AJAY MOHAN AND ORS. v. H.N. RAI AND ORS

Citation: [2007] 13 S.C.R. 298

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

AJAY MOHAN AND ORS. v. H.N. RAI AND ORS.pdf

Judgment text

AJAY MOHAN AND ORS. v. ~ H. N. RAI AND ORS. DECEMBER 12, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] Injunction: Suit for permanent injunction - Defendants claiming right over suit property based on sale agreement- Civil Court refused to grant order ofinjunction on the ground that no prima facie case made out - Appeal thereagainst withdrawn - Thereafter plaintiff prayed for amendment ofplaint and also sought interim order of injunction during pendency ofsaid application - Rejected by Civil Court-Affirmed by High Court on ground thatproposed amendment fell short ofgrant ofdeclaration that sale agreement was null and void - Correctness of- Held: Correct as plaintiffhad not brought y out any new circumstances warranting grant of injunction in his favour - Only becausefurther prayer was made upon amending the plaint, same itselfwould not bring situational change warranting application ofmind afresh by Civil Court.

Interim order: Suit for permanent injunction - Civil Court refased to grant order ofinjunction on the ground that no prima facie case made out -Appeal thereagainst sought to be withdrawn - High Court allowed plaintiffto withdraw and also directed parties to maintain status quo for two weeks but no reason was assigned to pass such interim order - Held: High Court hadnojurisdiction to pass such an interim order - Once appeal was permitted to be withdrawn, Court became functus officio. The Plaintiffs-appellants became owners ofthe suit land by way of gift deed. Defendants-respondents claimed their ri:ght and possession over the suit land in terms ofsale agreement purported ~·· AJAY MOHAN AND ORS. v. H. N. RAIANDORS. 299 to be executed by appellants. Various proceedings were initiated >-....

( before the Revenue Courts in regard to inclusion of name of respondents in the revenue records before filing the instant suit by the appellants before the Civil Court for permanent injunction restraining the respondents from creating any right over the suit land, on the basis of the revenue entries and from interfering with their possession. In the said suit, appellants filed a notice of motion. The Civil Court by order dated 13. 10. 2006 refused to ·-( grant an order of injunction on the ground that no primafacie case was made out. The appellants filed appeal thereagainst in the High Court. The said appeal however was withdrawn stating that they would move the trial Court for amendment ofplaint. The High Court allowed the appellants to withdraw the appeal and also directed the parties to maintain status quo for a period of two weeks.

Thereafter, chamber summon was taken by the appellants wherein prayer was made not only for the amendment of the plaint but also seeking an interim order of injunction during the pendency of the said application was also prayed for. The prayer for interim relief was rejected by Civil Court opining that the earlier order dated 13. 10. 2006 became final. Against this order of rejection the appellant filed appeal before High Court wherein it was held that the proposed amendment fell short of relief of declaration that the sale agreement was null and void and was to be set aside and upheld the judgment of Civil Court. An SLP was filed before this Court against the said order which was disposed of on 2. 2. 2007 with the direction that until amendment application is disposed of, no third party interest should be created. On 28. 2. 2007, application for amendment was allowed. A notice ofmotion for grant ofinjunction was again taken out which was dismissed. High Court upheld the said order.

Hence the present appeal. Dismissing the appeal, the Court HELD: 1. 1. It is a trite law that the principles ofresjudicata , apply in different stages of the same proceedings. The entire ). _ claim of the plaintiffwas based on their claim of possession of the lands in suit. Defendants, on the other hand, claimed their right, title, interest and possession on the basis of the purported agreement for sale. Whether possession had been delivered to them in part performance ofagreement ofsale or not is essentially a question offact. Genuineness or otherwise ofthe said agreement also involves determination of a disputed question. [Para 15] )• [309-G; 310-B] Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr. AIR (1960) SC 941; Arjun Singh v. Mahindra Kumar and Ors. AIR (1964)SC 993; C. V Rajendran andAm: v. N. M Jv. (uhammed Kunhi (2002) 7 SCC 447; lshwar Dutt v. Land Acquisition Collector and Anr. (2005) 7 SCC 190; Bhanu Kumar Jain v. Archana Kumar and Anr.

