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2018 DIGILAW 2641 (BOM)

State Of Maharashtra v. State Of Maharashtra

2018-10-29

A.S.OKA, M.S.SONAK

body2018
JUDGMENT A.S. Oka, J. - The Notice of Motion (Ldg.) No.1072/2018 taken out in a disposed of Appeal No.130/2010 and Appeal (Ldg.) No.404/2018 are being disposed of by this common judgment as they arise out of the same suit. 2. Both these appeals arise out of Suit No.2395/2009 filed by the appellants in both the appeals. For the sake of convenience, we are referring the parties as the plaintiffs and the defendants respectively. It is not necessary for us to go into the detailed factual aspects of the suit and merits of the suit considering the controversy involved in the notice of motion in the disposed of appeal and in the other appeal. Briefly stated, the suit relates to the proceedings in respect of the suit property under the Urban Land (Ceiling and Regulation) Act, 1976 (for short the ULC Act ). Initially, a writ petition was filed by the first plaintiff which was withdrawn with liberty to adopt appropriate proceedings. In the writ petition, there was an ad-interim order of statusquo passed on 22nd September 2008. The said order records the statement of the learned AGP that the possession of the suit property has been handed over to the Mumbai Metropolitan Regional Development Authority (for short MMRDA ). The same order records that the correctness of this statement is disputed by the plaintiffs. By further ad-interim order dated 21st October 2008, the said ad-interim order was continued by observing that In the meanwhile, order of status quo passed by the Court earlier shall mean status quo in regard to title and possession . By order dated 11th June 2009, the writ petition was permitted to be withdrawn with liberty to the petitioners (plaintiffs herein) adopt appropriate alternate remedy. The ad-interim order of status-quo was continued for a period of ten weeks. 3. The plaintiffs took out Notice of Motion No.3351/2009 for interim relief in Suit No.2395 of 2009. By an elaborate judgment and order (running into 57 pages) dated 5th February 2010, the learned single Judge dismissed the said Notice of Motion on merits. Appeal No.130/2010 was directed against the said judgment and order dated 5th February 2010. 4. Appeal No.130/2010 was disposed of by a Division Bench of this Court by the judgment and order dated 5th April 2010. Appeal No.130/2010 was directed against the said judgment and order dated 5th February 2010. 4. Appeal No.130/2010 was disposed of by a Division Bench of this Court by the judgment and order dated 5th April 2010. It appears from the said judgment and order that while opposing the Notice of Motion No.3351/2009 taken out by the plaintiffs, an objection was raised by the defendant No.4 (MMRDA) that the suit was not maintainable as the jurisdiction of the Civil Court to entertain the suit was ousted by the provisions of the ULC Act. The attention of the Division Bench was invited to section 9A of the Code of Civil Procedure, 1908 (for short the said Code ) (as amended for the State of Maharashtra). Paragraphs4 to 8 of the said judgment and order passed in Appeal No.130/2010 are relevant for our purposes, which read thus: 4. This Court has taken a view repeatedly that the provisions of section 9A are mandatory in any suit where question of grant of interim relief comes before the Court and objection is raised with regard to the jurisdiction to hear and entertain the suit, the Court is under duty to frame a preliminary issue of jurisdiction and decide that issue first and take up the application for interim relief for consideration only thereafter. 6. The learned Counsel for the Appellants seeks to rely on a Judgment of Division Bench of this Court in the case of Royal Palms (India) Pvt.Ltd. & ors. Vs. Bharat Shantilal Shah & Ors. Reported in , (2009) 2 BCR 622. 7. Perusal of the order of the learned Single Judge shows that though learned Single Judge has referred to the argument in relation to the objection of the Respondent No.4 regarding jurisdiction of the Court to entertain suit, no preliminary issue has admittedly been framed and decided. Thus, the order passed by the learned Single Judge,which is impugned in this appeal is clearly violating mandate of section 9A of Civil Procedure Code and therefore, the order will have to be set aside. 8. In the circumstances, the order impugned is set aside. Notice of Motion No.3351 of 2009 is remitted back to the learned Single Judge for de-novo decision in accordance with the law on the observations made above. During the pendency of Motion, ad-interim order, which is operating presently, shall continue to operate. Appeal disposed of accordingly. 