Bombay High Court
Laxman Bala Surve & Others vs M/S. Pesh Builders on 7 November, 1997
Equivalent citations: 1998(3)BOMCR755
Author: S.S. Nijjar
Bench: S.S. Nijjar
ORDER S.S. Nijjar, J.
1. This suit has been filed by the plaintiffs for setting aside the decree passed by this Court on 5th May, 1986 in High Court Suit No. 1213 of 1986. In the alternative it is prayed that this Court be pleased to declare that the decree passed is invalid and not binding on the plaintiffs. Present Notice of Motion has been taken out with a prayer that pending the hearing and final disposal of the suit, the execution of the Consent Decree passed in Suit No. 1213 of 1986 be stayed. In the alternative it is prayed that the defendants be restrained by an order and injunction from creating third party interest and /or disturbing possession of the plaintiff of the suit property viz. Survey No. 277/4 (part), City Survey No. B-953 and Survey No. 277/6 (part), City Survey No. B-964, Chappel Road, New Band Stand, at village Bandra, Tal. Andheri, Bombay-400 050.
2. The plaintiffs are the owners of the suit property. By an agreement dated 22nd September, 1984, the plaintiffs agreed to sell the suit property to the defendants on the terms and conditions mentioned therein. Under the agreement, the money consideration agreed upon between the parties was a sum of Rs. 3,75,000/-. It was also agreed between the parties that the defendants would deliver 5 residential units aggregating to 1800 sq. ft. made up of 2 units of 600 sq. ft. each and 3 units of 200 sq. ft. each in the building proposed to be constructed by the defendants on the said properly. The defendants agreed to purchase the property subject to the existing tenants and according to the plaintiffs were supposed to negotiate with the tenants/ occupiers and arrive at a settlement with them at the defendants costs, charges and expenses. Under Clause 15 it was agreed that the defendants would construct transit sheds and thereafter demolish the existing structures. The tenants and the occupiers were to be accommodated in the transit shed. However, for nearly 4 months the defendants did not take any action and started delaying the project. Nothing was done by the defendants from 1986 till the year 1995. No negotiations were held with the existing tenants to enable the defendants to develop the land. Inspite of having committed all these lapses the defendants filed Suit No. 1213 of 1986 on 2nd May, 1986 in this Court alleging therein that the plaintiffs have not taken steps which were required to be taken under the Agreement. According to the plaintiffs, the allegations made in the plaint were false. Under Clause 24 of the agreement, the obligations were on the defendants to negotiate with the tenants. Since the defendants had not taken any steps in furtherance of the agreement, the plaintiffs were not in a position to obtain permission under the Urban Land (Ceiling & Regulations) Act, 1976. A consent decree came to be passed in Suit No. 1213 of 1986. The consent decree is dated 15th July, 1986. The aforesaid decree is sought to be set aside on the ground of fraud and misrepresentation. It is stated that in the consent terms the defendants were to pay Rs. 1 lakh on or before the execution of the consent terms and to further deposit a sum of Rs. 2,37,500/- in the Court on or before 31st July, 1986. These consent terms are stated to be in addition and in clarification of the original terms incorporated in the agreement for sale dated 22nd September, 1984. The defendants had also represented that the plaintiff will be allowed to withdraw the sum of Rs. 2,37,500/- on fulfilling condition Nos. 8 and 9 of the consent terms. Under the consent terms, according to the plaintiff, the defendants had agreed to construct transit sheds wherein the existing tenants and occupants in the said plot would be shifted. It was also agreed that plaintiff No. 9 would hand over the possession of the wooden stall of the defendants after issue of I.O.D from the Municipal Corporation of Greater Bombay in respect of development of the suit property. The defendants undertook to deliver the plaintiffs 5 residential units aggregating to 1800 sq. ft. as agreed upon earlier within 18 months from the date of the issue of the commencement certificate for the entire building. It is admitted that the entire consideration money has been paid or deposited in this Court by the defendants. It is, however, stated that all other further obligations which were cast upon the defendants have not been performed. The defendants have failed to construct transit sheds. Since the defendants failed to carry out their part of the obligations the plaintiffs were constrained to terminate the agreement on 5th July, 1992. It is, however, admitted that the plaintiffs had received the I.O.D. on 30th July, 1988. The defendants had also sought possession on the basis of the said I.O.D. It is, however, stated that since the defendants failed to comply with their obligations, the plaintiffs were not able to comply with conditions mentioned in Clauses 8,9, and 10 and could not withdraw the amounts deposited by the defendants. It is further stated that although the consent terms were exchanged on 5th May, 1986, yet for six years the defendants again failed to take any action. It is further stated that the structures on the said land are in dilapidated condition. Earlier the tenants were prepared to vacate the premises in their occupation. Now, however, they are not prepared to vacate. In view of the above it is stated that the plaintiffs are entitled to get the decree set aside.