(2005) 1 SCC 787 - relied on. 1. 2. Plaintiffs, while praying for the reliefofinterim injunction, y were bound to establish a primafacie ease. They were also bound to show that the balance of convenience lay in their favour and unless the prayer is granted, they will suffer an irreparable injury. The Civil Court clearly found that primafacie, the plaintiffs' suit was not maintainable in absence of any prayer for cancellation and setting aside of the said agreement for sale having been made for in the suit. The plaintiffs, despite opportunities having been given to them, failed to make such a prayer even while seeking the Court's 'leave' to amend the plaint. [Para 16] [310-C, D, E) 1. 3. The order of the Civil Court dated B. 10. 2006 was required to be set aside by the Court ofAppeal. An appeal had been preferred by the appellants thereagainst blllt the same had been withdrawn. The said order dated 13. 10. 2006, therefore, attained finality.

The High Court, while allowing the appellant to withdraw the appeal, no doubt, passed an order ofstatus quo for a period of two weeks but no reason therefor had been assigned. It exfacie had no jurisdiction to pass such an interim order. Once the appeal was permitted to be withdrawn, the Court became >-~ functus officio. It did not hear the parties on merit. It had not assigned any reason in support thereof. Ordinarily, a court, while allowing a party to withdraw an appeal, could not have granted a further relief. Even then, the plaintiff preferred to file a fresh notice ofmotion. It did not file any application for grant ofinjunction till the disposal of the suit. It, principally, in the said notice of motion asked for amendment of the plaint. The second relief -f prayed for in the said notice ofmotion was again withdrawn with liberty to file a fresh notice ofmotion.

Appellants, therefore, have been filing applications after applications without making proper prayer therein at all stages. [Paras 17, 18] (310 F-H; 311 A,B-C] GE. Power Controls India and Ors. v. S. Lakshmipathy and Ors. (2005) 11 SCC 509 - relied on. 2. So far as the order of this Court dated 2. 2. 200i is concerned at the first blush, it appears that this Court could not --{ have granted any relief to reagitate the questions of hearing the parties and interim relief once over again. Even ifthat be so, the said interim relief having regard to the admitted facts was to be kept confined only for a short term, namely, till the application for amendment is considered. This Court, therefore, did not grant any liberty to the plaintiffs to file a fresh application for injunction. It could not comprehend thereabout at that time. The Notice of Motion taken out for grant of injunction was, therefore, required to be considered on its own merit.

The plaintiffs had not brought 1 ·out any new circumstances warranting grant of any injunction in their favour. Only because a further prayer had been made in the suit upon amending the plaint, the same by it$eif clid not bring about a situational change warranting application of mind afresh by the City Civil Court. The only argument which is available to the appellants was that the suit, by reason of amendment made in the prayer, has become maintainable. Maintainability of the - -a balance of convenience in their favour. [Paras 19,20) [311 D-H] CIVILAPPELLATE JURISDICTION : Civil Appeal No. 5831 of2007 From the Judgment and Order dated 16. 06. 2007 of the High Court ofBombay in Appeal from Order No. 320 of2007 in Notice of I . Motion No. 994 of2007. R. F. Nariman, Shyam Dewan, Parimal Shroff, MaheshAgarwal, Rishi Agrawala, E. C. Agrawala, Gaurav Goel and Surya Kant Jadhav, for the Appellants. Ashok Desai, Mukul Rohtagi, P. H. Parekh, Pradip Sancheti, Sameer Parekh,AjayK. Jha, N.

Don Parthiv Goswami, Kush Chaturvedi and Diksha Raj (for P. H. Parekh & Co. ) for the Respondents. The Judgment ofthe Court was delivered by S. B. Sinha, J. 1. Leave granted. 2. Appellants are aggrieved by and dissatisfied with thejudgment and order dated 16. 6. 2007 passed in Appeal From Order No. 320 of 2007 by a Division Bench ofthe Bombay High Court whereby and whereunder an appeal from an order dated 12. 4. 2007 passed by City Civil Court, Bombay in Notice ofMotionNo. 944 of2007 rejecting an application for injunction filed by them was dismissed. 3. Appellants are said to have become owners ofthe suit land by reason ofa deed ofgift, which is said to have been executed by Mrs. Tara Sarup on 30. 3. 1968 in favour ofthe first appellant. Indisputably, Respondents claim their right, title, interest and possession on or over the land in suit in terms ofan agreement ofsale purported to have been executed by the appellants herein in their favour on or about 23. 10. 1969. 4.

