1. By an order dated November 20, 2024 passed in FMAT 269 of 2024, a Division Bench made the present reference on the question of law framed by it which is as follows: -
"Whether an order passed by a Bench of this Court not being conferred with determination by virtue of the roster fixed by the Hon'ble the Chief Justice is vitiated by inherent lack of jurisdiction so as to render the order so passed a ity in the eye of law or void ab initio."

2. The Hon'ble The Chief Justice has, in terms of such order dated November 20, 2024 passed in FMAT 269 of 2024, constituted this Bench to consider such questions of law.

3. At the hearing of the reference, learned Advocate for the appearing parties have submitted that the question framed in the reference is covered by the ratio of 2025 SCC OnLine SC 582 (Garden Reach Shipbuilders and Engineers Limited. v. Grse Limited Workmens Union and Others).

4. The order of reference has been passed in FMAT 269 of 2024. Appellants in FMAT 296 of 2024 have claimed that they are the owners of a particular immoveable property by virtue of a registered deed of conveyance dated June 23, 2023. The appellants have claimed themselves to be members of the tenant's association of the building in which the immovable property is situated. The appellants being concerned with the maintenance of the building, had participated in a meeting of the association when, the appellants came to learn about certain facts. Appellants had learnt about Title Suit No. 2602 of 2023 in which an interim order was passed. Appellant had filed a Civil Suit being Title Suit No. 1037 of 2024. In such Civil Suit, appellants had filed an application under Order XXXIX R.1 and R.2 of the Code of Civil Procedure, 1908. Learned Judge had declined to grant ad interim relief to the appellants. Appellants had thereafter preferred an appeal from the refusal to grant ad interim relief being FMAT 269 of 2024 in which the order of reference has been made.

5. By the order dated November 4, 2024, passed in FMAT 269 of 2024 the Division Bench, has admitted the appeal under Order XLI R.11 of Code of Civil Procedure, 1908 and directed that the same to be heard on the question of law framed.

6. The private respondent in such appeal had applied for vacating of the order dated November 4, 2024 on the ground that when such order admitting the appeal was passed, the Division Bench did not have the requisite determination to consider an application under Order XLI R.11 of the Code of Civil Procedure, 1908 to admit the appeal.

7. The Division Bench making the reference, has considered the issue as to whether the earlier order passed by the Bench on November 4, 2024 recording that the appeal be deemed to be admitted under Order XLI R.11 of the Code of Civil Procedure, 1908 and should be heard on the question framed therein, is a ity and ought to be recalled on such ground.

8. While deciding such issue the Division Bench has noted various authorities cited at the Bar. After discussing the authorities on such issue, the Division Bench making the reference has observed that on November 4, 2024, when the appeal was taken up for hearing it was not brought to the notice of the Bench and also due to bona fide inadvertence, the Bench overlooked the fact that it did not have determination to take up Order XLI R.11 matters after the year 2020. After noticing the same, the Division Bench has held that, since the lack of jurisdiction was not inherent or implicit, the order dated November 4, 2024 cannot be labelled as void ab initio or a ity in the eye of law due to lack of jurisdiction but at best irregular. It has noticed the distinction between jurisdiction and determination. It has noticed the contrary view of another Division Bench rendered in Manu / WB / 0961/2021 (The Kolkata Municipal Corporation and Others v. AI - Sumama Agro Foods Private. Limited. and Others.)

9. Having refused to recall its earlier order dated November 4, 2024 despite noticing the fact that on s