jpc wp10279-11.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 10279 OF 2011 Chandra Baba Mandir Trust and two others ... Petitioners Versus M/s Sine Fine Advertising Pvt. Ltd. ... Respondents Mr. Surel S. Shah i/by Thodur Law Associates for the petitioners Mr. S. I. Memon for the respondent CORAM: R. M. SAVANT, J. DATED : 2nd December, 2011 P.C. : 1. The above petition takes exception to the order dated 15th November, 2011 passed by the learned Judge, City Civil Court, Bombay by which order the Notice of Motion filed by the Petitioners herein for restoration of the Review Petition (st) No. 6 of 2011 came to be rejected. 2. The petitioners herein are the original defendants in the suit filed by the respondents herein, being S.C. Suit No. 2498 of 2006. In the said suit, interim injunction came to be granted in favour of the plaintiffs on 19th October, 2006 by the learned Judge of the City Civil Court. The said matter was carried in Appeal by the petitioners herein by filing jpc wp10279-11.sxw 2 Appeal From Order No 45 of 2007. The said appeal was admitted and came to be disposed of by an order dated 5th August, 2011 and in the context of the present proceedings, paragraph 1 of the said order is material and is reproduced hereunder: "Original defendants have filed this appeal against the order of temporary injunction granted in notice of motion 2205 of 2006 in Suit No.2498 of 2006 filed by the respondent/plaintiff. Interim order is in operation for the last 5 years. Admittedly, suit is at the stage of recording of evidence and recording of evidence has been commenced. Taking into consideration the issues involved including issue of jurisdiction, interpretation of documents relied upon by the plaintiff, in my opinion no purpose will be served by disturbing the impugned order at this stage particularly when the plaintiff is enjoying certain rights under the alleged contract for the last about 30 years. In my opinion, following directions will meet the ends of justice: The trial Court shall expedite the trial of suit and dispose off the same on its own merits without being influenced by any observations made in the impugned order dated 19.10.2006, as early as possible and in any case by the end of December, 2011. All the contentions of the parties are left open. " 3. It appears that in the additional affidavit filed by the petitioners in the said appeal, the petitioners had taken a contention as regards fraud and suppression of facts on the part of the plaintiffs whilst obtaining the impugned order from the City Civil Court. It appears that prior to the filing of the said appeal, the petitioners had filed Chamber Summons NO. 234 of 2011 for amendment of the jpc wp10279-11.sxw 3 written statement so as to incorporate the pleadings regarding fraud and suppression of facts. The said Chamber Summons was rejected by the learned Judge of the City Civil Court by order dated 6th May, 2011. The petitioners applied for review of the said order by filing Review Petition (St) No. 6 of 2011, which was pending at the time when the said Appeal From Order No. 45 of 2007 was disposed of. Since there was no stay to the proceedings, the suit had progressed, in as much as the plaintiffs had filed affidavit of evidence of their witnesses. 4. It appears that in the light of the order passed by this Court in the said Appeal From Order, the petitioners filed an application for withdrawal of the Review Petition (St) No. 6 of 2011 . In the said application, it was stated by the petitioners that they may be allowed to withdraw the said Review Petition and would like to continue with the trial in the Short Cause Suit No. 2498 of 2006. Since the suit was progressing, as it was expedited, the petitioners filed the affidavit of evidence of their witness. After the said affidavit was filed, the plaintiffs filed Notice of Motion No. 2302 of 2011 for striking out certain parts of the said affidavit of evidence on the ground that they had no basis in the pleadings. By an order dated 29th September, 2011, the learned judge of the City Civil Court partly allowed the said Notice of Motion jpc wp10279-11.sxw 4 No. 2302 of 2011 and by clause 2 of the operative part of the said order, the learned Judge directed the petitioners i.e. defendants in the suit to file affidavit of the witness Mr. Jayesh Baburaja Shah in lieu of examination-in-chief by deleting paragraph Nos. 6 to 10. 5. After the said order dated 29th September, 2011, the petitioners filed the instant Motion for restoration of Review Petition (st) No. 6 of 2011. The said restoration was sought in view of the order passed in the Appeal From Order dated 5th August, 2011 on the ground that whilst disposing of the said Appeal form Order all the contentions of the parties were kept open. As indicated above, by the impugned order the learned judge of the Civil Court has rejected the said Motion for restoration of the Review Petition on the ground that the review petition has been withdrawn by the petitioners unconditionally. 6. In support of th present petition, the learned counsel Mr. Shah laid much store on the order passed in the Appeal from Order to contend that since all the contentions were kept open, the petitioners, i.e. the defendants were entitled for restoration of the Review Petition as the same was filed for review of the order rejecting the Chamber Summons by which chamber summons, the defendants wanted to jpc wp10279-11.sxw 5 incorporate pleadings regarding fraud and suppression of facts by the plaintiffs. 7. The order dated 5th August, 2011 discloses that though all the contentions of the parties were kept open, there is no direction or observation that the petitioners would be entitled to get the Review Petition restored. No such liberty can be seen. In fact,the record discloses, it is after the said order dated 5th August, 2011 passed in the said Appeal from order that the Review Petition has been unconditionally withdrawn. The trial Court, therefore, was right in rejecting the said application for restoration of the Review Petition on the said ground. 8. In that view of the matter, no case for interference in the writ jurisdiction of this Court under Article 227 of the Constitution of India is made out. Writ petition is accordingly dismissed. (R. M. SAVANT, J.)