*1* nms.1780.09 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1780 OF 2009 IN SUIT NO.1247 OF 2009 Shri Laxmikant Bhiwa Ulwekar and others. ..Plaintiffs -Versus- Shri Devjihai Ghelabhai Patel and others. ..Defendants .......... Tejas Deshmukh a/w Mandar Soman, for the Plaintiffs. Rajiv Singh i/b M/s Chitnis & Company for the Defendant Nos.1 to 4. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 13th October, 2010. P.C. 1 This is a suit for declaration that the consent decree dated 29.09.1982 passed by the City Civil Court, Mumbai in Short Cause Suit No.4693/1982 is not binding upon the Plaintiffs and the same is void-ab- initio and nullity in law. 2 The Plaintiffs are heirs and legal representatives of one Bhiwa Ulvekar who is stated to have died in Mumbai on 14.05.1997. The suit is stated to be filed on 17.08.1982 in the City Civil Court and the consent decree has been passed therein on 29.09.1982. 3 In paragraph No.12 of the plaint it is stated thus:- “12. The Plaintiffs state and submit that Defendant Nos.1 to 4 started relying upon the consent decree dated 29.09.1982 before various revenue authorities and hence started claiming ownership over the suit property. However, Defendant Nos.1 to 4 deliberately did not divulge details of the consent decree dated 29.09.1982. Moreover, neither late Shri Bhiwa Ulvekar nor the Plaintiffs were aware *2* nms.1780.09 about passing of consent decree dated 29.09.1982. After the passing reference of consent decree dated 29.09.1982 before the Revenue authorities, Plaintiffs conducted search of records before the learned City Civil Court. However, the said suit being an old disposed off suit, the record of said suit was not easily traceable. After the record of said suit was traced out, Plaintiffs preferred application dated 15.04.2009 for obtaining certified copies thereof. The certified copies came to be delivered to Plaintiffs on 16.04.2009. Hence, after receipt of certified copies, Plaintiffs became entailed to file a suit for declaration that consent decree dated 29.09.1982 is nullity in the eyes of law. Therefore, the suit of Plaintiffs is well within limitation.” 4 On perusal of the same, it is clear that the Plaintiffs have filed the instant suit for declaration in May, 2009 and the decree is of the year 1982. It is stated that the Plaintiffs preferred an application for obtaining certified copies of the record pertaining to the said suit and this is how they discovered the alleged fraud. 5 To my mind, the explanation for delay is difficult to accept at this stage. Interim relief that is claimed is that the Defendants must not hold themselves owners of the property. The Defendants have filed an affidavit in reply and the Written Statement and have asserted that apart from the delay, the Plaintiffs have also not been able to make out prima facie case of fraud. The agreement with late Bhiwa Ulvekar which is stated to be the basis of the consent decree is prior to institution of the suit in the City Civil Court. The Defendants have stated that they are in possession of the suit property in furtherance of the consent decree. No objections are raised till date. In fact when there was a registered declaration lodged with the Sub-Registrar of Assurances as stated in paragraph No.9 of the affidavit in reply of the Defendant No.4, even then there was no objection raised. *3* nms.1780.09 6 For all these reasons, to my mind no prima facie case is made out for grant of any interim relief. Notice of Motion is dismissed. All observations and findings are prima facie and shall not influence the Court at the time of final hearing of the suit. All the parties shall abide by the final order in the suit. (S.C. Dharmadhikari, J)