Holding

The Supreme Court held that the High Court lacked jurisdiction to pass the interim order after withdrawal, and that the amendment of the plaint did not create new circumstances; the appellants failed to make out a prima facie case for injunction, leading to dismissal of the appeal.

Summary

The appellants, who claimed ownership of the suit land by a gift deed, sued the respondents for a permanent injunction, the respondents asserting title based on an alleged 1969 agreement of sale. The City Civil Court refused an interim injunction on the ground that the appellants had not made a prima facie case, particularly lacking a prayer for cancellation of the sale agreement. The appellants appealed, withdrew the appeal, and later sought amendment of the plaint and a fresh injunction; the High Court allowed the withdrawal but improperly ordered a two‑week status‑quo, which the Supreme Court held to be beyond its jurisdiction as the court became functus officio. The Supreme Court affirmed that amendment of the plaint did not create new circumstances warranting fresh consideration, that the appellants failed to establish a prima facie case, balance of convenience, or irreparable injury, and that the principles of res judicata applied to the earlier order. Consequently, the appeal was dismissed with costs.

Issues considered

The High Court's jurisdiction to pass an interim status‑quo order after allowing withdrawal of an appeal.
Whether amendment of the plaint and a new prayer for injunction constitute a fresh cause of action.
Whether the appellants established a prima facie case, balance of convenience, and irreparable injury for an interim injunction.
The applicability of the principle of res judicata to the order dated 13‑Oct‑2006 after the appeal was withdrawn.
Whether a prayer for cancellation of the alleged agreement of sale is a prerequisite for granting injunction.

Legislation cited

Transfer of Property Acts. 53A

Subjects

injunctionres judicataamendment of plaintinterim reliefcivil procedurebalance of convenienceprima facie casefunctus officioTransfer of Property Actsale agreementgift deed

Judgment

A AJAY MOHAN AND ORS.
v. ~
H.N. RAI AND ORS.
DECEMBER 12, 2007
B [S.B. SINHA AND HARJIT SINGH BEDI, JJ.]

Injunction:
Suit for permanent injunction - Defendants claiming right
c over suit property based on sale agreement- Civil Court refused to
grant order of injunction 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made out - Appeal thereagainst withdrawn - Thereafter plaintiff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
D Court-Affirmed by High Court on ground that proposed amendment
fell short ofgrant of declaration that sale agreement was null and
void - Correctness of- Held: Correct as plaintiff had not brought y
out any new circumstances warranting grant of injunction in his
favour - Only because further prayer was made upon amending the
E plaint, same itself would not bring situational change warranting
application of mind 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
F
-Appeal thereagainst sought to be withdrawn - High Court allowed
plaintiff to 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 had no jurisdiction to pass such an interim
order - Once appeal was permitted to be withdrawn, Court became
G
functus officio.
The Plaintiffs-appellants became owners of the suit land by
way of gift deed. Defendants-respondents claimed their ri:ght and
possession over the suit land in terms of sale agreement purported
H 298
~··
AJAY MOHAN AND ORS. v.H.N.RAIANDORS. 299

to be executed by appellants. Various proceedings were initiated A
>-....( 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 B
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 prima facie
case was made out. The appellants filed appeal thereagainst in
the High Court. The said appeal however was withdrawn stating C
that they would move the trial Court for amendment of plaint. 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 D
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. E
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 F
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 of motion for grant of injunction was again taken out which G
was dismissed. High Court upheld the said order. Hence the present
appeal.
Dismissing the appeal, the Court
H
300 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A HELD: 1.1. It is a trite law that the principles of res judicata
,
apply in different stages of the same proceedings. The entire )._
claim of the plaintiff was 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
B agreement for sale. Whether possession had been delivered to
them in part performance of agreement of sale or not is essentially
a question of fact. Genuineness or otherwise of the said agreement
also involves determination of a disputed question. [Para 15] )•
[309-G; 310-B]
c 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 and Am: 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
D Anr. (2005) 1 SCC 787 - relied on.

1.2. Plaintiffs, while praying for the relief ofinterim injunction, y
were bound to establish a prima facie ease. They were also bound
to show that the balance of convenience lay in their favour and
E 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
F
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 of Appeal. An appeal had
G 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 of status quo for
a period of two weeks but no reason therefor had been assigned.
H It exfacie had no jurisdiction to pass such an interim order. Once
AJAY MOHAN AND ORS. v. H.N. RAIAND ORS. 301

the appeal was permitted to be withdrawn, the Court became A
>- ~ f unctus 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 of motion. It did not file any application for grant of injunction B
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 of motion was again withdrawn with
liberty to file a fresh notice of motion. Appellants, therefore, have
been filing applications after applications without making proper c
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 D
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 if that 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 E
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 F
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 G
the appellants was that the suit, by reason of amendment made
in the prayer, has become maintainable. Maintainability of the
-< suit itself does not give rise to a triable issue. The issues which
arose for consideration in the suit were the validity of the
agreement for sale and/or grant of possession in favour of the H
302 SUPREME COURT REPORTS (2007] 13 (Addi.) S.C.R.