8. In the circumstances, the order impugned is set aside. Notice of Motion No.3351 of 2009 is remitted back to the learned Single Judge for de-novo decision in accordance with the law on the observations made above. During the pendency of Motion, ad-interim order, which is operating presently, shall continue to operate. Appeal disposed of accordingly. (emphasis added) 5. Notice of Motion (Ldg.) No.1072/2018 is taken out by the original defendant Nos.1 to 3 and 5 to 7 (the State Government and others) in the said disposed of Appeal No.130/2010. The prayer in the said notice of motion is essentially for recall of the aforesaid judgment and order dated 5th April 2010 disposing of the appeal and for consequential reliefs. As noted earlier, the Division Bench proceeded to set aside the order of the learned single Judge on the ground that there was noncompliance of mandatory requirements of section 9A of the said Code inasmuch as the issue of jurisdiction raised by the defendant No.4 was not treated as a preliminary issue and was not decided. That was the only ground for setting aside the order dated 5th April 2010 impugned in Appeal No.130/2010. The Notice of Motion seeking to recall the order in appeal is based on the provisions of the Maharashtra Ordinance No.XVIII of 2018 (for short the said Ordinance ) by which provision of section 9A was deleted. The restored Notice of Motion for interim relief was placed before the learned single Judge on 31st July 2018. The learned single Judge, by an order dated 31st July 2018 held that the order dated 5th February 2010 which was set aside by the aforesaid Judgment and Order dated 5th April 2010 in Appeal No.130/2010 must be held to have finally disposed of the notice of motion. Paragraphs-2 to 4 of the said judgment and order dated 31st July 2018 impugned in Appeal (L) No.404 of 2018 are material, which read thus: 2. The matter was carried in Appeal. A Division Bench passed an order on 5th April 2010. The appeal was admitted and taken up immediately by consent for hearing and final disposal. The only point canvassed before the Appeal Court was that the learned Single Judge ought to have framed a preliminary issue under Section 9A, as it then stood, of the Code of Civil Procedure 1908 ( CPC ). The appeal was admitted and taken up immediately by consent for hearing and final disposal. The only point canvassed before the Appeal Court was that the learned Single Judge ought to have framed a preliminary issue under Section 9A, as it then stood, of the Code of Civil Procedure 1908 ( CPC ). There was no discussion on merits at all, and perhaps none was thought necessary. There is no manner of doubt that entire order was set aside or that the Motion was remitted for a fresh decision in accordance with the law - meaning that the preliminary issue of jurisdiction was required to be first framed and decided. 3. That statutory regime has now changed. By Maharashtra Ordinance XVIII of 2018 effective 27th June 2018, Section 9A has been deleted from the CPC. None of the provisos to sub-section 1 or sub-section 3 will apply, since it appears that other than framing the preliminary issue nothing further was done at all. No evidence was led. No documents were filed. No arguments were made. The preliminary issue remained as it was. It was never taken to judgment. 4. The result is that we have, on the one hand, a careful and detailed judgment of the learned Single Judge, one that addresses the merits of the Motion, and prima facie concludes that there is no case made out by the Plaintiffs. This was set aside and the matter was remitted only because a statutory provision, then on the statute book, intervened and it was thought essential to have that preliminary issue decided. That statutory bar itself has being taken off the statute book. I see no discussion anywhere of the merits of the decision by SC Dharmadhikari J. It may be true, both technically and theoretically, that once the decision is been set aside it must be set aside for all purposes and should be heard again. I am not inclined to do so. Absent the statutory bar, the order remitting the matter is itself without any continued basis. There is, therefore nothing that falls for a de novo decision in accordance with the law as directed by the Appeal Court order, simply because the basis for those observations or directions has now gone. I am not inclined to do so. Absent the statutory bar, the order remitting the matter is itself without any continued basis. There is, therefore nothing that falls for a de novo decision in accordance with the law as directed by the Appeal Court order, simply because the basis for those observations or directions has now gone. It seems to me entirely unjust that, where a decision has been reversed on some other ground, but not on merits, a plaintiff should quite literally be given a second innings and attempt to get a wholly different judgment on merits. There should be no such uncertainty or taking of chances. In my view, the decision of SC Dharmadhikari J of 5th February 2010 must therefore be held to have finally disposed of the Motion. (emphasis added) 6. The plaintiffs have challenged the said order dated 31st July 2018 by preferring Appeal (Ldg.) No.404/2018. 7. On 12th September 2018, in Appeal (Ldg.) No.404/2018, an order was made directing that the appeal will be disposed of finally at the admission stage. Only after the appeal was fully heard, that Notice of Motion (Ldg.) No.1072/2018 has been taken out by the State Government and other respondents. 8. In support of Appeal (Ldg.) No.404/2018, the learned senior counsel appearing for the appellants has taken us through all the relevant orders. His submission is that the order dated 5th February 2010 passed by the learned single Judge on the Notice of Motion on the interim relief (Notice of Motion No.3351 of 2009) was not in existence as the said order had merged in the order dated 5th April 2010 passed in Appeal No.130/2010. As noted earlier, the said interim order was set aside by the said judgment and order dated 5th April 2010 and de-novo hearing of the Notice of Motion No.3351 of 2009 was ordered. He urged that the learned single Judge by the impugned order dated 31st July 2018 has virtually proceeded on the basis that the order dated 5th February 2010 survives and was intact. He has directed that the Notice of Motion