:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 494 OF 2008 M./s.Swojas Associates P.Ltd ...Petitioners Versus Swojas Dhruv Apartments Condominium and Ors. ....Respondents ====== Mr.Govilkar with Mr.Sarang Aradhye Adv. for the petitioners. Mr.Girish Godbole, Adv. for respondent nos.1 to 12. CORAM: S.C.DHARMADHIKARI, J. DATED: 16TH FEBRUARY,2008. P.C. P.C. P.C. : : : 1. This is a Writ petition at the instance of the Defendants in Reg.Civil Suit No. 1653 of 2007. 2. The grievance, is that the lower Appellate Court while deciding an Application in Misc.Civil Appeal No.426 of 2007 has exceeded its jurisdiction in issuing the following order and direction :- :2: :2: :2: "1. Application is partly allowed. 2. The case is remitted to the Lower Court for deciding the application under Order 7 Rule 11 of CPC, and consequently for subsequent consideration of application under O. 39 Rules 1 & 2 i.e. Exh. 5 if at all court comes to positive conclusion about having jurisdiction to entertain the suit. 3. The learned Civil Judge is directed to send findings recorded on issue to the Appellate Court in one months time. The parties shall be given an opportunity to present their case. 4. The parties to appear before the Lower Court on or before 23.1.2008. In the mean-time status-quo order granted by the Appellate Court to continue. 5. Costs causes in the suit. " 3. The grievance of Mr.Govilkar appearing for the petitioners is that in this Regular Civil Suit, the original plaintiffs applied for temporary injunction on 2.11.2007, but, no ad-interim order was granted and merely notices were directed to be issued to the petitioners. Thereafter, the petitioners-original Defendants appearing in the suit and sought time to file reply. Another application was filed by the Original Plaintiffs being, Exhibit-24, which was rejected. On 19.12.2007, the matter was posted for hearing on interim reliefs. However, the petitioners :3: :3: :3: filed an Application under Order 7 Rule 11 (sub-clause D). The case was thereafter posted for hearing on interim relief and on Application preferred for rejection of plaint. It is urged that by preferring an Appeal against the rejection of the ad-interim order, the Respondents have snatched an ex-parte order from the Appellate court. Once the Trial Court did not have the powers to touch the merits of the matter, there cannot be any question of grant of Ad-interim reliefs. It did not grant them, but, the lower Appellate court did so. 4. The argument is that the Application under Order 7 Rule 11 of the CPC is kept pending and indirectly and obliquely an injunction is sought from the court below on an plaint, which itself is liable to be rejected. In such circumstances, keeping of Application under Order 7 Rule 11 pending and granting an ad-interim order, violates the scheme of the procedural Code and the Order and Direction of the Lower Appellate Court in that behalf is ex-facie illegal. :4: :4: :4: 5. Reliance was placed on several decisions of this court and of the Hon’ble Supreme Court. 6. The lower Appellate Court has kept the Appeal pending. As to whether it could have kept the Appeal pending or not is something which need not detain me. It was taking cognisance of the request of the present petitioners/original defendants in the suit to vacate the ad-interim order granted by the lower Appellate court during the pendency of the Appeal. The Appeal itself was directed against refusal of the ad-interim order and during the course of such an Appeal, when the attention of the lower Appellate Court was invited to the pending Application under Order 7 Rule 11 of the CPC, all is was expected is that the lower Appellate court would issue appropriate directions. 7. There is substance in the contention of Mr.Govilkar that the direction to keep the Appeal pending, directing maintenance of status-quo , until the Appeal is pending and at the same time issuing a direction to the Trial court to decide the Application under Order 7 :5: :5: :5: Rule 11 of the CPC confuses the entire issue. However, the whole matter can be clarified by issuing the following directions : (i) The Trial court to decide and dispose off the Application under Order 7 Rule 11 of the CPC filed by the present petitioners on November 22, 2007 as expeditiously as possible and within a period of two weeks from the date of appearance of parties. (ii) The parties to appear before the Trial Court on 21.2.2008. The Trial Court to take that application first and hear both sides, so also, pass appropriate orders thereon in accordance with law, without being influenced by any orders of the lower Appellate court on the issue of maintenance of status-quo. 8. However, with a view to facilitate early disposal of the Application, so also not to make the suit :6: :6: :6: infructuous, it is directed that the order of the lower Appellate court directing parties to maintain status-quo shall continue until the hearing and final disposal of the Application under Order 7 Rule 11 of the CPC. If the Trial Court holds that the plaint is not liable to be rejected, then, the Application-Exhibit 5 can proceed. If not and the plaint is liable to be rejected, then, all consequences in law shall follow. However, it is clarified that in the light of the order that I have passed, the Appeal preferred before the lower Appellate Court by the Original plaintiffs is disposed off and the Trial Court need not abide by the directions of the lower Appellate Court to submit any report to it. All contentions on the Application under Order 7 Rule 11 of the CPC are kept open. 9. Petition disposed off. No costs. *******