MARGRET ALMEIDA & ORS., ETC. ETC.versusBOMBAY CATHOLIC COOP. HOUSING SOCIETY LTD. & ORS.

                   [2012] 2 S.C.R. 395

                                                              A
        MARGRET ALMEIDA & ORS., ETC. ETC.
                             v.
BOMBAY CATHOLIC COOP. HOUSING SOCIETY LTD. &
                       ORS.
               I.A. Nos. 4-6 of 2012
                         IN                                   B
       Civil Appeal Nos.1175-1177 of 2012
                   FEBRUARY 24, 2012
    [P. SATHASIVAM AND J. CHELAMESWAR, JJ.]
                                                              c
    M~harashtra Co-operative Societies Act,      1960 - s.91 -
Trial court passing interim order of status quo during the
pendency of the suits in favor of the appellants holding that
the suits are maintainable - Division Bench of High Court
held that the suits were not maintainable - On appeal, the D
Supreme Court held that the suits are maintainable and
directed the parties to maintain status quo to enable the High
Court to examine the applications· for interim orders -
Interlocutory applications seeking clarification of the order of
the Supreme Court - Order modified to the effect that the E
matter be considered by the Division Bench of the High Court
and decide whether the interim order granted by the trial judge
is sustainable.
    Appellants-plaintiffs filed two suits. The trial judge
held that the suits were maintainable, as also granted        F
interim order in favour of the appellants, directing the
parties to the suits to maintain status quo during the
pendency of the suits. The Division B~nch of the High
Court held that the suits were not maintainable in view
of Section 91 of the Maharashtra Cooperative-Societies        G
Act, 1960 and dismissed the suits. Thereafter, appeals
were filed before the Supreme Court. By order dated
30.01.2012, the Supreme Court holding that the suits
were maintainable, set aside the order passed by the
                            395                               H
    396       SUPREME COURT REPORTS            [2012] 2 S.C.R.


A Division Bench and directed the parties to maintain
  status quo to enable the High Court to examine the
  applications of the appellants for interim orders.
  Therefore, the instant interlocutory applications were filed
  seeking clarification of the order dated 30.1.2012.
B     The appellants contended that the judgment of the
  Supreme Court wrongly recorded that the application of
  the plaintiffs-appellants for interim orders is required to
  be considered, whereas, as a matter of fact, the appellants
  were granted interim order by the trial judge and it was
C the respondents, who challenged the grant of such an
  interim order and, therefore, the judgment of Supreme
  Court, is required to be clarified.
          Allowing the interlocutory applications, the Court
D      HELD: The submissions of the appellants are
  accepted. The erroneous conclusion of the Division
  Bench of the High Court cannot operate to the prejudice
  of the appellants-plaintiffs, who successfully
  demonstrated before Supreme Court that the order of the
E 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'. Therefore, the matter
  should be considered by the Division Bench of the High
  Court and decide whether the interim order granted by
F the trial judge is sustainable. The judgment of Supreme
  Court dated 30.1.2012 stands modified. [Paras 7 and 8]
  (400-B-C; G-H]
      South Eastern Coal Fields Limited vs. State of M. P.
  (2003) 8 SCC 648 : 2003 (4) Suppl. SCR 651 - referred
G to.
                         Case Law Reference:
          2003 (4) Suppl. SCR 651    Referred to     Para 7
          CIVIL APPELLATE JURISDICTION : I.A. Nos. 4-6 of 2012.
H
 MARGRET ALMEIDA & ORS., ETC. v. BOMBAY CATHOLIC          397
          COOP. HOUSING SOCIETY LTD.
                              IN                                  A
    Civil Appeal Nos. 1175-1777 of 2012.
     From the Judgment & Order dated 29.08.2011 of the High
Court of Judicature at Bombay in Appeal No. 413 of 2011 in
Notice of Motion No. 172 of 2010 in Suit No. 144 of 2010,         B
Appeal No. 489 of 2011 in Notice of Motion No. 172 of 2010
in Suit No. 144 of 2010 and Appeal No. 573 of 2011 in Notice
of Motion No. 172 of 2010 in Suit No. 144 of 2010.
    Mukul Rohtagi, Shally Bhasin Maheshwari for the
Appellants.                                                       c
    C.A. Sundaram, Shyam Divan, Pratap Venugopal,
Namrata Sood, Anuj Sarma, Gaurav Nair (for K.J. John & Co.)
E.C. Agrawala, C.D. Mehta, Pritha Srikumar, Nikhil Nayyar,
Garima Prashad, P.S. Sudheer, Rishi Maheshwari for the
Respondents.                                                      D
    The Judgment of the Court was delivered by
    CHELAMESWAR, J. 1. This is an Application filed with
the prayer as follows:
    'In the above facts and circumstances, the Applicants I       E
    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       F
            Versus The Bombay Catholic Co-operative
            Housing Society Ltd. & Ors. Etc. etc." as sought in
            Para 6; and I or
      (b)  Pass such other further or other reliefs as the
           Applicants I Appellants may be found to be entitled G
           under the facts and circumstances stated
      o    hereinabove."
    2. By the Judgment dated 30-01-2012 C.A.Nos.1175 -
1177 of 2012 were disposed of setting aside the Judgment
dated 29-08-2011 of a Division Bench of the Bombay High H
     398       SUPREME COURT REPORTS                  [2012] 2 S.C.R.


A.   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
B    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
c    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
D    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
E          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
F          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
G
           relief such as the one sought in the suits necessarily
           depends upon the byelaws of 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
H          appropriate interim order.
 MARGRET ALMEIDA & ORS., ETC. v. BOMBAY CATHOLIC 399
 COOP HOUSING SOCIETY LTD. [J. CHELAMESWAR, J.]

    42. In view of the above, we also deem it proper to direct      A
    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)       B
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    c
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 D
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 E
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 considered, whereas, as a
matter of fact, the appellants he11ein were granted interim order
by the learned Trial Judge and it is the respondents herein, who F
are challenging the grant of such an interim order and;therefore, ·~
the Judgment of this Court dated 30-01-201.2, 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 G
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 cif the suits and, H
    400        SUPREME COURT REPORTS                 [2012] 2 S.C.R.


~   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
3   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
C   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
D         proceeding that 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
E         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
F         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
G   Trial Judge is sustainable.
          8. The application is accordingly allowed and the
    Judg~ment of this Court dated 30-01-2012 stands modified,
    as indicated above.
H N.J.                            Interlocutory applications allowed