*1* nms.3234.3443.11.s.1182.06.908.group.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3234 OF 2011 IN SUIT NO.1182 OF 2006 Vijay Moreshwar Vaity and others. ..Plaintiffs -versus- Mankubai Motiram Koli and another. ..Defendants ............ Mr.Zal Andhyarujina a/w Mr.G.B. Kedia, for the Plaintiffs. Mr.S.M.Suryawanshi, for the Defendant No.1. Mr.V.M.Vaghela, for the Defendant No.2. ............ CORAM : S.C.DHARMADHIKARI, J. Date : 30th November, 2011. P.C.: 1 At the hearing of this Notice of Motion No.3234/2011, after seeking instructions, Mr.Suryawanshi, learned counsel appearing for the Defendant No.1, submits that the Written Statement that is filed by the Defendant No.1 on 14.09.2011 may not, for the present, be considered as Written Statement filed in the suit on behalf of the Defendant No.1 and particularly when the attention of Mr.Suryawanshi was invited to the Written Statement of the Defendant No.1 filed in this Court on 12.08.2008 in the subject suit. Mr.Suryawanshi states that he would take instructions from the Defendant No.1 and adopt appropriate proceedings including making an application seeking to amend the Written Statement dated 12.08.2008 filed in this suit. 2 In the light of this statement made by Mr.Suryawanshi, Mr.Vaghela does not press for any relief in this Notice of Motion nor seek *2* nms.3234.3443.11.s.1182.06.908.group.sxw any order on the basis of the allegations against the Advocates. 3 Mr.Vaghela submits that the issues framed in this suit may be recasted because they are framed on the basis of the second Written Statement. Let Mr.Vaghela makes an application making a request to either recast or reframe or delete certain issues if they are shown to be based on the subsequent Written Statement filed in this Court on 14.09.2011 by the Defendant No.1. This Court will consider such request of Mr.Vaghela and pass appropriate orders in accordance with law. 4 In such circumstances, the Notice of Motion is disposed of as withdrawn. No costs. (S.C. Dharmadhikari, J) *3* nms.3234.3443.11.s.1182.06.908.group.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3443 OF 2011 IN SUIT NO.1182 OF 2006 Vijay Moreshwar Vaity and others. ..Plaintiffs -versus- Mankubai Motiram Koli and another. ..Defendants ............ Mr.Zal Andhyarujina a/w Mr.G.B. Kedia, for the Plaintiffs. Mr.S.M.Suryawanshi, for the Defendant No.1. Mr.V.M.Vaghela, for the Defendant No.2. ............ CORAM : S.C.DHARMADHIKARI, J. Date : 30th November, 2011. P.C.: 1 This is an application for interim reliefs rather further interim reliefs, by the Plaintiffs seeking to protect the alleged possession of the piece and parcel of a land more particularly described in prayer clauses (a) and (b) of this Notice of Motion. 2 It is stated that subsequent event has necessitated filing of this application for further interim reliefs. It is stated that once the Plaintiffs issued a legal notice to the Defendants and particularly the Defendant No.1 on 05.04.2006 calling upon her to execute the Conveyance Deed in respect of her 50% share in the suit property, what has been stated by the Defendant No.1 is that she has been made to execute the conveyance in favour of the Defendant No.2 and that she is illiterate. She states that she has not put the Defendant No.2 in physical possession of the suit property. The Conveyance Deed does not convey her *4* nms.3234.3443.11.s.1182.06.908.group.sxw rights, title and interest as stated therein and particularly in respect of 100% share as now claimed by the Defendant No.2. If at all in law, she is entitled to convey any right, title and interest, that would be in respect of her share only and nothing more. Reliance is placed by the Plaintiffs on subsequent development whereunder the Defendant No.2 tried to dispossess the Plaintiffs. 3 My attention is invited to the paragraphs 15 to 19 of the affidavit in support of the instant motion and it is contended that the Conveyance Deed would not be conclusive of the factum of the Defendant No.2’s possession and particularly when the Defendant No.1 has stated on affidavit before this Court that she has not conveyed the suit property in its entirety. Reliance is placed on paragraph 2 of the additional affidavit in reply of the Defendant No.1 in Notice of Motion No.1392/2006 filed on 15.09.2010. 4 To my mind, no reliefs can be granted on the basis of these statements. The affidavit of the Defendant No.1 which is relied upon was very much on record when this Court passed an order in the Notice of Motion No.1392/2006 and that Notice of Motion was decided on 23.09.2010. In paragraph 1 of the said order passed by the learned Single Judge, there is reference to the affidavit which is filed by the Defendant No.1 on 15.09.2010. Yet, the learned counsel appearing for the Plaintiffs applied for withdrawal of the motion and he was satisfied with the contents of paragraph 2 of the affidavit. If indeed the Defendant No.1 stated that the Plaintiff was in possession of the property and that was confirmed by the Defendant No.1 in her affidavit, then, nothing prevented the Plaintiff from seeking appropriate interim relief by relying on the prayers in the first Notice of Motion. Today, there is nothing which would necessitate this Court to draw a conclusion that the circumstances have *5* nms.3234.3443.11.s.1182.06.908.group.sxw changed or subsequent events are of such nature which would enable the Plaintiffs to seek interim reliefs beyond what have been granted. 5 Reliance placed on the same affidavit is misplaced because the Defendant No.1 has conveyed the suit property by the Deed of Conveyance dated 09.03.2005. That conveyance contains a statement that the property is conveyed and that right, title and interest therein including claiming possession has been made over to the Defendant No.2. This conveyance is impugned by amending the plaint. Now, in addition to seeking reliefs on the basis of the agreements in favour of the Plaintiffs, what they are seeking additionally is a declaration that the conveyance/sale deed dated 09.03.2005 be declared to be illegal, bad in law and not binding on the Plaintiffs. 6 To my mind, the Plaintiffs will have to prove that they are entitled to the relief of specific performance on the basis of the ingredients that are required to be proved and satisfied before such relief can be granted. Relief of specific performance is discretionary and equitable. After demonstrating and proving their case to this effect, that the Plaintiffs would be able to displace the conveyance in favour of the Defendant No.2. At this stage, this Court cannot brush aside the contents of the conveyance deed. In these circumstances, no case is made out for grant of further interim relief and accordingly, the Notice of Motion is dismissed with no order as to costs. (S.C. Dharmadhikari, J)