Margret Almeida vs Bombay Catholic Coop. Housing Society Ltd.

Margret Almeida & Ors., Etc. Etc. ....Appellants

Versus

Bombay Catholic Coop. Housing

Society Limited & Ors. ....Respondents

J U D G M E N T

Chelameswar, J.

This is an Application filed with the prayer as follows:

`In the above facts and circumstances, the Applicants /

Appellants most respectfully pray that the Hon'ble Court

may be pleased to:

a) Clarify the order dated 30.01.2012 passed by this

Hon'ble Court in Civil appeal No.1175-1177 of 2012

titled as "Margret Almeida & Ors. Etc. Etc Versus

The Bombay Catholic Co-operative Housing Society

Ltd. & Ors. Etc. etc." as sought in Para 6; and / or

b) Pass such other further or other reliefs as the

Applicants / Appellants may be found to be entitled

under the facts and circumstances stated

hereinabove."

2. By the Judgment dated 30-01-2012 C.A.Nos.1175 - 1177 of

2012 were disposed of setting aside the Judgment dated

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29-08-2011 of a Division Bench of the Bombay High Court. The

said Judgment was rendered in a batch of connected matters,

arising out of two suits No.144 & 145 of 2010, on the original side

of the Bombay High Court. The question before the Division Bench

was whether the two suits were maintainable in view of Section 91

of the Maharashtra Cooperative Societies Act, 1960. It appears

from the Division Bench Judgment of the High Court that the

learned Trial Judge not only held that the suits are maintainable,

but also, granted interim order in favour of the plaintiffs

(appellants/ petitioners herein), directing the parties to the suits to

maintain status quo during the pendency of the suits.

3. In view of the conclusion of the Division Bench that the suits

were not maintainable, the Division Bench recorded an order of

dismissal of the suits.

4. While allowing the appeals, this Court directed, at paras 41

and 42 of the Judgment, as follows:

"41. Coming to the question of the interim order in view of

our conclusion that the suits in question are maintainable and

having regard to the fact that the suits are to be tried by the

High Court in exercise of its original jurisdiction, we do not

propose to pass any interim order and leave it open to the

High Court to consider the applications filed by the plaintiffs

for interim orders in accordance with law and pass

appropriate orders. The principles governing the grant of

interim orders are too well settled and we need not expound

the same once again. However, we would like to indicate

that on the question of the existence of a prima facie case in

favour of the plaintiffs, the following factors are germane and

require to be examined. Having regard to the content of the

plaint, we are of the opinion that the nature of the legal right,

the plaintiffs claim for seeking the relief such as the one

sought in the suits necessarily depends upon the byelaws of

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the Society, the rights and obligations of the various classes

of its members with respect to the property in dispute. The

High Court may examine the above aspects before

passing an appropriate interim order.

42. In view of the above, we also deem it proper to direct all

the parties to maintain status quo as on today for a period of

two weeks to enable the Bombay High Court to examine the

applications of the plaintiffs for interim orders and pass

appropriate orders in accordance with law."

(Emphasis supplied)

And hence, the present Application.

5. The learned senior counsel for the Applicants Mr. Mukul

Rohtagi, argued that the appellants (plaintiffs) had an interim order

of status quo in their favour granted by the learned Trial Judge

while holding that the suits are maintainable and rejected the

objection to the contra by the defendants. Aggrieved by the

decision of the learned Trial Judge, the defendants carried the

matter in appeal before the Division Bench of the Bombay High

Court. Appeals were allowed by the Division Bench, on an

erroneous appreciation of the legal position regarding the

maintainability of the suits. In view of the Judgement of this Court

dated 30-01-2012, it is for the Division Bench of the Bombay High

Court, to consider whether the interim order granted by the learned

single Judge, to maintain status quo during the pendency of the

suit, is to be sustained or not. The above extracted portion of the

Judgement of this Court wrongly recorded that the application of

the plaintiffs (appellants herein) for interim orders is required to be

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considered, whereas, as a matter of fact, the appellants herein were

granted interim order by the learned Trial Judge and it is the

respondents herein, who are challenging the grant of such an

interim order and, therefore, the Judgment of this Court dated

30-01-2012, is required to be clarified accordingly.

6. On the other hand, the learned senior counsel Mr. C.A.

Sundaram, appearing for respondent, argued that in view of the

fact that the appeals preferred by the respondents before the

Division Bench of the Bombay High Court were allowed dismissing

the suits, the interim order granted during the pendency of the

suits, by the learned single Judge of the Bombay High Court, lapsed

with the dismissal of the suits and, therefore, this Court, rightly,

opined that the application of the plaintiffs for interim orders is

required to be considered afresh.

7. We agree with the submission made by the learned senior

counsel Mr. Mukul Rohtagi. The erroneous conclusion of the

Division Bench cannot operate to the prejudice of the plaintiffs, who

successfully demonstrated before this Court that the order of the

Division Bench cannot be sustained. The settled principle of law is

that the actus curiae neminem gravabit - `act of the court shall not

harm anybody'. In South Eastern Coal Fields Limited Vs State of

M.P., (2003) 8 SCC 648, this Court held:

"27. That no one shall suffer for an act of the court is not a

rule confined to an erroneous act of the court; the act of the

court embraces within its sweep all such acts as to which

the court may form an opinion in any legal proceeding that

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the court would not have so acted had it been correctly

appraised of the facts and the law. The factor attracting

applicability of the restitution is not the act of the court

being wrongful or mistake or error committed by the

court; the test is whether on account of an act of the

party persuading the court to pass an order held at the

end as not sustainable has resulted in one party gaining

an advantage which it would not have otherwise earned;

or the other party has suffered a impoverishment which it

would not have suffered but for the order of the court and

the act of such party."

(Emphasis supplied)

Therefore, we are of the opinion that the matter should be

considered by the Division Bench of the Bombay High Court and

decide whether the interim order granted by the learned Trial Judge

is sustainable.

8. The application is accordingly allowed and the Judgement of

this Court dated 30-01-2012 stands modified, as indicated above.

........................................J.

( P. SATHASIVAM )

........................................J.

( J. CHELAMESWAR )

New Delhi;

February 24, 2012.