shall be treated as disposed of in terms of the said order. He urged that the learned single Judge by the impugned order dated 31st July 2018 has virtually proceeded on the basis that the order dated 5th February 2010 survives and was intact. He has directed that the Notice of Motion shall be treated as disposed of in terms of the said order. The learned senior counsel invited our attention to the observation made in paragraph-2 of the said order and submitted that even the learned single Judge has accepted that the entire order was set aside and that the Notice of Motion was remanded for a fresh decision in accordance with law. He submitted that effect of the said Ordinance was that even if a preliminary issue was framed, the same was not required to be decided, but the Notice of Motion which was remanded was certainly required to be decided and instead of deciding the Notice of Motion on its own merits, the learned single Judge straightway proceeded to pass the order by treating the said Notice of Motion as disposed of. The learned senior counsel relied upon various decisions of the Apex Court. We are making a reference to the said decisions in the subsequent part of the Judgment. The learned counsel for the defendant No.4 supported the impugned order. Her submission is that the Judgment and Order dated 5th February 2010 passed by the learned Single Judge in the Notice of Motion has not been set aside on merits and it is set aside only on the ground that section 9A of the said Code was not complied with. Inviting our attention to the decision of the Division Bench in the case of Royal Palms (India) Pvt.Ltd. & ors. Vs. Bharat Shantilal Shah & Others,2009 SCCOnLine(Bom) 51, she submitted that whenever intended, the Division Bench has specifically set aside the order passed on the Notice of Motion for injunction. Inviting our attention to the Judgment and Order dated 5th April 2010 of the Division Bench, she submitted that nothing wrong was found by the Division Bench with the merits of the order of the learned Single Judge dated 5th February 2010. She pointed out that the finding that the plaintiffs have failed to establish that they are in possession of the suit property has not been upset by the Division Bench. She submitted that the Division Bench has not directed re-trial. She pointed out that the finding that the plaintiffs have failed to establish that they are in possession of the suit property has not been upset by the Division Bench. She submitted that the Division Bench has not directed re-trial. She relied upon the decision of the Apex Court in the case of Syeda Rahimunnisa vs. Malan BI (dead) by Legal Representatives and another , (2016) 10 SCC 315 . She submitted that as there is no finding recorded by the Division Bench in Judgment and Order dated 5th April 2010, that re-consideration of the Notice of Motion for injunction was necessary, the learned Single Judge was justified in taking the view which is taken in the impugned order. She submitted that once the requirement of dealing with the issue of jurisdiction as a preliminary issue goes by virtue of the deletion of section 9A, the findings recorded by the learned Single Judge in the order dated 5th February 2010 remain as it is and that is precisely done by the learned Single Judge while passing the impugned order. She also relied upon the decision of the Apex Court in the case of Municipal Corporation, Hyderabad vs. Sunder Singh , (2008) 8 SCC 485 . Lastly, she relied upon the decision of the learned Single Judge of Calcutta High Court in the case of Sk.Kaloo @ Kaloo vs. Mohammad Mohiuddin,2004 SCCOnLine(Cal) 344. She would therefore submit that the view taken by the learned Single Judge in the impugned order is absolutely correct and no interference is called for. 9. The learned counsel for the State on a query made by the Court did not dispute that the order of the learned Single Judge dated 5th February 2010 has been set aside. However, he invited our attention to the impugned order of the learned Single Judge and submitted that the learned Single Judge has adopted the same reasons in the order dated 5th February 2010 which were not disturbed by the Division Bench. He would, therefore, submit that no interference is called for. 10. The learned counsel appearing for the State in support of the Notice of Motion (L) No.1072 of 2018 submitted that the Judgment and Order dated 5th April 2010 is based on section 9A of the said Code which stands deleted. He would, therefore, submit that no interference is called for. 10. The learned counsel appearing for the State in support of the Notice of Motion (L) No.1072 of 2018 submitted that the Judgment and Order dated 5th April 2010 is based on section 9A of the said Code which stands deleted. His submission is that there is an abundant power vesting in this Court to recall the said order by exercising inherent power under section 151 of the said Code. He relied upon the decision of the Apex Court in the case of K.K.Velusamy vs. N.Palanisamy , (2011) 11 SCC 275 . He relied upon what is held by the Apex Court in paragraph 12 of the said decision. He submitted that he is not calling upon this Court to do something which is prohibited by the law or which is prohibited by the express provisions of the said Code. He placed reliance on the another decision of the Apex Court in the case of Jet Plywood (P) Ltd and another vs. Madhukar Nowlakha and others , (2006) 3 SCC 699 . He submitted that inherent power under section 151 can be used to do substantive justice as observed by the Apex Court in paragraph 25 of the said decision. He relied upon another decision of the Apex Court in the case of Ram Chandra Singh Vs. Savitri Devi and others , (2004) 12 SCC 713 . He submitted that inherent power can be exercised when there does not exist any other provision in that behalf to do substantial justice. He urged that the prayer made in Notice of Motion can be always moulded by the Court. He submitted that by recalling the order passed on 10th April 2010, the appeal can be immediately heard so that the merits of the order dated 5th February 2010 can be gone into. He submitted that by adopting the said course, there will not be any prejudice to the plaintiffs in as much as the plaintiffs can always demonstrate as to how the said order is wrong. 