Habib Ismail Memorial Trust Vs Murlidhar Panwala

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO.909 OF 2009

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 Habib Ismail Memorial Trust ...Petitioner
 Versus
 Murlidhar Panwala ...Respondent
 ......
 Mr.S.H.Patel for Petitioner.

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 Mr.Bhatt for Respondent.

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CORAM: A.M.KHANWILKAR, J.
 FEBRUARY 5, 2009.
P.C.

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 1. Heard Counsel for the parties.

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 2. Rule. Rule made returnable forthwith, by
 consent. Mr.Bhatt waives notice for Respondent.

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

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 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

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 : 2 :

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 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.

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 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.

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 6. Counsel for the Petitioner submits that
 the submission made on behalf of the Respondent
 that the Appeal was pending admission at the

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 : 3 :

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 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.

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 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

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 : 4 :

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 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.

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 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

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 : 5 :

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 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.

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 9. Accordingly, this Petition ought to
 succeed. The impugned Judgment and Order is
 set-aside.

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 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

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 : 6 :

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 final decision before superior forum. Ordered

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 accordingly.

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 A.M.KHANWILKAR, J.

Habib Ismail Memorial Trust v. Murlidhar Panwala

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Habib Ismail Memorial Trust v. Murlidhar Panwala

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