Nms343.09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 343 OF 2009 IN SUIT NO. 3400 OF 2006 Jagdish H. Sharma ...Plaintiff. Vs. Kanhaiyalal N. Joshi ...Defendant. Mr. Shailesh Shah a/w Mr. Atul Singh a/w Mr. Ashwin R. Singh i/by Mr. D.R. Shah for the Plaintiff. Mr. Owen Menenzes i/by mr. R.S. Tripathi for the Defendant. CORAM :- ANOOP V. MOHTA, J. DATED :- 8TH FEBRUARY, 2010. P.C.- 1 The notice of motion is taken out by the Plaintiff in a suit wherein the plaintiff is seeking to declare that purported Deed of Confirmation dated 8th September, 2006, Deed of Conveyance and Assignment dated 15th March, 2002 and General Power of Attorney dated 15th March, 2002 are illegal, null and void. 2 The basic prayers of the notice of motion, are as under:- Nms343.09 2 “pending the hearing and final disposal of the suit, defendant by himself, his servants and agents be restrained by an order and injunction of this Hon’ble Court:- (i) from in any manner dealing with, disposing of or creating any third party rights or interest or encumbrance on the suit property or any part thereof and/or collecting rent from tenants of the suit building “Sharda Niwas” and/or accepting surrender of tenancy or transferring tenancy; (ii) from in any manner entering upon the suit property or obstructing the Plaintiff and his authorized representatives from entering or remaining upon or developing the suit property and/or from in any manner remove the Board of the Plaintiff displayed upon the suit property;” 3 So far as the correction of the record is concerned based upon the representations, the concerned authorities has passed the order which is now under the challenge based upon the alleged Transfer deed and record. The detail aspects of declaration of particular documents, being null and void unless decided finally, at this interim relief stage. No specific order can be passed on that ground, with regard to the said prayer clauses. I am not observing anything on merit as the appeal is pending before the appropriate authority. 4 With regard to prayer clauses a(i), considering the prayers, as well as, the averments made in the plaint read with written statement and the averments made in the reply to the same, at this prima facie stage, it is sufficient to observe that the averments with regard to the fraud, Nms343.09 3 misrepresentation needs detail inquiry and the trial. The signatures, as well as, initials made on the documents are not in dispute. What is in dispute is the circumstance under which those documents got to be signed, as alleged. Therefore, unless those averments and allegations of fraud and misrepresentation and coercion are proved, I am not inclined to grant the interim relief as prayed. 5 The learned counsel appearing for the Defendant, basically contended, relying upon the various judgments that on face of record, even if it is a question of facts, the suit as filed, is beyond the limitation and therefore, also no question of passing of any interim order and before deciding that issue at this stage, itself. Considering the averments made and in view of the allegations so raised about the coercion, fraud, it need detail evidence/ inquiry and therefore, there is no point in deciding that issue at this stage without permitting the parties to lead evidence. 6 It is not the case that the aspect of the limitation is clear on the face of record and therefore keeping all points upon, accepting the case so far as the ground of delay and latches as observed above, on that ground itself, I am not granted any ad-interim relief in terms of prayer clauses so raised. 7 Apart from ground of limitation, the court needs to consider at this prima facie stage, the reason and background of filing such suit in the year 2006, whereby the challenge is made to the documents of the year 2002. The aspect of knowledge of the documents as raised and as resisted, Nms343.09 4 by the Plaintiff and as denied by the Defendant is again a matter of trial, I am not inclined to accept the same without due inquiry and evidence. The filing of the suit from the date of knowledge is still subject to the final decision. 8 Once the document is registered. The effect of the registration goes to the root of the matter. Why the document was registered at the late stage, it is again the matter of detail inquiry, but at this stage the effect of registration as goes to the root of the matter in favour of the Defendant. The reason for delay for registration also no way sufficient to overlook the registered documents. 9 There are materials on record placed by both the parties to show that some tenants of the suit premises are paying the rent to both the parties. Both are collecting rents and disputing their rival rights to collect the same. At this stage, as the motion is taken out by the Plaintiff and in view of the above, unless prayers so raised in the suit is allowed, I am not inclined to grant any order against the Defendant with regard to the collection of the rent. The point of entitlement of rent is kept open. The liberty is granted to both the parties to file Motions for appropriate relief, so far as the collection of rent is concerned. 10 However, the order as already passed by the Court with regard to the City Survey Officer and the effect of the same or final order arising out of the same will remain till the final decision of the suit. Nms343.09 5 11 The Notice of Motion is, accordingly dismissed with liberty. No costs. (ANOOP V. MOHTA, J.)