1 IN THE HIGH COURT OF BOMBAY AT GOA MISCELLANEOUS CIVIL APPLICATION NO.621/2009 IN CIVIL APPLICATION NO.112/2009 IN FIRST APPEAL NO.114/2009 Ganesh Benzoplast Limited a Company incorporated under the Companies Act, 1956, having its office at Dina Building, 101, 1st floor, 53 M. Karve Road, Marine Lines (East) MUMBAI 400 002 through Mr. Manoj Chellapan Terminal Manager of the above named Company in Goa .. Applicant. (Original Plaintiff) Versus Board of Trustees of Mormugao Port Trust, constituted under the provisions of the Major Port Trusts Act, 1963, having its office at Headland, Sada, Vasco-da-Gama, Goa 403 804... Respondent. (Original Defendant) Mr. G. L. Rawal, Senior Advocate with Mr. S. Narvekar, Advocate for the Applicant. Mr. V. B. Nadkarni, Senior Advocate with Mr. Y. V. Nadkarni, Advocate for the respondent. CORAM :- S. B. DESHMUKH & U. D. SALVI, JJ. DATE : 2 nd September , 2009 . ORAL JUDGMENT : 1. Rule, returnable forthwith. By consent, we have 2 heard the learned Senior Advocates appearing for the respective parties. 2. By this application, the applicant prays : “15(A) That this Hon'ble Court be pleased to modify the Order dated 24th June, 2009, and that the Applicant should be exempted from having to pay the Second Installment of Rs.2.5 Crores to the Respondent. (B) That pending the hearing and final disposal of this Application, this Hon'ble Court be pleased to exempt the Applicant from having to pay the Second Installment of Rs.2.5 Crores to the Respondent.” On behalf of the respondent, reply has been filed which is on record(page 35). The reply has been sworn in by Smt. Hemangi Arsekar. 3. The applicant/ plaintiff has filed Special Civil Suit No.5/2009 in the Court of Civil Judge, Senior Division, Vasco- da-Gama on February 9, 2009. The respondent in this application was the defendant in the suit. The parties, shall be referred to as per their status in the suit i.e. as plaintiff and or defendant. The plaintiff's suit was for permanent /perpetual injunction and damages. Prayer clause (b) of the 3 suit seeks damages i.e. sum of Rs.33 Crores 90 Lacs and interest @ Rs.18 % p.a. on account of loss suffered by the plaintiff. Principal/ main prayer in the suit was for declaration that the termination notice dated 12.07.2006 of the lease agreement dated 14.2.2000 as null and void. It is not in dispute that during the pendency of this suit, the application was filed on behalf of the defendant under Order VII, Rule 11 of the Code of Civil Procedure at Exh.D/13. This application was heard by the Trial Court and by the order passed on 13.04.2009, the plaint was rejected. The decree was directed to be drawn accordingly. It is this rejection of the plaint under Order VII, Rule 11(d) of the Code of Civil Procedure, a decree of dismissal of the suit is challenged under Section 96 Read with Order 41 of C.P.C. by filing first appeal in this Court by the aggrieved plaintiff. It was registered as First Appeal No.114/2009. This appeal was heard by this Court on 24.06.2009. The appeal was admitted. Final hearing was directed in the week commencing from January, 2010. Some directions were given by this Court to the appellant for preparing paper books by 31st December 2009. 4. This Court also passed an order in C.A. 4 No.112/2009 on 24.06.2009. The plaintiff was the applicant in C.A. No.112/2009 in First Appeal No.114/2009. The said application was filed on 10.06.2009. In C.A. No.112/2009 stay to the order passed by the learned Civil Judge, S.D. Dated 13.04.2009 in Special Civil Suit No.5/2009 was sought. This application was heard by this Court on 24.06.2009. This Court after hearing the parties in C.A. No.112/2009 passed an order on 24.06.2009. The said order is annexure A to this application. This order has been referred to by the learned Advocates appearing for the plaintiff and defendant . In para 14 of this Application, it has been pleaded that the applicant, who is the plaintiff is constrained to file this application for 'modification' of the order dated 24.06.2009. With these pleadings prayer clause is pleaded in para 15(A)(B), which we have referred to in foregoing paragraphs of this order. On our query to the learned Senior Counsel appearing for the applicant as to under which provision present application has been filed, the Advocate for the applicant makes a two fold submission. According to him, this application can be considered under Rule 4 of Order 39 of the Code of Civil Procedure and or Subrule 5 of Order 41 of the Code of Civil Procedure. During the course of his submissions, he submits that in the interest of justice and considering the grounds 5 raised, this Court may also refer to inherent jurisdiction under Section 151 of the Code of Civil Procedure. Advocate appearing for the applicant supports the application though earlier order passed by this Court. He, therefore, seeks modification in the earlier order passed by this Court on 24.06.2009 in C.A. No.112/2009. The learned Senior Counsel appearing for the defendant also referred to the earlier order passed by this Court on 24.06.2009. Paragraph Nos. 3, 4, 5 and 6 have been referred to. According to him, no case for modification of the order is established. 