3. Relying on the terms and conditions of the agreement in paragraphs 2, 3, 8, 15, 16, 21, 24, 25, 26, 29, 30 and 32, Mr. Kadam, learned Counsel appearing for the plaintiffs, submits that the obligations in the agreement were mutual. The purpose behind the agreement could only be executed if both the sides had complied with their obligations. Since no construction has been done, therefore, the plaintiffs have not received the 5 flats which the defendants had agreed to deliver to them. According to Mr. Kadam, they had complied with the various conditions contained in the agreement. Possession of the vacant piece of land has been delivered to the defendants as provided under Clause 3 of the agreement. The sale was to be completed within 12 months after securing I.O.D. and commencement certificate in terms of Clause 8 of the agreement. The defendants were entitled to demolish the existing structures and commence constructions under Clause 15. This, according to Mr. Kadam, has not been done. Clause 16 relates to delivery of possessions after the completion of the building. This obviously cannot be complied with until the building is completed. Both parties have relied on Clause 21 of the agreement. According to Mr. Kadam, by virtue of Clause 21 of the agreement, the plaintiffs had the right to require specific performance of the agreement in case of any wilful default. They, however, did not have the right to cancel or terminate the agreement in view of default in payment of money. They only had a right to recover the balance amount with interest at 12 per cent per annum from the date till payment. In view of the above it is stated by Mr. Kadam that the defendants had no right for asking for specific performance of the agreement. It is further submitted by Mr. Kadam on the basis of Clause 24 of the agreement that since defendants had taken the property subject to the rights of the existing tenants it was their obligation to negotiate with the tenants for delivery of vacant possession. This has not been done by the defendants till date. According to Mr. Kadam, even the I.O.D. and the commencement certificate were to be obtained by the defendants in view of Clause 26 of the agreement read with Clause 32. Inspite of this, it is submitted by Mr. Kadam that the plaintiffs had obtained I.O.D. on 30th July, 1988. The commencement certificate could not be obtained till date as the structures are still standing on the suit property which are in occupation of the tenants. In view of the above, it is submitted by Mr. Kadam that the consent terms have lost all relevance and, therefore, the decree passed on the basis of said consent terms deserves to be set aside. It is submitted that the consent terms and the decree are in addition to the agreement mentioned above. Since the decree based on consent terms also imposes obligations on both the parties which have not been performed by both the parties, the decree has to be set aside. It is submitted that it is in the control of the Court to see that the decree for specific performance is obeyed by complying with the conditions laid in the consent decree. For this proposition Mr. Kadam has relied upon two judgements of the Supreme Court which may be noticed. First judgement was a judgement in the case of Chen Shen Ling v. Nand Kishore Jhajharia . This judgement has been cited by Mr. Kadam in support of his proposition that since, the defendants themselves had not complied with the obligations which were contained in the consent decree there is no question of the Court permitting the execution of the said decree. Mr. Kadam relied particularly on the observations of the Supreme Court contained in paragraph 7 which are as under:--
"It is clear from what we have stated that the decree imposes mutual obligations on both the appellant and respondent in such a way that the performance by one is conditional on the performance by the other and accordingly no execution can be ordered unless the party seeking execution not only offers to perform his part but when objection was taken satisfy the executing Court that he was in a position to do so."
On the basis of this it is submitted by Mr. Kadam that the defendants have wholly failed to satisfy this Court that the defendants have not only offered to perform their part of the obligations or that he was in a position to do so. Relying on the narration of the facts above it is submitted that the tenants are still on the suit property.