11. The prayer made for recall of the order dated 10th April 2010 is opposed by the learned counsel for the original plaintiffs. He pointed out several objections raised by way of preliminary objection to the maintainability of the Notice of Motion. 11. The prayer made for recall of the order dated 10th April 2010 is opposed by the learned counsel for the original plaintiffs. He pointed out several objections raised by way of preliminary objection to the maintainability of the Notice of Motion. He pointed out that apart from the fact that there is no power to recall the order dated 5th April 2010, the said order has been acted upon by the parties. Preliminary issue was framed by the learned Single Judge on the basis of the said order way back on 21st February 2011. He submitted that the order dated 5th February 2010 has merged with the order sought to be recalled. He pointed out that there are subsequent events which have taken place. He submitted that M/s.Dhiraj Co-operative Housing Society was impleaded in the suit by order dated 23rd March 2014. He submitted that the said added defendant is not a party to the appeal No.130 of 2010. He submitted that if the Notice of Motion is heard afresh even the added defendant can raise all permissible contentions. It is submitted that the prayer (c) in the Notice of Motion can never be granted as it seeks to set aside the order which is impugned dated 31st July 2018 in Appeal (L) No.404 of 2018. 12. Reliance was placed on the decision of the Apex Court in the case of Budhia Swain and others vs. Gopinath Deb and others , (1999) 4 SCC 396 and Pradeep Kumar Maskara and others Vs. State of West Bengal and others , (2015) 2 SCC 653 . 13. We have carefully considered the submissions. Firstly, we will deal with the merits of Notice of Motion No.1072 of 2018. We must note here that the Judgment and Order of which recall is sought was passed on 5th April 2010 which has become final as of today. In the case of Budhia Swain and others (supra), the Apex Court has laid down the grounds on which the Court can recall the order earlier made by it. Paragraph 8 of the said decision reads thus: 8 In our opinion a tribunal or a court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent. Paragraph 8 of the said decision reads thus: 8 In our opinion a tribunal or a court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent. (ii) there exits fraud or collusion in obtaining the judgment (iii) there has been a mistake of the court prejudicing a party, (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceedings such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence. (emphasis added) 14. The crux of the argument is that as section 9A of the said Code stands deleted, the very basis of the Judgment sought to be recalled is taken away and therefore, by recalling the said Judgment and Order, the appeal should be re-heard. It is not the case made out in the Notice of Motion that the Division Bench which passed Judgment and Order dated 5th April 2010, lacked jurisdiction. It is not the case where fraud or collusion in obtaining the said Judgment and Order is alleged. It is not the case that the Division Bench has committed a mistake thereby causing prejudice to a party. It is also not the case where the Judgment was delivered without hearing any necessary party. The Judgment was not delivered in ignorance of any material fact. 15. It is apparent that the Division Bench has followed the law then prevailing. Section 9A of the said Code was very much on the statute book when the Division Bench decided the appeal. We may note the subsequent change in law which took place 8 years after the Judgment and Order, namely the deletion of section 9A of the said Code, is not a ground available even for reviewing the Judgment. Section 9A of the said Code was very much on the statute book when the Division Bench decided the appeal. We may note the subsequent change in law which took place 8 years after the Judgment and Order, namely the deletion of section 9A of the said Code, is not a ground available even for reviewing the Judgment. None of the contingencies which are set out in paragraph 8 of the decision in the case of Budhia Swain and others (Supra) exit. On the contrary, it is apparent that, even by taking recourse to the remedy of review, the Judgment and Order in appeal could not have been set aside. In fact, it is not permissible to review the said Judgment on the ground that section 9A no more survives on the statute book. Moreover, the Ordinance which deletes section 9A precisely lays down the course to be adopted in cases where a preliminary issue under section 9A has been framed, but not decided on the date on which the Ordinance came into force. Subsection (1) of section 3 of the Ordinance lays down