Appellants' case in relation to the said ag1eement for sale are: (a) It is a forged document. i (b) In any event, the plaintiffNo. I being minor on the date of execution ofthe agreement (his date ofbirth being 8. 3. 1952), the same is void in law. 5. The claim ofthe respondents, on the other hand, is that out of the amount ofconsideration mentioned in the said agreement, namely Rs. 90,000/-, a sum ofRs. 80,000/- has already been paid and they were put in possession thereover in part performance thereof, as envisaged ~, under Section 53AofTransfer ofProperty Act. 6. Various proceedings appear to have initiated before the Revenue Courts in regard to inclusion of the name ofthe respondents in the Revenue Records. It is further accepted that the first appellant herein had executed three deeds ofassignment in favour ofthe second appellant herein on or about 29. 6. 1991. A suit was filed by the appellants before the City Civil Court, Bombay which was marked as Suit No.

4962 of2006 claiming, inter alia, for a decree for permanent injunction restraining the respondents from creating any right in or over the suit land on the basis ofrevenue entries as also for a decree for permanent injunction restraining them from interfering with their possession and occupation thereupon. In the said suit, the appellants took out a notice ofmotion marked as Notice ofMotion No. 3551 of2006 and by order dated 13. l 0. 2006, learned Judge, City Civil Court, Bombay refused to grant an order of injunction, inter alia, holding : (i) The contentions advanced by the defendants are ofmuch substance inasmuch as in view of the execution of the agreement for sale, the onus was upon the plaintiffs to get the said documents cancelled and treated as null and void. Suchaprayerhaving notbeen made, mererelieffor injunction prayed for by the plaintiffs cannot give rise to existence of prima facie case for grant ofreliefat the interlocutory stage.

(ii) The cardinal rule being that possession follows title, the plaintiffproceeded underthe assumption thathehad assigned the suit property to plaintiffNo. 2 who is a builder and ' A • developer and that plaintiffNo. 2 and plaintiffNo. 3 are said "' to be protecting the property. (iii) The alleged threat ofdispossession given by the defendants to the plaintiffs being towards the end of May 2006, no details thereabout had been stated in the plaint and in that view ofthe matter also the plaintiffs had failed to make out a prima facie case. f • (iv) After a report was prepared by the Revenue Officer, allegedly the defendants were found to be in possession. As the plaintiffs had not challenged the agreement ofsale dated 23. 10. 1969 whereunder only the defendants had been claiming their right, validity thereofor otherwise would be pre-judging the case at that stage. It was also found that the plaintiffs had not approached the court with clean hands. 7.

Appellants thereafter filed an application for amendment of plaint. They also preferred an appeal against the said order dated 13. 10. 2006 in the High Court ofJudicature at Bombay. 1l1e said appeal, however, was withdrawn stating that they would move the trial court for amendment ofthe plaint. While allowing the said prayer, mi observation was made that the trial court shall consider the question in regard to the amendment of plaint without in any way being influenced by the observations made by the learned trial Judge in the impugned order. Although, the High Court allowed the appellants to withdrawthe appeal, it directed the parties to maintain status quo for a period oftwo weeks. 8. Achamber SUillffions thereafter was taken by the appellants on or about 1. 12. 2006 wherein not only amendment of the plaint was prayed for but an interim order ofinjiinction during the pendency ofthe said application was also prayed for.

We may notice the amendments sought for by the appellants iu the said Notice ofMotion: "(a) (i) That it may be declared that the Defendants or any of ' ~ AJAY MOHAN AND ORS. v. H. N. RAI AND ORS. 305 them have no right, title or interest ofany nature in respect , . "-. ofthe plots ofland bearing at C. T. S. Nos. 6Aand 7/IAof village Powai, Taluka Kurla admeasuring about 37,673 sq. mtrs. and C. T. S. Nos. 20 and 22 ofvillage Tirandaz, Taluka Kurla admeasuring about 27,582 sq. mtrs. or any part/s thereofby virtue ofthe alleged Agreement for Sale dated 23rd October, I969, being Exhibit "AIO" hereto or otherwise or at all; ~i (a)(ii) that the Defendants, their servants and agents may be permanently restrained by an Order and injunction ofthis Hon'ble Court from claiminganyright, title or interest ofany nature in respect ofthe plots ofland bearing at C. T. S. Nos. A and 7/IAofvillage Powai, TalukaKuria admeasuring about 37,673 sq. mtrs. and C. T. S. Nos.