Therefore, the defendants are not in a position to perform their obligations under the consent decree. The next judgement relied upon by Mr. Kadam is in the case of Hungerford Investment Trust Ltd. v. Haridas Mundhra and others . Mr. Kadam has relied on the observations of the Supreme Court in paragraphs 22 and 23 which are as under:
"22. It is settled by a long course of decisions of the Indian High Courts that the Court which passes a decree lor specific performance retains control over the decree even after the decree has been passed. In Mahommadalli Sahib v. Abdul Khadir Saheb it was held that the Court which passes a decree for specific performance has the power to extend the time fixed in the decree for the reason that Court retains control over the decree, that the contract between the parties is not extinguished by the passing of a decree for specific performance and that the contract subsists notwithstanding the passing of the decree. In Pearisundari Dassee v. Hari Charan Mozumdar Chowdhury, (1888) I.L.R. 15 Cal. 211 the Calcutta High Court said that the Court retains control over the proceedings even after a decree for specific performance has been passed, that the decree passed in a suit for specific performance is not a final decree and that the suit must be deemed to be pending even after the decree. The same view was taken in Someshwar Dayal v. Widow of Lalman Shah . In Anandilal Poddar v. Gunendra Kr. Roy , Ray, J., speaking for the Court, said that the Court retains control over the matter even after passing a decree for specific performance and that virtually, the decree is in the nature of a preliminary one. In Tribeni Tewary v. Ramratan Nonia it was held that the Court retains seisin of the case notwithstanding the fact that a decree for specific performance has been passed and that the decree is really in the nature of a preliminary decree. Fry in his book (Fry on Specific Performance 6th Edn. p. 546 on Specific Performance) states the Law in England as follows:---
"It may and not infrequently does happen that after judgement has been given for the specific performance of a contract, some further relief becomes necessary in consequence of one or other of the parties making default in the performance of something which ought under the judgment to be performed by him or on his part; as for instance, where a vendor refuses or is unable to execute a proper conveyance of the property, or a purchaser to pay the purchase money.....
"There are two kinds of relief after judgment for specific performance of which either party to the contract may, in a proper case, avail himself:
"(i) He may obtain (on motion in the action) an order appointing a definite time and place for the completion of the contract by payment of the unpaid purchase money and delivery over of the executed conveyance and title deeds, or a period within which the judgement is to be obeyed, and, if the other party fails to obey the order, may thereupon at once issue a writ of sequestration against the defaulting party's estate and effects.....
(ii) He may apply to the Court (by motion in the action) for an order rescinding the contract. On an application of this kind, if it appears that the party moved against has positively refused to complete the contract, its immediate rescission may be ordered: otherwise, the order will be for rescission in default of completion within a limited time..."
"23. In Halsbury's Laws of England (Halsbury's Laws of England, 3rd Edn. Vol.
36, 351-2) the law is stated as under:
"Ancillary relief may be obtained after judgement in an action for specific performance where such further relief becomes necessary...."
"Either party may also obtain an order rescinding the contract in default of completion within a fixed time."
In view of the above observations Mr. Kadam submits that the decree passed on consent is not a final decree. It is always subject to modifications by the Court in order to do complete justice between the parties. The decree, according to Mr. Kadam, for specific performance has to be treated as a decree in the nature of a preliminary decree. That being so, there is no question of executing the said decree. Mr. Kadam also relies on the aforesaid observations for the proposition that in view of a fact that both the parties have not complied with the decree it has become necessary to seek further relief. Relying on the proposition (ii) as extracted above Mr. Kadam submits that the suit filed by the plaintiff is maintainable and the interim relief as prayed for ought to be granted to the plaintiff. It is further submitted by Mr. Kadam that the main consideration for the agreement was not the payment of money. The main consideration was to obtain the delivery of 5 residential units within an area of 1800 sq. ft. In view of the impediment in the way of the defendants in constructing the building, the plaintiffs cannot envisage that the delivery of the said units would be given within the forceable future.
4. Mr. Shah, learned Counsel appearing for the defendants, submits, however, that the plaintiffs have wholly failed to carry out their obligations either under the agreement or under the decree which has been passed on the basis of the consent terms. Mr. Shah submits that the consent terms make it very clear that upon the plaintiffs paying or depositing the requisite amount in this Court on or before 31st July, 1986 the defendants were to convey the property to the plaintiffs. This according to Mr. Shah, is the primary stipulation. It is only after that the other obligations come into play. Clause 3 of the consent terms clearly provides that in the event of the failure of the plaintiffs to execute the conveyance the Prothonotary and Senior Master shall execute the conveyance of the said property in favour of the plaintiffs. Delivery of possession of the suit property is mentioned in Clause 4 of the consent terms. Clause 5 shows that 75 percent of the property is in occupation of the tenants. Defendant Nos.
