Case Note & Summary
The case involves two appeals arising from a judgment of a Learned Single Judge of the Bombay High Court dated 19 July 2010, on a Notice of Motion for interim relief in a suit. The suit was filed by Nusli Neville Wadia, as administrator of the estate of Late E.F. Dinshaw, against Ferani Hotels Private Limited and others, seeking a declaration that a lease deed executed by the administrator in favor of Ferani was void and for possession of the property. When the application for ad interim relief came up for hearing, the First Defendant (Ferani) raised an objection to the maintainability of the suit on the ground that the claim was barred by limitation. The Learned Single Judge accepted the contention that a preliminary issue under Section 9A of the Code of Civil Procedure, 1908 (CPC) must be raised. However, the court held that no case for the grant of ad interim relief under Section 9A(2) was made out on the ground of delay. The Learned Single Judge then proceeded to dispose of the entire Notice of Motion for interim relief, stating that since affidavits had been filed and parties were heard at length, it would not be appropriate to have a hearing confined only to ad interim relief. The court dismissed the motion without deciding it on merits. Two appeals were filed: one by the Plaintiff (administrator) and one by the First Defendant (Ferani). The Division Bench of the Bombay High Court, comprising Dr. D.Y. Chandrachud and R.D. Dhanuka, JJ., heard the appeals. The court held that the Learned Single Judge erred in dismissing the Notice of Motion without deciding it on merits. The court observed that once the judge decided to hear the motion for interim relief, it was incumbent to decide it on merits. The refusal of ad interim relief solely on the ground of delay was not justified. The court set aside the impugned order and remanded the matter back to the Learned Single Judge for fresh consideration of the Notice of Motion on merits. The appeals were disposed of accordingly.
Headnote
A) Civil Procedure - Section 9A CPC - Preliminary Issue on Jurisdiction - Maintainability of Suit - Limitation - The court held that when an objection to maintainability on the ground of limitation is raised, a preliminary issue under Section 9A CPC must be framed and decided before proceeding further. However, if the court decides to hear the interim relief application, it must decide it on merits and not dismiss it solely on the ground of delay or limitation without considering the merits. (Paras 1-10) B) Civil Procedure - Interim Relief - Ad Interim Relief - Refusal on Ground of Delay - The court held that the Learned Single Judge erred in refusing ad interim relief under Section 9A(2) CPC solely on the ground of delay, without considering the merits of the case. The court must consider the balance of convenience and prima facie case before refusing interim relief. (Paras 11-20) C) Civil Procedure - Disposal of Motion for Interim Relief - Hearing on Merits - The court held that once the Learned Single Judge decided to hear the Notice of Motion for interim relief after affidavits and lengthy arguments, it was incumbent upon the court to decide the motion on merits and not dismiss it on the ground that no case for ad interim relief was made out due to delay. The order dismissing the motion without deciding merits is unsustainable. (Paras 21-30)
Issue of Consideration
Whether the Learned Single Judge was justified in dismissing the Notice of Motion for interim relief without deciding it on merits, after holding that a preliminary issue under Section 9A CPC must be raised, and whether the court could refuse ad interim relief on the ground of delay without considering the merits of the case.
Final Decision
The Division Bench allowed the appeals, set aside the impugned order of the Learned Single Judge dated 19 July 2010, and remanded the matter back to the Learned Single Judge for fresh consideration of the Notice of Motion for interim relief on merits. The court directed that the Notice of Motion be decided afresh in accordance with law.
Law Points
- Section 9A CPC
- preliminary issue on jurisdiction
- maintainability of suit
- limitation
- interim relief
- ad interim relief
- disposal of motion for interim relief
- hearing on merits
