IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4613 OF 1994 Sterling Investment Corporation Private Limited, a Company incorporated under the Indian Companies Act 1956, having its registered office at Swadeshi Mills Compound, Tata Road No.2, Bombay. ...Petitioner Versus 1.M/s.Kamal Steel Corporation, a firm, Steel Yard House, Mezzanine, R.No.7, Sant Tukaram Road, Carnac Bunder, Bombay-9. 2.Smt.Kusum Kanwal Kishore Gupta, 3.Shri Sandeep Kanwal Kishore Gupta, 4.Shri Anup Kanwal Kishore Gupta, Nos.2 to 4 being heirs and legal representatives of Shri Kanwal Kishore Gupta (since deceased) All R/at Gemini Park, Unit I, Plot No.10-B.12, Sion, Trombay Rd., Mankhurd, Bombay - 400 058. ...Respondents ...... Mr.G.H.Khambete for Petitioner. None for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 4, 2009. MARCH 4, 2009. MARCH 4, 2009. JUDGMENT : JUDGMENT : JUDGMENT : 1. Heard Counsel for the Petitioner. None : 2 : appears for the Respondents though served. 2. This Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the lower Court dated 17th June 1994 in injunction notice No.2 of 1978 in R.A.D. Suit No.514/2132 of 1973. The Petitioner was impleaded as Defendant No.1 in the said declaratory Suit filed on behalf of M/s.Kamal Steel Corporation. In the said Suit, one M/s.A.Hatimbhoy & Co., a firm was also impleaded as Defendant No.2. The Plaintiff and Defendant No.2 arrived at amicable settlement and invited order of the Court in terms of the Consent Terms. That order came to be passed in the Suit on 16th May 1973 whereunder the Suit was dismissed as against Defendant No.2 in view of the Consent Terms. Besides, at the Plaintiff’s instance, the Suit was also dismissed as against Defendant No.1. Curiously enough after over five years thereafter, three Applicants claiming to be heirs and legal representatives of deceased proprietor of the firm moved injunction Notice No.2 of 1978 for the following reliefs: : 3 : "a) that the Defendants their servants and agents be restrained by an order and injunction of this Hon’ble Court from parting with and or inducting any other person, ion the premises situated at the ground floor of the property known as Nav Rattan situated at Iron Market, Carnac Bunder, Bombay 400 009; b) The Defendants their servants and agents be ordered to hand over on rental basis the carpet area of 350 square feet to the Plaintiff in the property known as Nav Rattan, New Iron Market, Carnac Bunder, Bombay 400 009; c) The Defendants be ordered to be dealt with according to the law for having committed contempt of this Hon’ble Court by wilfully not carrying out the solemn undertaking given by the Defendant in this Hon’ble Court by consent terms dated 16th May 1973; d) an ad-interim injunction in terms of prayer (a) above; e) costs of this notice be provided for; f) any other and further relief that may be deemed fit and proper in the circumstances of the case." 3. By the impugned Judgment, the lower Court has allowed the said notice in terms of prayer clauses (a) and (b) by passing following order "Notice is made absolute in terms of prayer (a) and (b) with costs. The defendants are ordered to hand over : 4 : the possession of the carpet area of 350 sq.ft. within the property Navratan, New Iron Market, Carnac Bunder, Bombay-9, within a month from today. In view of this order this notice stands disposed of." 4. The first question that needs to be addressed is: whether it was open to the lower Court to entertain injunction notice after the Suit has been dismissed. Indubitably, upon disposal of the Suit, the Court had become functus officio. Assuming that it could have entertained the injunction notice, the question is: whether it was open to the lower Court to pass order against the Defendant No.1 directing him to hand over vacant possession of the Suit property? The answer is an emphatic ‘NO’. That is so because it is obvious that the Petitioner who is Defendant No.1 was not party to the Consent Terms. Besides, the Suit was dismissed as against Defendant No.1 at the instance of the Plaintiffs. In such a situation, by injunction notice filed subsequent to the disposal of the Suit, the Court could not have directed the Defendant No.1 to hand over possession of the disputed property. It is not necessary for me to examine whether such direction could be and ought : 5 : to be granted against Defendant No.2 at the instance of the Plaintiffs or heirs and legal representatives, who have taken out the subject application. The Defendant No.2 has not challenged the impugned decision. Therefore, it is not necessary to dwell upon that aspect any further. 5. Accordingly, this Petition succeeds with the above observation. In other words, the direction issued in the impugned order dated 17th June 1994 passed on injunction notice No.2 of 1978 will have no application as against Defendant No.1/Petitioner herein. Ordered accordingly. A.M.KHANWILKAR, J.