IMPORTANT POINT
Interlocutory Relief – grant of.

JUDGMENT

Gokhale J. —

Leave granted.

2. This appeal by special leave by original Defendants Nos. 1 and 2 seeks to challenge the Judgment and Order dated 12.8.2010 passed by a Division Bench of the Bombay High Court allowing the Appeal No. 550/2009 against the order of a Single Judge dated 9.9.2009 in Notice of Motion No. 1787/2009 in Suit No. 1266/2009 filed by Respondent No. 1 (since deceased). The learned Single Judge had granted a limited relief to Respondent No. 1 (original plaintiff) whereas by the Order passed by the Division Bench the Notice of Motion taken up by the original Plaintiff had been made absolute in terms of prayers (a), (b) and (c), and thereby granting full interim relief which was sought by Respondent No. 1 herein.

3. In view of the demise of Respondent No. 1, the heirs of Respondent No. 1 have come on record of the appeal. Their case is that the interim relief as was sought, though in the nature of mandatory relief, was necessary in the facts and circumstances of the case. As against that, the submission on behalf of the Appellants is that the learned Single Judge had exercised his discretion appropriately and there was no reason for the Division Bench to interfere therein. The Appellants also contend that the prayers in the Notice of Motion are the principal prayers in the plaint and, therefore, it amounts to granting a decree at the interlocutory stage which was not justified in the present case.

4. The question for determination, therefore, is as to whether, in the facts and circumstances of the case, the mandatory order as passed by the Division Bench was justified, or whether the learned Single Judge having exercised his discretion appropriately, the Division Bench erred in interfering therein?

5. The facts leading to this appeal are as follows:

Respondent No.1 (the original Plaintiff) is the elder brother of Petitioner No.1 (Defendant No.1 in the Suit). Petitioner No.2 is the son of Petitioner No.1. The dispute between them is about the rights to a property which is being developed and is situated at Cadastral Survey No. 764, Mazgaon Division in Mumbai. The case of Respondent No.1 is that he is the exclusive owner of that property whereas the Appellants very much dispute the same. It is the case of Respondent No.1 that by Conveyance Deed dated 27.3.1981 as rectified by Rectification Deed dated 11.9.1986, he had purchased the property from the original owners and necessary property entries are in his name. It is his case that he has taken steps to develop that property under the Development Control Rules by removing one old bungalow and several chawls situated thereon. Two buildings have already been put up on that property and the third one now named as ‘Siddhagiri’ is under construction.

6. It is his further case that since 1999, he has not been keeping well, and therefore, he executed three Powers of Attorney from time to time. The first one was executed on 8.8.2000 in favour of his wife and Appellant No.1 which was for performing various acts and deeds on his behalf as his Constituted Attorneys in furtherance of this project. He executed second Power of Attorney on 21.9.2005 again in favour of his wife and Appellant No.1 as well as Appellant No.2 which is also in the similar fashion as the first one. The third Power of Attorney was executed on 24.10.2000 which is a specific power in favour of Appellant No.1 for giving evidence on behalf of the Respondent No.1. It was his further case that though there was one Joint Account with Appellant No.1 in Indian Bank since 1993, one more Joint Account was opened on 10.10.2001, this time in HSBC Bank which was particularly for carrying the transactions relating to the property and developments thereon. It was his case that all amounts deposited in that account belong to him. He opened one more Joint Account on 1.2.2008 in the State Bank of India with the Appellant which was stated to be opened for payment of taxes etc. relating to the property.

7. It i