1 and 9 to 14 in that Suit had also agreed to hand over the vacant possession to the plaintiffs (defendants in the present suit) after issue of I.O.D. from the Municipal Corporation. It is only upon the defendants in that suit handing over the possession of the property to the plaintiffs therein that the defendants therein (present plaintiffs) were entitled to withdraw a sum of Rs. One lakh out of the money which was to be deposited by the defendants in the Court. According to Mr. Shah, this Clause 8 has been totally ignored by the plaintiffs. It is also submitted by Mr. Shah that the plea put forward by the plaintiffs that the tenants had refused to vacate is wholly false. Only one letter has been attached to the plaint where the tenant is alleged to have refused to vacate the premises. According to Mr. Shah, this letter is procured by the plaintiffs for the purpose of the suit only. A perusal of the consent terms would also show that the obligation for obtaining vacant possession from the tenants is on the plaintiff and not on the defendants, urges Mr. Shah. It is further submitted that the intention of the plaintiff is quite clear from the fact that they have done nothing since receiving the I.O.D. on 30th July, 1988. Thus on facts it is submitted that the plaintiffs do not deserve any relief either in the suit or at this interim stage. Apart from this, the suit, according to Mr. Shah, filed by the plaintiffs is an abuse of the process of Court. It is submitted that section 28 of the Specific Relief Act specifically bars the filing of such a suit.
According to Mr. Shah, a reading of section 28, sub-section (1) together with sub-section (4) leaves no manner of doubt that a separate suit cannot be filed for any relief which may be claimed under the said section. Mr. Shah has also relied on the same judgement of the Supreme Court in the case of Hungerford Investment Trust Ltd., (supra) to submit that when a Court adjudges rescission of a contract or a decree, it is only concerned with the question whether the person rescinding it was justified in doing so. The Court does not create any right which parties did not possess when it makes a declaration that a contract has been validly rescinded. Merely because it is necessary for the Court to pass an order of rescission, when a controversy arises, it does not follow that it is the Court that rescinds the contract. The Court is only passing upon the validity of the rescission already made by the parties. Thus it is submitted that the present suit is wholly misconceived. Under Clause 21 of the agreement it is specifically provided that the plaintiff will not be entitled for specific performance of the agreement. No such obligation was placed on the defendants. Therefore, they had filed the suit in which the consent decree came to be passed. It is further submitted that the Court will not order anyone to perform obligations which are contrary to the express provisions of the agreement. This is particularly so at the interim stage. It is further submitted by Mr. Shah that by virtue of section 41 of the Specific Relief Act, no injunction can be granted to the plaintiff. In prayer Clause (a) the plaintiffs are claiming for stay of the execution. This cannot be granted by this Court as the execution proceedings are pending in this very Court and not in a Court subordinate to it. For this proposition Mr. Shah relies on a judgement of the Supreme Court given in the case of Cotton Corporation of India Ltd. v. United Industrial Bank Ltd. and others . Last but not least Mr. Shah has submitted that the present suit is barred on the principle of constructive res judicata. It is submitted that the defendants had tiled the necessary execution application in this Court. The plaintiffs appeared in the said execution application and opposed the execution on various grounds. Inspite of their objections the execution notice was made absolute. Against that decision of the learned Judge of this Court, the plaintiffs filed Appeal No. 1007 of 1995. This appeal has been decided by a Division Bench of this Court on 5th July, 1996. The judgement of the Single Judge in Notice of Motion No. 964 of 1994 has been upheld. The execution proceedings have been ordered to continue.
5. In reply to the aforesaid submissions Mr. Kadam submits that section 41 is not applicable as they are not praying for an order of injunction against the executing Court. They are merely saying that the defendants be restrained from proceeding with the execution. It is also submitted by Mr. Kadam that section 28(4) applies only in the case of non-payment of money. Here the contract has been rescinded as the defendants have failed to perform their obligations under the contract. It is submitted that the plaintiff is not asking for performance of anything not contained in the agreement. Clause 21 would apply only if money is not paid. Here the consideration was delivery of 5 flats admeasuring 1800 sq. ft. Mr. Kadam further submits that the judgement of the Division Bench in L.P.A. has no relevance. The submissions made and the pleas raised in this suit were not subject matter of the said decision. Ultimately it is submitted that the plaintiff cannot be put in a worse position than he was at the time when he entered into the agreement. He has reiterated that the defendants have failed to satisfy the Court that they are in a position to fulfil their obligations required under the consent decree. Merely because execution of the conveyance is mentioned in Clause No. 2 of the consent terms does not mean that that is the primary obligation imposed on the plaintiffs.