5. Any decree or order can be challenged in view of the statutory provisions before the Superior Courts/ Forum. The decree or order also can be a subject matter of review by the person feeling aggrieved thereby. In case on hand, after hearing the learned Counsel for the parties, we have considered the provisions laid down under Order 39 Rule 4 of Civil Procedure Code, which provides variation, discharge of the injunction/ ad interim injunction. In the facts and circumstances of the case, we are of the view that the present application cannot be said to be an application 6 governed by Order 39 Rule 4 of Civil Procedure Code. 'Modification' means (i) the act or an instance of modifying or being modified (ii) a change made (Concise Oxford Dictionary, 9th Edition). 'Modification' – a change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves general purpose and effect of the subject matter intact (Black's Law Dictionary, 6th Edition).It is also apposite to consider the meaning of the word 'modify'. 'Modify' means to alter; to change in incidental or subordinate features; enlarge, extend; amend; limit, reduce. Such alteration or change may be characterized, in quantitative sense , as either an increase or decrease (Black's Law Dictionary, 6th Edition). At this stage, we may refer to Section 114 of Civil Procedure Code also. Review has been provided under Section 114 of Code of Civil Procedure. Such remedy is made available to any person considering himself aggrieved by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred. Contingency is also considered under sub clause (b) of Section 114 for review of a decree or order from which no appeal is allowed by this Code. A decision or reference of the 7 Court of Small Causes is the third contingency considered by this Section 114 under clause (c) for seeking review thereof. Order 47 of the Code of Civil Procedure, lays down the procedure for review. The Code of Civil procedure in fact comprises of about 158 Sections. This Code has been appended with first schedule. In First Schedule there are Orders I to XLVII. Section 1 to 158 can be said to be substantive provisions. The procedure thereof can be traced or found out in Orders. While considering the provisions of Code, one has to take into consideration substantive sections of Code of Civil Procedure along with relevant order for the issue concerned. For example if it is the case of review, substantive provision needs to be considered by the Court concerned is Section 114 and meticulous procedure can be found out in Order 47 of C.P.C. Ultimately, the substantive Section of the Code needs to be read conjointly along with the order concerned. 6. In case on hand reference is made in para 14 that the applicant/ plaintiff is seeking modification. We have considered the application, submissions of the Advocates appearing for the parties, from which two views arose i.e. 8 modification as it is claimed or worded by the plaintiff and or review of the order passed by this Court on 24.06.2009 within the parameters of Section 114, read with Order 47 of the Civil Procedure Code. This exercise we are doing for the reason that one of us (Justice U. D. Salvi) was a party to the order passed on 24.06.2009. 7. Nature of dispute we have taken into account. Submission of the Senior Counsel for the plaintiff is that rejection of the plaint in fact is a decree. Section 2 of the Code of Civil Procedure is also considered by us. Civil Court may pass a decree either dismissing the suit, allowing the suit in terms of the prayers asked for by the plaintiff and or may pass partial decree in favour of the plaintiff. However, what is material is the executable part of the decree passed by the Civil Court. The submission of the Advocate appearing for the defendant/ respondent is that there is no executable decree passed by the Civil Court. In our view, in the facts and circumstances of the case, the submission made