1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3740 OF 2007 IN SUIT NO.2614 OF 2007 Mrs.Draupadi A. Ankushe ....Plaintiff V/s. M/s.M.N.P. Associates & Anr. ....Defendants Mr.Mohit Jadhav for the Plaintiff. Mr.Bharat P. Zaveri for Defendant no.1. CORAM : S.J. VAZIFDAR, J. DATE : 7TH DECEMBER, 2009. P.C. :- 1. This suit was originally filed in the Bombay City Civil Court for a declaration that the plans and permissions, if any, sanctioned by Defendant No.2 – B.M.C. in favour of Defendant No.1 are illegal, null and void and without the Plaintiff’s consent. 2. According to the Plaintiff her father was the lessee of the suit property which belonged to Byramjee Jeejeebhoy Private Limited. The title of the owner is not in dispute by any of the parties. According to the Plaintiff, her father put up structures on the suit property and was therefore the owner in respect of the structures and the lessee in respect of the land. The Plaintiff claims to have a 1/7th right in the said property. The Plaintiff’s case in the plaint filed on 2.11.2004 in the Bombay City Civil Court was that Defendant No.1 had started construction work upon the suit premises 2 being land admeasuring 7000 sq.mtrs. As the Plaintiff had not consented to the same or to the creation of any rights in favour of Defendant No.1, the suit was filed. 3. The Plaintiff thereafter took out Notice of Motion No.4521 of 2004 in the Bombay City Civil Court. In the affidavit in reply, Defendant No. 1 referred to three documents namely an agreement of assignment, a power of attorney and a possession letter all dated 17.2.1994 by which the Plaintiff and the members of her family had assigned all their right, title and interest in the suit property in favour of Defendant No.1. There was no rejoinder to the same. 4. By an order and judgment dated 24.11.2005, the Notice of Motion was dismissed on merits. The learned Judge held that the Plaintiff had not disputed the fact that she had signed the said documents dated 17.2.1994. The learned Judge noted that the Plaintiff was the signatory to the said documents which showed that the Plaintiff had surrendered her right, title and interest in favour of Defendant No.1. The learned Judge therefore, held that the Plaintiff had falsely claimed an injunction against Defendant No.1. 5. After about sixteen months, the Plaintiff took out a Chamber Summons for amendment of the plaint challenging the said documents dated 17.2.1994. The amendment was allowed. 6. Defendant No.1 thereafter raised preliminary issues as to the maintainability of the suit contending that the same was not properly valued, that it was barred under the provisions of the Maharashtra Slum (Clearance, Improvement and Redevelopment) Act, 1971 and was liable to 3 be dismissed under Order VII Rule 13 of the Code of Civil Procedure. 7. By an order and judgment dated 2.12.2006, one of the preliminary issues was answered in favour of the Plaintiff. The Plaintiff’s First Appeal was dismissed by an order dated 15.6.2006. The plaint was therefore returned with a direction that it be filed before the proper Court. It is in these circumstances that the plaint was filed before this Court. 8. Prima-facie it appears that the said documents dated 17.2.1994 had been executed by the Plaintiff. This is evident from the fact that Defendant No.1 had filed an affidavit in reply referring to the said documents. There was no rejoinder to the same. The learned Judge, as noted above, held that the Plaintiff had not denied her signature to the said documents. The Plaintiff thereafter for the first time challenged the documents as not having been executed by her only about sixteen months later. None of her other family members have disputed the documents. The contention therefore prima-facie appears to be an after-thought. 9. The Plaintiff’s reliance upon the written statement filed by her mother is also of no assistance to her. The written statement was filed in a suit against the members of the Plaintiff’s family by the owner being suit No.2227 of 1994. The Plaintiff’s mother filed a written statement on 17.8.1999. In paragraph 20, the Plaintiff’s mother expressly stated that she had assigned her right in respect of the suit property in favour of a third party. The Plaintiff relied upon this written statement to contend that the documents dated 17.2.1994 were not referred to. However, there are no particulars or explanation as to how and in what manner and by what documents, the rights were transferred to or in favour of a third party. It 4 was not contended before me that the averment in the written statement pertain to any other transaction. 10. In the circumstances, the Notice of Motion is dismissed.