that, in such cases, the preliminary issue shall be tried alongwith other issues. Thus, the consequences of deletion of section 9A are specifically provided for in the Ordinance. We must note here that even after deletion of section 9A which took place with effect from 27th June 2018 by virtue of the Maharashtra Ordinance No.XVIII of 2018, the applicant State did not move Division Bench for recall of the Judgment and Order dated 5th April 2010. It is only after the appeal preferred by the original plaintiffs for challenging the order dated 31st July 2018 passed in the remanded Notice of Motion was substantially heard that the present Notice of Motion was taken out by the applicant. Only because there was subsequent deletion of section 9A, it is no ground to recall the Judgment and Order especially when none of the grounds set out in paragraph 8 of the decision in the case of Budhia Swain and others (supra) exist. Moreover, acting upon the Judgment and Order dated 5th April 2010, the learned Single Judge framed preliminary issue of jurisdiction. We have carefully gone through the decisions relied upon by the Applicant in the Notice of Motion which do not support the case for recall. Moreover, acting upon the Judgment and Order dated 5th April 2010, the learned Single Judge framed preliminary issue of jurisdiction. We have carefully gone through the decisions relied upon by the Applicant in the Notice of Motion which do not support the case for recall. According to us, there is no merit in the Notice of Motion and the same deserves to be dismissed. 15. Now, coming to Appeal (L)No.404 of 2018 wherein challenge is to the order of the learned Single Judge dated 31st July 2018, we have already referred to the Judgment and Order dated 5th April 2010 wherein challenge was to the order of the learned Single Judge dated 5th February 2010 dismissing the Notice of Motion No.3351 of 2009 by a detailed Judgment. As the mandate of section 9A was not complied with by the learned Single Judge, the order dated 5th February 2010 was set aside by the Division Bench. Perusal of paragraph 8 of the order dated 5th April 2010 shows that the order dated 5th February 2010 was set aside and Notice of Motion No.3351 of 2009 was restored to the file and was remitted back to the learned Single Judge for de novo decision. 16. Firstly, we have to examine the legal effect of setting aside the order of the learned Single Judge by the Judgment and Order dated 5th April 2010. The legal position is no longer res-integra. We may conveniently refer to the decision of the Apex Court in the case of Kunhayammed and others vs. State of Kerala and another , (2000) 6 SCC 359 . The Apex Court dealt with the issue of applicability of the doctrine of merger. Clause 1 of paragraph 44 of the said decision lays down the conclusions which reads thus: 44.To sum up, our conclusions are: (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. (iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC. (emphasis added) 17. Following the said decision, it is apparent that as the order dated 5th February 2010 of the learned Single Judge was reversed by the Division Bench, the said order merged in the decision of the Division Bench dated 5th April 2010 in Appeal No.130 of 2010 and therefore, what subsists and remains operative is the order dated 5th April 2010 of the Division Bench. 18. The submission made by the learned counsel for the defendant No.4 ignores the fact that not only that the Judgment and Order dated 5th February 2010 is set aside but it has merged in the Judgment and Order dated 5th April 2010 in Appeal. As stated earlier, the Judgment and Order dated 5th April 2010 has attained finality. In view of the applicability of doctrine of merger, the Judgment and Order dated 5th February 2010 of the learned Single Judge ceased to exist from 5th April 2010. The submission made by the defendant No.4 completely glosses over this legal position. The decisions relied upon by the said defendant are not applicable. In view of the applicability of doctrine of merger, the Judgment and Order dated 5th February 2010 of the learned Single Judge ceased to exist from 5th April 2010. The submission made by the defendant No.4 completely glosses over this legal position. The decisions relied upon by the said defendant are not applicable. The reason is that we are not concerned in this appeal with the legality and validity of the order of 5th April 2010 which is by a co-ordinate Bench. The said order binds this Bench. 19. Now, we turn to the impugned order of the learned Single Judge the material part of which is already quoted earlier. In paragraph 2 of the impugned order, the learned Single Judge has himself stated that there is no manner of doubt that the entire order dated 5th February 2010 was set aside and Notice of Motion No.3351 of 2009 was remitted for a fresh decision in accordance with law. Thus, the learned Single Judge has himself accepted that the order dated 5th February 2010 does not exist as it is set aside. The learned Single Judge noted that the said order was set aside on the ground that a preliminary issue of jurisdiction is required to be decided before the Notice of Motion is heard. The learned Judge thereafter relied upon the Maharashtra Ordinance No.XVIII of 2018. Section 2 of the said Ordinance which came into force on 27th June 2018 provides that section 9A of the said Code in its application to the State of Maharashtra stands deleted. As stated earlier, on the basis of the Judgment of the Division Bench dated 5th April 2010 a