20 and 22 of village Trrandaz, Taluka Kurla admeasuring about 27,582 sq. mtrs. or any part/s thereofby virtue ofthe said allegedAgreement ·~ for Sale dated 23rd October, I969 being Exhibit "A-IO" hereto or otherwise or at all. II. Add in the prayer (a) in the Plaint after the words 'pass an order ofinjunction' add ''permanently". I2. Add in prayer (a) after the words 'Taluka: Kurla bearing ........... ' delete the words "CTS No. 22 (Approx. ) admeasuring I8,083 sq. mts. 'And instead add the following "'! "CTS Nos. 20 and 22 admeasuring 27,582 sq. mts and at village Powai Taluka- Kurla bearing CTS Nos. 6A and 7- IAadmeasuring 37,673 sq. mts. And". 13. Add in the prayer (b) in the Plaint after the words 'pass an order ofinjunction' add "permanently". -1 I4. (i) Add in prayer (b) afterthe words 'Taluka :Kurlabearing ........... ' delete the words "CTS No. 22 (Approx. ) ,, admeasuring I8,083 sq. mts. 'And instead add the following: ~ < ' i "CTS Nos. 20 and 22 admeasuring 27,582 sq.

mts and at village Powai Taluka-Kurla bearing CTS Nos. 6Aand 7- :.. lAadmeasuring 37,673 sq. mts. And". (ii) Add in the Fourth line ofprayer (b) after the words land occupation ofthe plaintiffs' the words "Nos. 2 and 3". 15. In prayer clause (c) after the words prayer clauses add '(a(i)'. " ! -' ~ 9. Prayer for interim reliefwas rejected by the learnedjudge, City Civil Court opining that the earlier order dated 13. 10. 2006 became final 10. Against the said order, the appellants again approached the High Court and by an order dated 10. 1. 2007, a learned Single Judge noticing that the proposed amendment fell short ofreliefofdeclaration that the suit agreement was null and void and to be set aside, came to the conclusion : tc• "This indicates thattheAppellants were conscious1hat such relief will have to be pressed inrespect ofthe suit documen~.

Obviously, that perception is on account ofthe fact that the sa~d documents were made subject matter ofproceedings before the Revenue Authorities indeed, the Respondents have stated 01~ affidavitthat the Original copy ofthe said document has been 10stinrespect of whichpolice complaintis already instituted. Insuchacase, however, it is possible for the Respondents to establish the fact ofexistence t ofsuchAgreement by relying on secondary evidence on fulfilling the required norms in that behalf. Be that as it may, prima facie, it is seen from the record that the execution ofthe suit documents has been disputed by the Appellants as back as in 1984, which stand has been dealt with bythe Authorities. Suffice it to observe that the Appellants would succeed only ifthey were to challenge the subjectAgreement, inasmuch as the Defendants were asserting ).. rights in respect ofthe suit land on the basis ofthe saidAgreement.

The fact that the Original copy ofthe said Agreement is not in existence does not alterthe situation so as to absolve theAppellants - \IJ ' AJAY MOHAN AND ORS. v. H. N. RAI AND ORS. 307 from claiming reliefthat the saidAgreement is null and void and to -~ set it aside. " On the said findings, the judgment and order ofthe City Civil Court was upheld. 11. ASpecial LeaveApplication was filed before this Court against the said order which was marked as SLP (C) No. 1218 of2007. The same was disposed ofby an order dated 2. 2. 2007, stating : \-' "Counsel for the respondent-defendants, on instructions, states thatthe defendants have no intention to create third party rights till the disposal ofthe amendment application filed by the petitioners before the concerned City Civil Court, which is coming up before · the said Court for disposal on 7th February, 2007.

We direct the concerned Court to dispose of the Chamber Summons on 7th February, 2007 and till then, as stated on behalfofthe counsel for the respondents-defendants, no third party interest shall be created. The Chamber Summons shall be decided uninfluenced by any observations made by the High Court in the impugned order. Counsel for the Petitioners submits that the prayers made in the Chamber Summons are for amendment ofthe plaint as well as for interimreliefs. The Court will consider all the reliefs prayed for in the Chamber Summons and pass appropriate orders. ""' The Special Leave Petition is disposed ofaccordingly. " 12. By an order dated 28. 2. 2007, the application for amendment was allowed. Keeping in view the fact thatthe plaintiffs' prayer for grant ofinterim injunction was confined in the earlier notice ofmotion till the disposal thereof, the plaintiffdidnotpress for the secondprayerexpressing his desire to take out a separate notice ofmotion. -! .

