901-AO-899-26.DOC IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.899 OF 2026 Mohammad Hafijul Mohammad Aihar Shaikh & Anr. ...Appellants Vs. Slum Rehabilitation Authority & Ors. ...Respondents WITH INTERIM APPLICATION NO.6922 OF 2026 ---------- Mr. Pradeep Thorat a/w Mr. Shubham Dubey and Ms Aditi S. Naikare i/b Mr. Ashutosh Shukla for Appellants. Mr. Sushil Mishra i/b Mr. Sanjay Mishra for Respondent No.4. ----------- CORAM: AARTI A. SATHE, J. DATED: 2nd SEPTEMBER 2026 P.C. 1. This Appeal from Order has been filed under Order XXXIII Rule 1 of the Civil Procedure Code 1908 (CPC), challenging the order dated 28th August 2026 passed by the Learned Judge, Bombay City Civil Court, Dindoshi Court (Trial Court), in Notice of Motion No.2917 of 2026 in L.C. Suit No.1811 of 2026 whereby, the Trial Court has refused the ad-interim reliefs in the aforesaid Notice of Motion (hereinafter referred to as the impugned order). 2. On perusal of the impugned order, it is seen that the Trial Court has refused to exercise its jurisdiction and denied ad-interim reliefs as prayed for Meera Jadhav MEERA MAHESH JADHAV Digitally signed by MEERA MAHESH JADHAV Date: 2026.09.02 16:21:31 +0530 901-AO-899-26.DOC only on the ground that Defendant No.4 in the Suit (Respondent No.4 herein), has filed another Notice of Motion under Order VII Rule 11 of the CPC on the ground of maintainability of suit. The Trial Court on the aforesaid basis has held that considering that the said Notice of Motion is pending disposal, ad-interim relief could not be granted to the Appellant. In view thereof, prayer for ad-interim protection was rejected and the Notice of Motion was adjourned to 29th August 2026. 3. Learned Counsel appearing on behalf of the Appellants, Mr. Thorat, submitted that the approach adopted by the Trial Court was erroneous, inasmuch as the pendency of the Notice of Motion under Order VII Rule 11 of the CPC, could not be a ground for refusing to grant the ad-interim relief as prayed for. He further submitted that, in the facts and circumstances of the present case, considering the competing claims of the Appellant and Respondent No.4 in respect of the allotment of a flat under the Slum Rehabilitation Authority (SRA) Scheme, for which a lottery was conducted, the pendency of the Notice of Motion under Order VII Rule 11 of the CPC, in the Suit could not be a ground for declining ad-interim relief, particularly when refusal of such relief would cause prejudice and irreparable loss and harm to the Appellants. He has sought to place reliance on the decision of the Supreme Court in the case of Asma Lateef & Anr Vs. Shabbir Ahmad & Ors.1, wherein the Supreme Court has held that it would be inappropriate for a court to abstain from recording its prima facie satisfaction on the question 1 (2024) 4 Supreme Court Cases 696 Meera Jadhav 901-AO-899-26.DOC of maintainability, yet, proceed to grant protection pro tem on the assumption that the question of maintainability has to be decided as a preliminary issue under Order 14 Rule 2 of CPC. He submitted that the Supreme Court in the aforesaid decision has held that the same would amount to an improper exercise of power and if the court is of the opinion at the stage of hearing the application for interim relief that the suit is barred by law or is otherwise not maintainable, it cannot dismiss it without framing a preliminary issue after the written statement is filed, but can most certainly assign such opinion for refusing interim relief. He submits that in the facts of the present case, the Trial Court has not considered the aforesaid settled position and has refused ad-interim relief only on the basis of the pendency of the Notice of Motion under Order VII Rule 11 of CPC. Relevant paragraph of the decision of the Supreme Court in Asma Lateef & Anr (Supra) is reproduced hereinbelow:- “50. Although not directly arising in the present case, we also wish to observe that the question of jurisdiction would assume importance even at the stage a court considers the question of grant of interim relief. Where interim relief is claimed in a suit before a civil court and the party to be affected by grant of such relief, or any other party to the suit, raises a point of maintainability thereof or that it is barred by law be preceded by formation and recording of at least a prima facie satisfaction that the suit is maintainable or that it is not barred by law. Such a satisfaction resting on appreciation of the averments in the plaint, the application for interim relief and the written