A defendants/respondents. By sheer amendment ofthe plaint, the
,
plaintiff could not prove a primafacie case or show existence of >--
a balance of convenience in their favour. [Paras 19,20) [311 D-H]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5831
B of2007
From the Judgment and Order dated 16.06.2007 of the High
Court of Bombay in Appeal from Order No. 320 of2007 in Notice of
I.
Motion No. 994 of2007.

c 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, Ajay K. Jha, N. Don Parthiv Goswami, Kush Chaturvedi
D and Diksha Raj (for P.H. Parekh & Co.) for the Respondents.

The Judgment of the Court was delivered by
S.B. Sinha, J. 1. Leave granted.

E 2. Appellants are aggrieved by and dissatisfied with the judgment
and order dated 16.6.2007 passed in Appeal From Order No.320 of
2007 by a Division Bench of the Bombay High Court whereby and
whereunder an appeal from an order dated 12.4.2007 passed by City
Civil Court, Bombay in Notice of Motion No.944 of2007 rejecting an
F application for injunction filed by them was dismissed.
3. Appellants are said to have become owners of the suit land by
reason of a deed of gift, which is said to have been executed by Mrs.
Tara Sarup on 30.3 .1968 in favour of the first appellant. Indisputably,
Respondents claim their right, title, interest and possession on or over
G the land in suit in terms of an agreement of sale 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.
H
i

AJAY MOHAN AND ORS. v. H.N. RAIAND ORS. 303
[SINHA, J.]
(b) In any event, the plaintiff No. I being minor on the date of A
execution ofthe agreement (his date ofbirth being 8.3.1952),
the same is void in law.
5. The claim of the respondents, on the other hand, is that out of
the amount of consideration mentioned in the said agreement, namely B
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 53A of Transfer of Property Act.
6. Various proceedings appear to have initiated before the Revenue
Courts in regard to inclusion of the name of the respondents in the C
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, D
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 of revenue
entries as also for a decree for permanent injunction restraining them
from interfering with their possession and occupation thereupon. E
In the said suit, the appellants took out a notice of motion marked
as Notice of Motion 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 :
F
(i) The contentions advanced by the defendants are of much
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.
Such a prayer having not been made, mere relieffor injunction G
prayed for by the plaintiffs cannot give rise to existence of
prima facie case for grant of relief at the interlocutory stage.
(ii) The cardinal rule being that possession follows title, the
plaintiffproceeded under the assumption that he had assigned
H
304 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A the suit property to plaintiffNo.2 who is a builder and
developer and that plaintiffNo.2 and plaintiffNo.3 are said ' A •

"'
to be protecting the property.
(iii) The alleged threat of dispossession given by the defendants
B to the plaintiffs being towards the end of May 2006, no
details thereabout had been stated in the plaint and in that
view of the matter also the plaintiffs had failed to make out
a prima facie case. f •

(iv) After a report was prepared by the Revenue Officer,
C allegedly the defendants were found to be in possession. As
the plaintiffs had not challenged the agreement of sale dated
23.10.1969 whereunder only the defendants had been
claiming their right, validity thereof or otherwise would be
pre-judging the case at that stage.
D
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
E 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
F observations made by the learned trial Judge in the impugned order.
Although, the High Court allowed the appellants to withdraw the appeal,
it directed the parties to maintain status quo for a period of two weeks.
8. A chamber SUillffions thereafter was taken by the appellants on
G or about 1.12.2006 wherein not only amendment of the plaint was
prayed for but an interim order of injiinction during the pendency of the
said application was also prayed for. We may notice the amendments
sought for by the appellants iu the said Notice of Motion:
"(a) (i) That it may be declared that the Defendants or any of
H
'
~

AJAY MOHAN AND ORS. v. H.N. RAI AND ORS. 305
[SINHA, J.]
them have no right, title or interest of any nature in respect A
, ."-.
of the 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 of village Tirandaz, Taluka
Kurla admeasuring about 27,582 sq. mtrs. or any part/s
thereof by virtue of the alleged Agreement for Sale dated B
23rd October, I 969, being Exhibit "AIO" hereto or otherwise
~i
or at all;
(a)(ii) that the Defendants, their servants and agents may be
permanently restrained by an Order and injunction of this c
Hon'ble Court from claiming any right, title or interest ofany
nature in respect of the plots ofland bearing at C.T.S. Nos.A
and 7/IA ofvillage Powai, Taluka Kuria 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. D
or any part/s thereof by virtue of the said alleged Agreement
·~
for Sale dated 23rd October, I969 being Exhibit "A-IO"
hereto or otherwise or at all.
I I. Add in the prayer (a) in the Plaint after the words 'pass an
order of injunction' add ''permanently". E