preliminary issue under section 9A was already framed in the suit. In view of sub-section 1 of section 3 of the Ordinance, now the said issue will have to be treated as the one framed under Order XIV of the said Code which will have to be tried along with the other issues. Therefore, there was no requirement of hearing the issue of jurisdiction as a preliminary issue. In view of sub-section 1 of section 3 of the Ordinance, now the said issue will have to be treated as the one framed under Order XIV of the said Code which will have to be tried along with the other issues. Therefore, there was no requirement of hearing the issue of jurisdiction as a preliminary issue. Considering the fact that the order dated 5th February 2010 was set aside by the Judgment and Order dated 5th April 2010 and that the said order merged with the Judgment and order dated 5th April 2010, merely because the issue of jurisdiction was not required to be heard as a preliminary issue as directed under the said Judgment and order dated 5th April 2010, the Judgment and Order dated 5th February 2010 does not revive. 20. Perusal of the impugned order shows that after holding that the order dated 5th February 2010 was set aside by the higher Court namely a Division Bench of this Court, in paragraph 4 of the impugned order, the learned Single Judge came to the conclusion that the Judgment and Order dated 5th February 2010 holds good and he observed that by the said Judgment and Order dated 5th February 2010, Notice of Motion No.3351 of 2009 will have to be held as finally disposed of. Thus, in short, even after noticing the order dated 5th February 2010 was set aside and Notice of Motion No.3351 of 2009 was required to be considered afresh, he has held that by the order dated 5th February 2010, the said Notice of Motion stands disposed of. Only reason assigned in paragraph 4 is that the order dated 5th February 2010, was not reversed on merits but on some other grounds and therefore, the plaintiff should not be given second innings. With greatest respect to the learned Single Judge, we must note that he was bound by the order dated 5th April 2010 passed by the Division Bench and he could not have held contrary to the said Judgment and Order. The learned Single Judge held that Notice of Motion which was ordered to be heard afresh in terms of the said Judgment and Order dated 10th April 2010 stands disposed of in terms of the order dated 5th February 2010 which was expressly set aside by the Judgment and order dated 5th April 2010. The learned Single Judge held that Notice of Motion which was ordered to be heard afresh in terms of the said Judgment and Order dated 10th April 2010 stands disposed of in terms of the order dated 5th February 2010 which was expressly set aside by the Judgment and order dated 5th April 2010. The learned Single Judge has not noticed that the findings in the order dated 5th February 2010 were not revived as the entire order was set aside. The said order merged in the Judgment and Order dated 5th April 2010 of the Division Bench. 21. We may also note that it was pointed out that a session of the State Legislature was held on 24th June 2018 and the Ordinance was not converted into an Act. The question is what is the effect of the said Ordinance ceasing to be in force. However, the said issue is no longer res-integra. In the case of T.Venkata Reddy and others vs. State of Andhra Pradesh , (1985) 3 SCC 198 , the Apex Court dealt with the effect of an Ordinance ceasing to apply due to the fact that the Ordinance was not replaced by an Act legislature. In paragraph 19 of the said decision, the Apex Court discussed the legal effect of Ordinance ceasing to operate. In paragraphs 19, 20 and 21 the Apex Court held thus: 19. In paragraph 19 of the said decision, the Apex Court discussed the legal effect of Ordinance ceasing to operate. In paragraphs 19, 20 and 21 the Apex Court held thus: 19. The next question is whether the posts of part-time village officers revive as the Ordinance is not replaced by an Act of the Legislature of the State This contention of the petitioners is based on clause (2) of Article 213 of the Constitution It is argued on their behalf that on the failure of the State Legislature to pass an Act in terms of the Ordinance it should be assumed that the Ordinance has never become effective and that it was void ab initio This contention overlooks two important factors namely the language of clause (2) of Article 213 of the Constitution and the nature of the provisions contained in the Ordinance Clause (2) of Article 213 says that an Ordinance promulgated under that article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor but every such Ordinance (a) shall be laid before the Legislative Assembly of the State, or, where there is a Legislative Council in the State, before both the Houses and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council, and (b) may be withdrawn at any time by the Governor It is seen that Article 213 of the Constitution does not say that the Ordinance shall be void from the commencement on the State Legislature disapproving it It says that it shall cease to operate It only means that it should be treated as being effective till it ceases to operate on the happening of the events mentioned in clause (2) of Article 213 Secondly the Ordinance deals with two separate matters By Section 3 of the Ordinance it abolishes the posts of part-time village officers on the commencement of the Ordinance and it further declares that every person who held the post