IMPORTANT POINT
When Notice of Motion was pending submission of counter affidavit and rejoinder, there is no infirmity in not passing ad interim order on preliminary issue.

Order

M.Y. Eqbal, J.

Delay in filing the review petition is condoned.

2. By this review petition, the petitioners are seeking limited review of the judgment dated 8th April, 2015 passed by this Court in Civil Appeal No.5514 of 2012 and other connected matters (reported in (2015) 6 SCC 412) to the extent that the said judgment has not considered or decided the issue raised in the petitioners’ C.A.No.5514 of 2012 regarding the petitioners’ entitlement to ad-interim relief under Section 9A(2) of the Code of Civil Procedure (Maharashtra Amendment) during the consideration of preliminary issue under Section 9A(1) of the Code.

3. A separate interlocutory application being I.A. No.6 of 2012 had been filed praying therein that pending the appeal this Court may pass appropriate order to restrain the respondents, their agents, servants or representatives from carrying out any development or any construction or creating any rights, title or interest in favour of any third party.

4. Mr. Shekhar Naphade, learned senior counsel appearing for the petitioners, drew our attention to paragraph 7 of the review petition and submitted that review petitioners have categorically stated in the petition that they are not seeking review of the judgment insofar as it interprets Section 9A(1), CPC (Maharashtra Amendment) but are seeking review only to the limited extent of non-grant of ad-interim relief under Section 9A(2) of CPC (Maharashtra Amendment). Mr. Naphade, learned senior counsel, further submitted that the main grievance of the petitioners is that their prayer for ad-interim injunction was not considered and decided by this Court.

5. On the other hand, Mr. C.A. Sundaram, learned senior counsel appearing for the respondents, drew our attention to several orders passed by the High Court and this Court had submitted that as a matter of fact Notice of Motion pressed by the petitioners was not granted by the High Court and the Notice of Motion is still pending for consideration. The petitioners have come only for the ad-interim relief before this Court, which cannot be interfered with at this stage.

6. We have considered the submissions made by the learned counsel appearing for the parties and have also gone through the orders passed by the High Court and of this Court. From perusal of the record, it reveals that when the Notice of Motion (being 3616 of 2010) was moved, the learned Single Judge of the Bombay High Court passed the following order:

“The Defendants shall file their Affidavit-in-Reply within two weeks from today. Rejoinder, if any, within two weeks thereafter.

2. Place the Notice of Motion for hearing and final disposal on 28th February, 2011.”

7. The said order of learned Single Judge dated 24.1.2011 was challenged before the Division Bench of the High Court being Appeal (Lodging) No.662 of 2011 in Notice of Motion No.3616 of 2010. The Division Bench disposed of the appeal holding that the Notice of Motion is pending and, therefore, the learned Single Judge was perfectly justified in declining to make any interim order in favour of the plaintiffs. The order dated 15th March, 2012 passed by the Division Bench is quoted hereinbelow:

“Delay in filing the appeal is condoned.

2. By this appeal, the original plaintiffs make a grievance against the order dated 24th January, 2011 passed by the learned Single Judge of this Court in Notice of Motion No.3616/2010, in Suit No.2901/2010. That Notice of Motion was taken out by the plaintiffs seeking certain interim reliefs to operate during the pendency of the suit. The learned Single Judge by that order has directed the defendants to file reply to the affidavit in support of Notice of Motion and has directed that the of Notice of Motion to be placed for final hearing.

3. Grievance of the appellants is that by this order, the learned Single Judge has declined to pass any ad-interim order in favour of the appellants-plaintiffs without giving any reason for doing so.

4. In order to find out whether the plaintiff w