IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.909 OF 2009 Habib Ismail Memorial Trust ...Petitioner Versus Murlidhar Panwala ...Respondent ...... Mr.S.H.Patel for Petitioner. Mr.Bhatt for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. FEBRUARY 5, 2009. FEBRUARY 5, 2009. FEBRUARY 5, 2009. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Bhatt waives notice for Respondent. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the Small Causes Court : 2 : dated 4th November 2008 below Exhibit 12 in Appeal No.78 of 2003, whereby, Respondent’s application for leave to add names of the trustees as described in Schedule (Exhibit ‘D’) in the Plaint of R.A.D.Suit No. 783 of 1992 by carrying out necessary amendment, is granted. 5. Insofar as the argument of the Petitioner that it was not open to the Appellate Court to reconsider the same issue which has attained finality in terms of its earlier order dated 23rd November 2006 is concerned, the same is devoid of merits. I am in agreement with the argument of the Respondent that the said order is not in the nature of expressing final opinion on the point in issue. At more than one place in the said order such as in Paragraphs 13, 15 and even the operative order passed by the Appellate Court, it is observed that the Application was rejected at the relevant stage when the appeal was still pending for admission. 6. Counsel for the Petitioner submits that the submission made on behalf of the Respondent that the Appeal was pending admission at the : 3 : relevant time, is incorrect. However, now the Counsel for the Respondent submits that the statement made earlier may be ignored as it is on account of miscommunication. Even according to the Counsel for the Respondent, the stand taken by the Petitioner that the appeal was already admitted much before the order dated 23rd November 2006 was passed, is correct. If that is so, the question is: whether it was open to the Appellate Bench of coordinate jurisdiction to reconsider the same question afresh at a subsequent point of time merely because now the appeal were to proceed for final hearing. 7. Counsel for the Respondent submits that it was open on account of the liberty given by this Court in terms of order dated 9th February 2007. However, it is obvious from reading of the said order that the unconditional liberty was not given to the Respondent. The Court has recorded reasons for which the Writ Petition came to be withdrawn by the Respondent on the earlier occasion. It is only for that purpose the Writ Petition was allowed to be withdrawn. At the same time, the Court has made : 4 : it more than clear that the fresh application to be filed will have to be decided on its own merits and the Court was not expressing any opinion with regard to the availability of such remedy to the Respondent. It is this aspect of the matter which needs to be considered. The Appellate Court in the impugned Judgment has clearly overlooked this aspect of the matter. Instead, it proceeded to reexamine the case on merits and has virtually taken a contrary view than the one already expressed by the coordinate Bench on the earlier occasion on 23rd November 2006. The fact that on more than one place the order dated 23rd November 2006 records that the application for amendment was being rejected at the interim stage, does not mean that the reasons recorded by the Court on the earlier occasion can be totally ignored when the said order was allowed to become final. 8. Thus understood, there is no question of entertaining fresh application of the Respondent for the same relief which was already rejected on the earlier occasion. More so, it is not open to the Court of coordinate jurisdiction to overturn : 5 : the view expressed by it on earlier occasion on the same issue and relief claimed at the interim stage. Needless to observe that relief of amendment of pleadings and/or memo of appeal is always an interlocutory matter. It is in that context, the Court has observed that the request cannot be considered at this interim stage. That however, does not mean that it was open to the Respondent to ignore the earlier order and file fresh application for the same relief at a latter point of time merely on the assertion that now the Respondent also prays for amendment of original pleadings besides the memo of appeal. That was not the liberty granted by this Court on 9th February 2007. 9. Accordingly, this Petition ought to succeed. The impugned Judgment and Order is set-aside. 10. It is, however, made clear that the Respondent will be free to question the correctness of the earlier order dated 23rd November 2006 in the event the appeal is decided against the Respondent while questioning the correctness of the : 6 : final decision before superior forum. Ordered accordingly. A.M.KHANWILKAR, J.