of a parttime village officer would cease to hold that post with effect from that date By Section 4 and other allied provisions the Ordinance has provided regarding the creation of posts of village assistants and appointment and conditions of service of village assistants who are full-time employees of the Government There is no doubt that a separate provision is made in Section 5 of the Ordinance for payment of some amount to the expart-time village officers Now by virtue of Section 3 of the Ordinance all the posts of part-time village officers stood abolished on January 6, 1984 and the petitioners ceased to be employees of the State Government These two matters became accomplished facts on January 6, 1984, irrespective of whether the holders of these posts were paid any amount under Section 5 or whether the new posts of village assistants were filled up or not Even if the Ordinance is assumed to have ceased to operate from a subsequent date by reason of clause (2) of Article 213, the effect of Section 3 of the Ordinance was irreversible except by express legislation An anologous question arose for consideration before a Constitution Bench of this Court in State of Orissa v Bhupendra Kumar Bose , (1962) AIR SC 945 : 1962 Supp (2) SCR 380, The facts of that case were these Elections were held for the Cuttack Municipality and twenty-seven persons were declared elected as Councillors One of the defeated candidates filed a writ petition before the High Court of Orissa challenging the elections The High Court set aside the elections on the ground that the electoral roll had not been prepared in accordance with law Since the State Government felt that the said decision affected not merely the elections to the Cuttack Municipality but some other municipalities in the State of Orissa where also similar irregularities had been committed in the preparation of the electoral rolls, the Governor promulgated an Ordinance on January 15, 1959 which contained provisions validating the electoral rolls and the elections held on their basis notwithstanding any judgment to the contrary The said Ordinance, however, lapsed on April 1, 1959 The petitioner who had filed the writ petition earlier again filed another writ petition questioning the continuance of the elected Councillors in office by virtue of the Ordinance The High Court allowed the writ petition and issued an injunction to the elected Councillors restraining them from functioning as Councillors The State Government and the Councillors filed the above appeal before this Court It was contended that the Ordinance was a temporary statute which was bound to lapse after the expiration of the prescribed period and so as soon as it lapsed the invalidity in the elections to the Cuttack Municipality stood revived This Court rejected the contention relying upon the decision in Steavenson v Oliver, 151 ER 1024, This Court finally observed at pp 401-402 thus: Now, turning to the facts in the present case, the Ordinance purported to validate the elections to the Cuttack Municipality which had been declared to be invalid by the High Court by its earlier judgment so that as a result of the Ordinance, the elections to the Cuttack Municipality must be held to have been valid. Can it be said that the validation was intended to be temporary in character and was to last only during the life time of the Ordinance? In our opinion, having regard to the object of the Ordinance and to the rights created by the validating provisions, it would be difficult to accept the contention that as soon as the Ordinance expired the validity of the elections came to an end and their invalidity was revived. The rights created by this Ordinance are, in our opinion, very similar to the rights with which the court was dealing in the case of Steavenson and they must be held to endure and last even after the expiry of the Ordinance. The Ordinance has in terms provided that the Order of Court declaring the elections to the Cuttack Municipality to be invalid shall be deemed to be and always to have been of no legal effect whatever and that the said elections are thereby validated. That being so, the said elections must be deemed to have been validly held under the Act and the life of the newly elected Municipality would be governed by the relevant provisions of the Act and would not come to an end as soon as the Ordinance expires. Therefore, we do not think that the preliminary objection raised by Mr Chetty against the competence of the appeals can be upheld. 20.We do not, however, mean to say here that Parliament or the State Legislature is powerless to bring into existence the same state of affairs as they existed before an Ordinance was passed even though they may be completed and closed matters under the Ordinance. That can be achieved by passing an express law operating retrospectively to the said effect, of course, subject to the other constitutional limitations. A mere disapproval by Parliament or the State Legislature of an Ordinance cannot, however, revive closed or completed transactions. 