Bombay High Court
M/S. Mahavir Associates vs Shri Anthony John D'Souza & Ors on 23 October, 2013
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
APPEAL FROM ORDER NO. 402 OF 2013
WITH
CIVIL APPLICATION NO. 486 OF 2013
IN
APPEAL FROM ORDER NO. 402 OF 2013
WITH
CIVIL APPLICATION NO. 536 OF 2013
IN
APPEAL FROM ORDER NO. 402 OF 2013
M/s. Mahavir Associates ....Appellants.
Vs.
Shri Anthony John D'Souza & Ors. ....Respondents.
WITH
APPEAL FROM ORDER NO. 321 OF 2013
WITH
CIVIL APPLICATION NO. 535 OF 2013
IN
APPEAL FROM ORDER NO. 321 OF 2013
M/s. Mahavir Associates ....Appellants.
Vs.
M/s. Ravi Developments,
Through Its Partner-
Jayesh T. Shah & Ors. ....Respondents.
Mr. Janak Dwarkadas, Senior Advocate a/w Mr. Vineet B. Shah, Senior
Advocate a/w Mr. Cyrus Ardeshir, Mr. Rahul Dwarkadas, Ms. Prachi
Dhanoni and Ms. Atika Vag i/by M/s. Wadia Ghandy & Co. for the
Appellants.
Mr. A.Y. Sakhare, Senior Advocate a/w Mr. A.R. Shaikh for Respondent
1/14
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Nos. 15 to 17 in AO No. 402 of 2013 and for Respondent Nos. 1 to 3
in AO No. 321 of 2013.
Mr. R.D. Soni i/by M/s. Ram & Co. for Respondent Nos. 2 to 14 in AO
No. 402 of 2013 and for Respondent Nos. 4 to 17 in AO No. 321 of
2013.
Mr. M.A. Kamdar i/by Kanga & Co. for Respondent No.18.
CORAM : ANOOP V. MOHTA, J.
DATE : 23 OCTOBER 2013.
ORAL JUDGMENT:-
The Appellants, in both these Appeals from Order, have
challenged common order dated 11 February 2013, passed in Special
Civil Suit No. 577 of 2010 filed by the Appellants for declaration and
injunction and Special Civil Suit No. 628 of 2010 filed by the
Respondents for a specific performance, declaration and cancellation
of the instruments. The order is against the Appellant in both the
matters.
2 The operative part of the impugned order is as under:-
"O R D E R
The application Exh. 5 in Spl.C.S.No.577/2010 is
hereby rejected.
The status-quo granted by this Court Dt.18/08/2010
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is hereby vacated.
The application Exh.5 in Spl.C.S. No. 628/2010 is
hereby allowed.
The defendants, their servants, agents etc. are hereby
directed not to interfere in the occupation & possession of
the suit property to the plaintiff till the decision of the suit.
The defendants, their servants, agents etc. are hereby
further directed not to alienate the suit property in any
manner till the decision of the suit.
The costs of these applications shall abide by the
suits.
The copy of the order be kept in Spl.C.S. No.
577/2010."
3 The relevant prayers of the Appellants in Special Civil Suit
No. 577 of 2010 filed in the month of August 2010 read as under:-
"a) This Hon'ble Court be pleased to hold and declare that
the Suit Development agreement dated 3/8/2007 is
bogus, fabricated, forged, fraudulent, illegal, bad in
law, void ab initio and the same is ultra virus to the
provision of law and the same is without the force of
law and not binding upon the Plaintiff."
.......
"e) This Hon'ble Court be pleased to hold and declare
that, the Suit agreement dated 6/6/1988 executed by
defendant no.2 with defendant no.16 and 17 is bogus,
fabricated, forged, fraudulent, illegal, bad in law, void
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ab initio and the same is ultra virus to the provision
of law and the same is without the force of law and
not binding upon the Plaintiff."
The Respondents are the Defendants in this Suit.
4 The relevant prayers of the Respondents in their Special
Civil Suit No. 628 of 2010 filed on 3 September 2010, read as under:-
"a) It be held, declared and decreed that the purported
sale deed dated 7th February, 1995 is illegal, bogus, got
up and fraudulent documents and be cancelled.
...
c) It be held, declared and decreed that the alleged
Agreement dated 15th November, 1989 and/or Power
of Attorney dated 20th February, 1990 and alleged
agreement dated 19th June, 1992 all are false,
fabricated, illegal and bogus documents.
d) The Defendant nos. 2 to 15 be directed to specifically
perform the first suit agreement and/or the second suit
agreement as the case may be by executing requisite
Deed of Conveyance in favour of the Plaintiff no.1 by
obtaining requisite N.A. Permission from the N.A.
Authority AND/OR such other directions be given to
the Defendants nos. 2 to 15 for compliance of their
part of First Suit Agreement and/or Second Suit
Agreement.
The Appellants are the Defendants in this Suit.