I2. Add in prayer (a) after the words 'Taluka: Kurla bearing
. ......... .' delete the words "CTS No.22 (Approx.)
admeasuring I 8,083 sq. mts.' And instead add the following
"'! F
"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 G
order of injunction' add "permanently".
-1 I4. (i) Add in prayer (b) after the words 'Taluka : Kurla bearing
. ......... .' delete the words "CTS No.22 (Approx.)
,,
admeasuring I 8,083 sq. mts.' And instead add the following:
H
~
<
i'

306 SUPREME COURT REPORTS [2007] 13 (Addl.) S.C.R.

A "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 of prayer (b) after the words land
occupation of the plaintiffs' the words "Nos.2 and 3".
B
15. In prayer clause (c) after the words prayer clauses add
'(a(i)'." !-'
~
9. Prayer for interim relief was rejected by the learned judge, City
Civil Court opining that the earlier order dated 13.10.2006 became
c
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 of relief of declaration
D that the suit agreement was null and void and to be set aside, came to
the conclusion : tc•
"This indicates that the Appellants were conscious 1hat such relief
will have to be pressed in respect ofthe suit documen~. Obviously,
E that perception is on account of the fact that the sa~d documents
were made subject matter of proceedings before the Revenue
Authorities indeed, the Respondents have stated 01~ affidavit that
the Original copy of the said document has been 10st in respect of
a
which police complaint is already instituted. In such case, however,
F it is possible for the Respondents to establish the fact of existence t
of such Agreement 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 of the suit documents
has been disputed by the Appellants as back as in 1984, which
G stand has been dealt with by the Authorities. Suffice it to observe
that the Appellants would succeed only if they were to challenge
the subjectAgreement, inasmuch as the Defendants were asserting )..-

rights in respect ofthe suit land on the basis of the said Agreement.
The fact that the Original copy of the said Agreement is not in
H existence does not alter the situation so as to absolve the Appellants

-
\IJ
'
AJAY MOHAN AND ORS. v. H.N. RAI AND ORS. 307
[SINHA,J.)
from claiming relief that the said Agreement is null and void and to A
-~ set it aside."
On the said findings, the judgment and order of the City Civil
Court was upheld.
11. A Special Leave Application was filed before this Court against B
the said order which was marked as SLP (C) No.1218 of2007. The
same was disposed of by an order dated 2.2.2007, stating :
\-' "Counsel for the respondent-defendants, on instructions, states
that the defendants have no intention to create third party rights till c
the disposal of the 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 behalf of the counsel for D
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 E
Chamber Summons are for amendment ofthe plaint as well as for
interim reliefs.
The Court will consider all the reliefs prayed for in the Chamber
Summons and pass appropriate orders.
F
""' The Special Leave Petition is disposed of accordingly."
12. By an order dated 28.2.2007, the application for amendment
was allowed. Keeping in view the fact that the plaintiffs' prayer for grant
of interim injunction was confined in the earlier notice of motion till the
disposal thereof, the plaintiffdid not press for the second prayer expressing G
his desire to take out a separate notice of motion.
-! . A notice of motion 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 of this Court H
308 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A 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.
B The word "interim" is defined in Black's Law Dictionary as "in the
meantime", ''temporary" and "occurring in intervening time". The
relevant meaning here appears to be "occurring in intervening
time". Therefore, I am of the view that the Apex Court has referred 1··

to the period till the hearing and disposal ofthe Chamber Summons.
c 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 of the
matter, I do not find any substance in this notice of motion. I,
therefore, pass the following order :
D ORDER
Notice of motion stands dismissed. No order as to cost. v
The same may be registered for statistical purpose."

