VBC 1 APP984.10-30.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. 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 Minakshi Mahendra Pitroda. ...Appellant. Vs. Kusumben Devchand Rathod & Ors. ...Respondents. .... Mr.Rajendra N.Bhagattjee for the Appellant. Mr.Ravi Kadam, Advocate General wih Mr.Pravin Samdani, Sr.Advocate, Mr.Ashish Kamath, Mr.Vivek Shiralkar and Mr.Sushant Chavan i/b. Shiralkar & Co. for Respondent Nos.1A to 6. Mr.Dinyar Madon, Sr.Advocate with Mr.Zubin Beharamkamdin, Mr.Dhiren H.Shah and Mrs.P.Mani Bajpai i/b. Vimla & Co. for Respondent No.10A. Mr.Pradeep Sancheti, Sr.Advocate with Mr.Vidya Bhushan Mishra i/b. Vyas & Bhalwal for Respondent No.14. ..... CORAM : DR.D.Y.CHANDRACHUD AND ANOOP V. MOHTA, JJ. November 30, 2010. ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) : On the request of the Learned Counsel of all the contesting parties, the appeal has been taken up for hearing and final disposal. The Learned Counsel have been heard. VBC 2 APP984.10-30.11 2. The Appellant is the Plaintiff in a suit instituted before this Court in which the relief that is sought is : (i) A declaration that the order dated 4 August 1992 passed by this Court in Suit 931 of 1971 permitting the withdrawal of the suit as settled out of Court is fraudulent, collusive, void and illegal and would not bind the Plaintiff and the Fourteenth Defendant; (ii) A declaration that Defendant Nos.1 to 6 have no right to deal with or dispose of the half share of the Plaintiff and the Fourteenth Defendant in favour of Defendant Nos.7 to10 and the agreement for sale dated 20 January 1994 does not create any right, title and interest in favour of Defendant Nos.7 to 10; (iii) The property which forms the subject of the suit be partitioned by metes and bounds; and (iv) Alternatively, the Plaintiff should be allowed a sum of Rs.75 lakhs towards the claim of a one fourth share in the suit property. 3. The dispute in the present case relates to a plot of land bearing Survey No.47, Hissa No.2 (part) corresponding to CTS 479/1 to 17 admeasuring 4199 sq. yards and situated at Andheri. A partnership firm by the name of Govind Moti & Co. owned the suit property. On 19 July 1960, four partners of the firm who had VBC 3 APP984.10-30.11 been described as investing partners valued the property at Andheri at Rs.2,07,904/- and provided that it should be divided between two partners, Mansukh Govind Rathod and Virjee Mohan Rathod. The Plaintiff is the daughter of Mansukh. The Fourteenth Defendant is the son of Mansukh. The Branch of Virjee Mohan Rathod was to pay an amount of Rs.1.25 lakhs to Mansukh which, according to the Plaintiff was not paid. Virjee died on 20 October 1961 and his heirs, original Defendant Nos.1 to 6 became partners of the partnership firm. On 12 January 1962, the firm was agreed to be dissolved by the surviving partners. The property at Andheri had come to the share of Mansukh and Virjee in equal shares. The case of the Appellant, the Plaintiff, is that in July 1960, the partners had agreed to pay to the Plaintiff’s father a sum of Rs.1.25 lakhs representing his half share in the property. Since the amount was not paid, a suit was instituted by the Plaintiff’s father seeking a declaration that he had an undivided half share in the property. 4. Mansukh died on 28 February 1988. On his death, both the Plaintiff and original Defendant No.14 were brought on record as parties to the suit. On 4 August 1988, a Power of Attorney was executed by the Plaintiff and by the Fourteenth Defendant in VBC 4 APP984.10-30.11 favour of Defendant No.11. The averment of the Plaintiff in paragraph 5 of the Plaint is that the Power of Attorney was given for consideration. The relevant averment reads as follows : “The said power of Attorney is dated 4th day of August, 1988 though the signature of Plaintiff thereon was taken on 17th August 1988 and the same was notarized by Defendant No.12. It was thereabout sent to Defendant No.14 and is shown to have been executed on 10th May 1989 before one Barbara J.Ravil, a Notary Public of the state of Washington U.S.A. The said power of Attorney was given for consideration to defendant No.11, the consideration being fifty percent of share of the plaintiff and Defendant No.14 in the undivided share in the suit property.” 5. The Power of Attorney which is on record recognizes the right in the Eleventh Defendant to settle or compromise the suit. The Power of Attorney states in specific terms that it was for consideration and in clause (2) specifically confers an entitlement upon the Eleventh Defendant to non-suit the Plaintiff and to settle or compromise the suit: “AND WHEREAS we have agreed to give 50% of our respective undivided shares in the property at Chakala Road, Andheri known as Govind Moti Bui8lding at Survey No.47, Hissa No.72 (part) admeasuring about 4199.6 square yards (about 3511 square metres) either physical possession or by paying value thereof to Natwarlal Thakarshi Rathod as a gift in consideration and on the terms and conditions in the Agreement. ... VBC 5 APP984.10-30.11 2. To appear in the said High Court or the Appellate Court as would be thought advisable by our Attorney as also to become non-suited in the said suit and to settle, compromise or refer to arbitration the said suit or any other proceedings thereunder as the said Attorney shall think fit.” 6. On 4 August 1992, the Advocates for the heirs of Virjee addressed a letter to the Advocates of the Plaintiff recording that the suit has been