(Dipak Misra and Prafulla C. Pant, JJ.)
Jagdish Shyamrao Thorve ___________________________ Petitioner;
v.
Mohan Sitaram Dravid and Others __________________ Respondent(s).
(With appln. (s) for exemption from filing c/c of the impugned judgment and interim relief)
Petition(s) for Special Leave to Appeal (C) No. 22438/2015, decided on August 17, 2015
The Order of the court was delivered by
Order
1. Heard Mr. Arvind S. Avhad, learned counsel appearing for the petitioner.
2. He has referred us to the impugned order passed by the High Court on 27-4-20151, whereby the High Court has placed reliance on Foreshore Coop. Housing Society Ltd. v. Praveen D. Desai2 and dismissed the writ petition.
3. The aforesaid decision, as we perceive, interpret Section 9A of the Code of Civil Procedure, as amended by the Maharashtra Amendment Act, 1977. The two-Judge Bench, after referring to the provision and relying on certain earlier decisions, has opined thus: (Foreshore Coop. Housing Society Ltd. case2, SCC pp. 434-35, para 56)
“56. With great respect, we are of the view that the decision rendered by the Division Bench in Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar3 is contrary to the law settled by the Constitution Bench and three-Judge Benches of this Court, in Pandurang Dhondi Chougule v. Maruti Hari Jadhav4 (five-Judge Bench), followed by other Division Benches in Manick Chandra Nandy v. Debdas Nandy5, NTPC Ltd. v. Siemens Atkeingesellschaft6, Official Trustee v. Sachindra Nath Chatterjee7, ITW Signode India Ltd. v. CCE8 and Kamlesh Babu v. Lajpat Rai Sharma9. The Constitution Bench decision and other decisions given by the larger Bench are binding on us. It appears that those decisions have not been brought to the notice of the Division Bench taking a contrary view.”
4. It is pertinent to mention here that the pronouncement in Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar3, was directly on the interpretation of Section 9A of the Code of Civil Procedure, whereas the decisions which have been relied upon in Foreshore Coop. Housing Society Ltd.2 are not on Section 9A of the Maharashtra Amendment Act in the Code of Civil Procedure. Therefore, we are inclined to think that the authority in Kamalakar Eknath Salunkhe3 was a binding precedent on the later Bench and, therefore, it should have been referred to a larger Bench.
5. In view of the aforesaid, we think that a larger Bench should hear the matter.
6. Mr. Harish N. Salve, learned senior counsel, is appointed as Amicus Curiae to assist the Court.
7. Issue notice, returnable within eight weeks.
8. The Registry is directed to place the papers before Hon’ble the Chief Justice of India for constituting a larger Bench.
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1 Jagdish Shyamrao Thorve v. Mohan Sitaram Dravid, WP No. 3158 of 2015, order dated 27-4-2015 (Bom)
2 (2015) 6 SCC 412 : (2015) 3 SCC (Civ) 333
3 (2015) 7 SCC 321 : (2015) 3 SCC (Civ) 595 : (2015) 3 Scale 34
4 AIR 1966 SC 153
5 (1986) 1 SCC 512
6 (2007) 4 SCC 451
7 AIR 1969 SC 823
8 (2004) 3 SCC 48
9 (2008) 12 SCC 577
