1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2132 OF 2008 IN SUIT NO.3748 OF 2000 Rupali Shah & anr. ..Plaintiffs V/s. Munesh Ralhan & ors ..Defendants Mr.N.Engineer i/b.M/s.Desai & Diwanji, Advocate, for the plaintiffs Ms.Gayatri Sharma i/b.M/s.S.K.Shrivastav & Co., Advocate, for the defendant Nos.1 & 2 Mr.A.M.Vernekar, Advocate, for the defendant No.3 CORAM : R.M.SAVANT, J. DATE : 10TH NOVEMBER, 2008 P.C. . By the above Notice of Motion, the applicants/plaintiffs inter alia claim the following reliefs. (a) That the learned Registrar of the Hon'ble the Bombay City Civil Court, Bombay may be directed to transfer and deposit the sealed cover lying in Safe No.2698 with the learned Prothonotary and Senior Master, High Court, Bombay as and by way of evidence in the above suit. (b) That defendant No.1 may be restrained by an order and 2 injunction from obtaining the said sealed cover lying in Safe No.2698 in the custody of the learned Registrar of the Hon'ble Bombay City Civil Court at Bombay. 2. The plaintiff No.1, the defendant No.1 and the defendant No.2 are the daughter, son and wife of Shri O.P.Ralhan, who was a film producer. The dispute in the above suit is as regards the properties left by the said Shri O.P.Ralhan. The above suit has been filed by the plaintiffs claiming title to the properties amongst which is the bungalow known as Ashoka House, Jolly Maker Apartments, Cuffe Parade, Bombay – 400 005. It appears that Shri O.P.Ralhan in his life time had filed a suit in the City Civil Court, Mumbai being Suit No.3582 of 1998 seeking an injunction against the defendant No.1 i.e.his son. Suffice to say that in the said suit a Notice of Motion came to be filed being Notice of Motion No.4077 of 1998 seeking temporary injunction restraining the defendant No.1 from entering the bungalow. In the said Motion, it appears that the defendant No.1 set up the defence of tenancy and to buttress his said case had produced three documents in the nature of receipts which receipts were purportedly for the sum of Rs.50,000/-, Rs.8,08,300/- and Rs.1,00,000/-. The learned Judge of the City Civil Court Smt.R.S.Dalvi (as she then was) 3 was pleased to grant an injunction and whilst considering the case for injunction cast serious aspersions as regards the genuineness of the said receipts and therefore, directed that the said receipts should be kept in a sealed cover and in Safe No.2698. Accordingly, the said receipts are presently lying with the Registrar in Safe No.2698 of the City Civil Court, Bombay. It appears that Shri O.P.Ralhan during the pendency of the said suit died on 21st April, 1999. 3. The applicant No.1 herein on the basis of the registered Will dated 4th September, 1998, purportedly in her favour has filed the above suit No.3748 of 2000 claiming title to the said bungalow. In the above suit, a Notice of Motion came to be filed being Notice of Motion No.2700 of 2000 seeking an injunction as also appointment of receiver. The said Motion was heard by a learned Single Judge of this Court and by Order dated 23rd March, 2001, the said Motion came to be allowed to the extent that the Court Receiver, High Court, Bombay has been appointed as Receiver in respect of the said bungalow. Thereafter, certain developments as regards leasing out the bungalow on leave and licence basis by the Court Receiver had 4 taken place, which are not relevant for the purposes of the above Notice of Motion. At the hearing of the said Notice of Motion No.2700 of 2000 a statement came to be made on behalf of the plaintiffs that in terms of the said Will dated 4th September, 1998 having succeeded to the estate of the said Shri O.P.Ralhan they will withdraw the said suit pending in the City Civil Court, Bombay being Suit No.3582 of 1998 in view of the instant suit No.3748 of 2000 filed by them based on title. The said statement appears in paragraph No.3 of the Order which has been accepted by this Court vide paragraph No.4 of the said Order. 4. As indicated above, the present Motion has been filed for the reliefs as prayed for. An apprehension has been expressed by the applicants that the said receipts would be used by the defendant No.1 in the declaratory suit filed by him in the Small Causes Court, Mumbai and therefore, the said receipts should not be handed over to him and the relief in terms of prayer clause (b) have been sought to that effect. 5. I have heard the learned counsel for the parties and have 5 perused the Motion, the Affidavit in support of the Motion and the Affidavit-in-Reply filed on behalf of the defendant No.1. In so far as the Order dated 7th August, 1998 passed in Notice of Motion No.4077 of 1998 is concerned, reading of the said order ex-facie discloses that the learned Judge of the City Civil Court, Bombay, who heard the said Motion has expressed a serious suspicion as regards the genuineness and bona fide of the said receipts. The learned Judge has observed the manner in which the said receipts must have probably been made. The learned Judge in paragraph Nos.18 and 19 has made observations as regards the said receipts. In the light of the said observations, the learned Judge in the operative part of the said Order had issued directions that the receipts produced by the defendants “shall be kept in a sealed cover in the custody of the Registrar of this Court pending the suit”. 6. It is sought to be contended on behalf of the defendants that the said operative part merely directs the receipts to be kept in a sealed cover pending the suit and the said Order cannot tantamount to an order passed under Order XIII, Rule 8 of the Code of Civil 6 Procedure, 1908. I am afraid the said submission cannot be countenanced. The learned Judge, who heard the Motion has given specific findings as regards the said receipts in paragraph Nos.18 and 19 of the said order and it is only thereafter, in the operative part of the said order that the directions to keep the receipts in a sealed cover of the said Court was ordered. May be the word “impounding” has not been used but that would not in any manner affect the rigours of the said direction as being one passed under Order XIII, Rule 8 of the Code of Civil Procedure, 1908. 7. It is also submitted on behalf of the defendants that the said documents are not receipts but merely documents evidencing the payments of the said amount. Whatever may be the said documents either receipts or documents evidencing payments made to the original plaintiff, the fact remains the said receipts were relied upon by the defendant No.1 and were therefore directed to be kept in a sealed cover, after the learned Judge was satisfied as regards the manner in which the said receipts were produced by the defendant No.1. 7 8. In my view, therefore, since the applicants/plaintiffs desire to withdraw the said suit being Suit No.3582 of 1998 which is pending in the City Civil Court, Bombay in view of the instant suit being a comprehensive suit filed by them claiming title to the said bungalow reliefs in terms of prayer clause (a) of the Notice of Motion is required to be granted. 9. In so far as prayer clause (b) is concerned, the said relief seems to have been prayed for so as to prevent/restrain the defendant No.1 from relying upon the said receipts in the declaratory suit filed by him in the Small Causes Court, Bombay. In my view, the said relief in terms of prayer clause (b) of the Motion cannot be granted as no party can be prevented from producing evidence in support of his case. After the receipts are sent by the Registrar, City Civil Court, Bombay to the Prothonotary & Senior Master of this Court, pursuant to the instant order the Prothonotary & Senior Master is directed to keep the said receipts in a sealed cover pending the above suit. It would be open for the defendant No.1 to make an appropriate application in accordance with law in the event, the defendant No.1 8 seeks to rely upon the said receipts in any legal proceeding and the applicants/plaintiffs would be entitled to contest the said application. Subject to the aforesaid directions, the above Notice of Motion is made absolute in terms of prayer clause (a). 10. The observations made in this order are prima facie and would not come in the way of the defendant No.1 in pursuing his remedies in accordance with law. (R.M.SAVANT, J.)