by the learned Advocate for the defendant is justifiable. We appreciated the submission of the learned Senior Counsel for the plaintiff. We have asked him as to whether temporary injunction and or ad interim injunction or any other order 9 prohibiting the defendant and in favour of the plaintiff was passed by the Trial Court on the date of filing of the suit and or during the pendency of the suit. The Senior Counsel for the plaintiff fairly concedes that no such order was passed and or was in operation during the pendency of the suit in the Trial Court. In this view of the matter, in case on hand, in our opinion, there is no executable decree in operation either in favour of the plaintiff or against the defendant. 8. This Court while considering Civil Application No.112/2009 was specific on the disputed area of the amount allegedly paid or payable by the parties interse. In para 4 of the earlier order passed on 24.06.2009, this Court has observed that “The appellant/ applicant has produced before this Court a communication dated 12.01.2009 in which an amount due and payable till November 2008 has been shown and payable amount demanded is Rs.3,93,46,851/-.” However, next observation of this Court is that “ We are not going into the correctness or otherwise on these aspects.” Further observation of this Court is that “the respondent has placed their calculation on affidavit before us.” This Court further observed that we found from the calculation of the respondents that apart from lease rent, the charges on 10 account of booster station and way leave charges have also been claimed and the amounts paid by the applicant, have been appropriated against it. With these observations, this Court proceeded further and in para 6 directed the appellant/ applicant/ plaintiff to deposit an amount of Rs. 5 Crores in two equal instalments with the respondent directly towards their claims without prejudice to the contention of either parties. Two dates are material. First instalment was to be paid by 24.07.2009 and second was to be paid on 24.08.2009. 9. In our opinion, under the guise of the application seeking modification or review, party claiming to be aggrieved, cannot be permitted to invoke the jurisdiction of this Court as an Appellate Court against its own order. In other words, such an application branded either as application for modification or review cannot be an appeal under the guise of such application. The view we are taking is supported by the judgment of the Supreme Court in the matter of Inderchand Jain (D) through L.Rs., V. Motilal (D) through L.Rs. of Judgments Today reported in 2009(9) SC 552. Indisputably, in view of the earlier order passed on 24.06.2009, an undertaking has been filed by the plaintiff. Copy of such undertaking is placed on record by the 11 respondent / defendant Exh.R1(page 41). This affidavit/ undertaking seems to have been sworn in by one Mr. Ramesh Shankarlal Pilani on 30.06.2009. It is also not in dispute that plaintiff/ applicant is operating in the suit premises from 30.06.2009 i.e. the day on which such undertaking in terms of earlier order dated 24.06.2009 is filed. First instalment of Rs.2.5 Crores has been received on 24.07.2009 by the respondent / defendant. The present application was filed in this Court on 13.08.2009 i.e. 10 days before the date slated for the second instalment for 2.5 Crores i.e. 24.08.2009. The application was listed before this Court for admission on 14.08.2009. We have seen all orders from 14.08.2009 with the assistance of the Advocates appearing for the parties. The fact remains that the payment of second instalment of Rs.2.5 Crores was postponed from 24.08.2009 by ad interim orders passed by this Court till today i.e. 02.09.2009. 10. This application, we are rejecting. At this stage, the learned Senior Advocate appearing for the applicant sought some extension of time and for making payment of second instalment, which was to be made by the applicant/ plaintiff on 24.08.2009. After hearing the learned Counsel for the respondent, we are inclined to schedule such date on 12 22.09.2009. While scheduling such date for payment of second instalment of Rs.2.5 Crores, we are further directing the applicant/ plaintiff to file fresh undertaking on or before 22.09.2009. With these two alterations i.e. postponement of second instalment of Rs.2.5 Crores on 22.09.2009 and fresh undertaking by some officer in terms of this order on 22.09.2009, we are rejecting this application without any order of costs. Rule discharged. S. B. DESHMUKH, J. U. D. SALVI, J. SMA