6. I have considered the aforesaid submission at length. Taking the last objection of Mr. Shah first it is to be noticed that granting any relief in the present Notice of Motion would be in direct contradiction to the Division Bench Judgement given by this Court. A perusal of prayer Clause (a) of the Notice of Motion shows that the plaintiff is seeking in terms the stay of the execution of the consent decree passed in Suit No. 1213 of 1986. The argument of Mr. Kadam that they are merely asking the defendants not to proceed with the execution is wholly fallacious. If a restraint order is placed on the defendants not to proceed with the execution proceedings, naturally the same is bound to be dismissed for non-prosecution. It amounts, in other words, to staying the execution proceedings which have been upheld by the Division Bench. I also find substance in the submission of Mr. Shah that the proceedings in the present suit are barred by the principles of constructive res judicata if not by the principles of res judicata. It was open to the plaintiffs when contesting the execution application to invite the Court to interpret the decree which was sought to be executed. A perusal of the judgement of the Division Bench shows that no such effort had been made.
Consequently the pleas which are sought to be raised now cannot be permitted to be raised, as the same could have been raised in the execution proceedings. No such arguments having been raised are deemed to have been raised and rejected. In view of the above the Notice of Motion deserves to be dismissed on this short ground. There is no substance in the submission of Mr. Kadam that a separate suit is maintainable in view of the judgement given by the Supreme Court in the case of Hungerford Investment (supra). The observations relied upon by Mr. Kadam pertain to applications which can be made in that very suit. The proposition quoted from the book of Fry on Specific Performance by the Supreme Court clearly states that he may apply to the Court (by motion in the action) for an order rescinding the contract. Thus this authority rather militates against the submission made by Mr. Kadam. I also find no substance in the submission of Mr. Kadam to the effect that the decree being in the nature of a preliminary decree the Court can continue to change the obligations which are cast upon the parties in the decree for specific performance. Even there, in my view, applications would have to be made in the same suit. On the other hand the submissions made by Mr. Shah are sound on principles as also supported by precedents. A bare perusal of section 28 of the Specific Relief Act specifically shows that a party can claim to rescind a decree for specific performance, in the event of default committed by one of the party, in the same suit. Sub-sections (1) and (4) of section 28 of the Specific Relief Act read as under:
"28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.
(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and purchaser or lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require".
...................................."
(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be."
A bare perusal of the aforesaid sub-sections clearly shows that section 28(1) postulates that the application for rescinding the contract has to be made in the same suit. Sub-section (4) clearly postulates that no separate suit in respect of any relief which may be claimed under this section shall lie at the instance of any of the parties. In view of the above, I am prima facie of the view that the present suit itself is not maintainable. Mr. Shah again seems to be on a sound footing when he states that by virtue of section 41 no interim relief or permanent relief in the nature of injunction can be granted in the facts and circumstances of this case. Section 41(a) prohibits the Court to grant any injunction restraining any person from prosecuting a judicial proceeding pending at the institution of the suit which the injunction is sought, unless such restraint is necessary to prevent multiplicity of proceedings. Sub-section (b) of section 41 of the Act makes it abundantly clearly that the Court shall not grant any injunction to restrain any person from instituting or prosecuting any proceedings in a Court not subordinate to that from which the injunction is sought. In view of this clear provision of the section it cannot be held that this Court even has the power to grant any such injunction. Mr. Shah in support of this proposition has relied upon a judgement of the Supreme Court in the case of Cotton Corporation of India Ltd. (supra). In paragraph 7 of the said judgement it is held as follows:-
"Part III of the Act bears the heading 'Preventive Relief ' and fasciculus of sections therein included provide for injunctions generally. Section 36 provides that preventive relief is granted at the discretion of the Court by injunction, temporary or perpetual. Section 37 specifies the nature and character of temporary and perpetual injunctions. Temporary injunctions are such as are to continue until a specified time, or until the further order of the Court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908. Permanent injunctions can only be granted by the decree made at the hearing and upon merits of the suit and, thereby, defendant in the suit is perpetually enjoined from assertion of a right or from commission of an act, which would be contrary to the rights of the plaintiffs. Section 38 sets out situations in which the Court can grant a perpetual injunction to the plaintiff to prevent the breach of an obligation existing in its favour, whether expressly or by implication. Section 38 is thus an enabling section which confers power on the Court to grant perpetual injunction in situations and circumstances therein enumerated. Section 41 caters to the opposite situation. It provides that an injunction cannot be granted in the situation and circumstances therein set out. The Corporation relies on section 41(b) in support of its contention that the Court had no jurisdiction to grant temporary injunction because perpetual injunction could not have been granted by the Court in terms in which temporary or interim injunction was sought. Section 41(b) reads as under:
"41. An injunction cannot be granted:-
(a) .... ....