objection thereto, as well as the relevant law that is cited in support of the objection, would be a part of the court's reasoning of a prima facie case having been set up for interim relief, that the balance of convenience is in favour of the grant and non-grant would cause irreparable harm and prejudice. It would be inappropriate for a court to abstain from recording its prima facie satisfaction on the question of maintainability, yet, proceed to grant protection pro tem on the assumption that the question of maintainability has to be decided as a preliminary issue under Order 14 Rule 2 CPC. That could amount to an improper exercise of power. If the court is of the opinion at the Meera Jadhav 901-AO-899-26.DOC stage of hearing the application for interim relief that the suit is barred by law or is otherwise not maintainable, it cannot dismiss it without framing a preliminary issue after the written statement is filed but can most certainly assign such opinion for refusing interim relief. However, if an extraordinary situation arises where it could take time to decide the point of maintainability of the suit and non- grant of protection pro tem pending such decision could lead to irreversible consequences, the court may proceed to make an appropriate order in the manner indicated above justifying the course of action it adopts. In other words, such an order may be passed, if at all required, to avoid irreparable harm or injury or undue hardship to the party claiming the relief and/or to ensure that the proceedings are not rendered infructuous by reason of non-interference by the court.” 4. Per contra, learned Counsel appearing on behalf of Respondent No. 4 submitted that the reliefs sought by the Appellants in the Suit cannot be entertained, inasmuch as the said reliefs are in the nature of determining the eligibility of Respondent No. 4 and his claim for inclusion of his name in Annexure-II for the purpose of allotment of a flat under the SRA Scheme. He further submitted that the Notice of Motion filed by the Appellants under Order VII Rule 11 of the Code of Civil Procedure, 1908, would have to be heard and, in view thereof, the Trial Court has rightly declined grant of ad- interim reliefs in favour of the Appellants. 5. Heard learned Counsel on behalf of the parties. I am of the view that not exercising jurisdiction by the Trial Court only on the basis of the pendency of the Notice of Motion under Order VII Rule 11 on the ground of jurisdiction, is an incorrect approach which has been undertaken by the Trial Court in refusing the ad-interim reliefs. Considering the fact that the issue of maintainability had to be decided and the Trial Court had to come to atleast a prima facie finding as to whether the ad-interim relief ought to be granted Meera Jadhav 901-AO-899-26.DOC or not to the Appellants, which the Trial Court has not done in the facts of the present case, and also considering the decision of the Supreme Court in Asma Lateef & Anr (Supra), the view taken by the Trial Court to my mind is an erroneous and incorrect view. Further, the pendency of an application under Order VII Rule 11 does not by itself, extinguish or suspend the Plaintiffs’ (Appellants herein) right to seek interim protection in a subsisting suit. The application under Order VII Rule 11 and the prayer for interim relief require consideration on their respective parameters. The Trial Court was therefore required to consider whether the Plaintiffs (Appellants herein) satisfied the settled requirements for grant of interim relief, notwithstanding the pendency of the Notice of Motion under Order VII Rule 11 of the CPC. 6. In view of the aforesaid, I am inclined to allow this Appeal from Order and set aside the impugned order dated 28th August 2026 passed by the Trial Court. This Appeal from Order is therefore allowed in the aforesaid terms. ORDER (i) The impugned order dated 28th August 2026 is hereby quashed and set aside. (ii) The Trial Court to decide expeditiously Notice of Motion No.2917 of 2026 alongwith Notice of Motion No.2892 of 2026 filed by Respondent No.4 on the next date of hearing, i.e., 22nd September 2026. No adjournments to be sought by either parties on the said date. Meera Jadhav 901-AO-899-26.DOC (iii) Till the hearing of the aforesaid Notices of Motion, status-quo to be maintained. 7. Appeal from Order accordingly stands disposed of. 8. In view of the disposal of the Appeal from Order, Interim Application does not survive and accordingly stands disposed of. (AARTI A. SATHE, J.) Meera Jadhav