-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 456 OF 2009 APPEAL FROM ORDER NO. 456 OF 2009 APPEAL FROM ORDER NO. 456 OF 2009 ALONGWITH ALONGWITH ALONGWITH CIVIL APPLICATION NO. 549 OF 2009 CIVIL APPLICATION NO. 549 OF 2009 CIVIL APPLICATION NO. 549 OF 2009 IN A.O. NO. 456 OF 2009 Shri Jakhu Liladhar Vikmani .. Appellant. through his constituted attorney- (Org.Plaintiff) Smt. Jayaben Jakhu @ Raghavji Vikmani V/s. 1.M/s.K.K. Enterprises & others. .. Respondents. (Org.Defendants) --- Mr. Navin Parikh, Sr.counsel i/by Mr.P.D. Dalvi for the Appellant. Mr.N.V.Walawalkar, Sr.counsel i/by Mr.S.M.Sabrad for the Respondent nos. 1 to 3. ---- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 24th APRIL, 2009 DATED : 24th APRIL, 2009 DATED : 24th APRIL, 2009 P.C. : P.C. : P.C. : 1. Heard Mr. Navin Parikh and Mr. Walawalkar, learned senior counsel for the respective parties. 2. The appellant is the original plaintiff and the respondent nos. 1 to 3 are original defendant nos. 1 to 3. The suit was filed for declaration that the development agreement and the power of attorney both dated 14.07.2005, are forged, fabricated, unlawful, null and void and said -: 2 :- documents are not binding on the plaintiff. The plaintiff also filed an application at Exh. 5 for grant of temporary injunction, restraining the defendants nos. 1 to 3 from carrying on construction in the suit premises and from creating third party interest in it. 3. The suit premises is city survey nos. 3484 to 3515 and 3636, admeasuring 1510.40 sq. meters, having house property thereon, bearing Municipal House No. 179 to 182 situate at village Ambernath. It is the specific case of the plaintiff that during the survey carried out in the year about 1970-71 by mistake survey number was not given to the structure adjoining to CTS No. 3498 and 3499; and between CTS no. 3485 and 3486; and 3490 and 3491. 4. It is further case of the plaintiff that as per the development agreement dated 14th of July, 2005 between himself and defendants no. 1 to 3, the agreed consideration was Rs. 56/- lakhs for the development of the suit property admeasuring 1510.40 sq. meter and the portion of the property which was not given survey number was not given by him to the defendants for development. The actual area in possession and occupation of the plaintiff is 1830.40 sq. meters and this entire area was not given to the defendants for development. However, the defendants got the said entire area enclosed by compound -: 3 :- wall and started developing the suit land, thereby the defendants are illegally depriving the plaintiff his right over the land admeasuring of 320 sq. meters. It is also the contention of the plaintiff that the consideration of Rs. 56 lakhs was changed to approximately Rs.31,64,000/- by the defendant nos.2 and 3 by committing forgery in development agreement. 5. Sofar as the plaintiff’s grievance that the respondents are developing 1830.40 sq. meters area is concerned, in my opinion, at this stage, it stands redressed in view of the undertaking given by the defendants no. 2 and 3, the partners of the defendant no.1 in plaintiff’s suit on 29.3.2008 to the effect that the defendants have carried out construction work in the area admeasuring 1510.40 square meters only in conformity with the building plan and that they will not carry further construction and the written statement of the municipal corporation in which it is stated that under the commencement certificate, the defendants were allowed to carry out construction of building on the plot admeasuring 1510.40 sq. meters. 6. The contention of Mr. Parikh about the fraud, namely, "the amount of consideration changed from Rs.56 lakhs to Rs. 31,64,000/-" is concerned, the trial court held that -: 4 :- the same cannot be gone into at the interim stage. I do agree with the view expressed by the trial court. It is well settled principle of law that fraud is required to be pleaded and proved. The plaintiff can prove the same by leading evidence in trial of the suit. If the plaintiff succeeds in proving forgery, in that case he can be compensated in terms of money. 7. The development agreement was executed on 14th of July, 2007. The plaintiff issued notice of cancellation of this development agreement on 29th of March, 2008. However, the notice does not disclose allegation of the forgery. The defendants no. 1 to 3 submitted building plan on 28th of April, 2006 and the corporation thereafter approved it on 29th of December, 2006 after giving notice to the plaintiff on 15th of September, 2006. The defendants have already started construction on the said plot with effect from 25th September, 2008. The statement was made by Mr. Walawalkar that 90% work of two wings and 65% work of remaining wing is already completed and the third party interest is created in favour of the respondents nos. 4 to 13. 8. The plaintiff in his suit made a averment that the cause of action arose in last week of February, 2007. In spite of this, the suit came to be filed on 25th of -: 5 :- September, 2008. The trial court after hearing the learned counsel for both the sides and appreciating documents on record refused to grant interim relief to the plaintiff. In the facts and circumstances mentioned above, I do not find any error in the impugned order so as to enable me to interfere in the aforesaid appeal. 9. In the result, the appeal is accordingly dismissed. 10. In view of the dismissal of the A.O, nothing survives in the civil application and the same stands disposed of as such. 11. At this stage, Mr. Navin Parikh, the learned counsel for the appellants submits that the parties to the suit may be directed to maintain status-quo regarding the suit property for the period of six weeks from today, in order to enable the appellants to approach the Apex Court. Mr.Walavalkar, the learned counsel for the respondents has no objection if status-quo regarding the suit property is directed to be maintained for some reasonable period. In the facts and circumstances of the case and in view of the concession given by the learned counsel for the respondents, I direct the parties to the suit to maintain status quo regarding the suit property for a period of six weeks from today in order to enable the appellants to -: 6 :- approach the Apex Court. (R.V.MORE,J.) .....