(b) to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought."
..... ...."
The predecessor of section 41(b), section 56(b) of the Specific Relief Act of 1887 repealed by 1963 Act read as under:-
"56. Injunction cannot be granted:-
(a)...
(b) to stay proceeding in a Court not subordinate to that from which the injunction is sought."
A glance at the two provisions, the existing and the repealed would reveal the legislative response to judicial interpretation. Under section 56(b) of the repealed Act, the Court was precluded by its injunction to grant stay of proceedings in a Court not subordinate to that from which the injunction was sought. In other words, the Court could stay by its injunction a proceeding in a Court subordinate to the Court granting injunction. The injunction granting stay of proceeding was directed to the Court and the Court has to be the Court subordinate to the one granting the injunction. This is postulated on the well recognised principle that the superior Court can regulate proceedings in a Court subordinate to it. It is implicit in this assumption and the language used in section 56(b) that the Court could not grant injunction under section 56(b) of the repealed Act to stay proceeding in a Court superior in hierarchy to the Court from which injunction is sought. But by judicial interpretation a consensus was reached that as injunction acts in personum while the Court by its injunction cannot stay proceedings in a Court of superior jurisdiction, it could certainly by an injunction restrain a party before it from further prosecuting the proceeding in other courts may be superior or inferior in the hierarchy of courts. To some extent this approach not only effectively circumvented the provision contained in section 56 of the repealed Act but denuded it of its content. The Legislature took notice of this judicial interpretation and materially altered the language of the succeeding provision enacted in Section 41(b) replacing section 56(b) of the repealed Act while enacting Specific Relief Act of 1963. The Legislature manifestly expressed its mind by enacting section 41(b) in such clear and unambiguous language that an injunction cannot be granted to restrain any person, the language takes care of injunction acting in personum, from instituting or prosecuting any proceeding in a Court not subordinate to that from which injunction is sought. Section 41(b) denies to the Court the jurisdiction to grant an injunction restraining any person from instituting or prosecuting any proceeding in a Court which is not subordinate to the Court from which the injunction is sought. In other words, the Court can still grant an injunction restraining a person from instituting or prosecuting any proceeding in a Court which is subordinate to the Court form which the injunction is sought. As a necessary corollary, it would follow that the Court is precluded from granting an injunction restraining any person from instituting or prosecuting any proceeding in a Court of co-ordinate or superior jurisdiction. This change in language deliberately adopted by the Legislature after taking note of judicial vacillation has to be given full effect."
In view of the above it cannot be held that this Court even has the jurisdiction to grant any interim relief as prayed. Apart from this, having noticed the facts as narrated above, I am of the considered opinion that both the parties are equally responsible for the state of affairs which have been created. Excepting for the interpretation of the consent decree the plaintiffs have nothing else in their favour. The defendants on the other hand have the advantage of a decree in their favour as noticed above. Even otherwise granting interim relief at this stage would be directly contrary to the mandate of section 41 which postulates that an injunction can be granted only to prevent multiplicity of proceedings. Mr. Shah had contended that this suit in fact deserves to be dismissed in view of the fact that it is an abuse of the process of the Court. I need not make any comments on the said submission as the same will have to be decided at the final decision of the suit.
7. In view of the above I find no merit in the Notice of Motion. The same is hereby dismissed with no order as to costs.
8. At this stage Counsel for the plaintiff prays that the operation of this order be stayed for a period of 8 weeks. I find no justification for the request. The same is hereby rejected.
9. Suit dismissed.