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5 There is no dispute that the Trial Court has passed the
order of status-quo on 18 August 2010 which was vacated on 11
February 2013, but this Court on 3 May 2013, continued the order of
status-quo again. In the result, the order of status-quo has been in
force since 18 August 2010, with regard to the common properties in
question.
6 The learned Senior Counsel appearing for the Appellants
has submitted referring to the Civil Applications filed in both these
Appeals, by invoking Order 41, Rule 27 of the Code of Civil Procedure
(for short, "the CPC") and thereby contended that the documents
referred in the Applications, the compilation from serial Nos. 1 to 23,
be permitted to be taken on record of the Suit and the Appeals as
those documents go to the root of the matter and specifically the
findings given by the learned Judge in paragraph Nos. 14 to 18 about
the thumb impressions and the signatures of the real sole owner of the
suit property for want of documents/materials. The relevant
paragraphs of the same are as under:-
"14 It is pertinent to note here that the
documents filed by parties & more particularly filed by
the defendant No.1 i.e. The Copy of Registered Deed of
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Conveyance Dt. 07/02/1995, The Copy of the Power of
Attorney Dt. 03/08/2007, The Copy of the
Development Agreement Dt. 03/08/2007, The Copy of
Power of Attorney Dt. 03/08/07 & The Letter of
Possession Dt. 06/06/1988 etc clearly shows & reads
that these documents do not bear the signatures of the
defendant No.2 Smt. Dhumubai Anthony D'Souza who
is the real & sole owner of the suit property. However,
these documents shows that the defendant No.2 Smt.
Dumubai Anthony D'Souza put her thumb impressions
but the said thumb impressions have neither attested,
acquainted or identified by any person or the
defendant Nos. 3 to 15 who are her family members.
Per contra, the defendant No.2 has filed her Written
Statement on her behalf & on behalf of the defendant
Nos. 3 to 15 vide Exh.29 along with her affidavit
which bears her signatures. Not only this but also the
defendant No.2 has specifically submitted that neither
she herself nor the defendant Nos. 3 to 15 have
executed any document in favour of either the
defendant Nos. 1 or the defendant No.16 as alleged."
......
18 Per contra, the documents filed by the defendant
No.1 more particularly the crucial document i.e. The
Deed of Conveyance Dt.07/02/1995 which is alleged
to have been executed by & between the defendant Nos.
1, 16 & defendant Nos. 2,3,4,7 & 8 put the question
mark & doubt in respect of its duly execution as it was
alleged to have been pending before The Sub-Registar,
Thane for the registration since 07/02/1995 till
01/02/2007 more particularly when such document
does not bear the signatures of the defendant No.2
Smt. Dumubai Anthony D'Souza but it bears the
unidentified thumb impression which is denied by the
defendant No.2 herself."........
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7 The contesting Respondents (Plaintiffs in other Suit) have
opposed the Applications on the ground of "No due diligence" and "no
sufficient and bonafide reasons" made out for such Applications, at
this Appellate stage, place on record these additional documents,
which were well within their knowledge since long. They referred a
Division Bench Judgment Ferani Hotels Pvt. Ltd. Vs. Nusli Neville
Wadia 1 also for the same proposition. That was a case where the
Chamber Summons was taken out to bring on record the documents
in Appeal from final decree, where the parties have already led
evidence in support of their case. We are concerned with the Appeals
from Order, where the challenge is to the grant and the rejection of
interim injunction Applications for and against the parties. The trial is
yet to be commenced. The Division Bench itself actually considered
all the documents placed along with the Chamber Summons on merits
and not permitted to place those documents on record. In the present
case, the situation is different. The documents filed at the earlier
stage of the proceedings, need to be considered in these backgrounds.
The aspect of due diligence cannot be overlooked and so also the
omission to file such documents at the earliest point of time, while
1 2013(3) Mh.L.J.509
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arguing and/or submitting the documents for the purpose of interim
protection/injunction. In a given case, pending the trial, the learned
Judge can pass ad-interim and/or interim order based upon the
affidavits/counter affidavits of the parties. All the documents, may or
may not be placed at this interim stage of the proceedings. The due
diligence and/or omissions so referred and dealt with even in the
Division Bench, as well as, under Order 41 Rule 27 of the CPC, just
cannot be extended in a situation like this where admittedly the trial
is not even commenced. In the Appeals from Order the grant of
injunction/interim injunction is the only issue therefore, cannot be
equated with the situation as contemplated under Order 41 of the CPC
and so also the Judgment so referred above. Ferani Hotels Pvt. Ltd.
(Supra). There is no total bar. The Appellate Court, if the case made
out, even permits the documents to be taken on record. The Court at
interim stage of the Suit, can give all opportunity to the parties.
