also against carrying on any construction or development work. The defendants have not been injuncted. The application for ad interim relief has been refused. Consequently the defendants have been carrying on construction and development work. In so doing the defendants may issue various letters, execute various documents and do various acts including the issue of letters of attornment. Such further acts cannot give a cause to the plaintiff to apply for interim relief pending the determination of the preliminary issue or even pending the suit.
12. Consequently it would be appropriate for the plaintiff to ::: Downloaded on - 04/05/2014 00:43:16 ::: (6) NMS 1435/13 prosecute the suit for the determination of the preliminary issue as expeditiously as possible. Of course, if the defendants seek to delay the hearing of the issue of limitation after raising the plea themselves, the plaintiff may seek appropriate direction from the Court. This is not one matter which would require or necessitate an order under sub-section 2 of Section 9A.
13. Counsel on behalf of the plaintiff has drawn my attention to the judgment of the Single Judge of this Court in Notice of Motion No. 748 of 2012 dated 17.07.2012 considering Section 9A(2) of the CPC. The Court has held in para 8 of the order that it is not powerless for considering the applications for grant of reliefs during the pendency and decision of the preliminary issue regarding the jurisdiction. It is also observed by the Court in the aforesaid para that the provisions of Section 9A of the CPC which was legislated to prevent abuse of legal process was itself widely misused by the defendants to prevent grant of interim reliefs to the plaintiff. It is also observed that limitation being a mixed question of law in fact would require evidence to be led which would take a good deal of time. It is, therefore, held in para 7 of the order that the Court was not powerless to consider an application for interim relief during the pendency of application for grant of interim relief itself. Consequently it is observed in para 7 of the judgment that the subsequent application for orders during the pendency of Notice of Motion for interim reliefs during the pendency of the suit can be considered.
It is further observed in para 8 of the judgment that merely because an application for ad interim relief is not pressed at an earlier stage or for some reasons not granted at an earlier stage neither the party would be precluded from renewing its request nor the Court would be precluded from considering the same in the given facts and circumstances of the each ::: Downloaded on - 04/05/2014 00:43:16 ::: (7) NMS 1435/13 case.
However there is a rider to the aforesaid entitlement and grant. The Court would have to consider whether the application for interim relief is made on the same facts and circumstances and the Court would be required to take into consideration the change in the circumstances. No hard and fast rule can be laid down.
14. This is indeed in consonance with Section 9A(2). Some reliefs to a deserving plaintiff would always be granted by the Court as necessitated or as deemed fit and proper. Such power is inherent in each Court. It is argued on behalf of the plaintiff that the expression "not pressed" and "not granted" show that in any case when the reliefs are pressed and not granted also, as in this case, the relief can be pressed and considered on merits. A reading of this judgment does not show that pending the Section 9A issue, all Notices of Motion can be heard to consider the grant or otherwise of interim reliefs. The judgment also does not entitle each plaintiff to such relief. Mr. Madon on behalf of defendant Nos.1 to 3 rightly contended that an application in that behalf is required to be made for renewal of the request of the grant of interim relief. That application may be in the nature of an affidavit. When the ad interim relief is refused on the ground of laches, the plaintiff must show further facts upon affidavit which the defendant would be entitled to contest. In such a case, therefore, an interim relief can be granted pending the disposal of the preliminary issue only upon changed circumstances. If, however, the ad interim relief has not been considered by the Court at all even though an application in that behalf is made because the defendant has sought time to file affidavit-in-reply under which the preliminary issue is raised, the Court may grant interim relief on the same application upon the renewal of the request of granting such relief. The order of this Court dated 17.07.2012 ::: Downloaded on - 04/05/2014 00:43:16 ::: (8) NMS 1435/13 must be read in the light of two entirely different facts and circumstances in which the same application can be renewed or a subsequent application can be made upon changed circumstances.
15. In any event such an application cannot entail the hearing of the Notice of Motion in its entirety. It must only show the Court a glaring fact which would irretrievably cause loss to the plaintiff if the relief is not granted.
16. In view of the above, the application of the plaintiff for interim relief pending the Notice of Motion cannot be granted and is disallowed.
(ROSHAN DALVI J.) ::: Downloaded on - 04/05/2014 00:43:16 :::