IMPORTANT POINT
Factors attracting applicability of the restitution restated.

JUDGMENT

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 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 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 s