settled out of Court upon the payment of an amount of Rs.3 lakhs. The letter recorded that their pay slip dated 4 August 1992 for the amount was handed over to the Advocates for the Plaintiff. A request was made to forward certified copies inter alia of the Power of Attorney and declarations made by the Constituted Attorney recording the settlement. On 4 August 1992, the Eleventh Defendant executed two declarations setting out that a settlement had been arrived at. The suit was withdrawn unconditionally on 5 August 1992. The case of Defendant Nos.1 to 6 is that an amount of Rs.3 lakhs was handed over in the form of a Demand Draft to the Advocates for the Plaintiff. On 5 August 1992, the Advocates for the Plaintiff forwarded copies of the documents sought by the Advocate for the heirs of Virjee, including VBC 6 APP984.10-30.11 the two declarations made by the Constituted Attorney. 7. Nearly two years after the withdrawal of the suit, a letter was addressed on 11 June 1994 by the new Advocates for the Plaintiff to the Advocate for Defendant Nos.1 to 6, alleging that the suit was withdrawn collusively. The Advocates for Defendant Nos.1 to 6 addressed a reply on 8 August 1994. On 2 March 1995, the Advocate for Defendant No.14 addressed a letter to Defendant No.11 and to the heirs of Virjee and their Advocates and to the Advocates for the Plaintiff acknowledging the declarations made by the Constituted Attorney. 8. Sometime in 1995, a Motion was taken out in the old suit for recalling the order of withdrawal. On 3 July 1995, ad- interim relief was declined and eventually on 7 October 1997, the Motion was dismissed since in the meantime, the Plaintiff had instituted a fresh suit before this Court. The fresh suit was instituted on 16 August 1996. In the suit, ad-interim relief was declined on 7 October 1996. By a judgment of the Learned Single Judge dated 29 January 1998, the Notice of Motion was also VBC 7 APP984.10-30.11 dismissed. An appeal filed against the order of dismissal of the Motion, was dismissed by a Division Bench of this Court on 3 July 1998. 9. The Eleventh Defendant, who, as the Constituted Attorney, had withdrawn the suit, died on 28 April 1999. Defendant Nos.1 to 6 entered into an agreement for development of the property with Defendant No.10A on 27 October 2004. Defendant No.10A has purchased the property from Defendant Nos.1 to 6 by a Deed of Conveyance of 8 August 2005 which has been registered with the Sub Registrar of Assurances. Defendant No.10A entered into a settlement with twenty two tenants against the payment of compensation for the surrender of tenancies. In these proceedings, the Plaintiff is represented by a Constituted Attorney, Manharlal B.Desai. The Constituted Attorney of the Plaintiff was a tenant in respect of Room No.56 of the property and surrendered his tenancy by a Deed of Surrender dated 2 February 2007. Manharlal is stated to have been paid a sum of Rs. 15 lakhs by a cheque for the surrender of tenancy. A total sum of Rs.8 crores is stated to have been paid as and by way of settlement VBC 8 APP984.10-30.11 to the tenants. These facts are adverted to in an affidavit of Defendant No.10A filed before the Learned Single Judge. 10. By an order dated 22 July 2010, the Motion was dismissed. The Learned Single Judge came to the conclusion that (i) There was a delay of fourteen years on the part of the Plaintiff in instituting the Motion; (ii) The execution of the Power of Attorney was not denied; (iii) The Power of Attorney had been executed for consideration; (iv) The challenge to the declaration dated 4 August 1992 had come forth after the death of the Constituted Attorney; and (v) On a comparison of the disputed signatures with the admitted signatures, the signatures on the declarations did not appear to be forged. 11. Besides Counsel for the Appellant-Plaintiff, we have heard the Learned Counsel appearing on behalf of the Fourteenth Defendant who had supported the case of the Appellant in these proceedings. It has been urged before the Court that after the dismissal of the earlier Motion by the Learned Single Judge on 29 January 1998 and the dismissal of the appeal emanating therefrom VBC 9 APP984.10-30.11 on 3 July 1998, two important documents have come to light in the month of November 2006. These documents, it has been submitted, were not available to the Plaintiff earlier. It is on the basis of these two documents that it is submitted that there is a material change in the circumstances which would warrant a reconsideration of the application for interim relief. The first document is an affidavit dated 25 November 2003 purported to have been made by the Sixth Defendant in the course of the Revenue proceedings for the purpose of obtaining a mutation of the property. The second document is a declaration executed by the Eleventh Defendant, the Constituted Attorney of the Plaintiff, on 4 August 1992. Now in so far as the document dated 25 November 2003 is concerned, it has been urged that an affidavit was filed before the Revenue Authority purportedly on behalf of six persons, three of whom had died much prior to the execution of the document. Moreover, the affidavit is sought to be relied upon on the ground that Defendant Nos.1 to 6 were claiming therein to be the legal heirs of the deceased Mansukh, the father of the Plaintiff. This, it is urged, would amount to an admission of the fact that the father of the Plaintiff continues to retain an interest in the VBC 10 APP984.10-30.11 suit property. 