1. Abdul Rahim Khan and Ors. Vs 1. Ibrahim Pir Bhai Shaikh and Ors.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 APPEAL FROM ORDER NO.208 OF 2006

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IN

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 NOTICE OF MOTION NO.5748 OF 2000

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IN

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 L.C.SUIT NO.6775 OF 2000

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 WITH

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 CIVIL APPLICATION NO.287 OF 2006

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 Abdul Rahim Khan & Ors. ...Appellants

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 Versus

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 Ibrahim Pir Bhai Shaikh & Ors. ...Respondents

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 Mr.Anil Singh with Mr.D.R.Shah for Appellants.

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 Mr.Kiran Jain i/b Kiran Jain & Co. for

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 Respondents 1 to 10 & 12 to 21.

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CORAM: A.M.KHANWILKAR, J.

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 APRIL 20, 2006.

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P.C.

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 1. Heard Counsel for the parties.

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 2. Admit. Mr.Jain waives notice for

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 : 2 :

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 Respondents 1 to 10 & 12 to 21. Respondents 22 to
 24 are original Plaintiffs and made formal
 Respondents. Respondent No.11 is reported to be
 dead. Counsel for the Appellants prays for leave
 to amend to delete Respondent No.11. That oral
 request is accepted. Amendment to be carried out
 in the course of the day.

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 3. As short question is involved, Appeal is
 taken up for final disposal forthwith, by consent.

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 4. This Appeal from Order takes exception to
 the Judgment and Order passed by the City Civil
 Court, Bombay dated February 14, 2006 in Notice of
 Motion No.5748 of 2000 dismissing the Notice of
 Motion preferred by the Appellants/Plaintiffs for
 interim relief during the pendency of the Suit.

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 5. For the final order that I propose to pass
 in this Appeal, it is not necessary to elaborate
 and deal with all the facts and circumstances of
 the case. Suffice it to observe that the Trial
 Court by the impugned Judgement has dismissed the
 Notice of Motion on the sole consideration that

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 : 3 :

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 after the rejection of prayer for ad-interim relief
 in the Notice of Motion, the Appellants/Plaintiffs
 have not brought on record any subsequent
 development or incident to indicate that similar
 trouble cropped up during the pendency of the
 Notice of Motion. The Court has then observed that
 the Suit has now ripe for framing of issues and
 recording of evidence. Indeed, in Paragraph 4, the
 Court has adverted to the fact that permission has
 been granted by the Authorities in favour of the
 Defendants with regard to the suit structure which
 is part of the record. It is on this basis the
 Court proceeded to reject the Notice of Motion.

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 6. The grievance before this Court is that
 the Trial Court completely misdirected itself in
 deciding the Notice of Motion on such
 considerations. The fact that ad-interim relief
 was refused at the initial stage of the Notice of
 Motion, cannot be the basis to straight away
 dismiss the Notice of Motion and more so on the
 reasoning that the Plaintiffs have not produced on
 record any material to indicate subsequent
 development. Counsel for the contesting

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 : 4 :

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 Respondents, however, submits that, that was not
 the only submission canvassed by the Defendants
 before the Trial Court. The Defendants had also
 relied on the materials on record to submit that no
 prima facie case was made out by the Plaintiffs.

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 7. However, even on fair reading of the
 Judgment, which is impugned in this Appeal, it is
 not possible to take the view that the Trial Court
 has made reference to all the submissions of the

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 parties, in particular, of the Respondents on
 merits. Whereas, the Trial Court has proceeded to
 reject the Notice of Motion essentially being
 swayed away by the fact that ad-interim relief was
 refused on the earlier occasion and the Plaintiffs
 have not placed on record any subsequent
 developments during the pendency of the Notice of
 Motion to persuade the Court to grant relief as
 prayed in the Notice of Motion. This is not the
 correct approach. The fact that ad-interim relief
 is refused, cannot be the sole criteria for
 dismissing the Notice of Motion. While considering
 the Notice of Motion for final hearing, the Trial
 Court is not only expected to advert to the

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 : 5 :

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 pleadings of the parties but also the submissions
 canvassed across the bar and answer the relevant
 issues that may arise for consideration.

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 8. The appropriate course, in my opinion, is
 to set-aside the impugned Judgement and order and
 relegate the parties before the Trial Court for
 re-hearing of the Notice of Motion afresh to be
 decided on its own merits in accordance with law.
 Counsel for the contesting Respondents, however,
 submits that now the Suit is ready for framing of
 issues and recording evidence. Instead of

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 directing the Trial Court to decide the Notice of
 Motion, the Trial Court may be directed to expedite

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 the hearing of the Suit. Counsel for the
 Appellants/Plaintiffs however submits that after
 the rejection of prayer for ad-interim relief, the
 Charity Commissioner has already ruled that the
 property in question is trust property and which
 fact will have to be reckoned by the Trial Court.
 The request for expediting the Suit without
 requiring the Trial Court to hear the Notice of
 Motion is therefore opposed by the Appellants.

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 : 6 :

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 9. In my opinion, having regard to the fact
 situation of the present case, there is no
 propriety in requiring the Trial Court to proceed
 with the Suit expeditiously before the Notice of
 Motion is finally disposed of one way or the other,
 as, for the reasons already recorded earlier, the
 Judgment in the Appeal cannot be sustained.

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 10. Instead of examining all the contentious
 issues before this Court, the appropriate course
 is, therefore, to relegate the parties before the
 Trial Court for fresh hearing of the Notice of
 Motion on merits in accordance with law.

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 11. Accordingly this Appeal succeeds. The
 impugned Judgment and Order is set-aside. Instead,
 the Notice of Motion No.5748 of 2000 in L.C.Suit
 No.6775 of 2000 is restored to the Trial Court for
 expeditious disposal, preferably by end of June
 2006. All questions arising therein will have to
 be decided on its own merits in accordance with
 law, uninfluenced by the observations in the
 impugned order or for that matter, the present
 order.

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 : 7 :

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 12. Parties to appear before the Trial Court
 on 4th May 2006, so as to enable the Trial Court to
 fix the Notice of Motion for hearing, keeping in
 mind that it has to be disposed of by end of June
 2006.

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 13. Appeal and the accompanying Civil

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 Application stand disposed of on the above terms.

¶46

 A.M.KHANWILKAR, J.

1. Abdul Rahim Khan and Ors. v. 1. Ibrahim Pir Bhai Shaikh and Ors.

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1. Abdul Rahim Khan and Ors. v. 1. Ibrahim Pir Bhai Shaikh and Ors.

Case brief

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What did the court decide?

What the court decided

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