21. In the petitions before us also the position is the same as in the decision referred to above. The abolition of the posts and the declaration that the incumbents of those posts would cease to be holders of those posts under section 3 of the Ordinance being completed events, there is no question of their revival or the petitioners continuing to hold those posts any longer. The above contention has therefore, to be rejected in the circumstances of this case. The above contention has therefore, to be rejected in the circumstances of this case. (emphasis added) 22. On this aspect, the Apex Court had an occasion to lay down the law in the case of Krishna Kumar Singh and another vs. State of Bihar and others , (2017) 3 SCC 1 . The decision was rendered by the Constitution Bench wherein the Apex Court referred to the aforesaid decision in the case of Venkat Reddy and others. The Apex Court examined the effect of Ordinance ceasing to operate. Ultimately, the Apex Court in paragraph 105.12 held thus: 105.12.The question as to whether rights, privileges, obligations and liabilities would survive an Ordinance which has ceased to operate must be determined as a matter of construction. The appropriate test to be applied is the test of public interest and constitutional necessity. This would include the issue as to whether the consequences which have taken place under the Ordinance have assumed an irreversible character. In a suitable case, it would be open to the court to mold the relief; 23. The test applied by the Apex Court is whether consequences which have taken place under the Ordinance have assumed irreversible character. In the present case, the effect of the Ordinance is that section 9A is obliterated from the said Code by virtue of its deletion. This consequence is brought about by the said Ordinance is irreversible and the deletion of section 9A is a complete and closed matter. Therefore, assuming that the Ordinance ceased to operate, there is no question of the revival or re-introduction of section 9A on the statute book. The revival could be brought about either by a statute or by a fresh Ordinance. Therefore, even assuming that the said Ordinance ceased to operate, section 9A of the said Code does not stand revived. 24. We may note here that as a result of the events which are narrated earlier, the Notice of Motion for temporary injunction remained pending for such a long time and the ad-interim relief which was operative on 5th April 2010 continue to operate. As we find that the impugned Judgment and Order dated 31st July 2018 cannot stand the test of legality, Notice of Motion No.3351 of 2009 will have to be reheard in terms of the earlier Judgment and Order dated 5th April 2010 of the Division Bench. As we find that the impugned Judgment and Order dated 31st July 2018 cannot stand the test of legality, Notice of Motion No.3351 of 2009 will have to be reheard in terms of the earlier Judgment and Order dated 5th April 2010 of the Division Bench. After the impugned order was passed on 31st July 2018, the plaintiffs moved the learned Single Judge for continuation of the order of status quo. The learned Single Judge by the order dated 3rd August 2018 continued the status quo on the site for a period of six weeks. The learned Single Judge recorded a submission of the plaintiffs that they continue to be in possession of the suit property. The learned Single Judge also recorded the submission of the learned Additional Government Pleader that the possession thereof was taken over by the State Government and was handed over to the defendant No.4. 25. As a consequence of disturbing the impugned order, the aforesaid order of the learned Single Judge dated 3rd August 2018 will have to be continued till the Notice of Motion is heard. In fact, by the order dated 12th September 2018 in Appeal (L) No.404 of 2018, the said order dated 3rd August 2018 has been continued. Considering the stand taken in the pleadings by the State Government as well as defendant No.4 and considering the fact that the Notice of Motion is of the year 2009, we are sure that the learned Single Judge will give necessary priority to the hearing of the Notice of Motion. However, we propose to grant liberty to the defendants to apply for vacating the order of status quo in the event the Notice of Motion could not be heard within a reasonable time. 26. Accordingly, we pass the following order: (I) Notice of Motion (L) No.1072 of 2018 in Appeal No.130 of 2010 is hereby dismissed; (II) Appeal (L) No.404 of 2018 is partly allowed by setting aside the impugned order dated 31st August 2018. Accordingly, Notice of Motion No.3351 of 2009 is restored to the file of the learned Single Judge which shall be heard and decided de novo as per the Judgment and Order dated 5th April 2010 in Appeal No.130 of 2010. Accordingly, Notice of Motion No.3351 of 2009 is restored to the file of the learned Single Judge which shall be heard and decided de novo as per the Judgment and Order dated 5th April 2010 in Appeal No.130 of 2010. But the preliminary issue already framed shall be decided along with the other issues; (III) The order dated 3rd August 2018 passed by the learned Single Judge will continue to operate (which is an order of status quo) till the disposal of the Notice of Motion No.3351 of 2009; (IV) Considering the facts of the case and considering the fact that the Notice of Motion No.3351 of 2009 is pending for such a long time, we request the learned Single Judge to give necessary priority to the hearing of the said Notice of Motion; (V) For any reason, if the Notice of Motion is not heard within a period of six weeks from the date on which this order is uploaded, we grant liberty to the defendants to apply for vacating the order dated 3rd August 2018; (VI) We make it clear that we have made no adjudication on merits of the Notice of Motion No.3351 of 2009 and all contentions on merits are kept open to be decided by the learned Single Judge; (VII) Pending Notice of Motion do not survive and the same are disposed of.