E By reason of the impugned judgment, the High Court has upheld
the said order.
13. Mr. R.F. Nariman, learned senior counsel appearing on behalf
of the appellant, inter alia, would submit that the appellants have never
been heard on merit of the matter. The learned counsel argued that
F keeping in view the nature and purport of the order of this 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 of res judicata which have no application
in the instant case. It was contended that the purported finding of the
G learned Judge, City Civil Court to the effect that the defendants had
been found to be in actual physical possession of the suit property on
the date of institution of the 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 of an officer appointed
H
AJAY MOHAN AND ORS. v. H.N. RAIAND ORS. 309
[SINHA,J.]
by the Revenue Minister found the appellant to be in possession of the A
..... c( property and in that view of the matter, it was not necessary for them
to pray for a decree for cancellation and setting aside of the agreement
for sale dated 23.l 0.1969. 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 of the matter afresh. B

14. Mr. Ashok Desai, learned senior counsel appearing on behalf
of the respondents, on the other hand, contended that the learned City
'- '
Civil Court rejected the application for grant of injunction in favour of
'·
the appellants, inter alia, holding that : c
(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 of the said agreement
of sale disentitles the plaintiffs from obtaining the order of D
injunction and they had not challenged the 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 E
Judge again for injunction would clearly attract the principles of res
judicata, Mr. Desai would submit that although an opportunity had been
granted to the appellants to pray for a relief of cancellation of the said
deed of sale, the same was not prayed for which would demonstrate
speculative nature of the litigation resorted to by the plaintiffs. A party F
--..; to a suit, undoubtedly, may file an application for injunction if a 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 G
different stages of the 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
H
310 SUPREMECOURTREPORTS [2007] 13(Addl.)S.C.R.

A v. Land Acquisition Collector & Am: [(2005)7 SCC 190] and Bhanu
Kumar Jain_v. Archana Kumar & Am: [(2005) 1 SCC 787]. ~""
The entire claim ofthe plaintiffwas based on their claim ofpossession
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
B
sale. Whether possession had been dt;livered to them in part performance
of agreement of sale or not is essentially a question of fact. Genuineness
or otherwise of the said agreement aiso involves dete1mination of a ) -·
disputed question.
c 16. Plaintiffs, while praying forthe relief ofinterim injunction, were
bound to establish a prima facie case. 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.

n· The learned Judge, City Civil Court clearly found that prima facie,
the plaintiffs' suit was not maintainable in absence of any prayer for
cancellation and setting aside of the said agreement for sale having been y·
made for in the suit.
Appellants although had been contending that such a relief was not
E necessary as it was merely a defence of the respondents,, why they did
not raise such a question in the original suit is a matter of guess. 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.
F y
17. The order of the City Civil Court dated 13. l 0.2006 may be
bad but then it was required to be set aside by the Court of Appeal. An
appeal had been preferred by the appellants thereagainst but the same
had been withdrawn. The said order dated 13 .10.2006, therefore, attained
G 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
H became functus officio. It did not hear the parties on merit. It had not
AJAYMOHANANDORS. v.H.N.RAIANDORS. 311
[SINHA,J.]
assigned any reason in support thereof Ordinarily, a court, while allowing A
"'- I
a party to withdraw an appeal, could not have granted a further relief.
[See GE. Power Controls India & Ors. v. S. Lakshmipathy & Ors.
[(2005) 11 sec 509].
18. Even then, the plaintiffpreferred to file a fresh notice ofmotion. B
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 prayed for in the said notice of motion was
again withdrawn with liberty to file a fresh notice of motion. Appellants,
therefore, have been filing applications after applications without making C
proper prayer therein at all stages.
19. So far as the order of this Court dated 2.2.2007 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 if that be so, the said interim relief having regard D
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 afresh application
for injunctior:.. Jt could not comprehend thereabout at that time. The
Notice ofMoti0n taker 0ut for grdllt of injunction was, therefore, required E
to be considered on its O\Vll merit. The plaintiffs had not brought out any
new circumstanci;,s wananting 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 itself did not bring about a situational change
warranting application of mind afresh by the learned Judge, City Civil F
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 tbe suit itself does not give rise to a
triable issue. The issues which arose for consideration in the suit are the
ones we would have noticed hereinbefore, namely, inter alia, the validity G
of the agreement for sale and/or grant of possession in favour of the
defendants/respondents. How, by sheer amendment of the plaint, the
plaintiff could prove a prima facie case or show existence of a balance
of convenience in their favour, has not been demonstrated.
H
312 SUPREMECOURTREPORTS [2007] 13 (Addl.)S.C.R.

A 20. We are, therefore, of the opinion that although learned Judge,
High Court, while passing its order dated 13.l 0.2006 could have
considered the merit of the application filed by the appellant in regard
to the relief for injunction, the same by itself, in our opinion, did not
warrant a direction to consider the matter afresh by the learned Judge,
B City Civil Court.
We are, therefore, are of the opinion that the impugned judgment
do not suffer from any in infirmity. We would, however, having regard
to the peculiar facts and circumstances of the case, request the learned i-'
C Judge, City Civil Court to consider the desirability of disposing of the
suit as expeditiously as possible preferably within a period of six weeks
from the date of communication of this order. The parties are directed
to render all cooperation to the learned Judge in early disposal of the
suit. Ifit is convenient to the learned Judge, the hearing of the suit may
D 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.
E

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