12. Now it is conceded that reliance has been placed on the affidavit dated 25 November 2003 in these appellate proceedings for the first time. The judgment of the Learned Single Judge does not contain any reference to the document nor to any submission having been made on the basis of the document. If the document had been placed before the Learned Single Judge or if a submission based on it was made before the Learned Single Judge and was not recorded, the remedy of the Appellant was to move the Learned Single Judge in review. In the Memo of Appeal in these proceedings, there is no ground to the effect that though the affidavit dated 25 November 2003 was placed before the Learned Single Judge, it had not been considered or that a submission on the basis of the document was not dealt with. The position in law is well settled. The Supreme Court in Mohd. Akram Ansari vs. Chief Election Officer,1 had that 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, 1 (2008) 2 SCC 95 VBC 11 APP984.10-30.11 the presumption is that the point was never pressed before the learned 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 we have noticed, there is not even a ground in the Memo of Appeal to the effect that though the point was urged before the Learned Single Judge that it was not considered. For this reason alone, we are of the view that the affidavit of 25 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 this 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 again 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 VBC 12 APP984.10-30.11 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. The Court has also been informed by Counsel for the contesting Defendants that the order of the Revenue authority has since been vacated and that the contesting Defendants have denied the authenticity of the alleged affidavit. 13. The second document on which reliance has been placed, is a declaration executed by the Constituted Attorney on 4 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 differences between the signatures in the two declarations executed by the Eleventh Defendant and in VBC 13 APP984.10-30.11 comparison with an admitted signature of the Eleventh Defendant on an Indenture of Conveyance dated 23 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 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 VBC 14 APP984.10-30.11 Court to hazard any conclusion in the absence of cogent evidence on the record. 14. The Learned Single Judge while 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, as the Learned Judge noted, was acting on his behalf and on behalf of the Plaintiff. The Learned Single Judge noted that the the Plaintiff had made allegations of fraud against her own Constituted Attorney several years after the suit was withdrawn under a 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. In the years that had intervened, the property has been developed by Defendant No.10A to whom it has been conveyed by VBC 15 APP984.10-30.11 Defendant Nos.1 to 6. The Plaintiff has also registered a notice of lis pendens in respect of the property. The Learned 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. The Learned Single Judge, and in our view for justified reasons, has doubted the bona fides of the Plaintiff in making an allegation of forgery after several years. Though the Learned Single Judge has made prima facie observations by comparing the signatures on the declarations with the admitted signatures, we would hasten to add that these are tentative observations of the Learned Judge and if this issue arises at the trial, it would be decided on the basis of the evidence. 15. Undoubtedly an order of the Court declining to grant interim relief in a suit is subject to modification at a later date, but this has to be for cogent reasons. Interim orders are capable of being altered or varied by a subsequent application for the same relief only on proof of new facts or if a new situation has subsequently emerged. Save and except in a situation where VBC 16 APP984.10-30.11 there is a fundamental change in the circumstances or facts which are brought to the notice of the Court, ordinarily the discipline of an earlier proceeding which has resulted in orders of the Court must be maintained. 16. The construction, as we 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 Learned Single Judge and by a Division Bench of this Court. The Plaintiff has lodged a notice of lis pendens. 17. Before concluding, we may record that during the course of the hearing of the appeal, we had requested the parties to explore the possibility of an amicable settlement of the dispute. The Learned Counsel upon consulting their respective clients, informed the Court that there is no possibility of a settlement. 18. For these reasons we have heard all the Counsel and do VBC 17 APP984.10-30.11 not find any merit in the appeal, which is accordingly dismissed. 19. At the conclusion of the judgment, an oral request is made on behalf of the Appellant for continuing the ad-interim order which is holding the field in the appeal. 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. 20. The Court is informed that the trial of the suit has already been expedited. It would be open to the parties to move the Learned Single Judge for directions as to expeditious hearing. 21. In view of the dismissal of the appeal, the Notice of Motion does not survive and shall accordingly stand dismissed as infructuous. No costs. ( Dr.D.Y.Chandrachud, J.) ( Anoop V. Mohta, J.)