8 Order 39 Rule 4 of the CPC, as read and referred, is also a
situation where the Trial Court may vary or discharge or set aside the
order of injunction granted for the reasons provided in the same. The
Court on various occasions, even modified such orders at their own, if
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the case is made out. The order if passed after hearing both the
parties, the Court may still vary, provided the reasons should be given
and to see that there should be no injustice and/or undue hardship to
the other party. This provision if available to the Trial Court, I am
inclined to observe that the Appellate Court in Appeal from Order, if
the case is made out, may vary and/or set aside the order based upon
the material available on record and/or taking note of additional
documents/affidavits, but subject to hearing both the parties. The
Applications therefore, so filed along with the compilation of
documents, need to be considered in view of above provisions of the
law itself, apart from the basic principle of giving opportunity to both
the parties.
9 After hearing both the parties referring to the documents
referred and relied upon by the learned Judge, the documents which
are part of these present Applications, are not new documents. The
contesting Respondents-Defendants are also aware of those
documents which have bearing on the reasons so given while passing
the order against the Appellants, as the same itself signed and/or
executed by some of the contesting Defendants-Respondents, specially
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the sole owner of the property as observed. There is no even
submission made that those documents are totally new and/or they
are not aware of the same. The main submission is, those documents
though available with them, not produced at the relevant time and
therefore because of lack of due diligence in view of order 41 Rule 27
principle, such documents cannot be permitted to be taken on record
in these Appeals from Order, is unacceptable for the simple reason
that the documents so referred, if are necessary for proper
adjudication of the dispute between the parties including the rival
submissions so raised, just cannot be overlooked by the Trial Court
and so also, the Appellate Court.
10 The learned Judge in paragraph Nos. 14 to 18 read and
referred basic documents of both the parties and thereby rejected the
Application filed by the Appellants and granted the Application filed
by the Respondents. The doubt was raised about the signature/thumb
impression of one of the owner of the property (Smt. Dumubai).
11 In the present case, some of the documents so listed along
with the Applications are in fact and factually referred in the
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documents admitted and/or relied upon by the parties. The registered
documents if read and referred various other documents/agreements
and as there is no dispute and/or denial to those registered
documents, the contents of the same along with the documents so
referred for some reasons, could not be produced at the relevant time,
but the Appellants and/or party concern wants to place on record,
even at the prima facie stage of the proceedings, I see there is no
reason not to give an opportunity to place documents on record. The
paragraph Nos. 7 and 8 of the Applications, though denied, given
sufficient reasons for the Appellants, not to trace out and/or to place
these documents before the Trial Court along with the injunction
Application and/or reply.
12 Admittedly, both the parties have challenged these
registered documents, where the question is of specific performance of
the contract referring to the property in question. The effect of the
same needs to be tested at the time of trial, but the fact of prior
registration of the documents, just cannot be overlooked and so also
the reasons for delay in registration of documents from 7 February
1995 till 1 December 2007.
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13 Though documents, which the Appellants want to rely
were definitely not part of the proceedings therefore, the learned Trial
Judge based upon the material available, has passed the order, but the
Appellants, as contended and as referred and shown those documents,
if they want to place it on record are relevant and important for
adjudicating their case, including their case of injunction and/or
protection. Therefore, I am inclined to say that there is no reason not
to grant this opportunity as it would be in the interest of all and even
for proper adjudication of the issue so raised covering the prima facie
case and/or balance of convenience and/or equity.
14 I am not inclined to accept the submission that on the
basis of these documents itself, this Court may pass the appropriate
order and vary and/or modify the order of the Trial Court. The
documents, even otherwise, required to be placed in the Trial Court
and be accepted in accordance with law, by placing original
documents and/or for some reasons the original documents are
misplaced and/or not available, by filing an affidavit in support of the
secondary documents. The Court required to consider even to accept
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the secondary documents by giving the opportunity to both the
parties. Let the Trial Court consider and to take these documents on
record and pass appropriate order, even on merits of the matter, as
these documents if related and connected with the transactions in
question, required to be re-considered for passing the interim
injunctions/reliefs, as prayed.
Therefore, in the interest of justice, by keeping all points
open and as I am inclined to grant these Applications, but subject to
filing of an appropriate Application to take these documents on record
before the Trial Court. The liberty is accordingly granted. This is also
for the reason that by granting these Applications at appellate stage
and I would not be in a position to pass a fresh order based upon the
merits of these documents without testing its merits. I am permitting
them to take out these Applications in the Trial Court, let the Trial
Court deal with these documents in accordance with law and pass
fresh order on merits of these Applications (Exhibit-5) also by hearing
both the parties.
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16 For the above reasons, by keeping all points open, the
common impugned order passed needs to be quashed and set aside, as
the reasons are common and interconnected for both the Applications
filed by the respective parties. The matter is remanded back. Both
the Applications be re-heard by the learned Trial Judge by giving an
opportunity to the parties and dispose of the same preferrably within
12 weeks from the date of the order. All the contentions are kept
open.
17 The status-quo order granted by the Court has been in
force since 18 August 2010. That should be continued till the decision
of these Applications (Exhibit-5) in both the Suits.
18 Both these Appeals are accordingly disposed of. All the
Civil Applications are also disposed of. There shall be no order as to
costs.
(ANOOP V. MOHTA, J.)
