1 (CAW 1443 of 2011 in WP 4699 of 2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1443 OF 2011 IN WRIT PETITION NO.4699 OF 2011 Shakuntala S. Vatsa ...Applicant Vs. Sardar Kamalber Singh and Ors. ...Respondents ----- Mr.S.M. Gorwadkar for Applicant Mrs.Ranjana Parikh and Mr. Suraj Shah & Ms. Pallavi Dedhi i/b. M/s. Sanjay Udeshi & Co. for Respondent Nos.1 to 4. Mr.P.K. Vyas for Respondent No.5 ----- CORAM: V.M. KANADE J. DATED: 13th July, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Applicant and the Respondents. 2. The application is taken out by the Petitioner herein under Order 41 Rule 27 seeking leave of this Court to produce certain documents viz. (1) the documents dated 27.6.2001; (2) plaint in Suit No.142 of 2009; (3) order passed in suit dated 21st September, 2010. 3. It is submitted that these documents need to be taken on record for the purpose of deciding this petition. It is submitted that there was a family arrangement and by virtue of the said family arrangement, certain property has been divided between the Plaintiff nos.1 to 4 and 5 to 2 (CAW 1443 of 2011 in WP 4699 of 2011) 8. It is submitted that in the dispute between the parties, if the present premises goes to the share of the Defendant nos.5 to 8, then in that event, the said order could have some effect on the present proceeding since in the present proceeding it is contended that the suit premises are required for the bonafide requirement of Plaintiff Nos.1 to 4. It is submitted that the suit filed among themselves is subsisting and binding on the parties. Reliance was also placed on the order dated 21.9.2009 wherein a direction was given for maintaining the status quo between the parties. It is also submitted that an MOU has been executed, in which, it is stated that the property has to be developed. 4. It is also submitted that in the amended plaint in paragraph 3P, it is stated that the Defendant No.1 is a company, which is having share capital of more than Rs.1 crore and, therefore, it is a company under section 1(3) (b) and, therefore the suit itself would not be maintainable in view of the said submission. 5. On the other hand, it is submitted by the learned counsel appearing on behalf of the Respondents that this is a frivolous application filed only for the purpose of protracting the proceedings and that it is filed mischievously and malfide intention. It is submitted that the Applicant is very well aware of the proceedings which were pending between parties in the suit and after 3 (CAW 1443 of 2011 in WP 4699 of 2011) the matter remanded back on 10th February, 2009, the defendants was cross examined on 29th April, 2009 and in the cross examination all these aspects have come in the cross examination. It is submitted that the Respondents have disclosed all these facts in the proceedings and, therefore, it was always open for the Applicant to have got these documents produced and merely because an application filed by Renuka Sondhi after her demand of being added as party respondent was rejected. This order was confirmed upto this Court and, therefore, at her behest this application has been filed. The learned counsel appearing on behalf of the Respondents also invited my attention to the compilation filed to the affidavit in reply. Wherein, clause 22 was reproduced and further there is material to show that the daughters have contended that the MOU is invalid and not enforceable in law. Reliance was placed on the judgment of the Learned Single Judge of this Court in the case of Jainuddin Abdul Rehman Shaikh vs. Sitaram Damodhar Varvadhar and Ors. [1981 Bom. C.R. 271]. 6. In my view, the submissions made by the learned counsel for the Applicant cannot be accepted. These documents were very well within the knowledge of the Applicant when the matter was remanded back by this Court on 10th February, 2009 and the opportunity was given to both the parties to amend their plaint and 4 (CAW 1443 of 2011 in WP 4699 of 2011) written statement. Both the parties have extensively examined and cross examined at that stage itself and these documents could not be brought on record. Apart from that, even prima facie these documents do not appear to be relevant for the purpose of deciding the controversy. 7. So far as submissions that the suit is not maintainable in view of the averment in amended plaint para 3 b is concerned, the said submission is also without any substance since the suit was filed under the old Act and, therefore, provisions of section 3(1) (b) of the new Act would not be applicable to suit filed under the old Act. 8. Hence, submissions made by the learned counsel for the Respondents is accepted. Application is, therefore, dismissed. Place the Writ Petition on the admission board on 9th August, 2011. (V.M. KANADE J.)