2010 Supreme(Bom) 1674

IN THE HIGH COURT OF JUDICA TURE AT BOMBAY
Dr. D. Y.CHANDRACHUD & ANOOP V. MOHT A, JJ.
Minakshi Mahendra Pitroda
Vs.
Kusumben Devchand Rathod & Ors.
Appeal No.984 of 2010 IN Notice of Motion No.1390 of 2010
IN Suit No.3301 of 1996 WITH Notice of Motion No.2579 of 2010
Decided on: 30th November, 2010.

Headnote:Specific Relief Act, 1963 - Section 5-Civil Procedure Code, 1908, Section 96-Suit for share in partnership property-Withdrawn by declaration of power of attorney of plaintiff-Plaintiff/appellant contending that signature on declaration, not of their attorney-Contrary plea that attorney withdrawn suit in collusion, was raised in plaint-Allegations of forgery made several years after death of attorney-Plaintiff’s bona fides becomes doubtful-Contention not tenable-Deserve to be rejected.-The second document on which reliance has been place, in a declaration executed by the Constituted Attorney on 4th August, 1992. The declaration records that the suit which was instituted before this Court was withdrawn and that an amount of Rs. 3 lakhs was paid. The submission which has been urged on behalf of the appellant, with reference to this, document, is that there are significant difference between the signatures in the two declarations executed by the Eleventh defendant and in comparison with an admitted signature of the Eleventh defendant on an Indenture of Conveyance dated 23rd July, 1994. The submission, therefore, is that the signature on the declaration is not actually the signature of the Eleventh defendant and that the declaration is a fabricated document. The submission which has been urged before this Court in appeal, however, is directly opposed to the nature of the role which the plaintiff ascribed to the Eleventh Defendant in the plaint. The basis of the plaint is that the Eleventh defendant who was the Constituted Attorney of the plaintiff had colluded with the Twelfth defendant who was then an Advocate appearing on behalf of the behalf of the plaintiff for the purpose of withdrawing the suit. The allegation that there was a collusion on the part of the Eleventh defendant is, therefore, diametrically contrary to what is now sought to be urged in the appeal, namely that the declaration itself was not signed by the Eleventh defendant. In any event, the question as to whether the Eleventh defendant had or had not executed the declaration, including the question as to whether the signature thereon is that of the Eleventh defendant is an issue which has to be decided at the trial of the suit. At this stage, it would neither be appropriate, or proper to this Court to hazard any conclusion in the absence of cogent evidence on the record.

       The single Judge which dismissing the application for an interim injunction, has noted that the power of attorney that was executed by the plaintiff and by the Fourteenth defendant was for consideration. The Court noted that the power of attorney inter alia included a power to appear in the High Court, to become non-suited in the pending suit and to settle and compromise the suit. The Constituted Attorney, the Judge noted, was acting on his behalf and on behalf of the plaintiff. The single Judge note that the plaintiff had made allegations of fraud against her own Constituted Attorney seven years after the suit was withdrawn under in power of attorney which subsisted at that time. The plaintiff’s case that the declaration was forged could have been denied by the power of attorney had he been alive, if it was not forged. Such a case was not taken up by the plaintiff during the life time of the Constituted Attorney.

       Civil Procedure Code, 1908 - Section 96-First appeal-A document relied on first time in appeal-Suit judgment has no reference of said document-Said document not liable to be considered in appellate proceedings. 2008 All SCR 352-Relied on.-There is a presumption in law that the Judge deals with all points which have been placed before the Court. If a point is not mentioned in the judgment of the Court, the presumption is that the point was never pressed before the Judge and was given up. However, that is a rebuttable presumption. In case a petitioner contends that a point has been argued before the Court which has not been dealt with, the remedy of the petitioner is to file an application before the same Judge or the Bench. However, it is not ordinarily open to a party to file an appeal and seek to argue a point which has not been dealt with in the judgment of the Court below. In the present case, as have been noticed, there is not even a ground in the Memo of appeal to the effect that though the point was urged before the single Judge that it was not considered. For this reason alone, Court is of the view that the affidavit of 25th November, 2003 cannot be looked at in these proceedings in appeal, particularly in a situation where the plaintiff seeks a reconsideration of the earlier decision of the Court not to grant interim relief. The appellant had failed in the application seeking an order of interim relief, earlier in the suit. The dismissal of the Motion was affirmed in appeal. If the appellant once against sought interim relief for the reason that a document which was not available earlier had become available in 2006, that document ought to have been the foundation of the submissions before the single Judge. The appellant having consciously not made any submission on the document before the single Judge, it would be wholly unfair to allow a submission in appeal particularly when interim relief has been rejected earlier. Parties to a litigation must display fairness not only to each other but to the administration of justice and it would be wholly improper to fault an order of a single Judge on a point which was not addressed at all.

       Civil Procedure Code, 1908 - Section 96, Order XXXVII, Rules 1 and 2-First appeal-Suit for share in partnership property-Withdrawn by power of attorney of plaintiff-Property sold and developed by purchasers-Construction going on for long time-Tenant surrendered their rights-Notice of lis pendens registered by plaintiff-Interim injunction cannot be granted.-In the years that had intervened, the property has been developed by defendant No. 10-A whom it has been conveyed by defendant. The plaintiff has also registered a notice of lis pendens in respect of the property. The Judge has noted that the development work has resulted in a number of tenants having vacated. The tenants who have surrendered their right, title and interest include the present Constituted Attorney of the plaintiff. Single Judge, and in Court’s view for justified reasons, has doubted the bona fides the plaintiff in making an allegation of forgery after several years. Though the single Judge has made prima facie observations comparing the signatures on the declaration with the admitted signatures, Court would hasten to add that these are tentative observations of the Judge and if this issue arise at the trial, it would be decided on the basis of the evidence.

       The construction, as Court have already noted, has substantially progressed and is going on for a considerable amount of time. The balance of convenience is, therefore, clearly not in favour of granting interim relief at this stage particularly when no such interim relief was granted on an earlier occasion both by a single Judge and by a Division Bench of the Court. The plaintiff has lodged a notice of lis pendens.

       Considering the fact that there was no interim or ad-interim order in the suit, since the institution of the suit in August, 1996, until very recently when an ad-interim order was passed in the appeal, no case has been made out for any extension of interim relief.