A notice ofmotion for grant of injunction was again taken out which was dismissed by reason of an order dated 12. 3. 2007 by the learned Judge, City Civil Court. In regard to the order ofthis Court dated 2. 2. 2007, the learned Judge observed : ,:.. _ - "I have read and reread the order of the Supreme Court. The Apex Court has said that this Court will consider all the reliefs prayed for in the Chamber Summons and pass appropriate order. The word "interim" is defined in Black's Law Dictionaryas "in the meantime", ''temporary" and "occurring in intervening time". The relevant meaning here appears to be "occurring in intervening 1·· time". Therefore, Iam ofthe viewthattheApex Courthas referred totheperiodtill the hearing and disposal ofthe ChamberSummons. Now the chamber summon, is disposed of. It is allowed and all amendments are incorporated in the plaint. Therefore, there is no stage, which is "occurring in intervening time".

In this view ofthe matter, I do not find any substance in this notice of motion. I, therefore, pass the following order : ORDER v Notice ofmotion stands dismissed. No order as to cost. The same may be registered for statistical purpose. " By reason ofthe impugnedjudgment, the High Court has upheld the said order. 13. Mr. R. F. Nariman, learned senior counsel appearing on behalf ofthe appellant, inter alia, would submit that the appellants have never been heard on merit ofthe matter. The learned counsel argued that keeping in view the nature and purport ofthe order ofthis Court dated 2. 2. 2007, the City Civil Court could not have relied upon its earlier order. Consequently, the High Court had also committed a manifest error in applying the principles ofresjudicatawhich have no application in the instant case.

It was contended that the purported finding ofthe learned Judge, City Civil Court to the effect that the defendants had been found to be in actual physical possession ofthe suit property on the date ofinstitution ofthe suit was clearly erroneous inasmuch as no such finding had been arrived at by the said court while passing its order dated 13. 10. 2006. It was urged that the report ofan officer appointed by the Revenue Minister found the appellant to be in possession ofthe property and in that view ofthe matter, it was not necessary for them ..... c( to pray for adecree for cancellation and setting aside ofthe agreement for sale dated 23. l0. 1969. In any event, having regard to the observations made by the High Court, it was obligatory on the part of the courts below to consider the merit ofthe matter afresh. 14. Mr.

Ashok Desai, learned senior counsel appearing on behalf ofthe respondents, on the other hand, contended that the learned City '- ' Civil Court rejected the application for grant ofinjunction in favour of '· the appellants, inter alia, holding that : (a) Plaintiffs do not have any prima facie case; (b) They had not approached the Court with clean hands; (c) The delay in questioning the validity ofthe said agreement ofsale disentitles the plaintiffs from obtaining the order of injunction andtheyhad not challengedthe validity ofthe said '-I agreement in the suit. It was contended that the very fact that the appellants had withdrawn the appeal without reserving their liberty to move the Trial Judge again for injunction would clearly attract the principles ofres judicata, Mr.

Desai would submitthat although an opportunity had been granted to the appellants to pray for a reliefofcancellation ofthe said deed of sale, the same was not prayed for which would demonstrate speculative nature ofthe litigation resorted to by the plaintiffs. Aparty --.. ; to a suit, undoubtedly, may file an application for injunction ifa change in the situation has been brought about but there being no said change, it was urged, the second application for injunction would not be maintainable, 15, It is a trite law that the principles ofres judicata apply in different stages ofthe same proceedings. [See Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi &Am: [AIR 1960 SC 941] _Arjun Singh v. Mohindra Kumar & Ors. [(AIR 1964 SC 993]; and C. V Rajendran &Am: v, NM Muhammed_Kunhi [(2002) 7 SCC 447] Ishwar Dutt 310 SUPREMECOURTREPORTS [2007] 13(Addl. )S. C. R. v. LandAcquisition Collector &Am: [(2005)7 SCC 190] and Bhanu Kumar Jain_v. Archana Kumar & Am: [(2005) 1 SCC 787].

~"" The entire claim ofthe plaintiffwas based ontheirclaim ofpossession ofthe lands in suit. Defendants, on the other hand, claimed their right, title, interest and possession on the basis ofthe purported agreement for sale. Whether possession had been dt;livered to them in partperformance ofagreement ofsale or not is essentially a question offact. Genuineness or otherwise ofthe said agreement aiso involves dete1mination ofa )-· disputed question. 16. Plaintiffs, while praying forthe reliefofinterim injunction, were bound to establish a prima facie case. They were also bound to show that the balance ofconvenience lay in their favour and unless the prayer is granted, they will suffer an irreparable injury. The learned Judge, City Civil Court clearly found that prima facie, n· the plaintiffs' suit was not maintainable in absence ofany prayer for cancellation and setting aside ofthe said agreement for sale having been y· made for in the suit.

