1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CA/4104/2009 In CRA/172/2008 ABDUL LATIF ABDUL GANI HAKIM AND ORS VERSUS BHANDARSHAH DARGAH MASJID KABRASTAN AND ORS ... Shri V.J.Dixit, Sr. Advocate i/b Shri G.D.Shaikh, Advocate for applicants, Shri S.V.Gangapurwala, Advocate for respondents 1 to 5 and Shri S.A.Qureshi, Advocate for respondent 6. ... CORAM : S.B.DESHMUKH,J. Dated : 23.2.2010 PER COURT :- 1. Heard respective counsel. 2. Though vakilpatra has been filed by Shri S.V. Gangapurwala, learned Advocate for respondents 2 to 5, he makes a statement that he will file the vakilpatra on behalf of respondent No.1. Statement is accepted and taken on record. 3. The applicants seek review of the order passed by this Court in CRA No.172 of 2008 dated 25.2.2009. 2 4. The order passed by the Maharashtra Waqf Tribunal, below Exhibit 5 in Suit No.78 of 2008, dated 27.11.2008 was challenged in Civil Revision Application. Said revision was heard by this Court and disposed of on 25.2.2009. By this application, the applicants are seeking modification of paragraph No.10 (III) of the said order in revision, which reads as under:- " (III) Learned Tribunal shall decide and dispose of the suit as well as the Application exhibit 90 filed by the petitions on or before 31.10.2009, on merits and on the basis of the evidence brought on record by the parties. Parties are permitted to raise various contentions. Observations made by this Court in this order are restricted, to application exhibit 5 alone and the judgment of the trial Court on that application." 5. Shri Dixit, learned Sr. Advocate submits that the order passed by the Tribunal was subject matter of the revision. Application Exhibit 90 was filed by the petitioners in revision under Order VII Rule 11(d) of CPC. There was no order passed on that application by the Tribunal. Said application was pending. This Court, while deciding the revision and more specifically in paragraph No. 10(III) directed the Tribunal to decide and dispose of the application Exhibit 90 along with the suit on/or before 30.10.2009 on merits. Grievance raised is that this 3 Court was not called upon to pass any order for disposal of application Exhibit 90. Despite this fact, in view of the order of this Court, suit and said application now are pending before the trial Court. Life of lis is thus extended. By this civil application for review, modification is sought for separation of hearing of the application Exhibit 90 and suit by the Tribunal concerned. Shri Dixit, learned Sr. Advocate fairly submits that this modification which is sought can be said to be review of the order passed by this Court on 25.2.2009 within the para meters of section 114 read with Order XLVII of CPC. 6. Shri Gangapurwala, learned Advocate opposes the application. According to him, revision was heard and disposed of in the open Court. In other words, judgment was not reserved and later on pronounced by the Court. It is the oral judgment dictated by this Court in the open court in the presence of the lawyers appearing for the respective parties. According to him, hearing of the suit is now in the midst i.e. examination-in-chief of the plaintiffs in the suit is carried out by filing affidavit on 21.8.2009 and plaintiff is under cross examination. This is in view of the directions given by this Court to decide and dispose of the suit and application Exhibit 90 on/or before 31.10.2009. He, therefore, submits that the review petition be rejected. 7. Learned counsel for respondent No.6 Shri Qureshi also opposes the application for modification and review. 4 8. Shri Dixit, learned Sr. Advocate relies upon the judgment of this Court in the matter of Vasant Jaiwantrao Mahajan Vs. Tukaram Mahadaji Patil [AIR 1960 Bom.485]. I have seen the facts which are recorded by the learned Single Bench of this Court in paragraph Nos.1 and 2 of the said judgment. Shri Dixit, learned Sr. Advocate also points out paragraph No.5 of the review application, wherein, a statement is made that on the date of hearing of the revision, the petitioner was unwell and was referred to Manik Hospital. 9. Review is the matter of Section 114 of CPC. Procedure for review is laid down under Order XLVII of CPC. Section 114 is a substantive provision. Procedure thereof is laid down under Order XLVII. Both these provisions will have to be read together. Factually, Shri Dixit, learned Sr. Advocate, on instructions, submits that the order passed by this Court in revision is not challenged by filing Special Leave Petition before the Honourable Apex Court. It is also not disputed by the learned counsel appearing for the respondents that no order is passed by the trial Court below Exhibit 90 i.e. application filed under Order VII Rule 11 of CPC. Stage of the suit, as contended by Shri Gangapurwala, learned Advocate for respondents 1 to 5 is not contradicted by Shri Dixit, learned Sr. Advocate. 10. All interim applications filed in the suit have a life span till 5 the disposal of the suit itself. On decisions of the interim applications filed in the suit, the aggrieved party may resort to superior forum available under the statute. Nature of the application under Order VII Rule 11 of CPC is altogether different. This application can be filed by the adversary, in terms of the suit - by the defendant - seeking rejection of the plaint on the grounds mentioned under Order VII Rule 11(a) to (f) of CPC. Such application needs to be decided by the Court concerned at any stage. For this proposition, Shri Dixit, learned Sr. Advocate relies on the judgment of the Honourable Supreme Court in the matter of Salim Bhai and others Vs. State of Maharashtra [2003 (2) Mh.L.J.529]. I have carefully considered the ratio laid down by the Honourable Supreme Court in this judgment. 11. Factually, it is not in dispute that the civil revision application was heard in the open court and order was dictated in presence of the learned counsel for respective parties. The date of the order is 25.2.2009. This civil application is filed on 6.4.2009. There is no reason mentioned in the civil application but paragraph No.5 of the application, as pointed out by Shri Dixit, learned Sr. Advocate, seeks condonation of delay. Factually, there is no delay occurred in filing the review application. I have considered the part of the order sought to be reviewed. I have considered the submissions made on behalf of the parties. Parties have their own contentions. However, I do not feel that case within the parameters of Order XLVII of CPC seeking review of order 6 impugned i.e. Paragraph No.10(III) has been established, having considered the status of the suit, which is not disputed by the applicants. 12. In the result, present application stands dismissed. No order as to costs. It is, however, clarified that application Exhibit 90 has not been decided by this Court. Since Exhibit 90 is referred in paragraph No. 10(III) of the order passed in the civil revision application, reference is made in this order. ( S.B.DESHMUKH, J.) ... akl