1 wp-4006.10.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4006 OF 2010 Torrent Power Company Limited : Petitioners. versus Soheb Abdul Aziz Bobde and ors. : Respondents. Ms.Deepa Chavan i/by Mr.R R Chile & Ms.R J Nathani for the Petitioners. Mr. F N Momin for the Respondent Nos.1 to 4. CORAM : R M SAVANT, JJ. DATE : 08th November 2011 P.C. 1 Rule, by consent of the parties made returnable forthwith and heard. 2 The above Writ Petition filed under Articles 226 and 227 of the Constitution of India takes exception to two orders both dated 31st March 2010. By the first order, though ad-interim relief was refused to the Original Plaintiffs i.e. the Respondent Nos.1 to 4 herein on the ground that no prima facie case for grant of such a relief was made out, the trial Court i.e. the Learned Civil Judge, Junior Division, Bhiwandi, however, directed the Petitioner Franchisee Company to maintain status quo in so far as supply of electricity to the Respondent Nos.1 to 4 i.e. the Original Plaintiffs was concerned. By the 2nd order the trial Court has allowed the application filed by the Respondent Nos.1 to 4 herein i.e. the Original Plaintiffs under Order 1 2 wp-4006.10.sxw Rule 8 of the Code of Civil Procedure for prosecuting the suit in a representative capacity 3 The above Petition had come up for admission before a learned Single Judge of this Court on 7th May 2010 when both the aforesaid orders were stayed by the learned Single Judge pending consideration of the above Writ Petition for admission. However, the learned Single Judge observed that the trial Court is free to proceed with the hearing of the Application-Exhibit-5 filed by the Respondent Nos.1 to 4 herein i.e. the Original Plaintiffs as also deal with the contention regarding the maintainability of the suit. 4 The learned counsel for the Respondent Nos.1 to 4 herein i.e. the Original Plaintiffs states that the application filed by the Petitioner Franchisee Company under Section 9A of the Code of Civil Procedure Code was heard by the trial Court. However, since there was a change in the incumbent occupying the post of the Civil Judge, Junior Division, Bhiwandi, final orders could not be passed on the said application filed by the Petitioner and now the matter has been posted before the new incumbent of the post of the learned Civil Judge, Junior Division, Bhiwandi. 5 As mentioned herein above, there is already an observation made by the learned Single Judge of this Court that there is no impediment for the trial Court to hear the Application Exhibit-5 for temporary injunction filed by 3 wp-4006.10.sxw the Respondent Nos. 1 to 4 i.e. the Original Plaintiffs and that the application filed under Section 9A of the CPC should be heard simultaneously. 6 The question remains as regards the order passed on the application made by the Respondent Nos. 1 to 4 herein i.e. the Original Plaintiffs under Order 1 Rule 8 of the Code of Civil Procedure. Reading of the order allowing the said application discloses that the said order is bereft of any reasons as to why such a permission was required to be granted to the Respondent Nos.1 to 4. The said order permitting the Respondent Nos.1 to 4 to pursue the Suit in a representative capacity has been challenged by the Petitioner inter alia on various grounds urged in the Petition, but principally on the ground that the Petitioner was not heard whilst allowing the said application. 7 In my view, considering the facts and circumstances of the case, it would be just and proper to set aside the said order dated 31/3/2010 in so far as it permits the Respondent Nos.1 to 4 herein i.e. the Original Plaintiffs to prosecute the said suit in a representative capacity against the action taken by the Petitioner Franchisee Company and relegate the matter back to the trial Court for a de-novo consideration of the said aspect. 8 In so far as the 2nd order dated 31/03/2010 granting status quo is concerned, in my view, the order passed by the learned Single Judge of this 4 wp-4006.10.sxw Court dated 7/5/2010 is required to be continued, and would operate pending consideration of the Application Exhibit-5 filed by the Respondent Nos. 1 to 4 herein i.e. the Original Plaintiffs as also the application filed by the Petitioner Franchisee Company herein i.e. the Application under Section 9A of the Code of Civil Procedure. The above Writ Petition is therefore disposed of by issuing the following directions :- [A] The trial Court to hear and decide the Application Exhibit-5 filed by the original Plaintiffs and the Application filed under Section 9A of the Code of Civil Procedure by the Petitioner Franchisee Company within a period of two months from date. The trial Court also simultaneously to hear the Application filed by the Original Plaintiffs under Order 1 Rule 8 of the Code of Civil Procedure and dispose of the same within the aforesaid stipulated period. [B] The interim order dated 7th May 2010 passed by the learned Single Judge of this Court in the above Writ Petition would operate in so far as stay to the order dated 31/3/2010 as regards grant of status quo is concerned and would continue to operate pending consideration of the above mentioned applications. [C] The trial Court to decide the above mentioned applications on their own merits and in accordance with law by giving proper opportunity to the parties. 5 wp-4006.10.sxw [D] None of the contentions of the parties on merits have been dealt with and parties would be free to agitate the same before the trial Court. 9 Rule is accordingly made absolute in the aforesaid terms with the parties to bear their respective costs. [R.M.SAVANT, J]