Appellants although had been contending that such areliefwas not necessary as it was merely a defence ofthe respondents,, why they did not raise such a question in the original suit is a matter ofguess. We do not know as to why the plaintiffs, despite opportunities having been given to them, failed to make such a prayer even while seeking the Court's 'leave' to amend the plaint. y 17. The order ofthe City Civil Court dated 13. l0. 2006 may be bad but then it was required to be set aside by the Court ofAppeal. An appeal had been preferred by the appellants thereagainst but the same had been withdrawn. The said order dated 13. 10. 2006, therefore, attained finality. The High Court, while allowing the appellant to withdraw the appeal, no doubt, passed an order of status quo for a period of two weeks in terms ofits order dated23 . 11. 2006 but no reason therefor had been assigned. It ex facie had no jurisdiction to pass such an interim order.

Once the appeal was permitted to be withdravm, the Court became functus officio. It did not hear the parties on merit. It had not AJAYMOHANANDORS. v. H. N. RAIANDORS. 311 assigned any reason in support thereof Ordinarily, acourt, while allowing a party to withdraw an appeal, could not have granted a further relief. "'- I [See GE. Power Controls India & Ors. v. S. Lakshmipathy & Ors. [(2005) 11 sec 509]. 18. Eventhen, the plaintiffpreferred to file afresh notice ofmotion. It didnot file any application for grant ofinjunctiontill the disposal ofthe suit. It, principally, in the said notice ofmotion asked for amendment of the plaint. The second reliefprayed for inthe said notice ofmotion was againwithdrawnwith libertyto file afresh notice ofmotion. Appellants, therefore, have beenfiling applications after applications withoutmaking proper prayer therein at all stages. 19. So far as the order ofthis Court dated 2. 2.

2007 is concerned at the first blush, it appears that this Court could not have granted any reliefto reagitate the questions ofhearing the parties and interim relief once over again. Even ifthat be so, the said interim reliefhaving regard to the admitted facts was to be kept confined only for a short term, namely, till the application for amendment is considered. This Court, therefore, did not grant any liberty totheplaintiffs to file afresh application for injunctior:.. Jt could not comprehend thereabout at that time. The Notice ofMoti0ntaker 0ut for grdlltofinjunctionwas, therefore, required to be considered on its O\Vll merit. The plaintiffs had not brought out any new circumstanci;,s wananting grant ofany injunction in their favour. Only because afurther prayerhad beenmade in the suit upon amending the plaint, the same by itselfdid not bring about a situational change warranting application ofmind afresh by the learned Judge, City Civil Court.

The only argument which is available to the appellants was that the suit, by reason of amendment made in the prayer, has become maintainable. Maintainability oftbe suit itselfdoes not give rise to triable issue. The issues which arose for consideration in the suit are the ones we would have noticed hereinbefore, namely, inter alia, the validity ofthe agreement for sale and/or grant ofpossession in favour ofthe defendants/respondents. How, by sheer amendment ofthe plaint, the plaintiffcould prove a prima facie case or show existence ofa balance of convenience in their favour, has not been demonstrated. 312 SUPREMECOURTREPORTS [2007] 13 (Addl. )S. C. R. 20. We are, therefore, ofthe opinion that although learned Judge, High Court, while passing its order dated 13. l 0.

2006 could have considered the merit ofthe application filed by the appellant in regard to the relieffor injunction, the same by itself, in our opinion, did not warrant a direction to consider the matter afresh by the learned Judge, City Civil Court. We are, therefore, are ofthe opinion that the impugnedjudgment do not suffer from any in infirmity. We would, however, having regard to the peculiar facts and circumstances ofthe case, request the learned i-' Judge, City Civil Court to consider the desirability ofdisposing ofthe suit as expeditiously as possible preferably within aperiod ofsix weeks from the date ofcommunication ofthis order. The parties are directed to render all cooperation to the learned Judge in early disposal ofthe suit. Ifit is convenient to the learned Judge, the hearing ofthe suit may be taken up on day to day basis. 21. This appeal is dismissed with costs. Counsel's fee quantified at Rs. 25,0001- (Rupees twenty five thousand only). v D. G Appeal dismissed. r