: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.963 OF 2008 R.K. Builders .. Appellants V/s. Mr. Morris Nicolese Buthelo and Ors. .. Respondents ..... Mr. Umesh Mankapure i/by Prashant Patil for the appellants None for the respondent ..... CORAM : R.Y. GANOO, J. DATE : 23rd JUNE, 2009. P.C. : 1. The appellants herein instituted suit in the City Civil Court at Bombay being S.C.Suit No.425 of 2007 to seek declaration that the conveyance purported to have been executed in favour of the respondents being conveyance dated 20 th February, 1959 is forged and fabricated and that the respondents have no authority to deal with the property on the basis of the said : 2 : document. The appellants took out Notice of Motion in the said suit being Motion No.349 of 2007 in order to seek an order of injunction restraining the respondents from creating third party rights and certain other reliefs. 2. Learned Judge of the City Civil Judge by order dated 4 th September, 2008 dismissed the said motion. In addition to that, he came to the conclusion that the suit is not valued under Section 6 (iv) (ha) of the Bombay Court Fees Act considering the prayers in the suit. Learned Judge directed the appellant to carry out amendment and pay necessary Court fees in accordance with law. This order dated 4 th September, 2008 is under challenge. 3. Before this Court it was argued that in the first place the observations made by the learned trial Judge on the basis of information received from the Information Officer and other related aspects was uncalled for and the appellants should have been given proper opportunity to place before the Court evidence to prove that the said document was forged and fabricated. It was necessary for the Court to accept : 3 : the submission of the appellants that the said document was forged and then proceed to test the case of the appellants as regards injunction sought in the matter 4. After having perused the impugned order, it appears that the learned trial Judge relied upon the information submitted to the appellants by the information officer under Right to Information Act and making use of the said information, the learned trial Judge declined to treat the said document as forged and fabricated. In my view, it was not proper for the learned judge to arrive at the conclusion that the said document was not forged based on the information given by information officer. To that extent, the view expressed by the learned Judge cannot be accepted. 5. It was sought to be contended that the purchasers of the respondent had issued public notice dated 24 th August, 2006 as regards the sale of the property which is covered by the present suit and that is why the appellants had to rush to the Court for the injunction as prayed for. In so far as the question of : 4 : injunction as not to create third party rights etc., it is seen that after the exchange of correspondence in the year 2006, no positive development has taken place and as such the apprehension of the appellants is without any substance as of today. 6. Learned advocate Mr. Mankapure submitted that if in future, if the appellants get material to come to the conclusion that the respondents are likely to create third party rights and / or do any over act which would affect the rights of the present appellants on account of dismissal of the Notice of Motion, the appellants would be precluded from taking out a fresh proceedings. 7. In so far as this aspect is concerned, I am inclined to observe that the dismissal of the Notice of Motion by the learned Judge was on the basis of record before him and if now in the year 2009 or thereafter, if the appellants come across any material, which could be said to be sufficient to say that the respondents are likely to create third party rights or likely to commit an over act which would prejudice the rights of the appellants certainly the : 5 : appellants cannot be prevented from taking out a fresh Notice of Motion on the new facts which could come to light. It is in this context, I am inclined to allow the appellants to take out a fresh motion on the new facts which may come to their knowledge. In my view, this arrangement will be meet the ends of justice. 8. Learned advocate for the appellants before this Court undertakes that within a period of two weeks from today, the appellants shall take out proper proceedings for amendment of the plaint so as to show proper valuation in terms of impugned order dated 4 th September, 2008. 9. For the reasons mentioned aforesaid, the Appeal from Order is disposed of by passing the following order. ORDER (i)The appellants shall take out appropriate proceeding for amendment of the plaint so as to show valuation as set out in the impugned order. (ii)If in future if the appellants come across facts which in their opinion make out case so as to seek interim relief to protect their rights qua the : 6 : suit property, they are free to do so. (iii)So far as the question viz. whether impugned document is forged or otherwise, the observations of the learned trial Judge in the impugned order passed will not come in the way of the appellants at the time of taking out fresh proceedings as permitted aforesaid. (iv)The appellants shall produce the authenticated copy of this order before the learned Judge of the City Civil Court on or before 1 st July, 2009. In the facts and circumstances, there shall be no order as to costs. (v)In view of the above, Civil Application No.1164 of 2009 is disposed of with no order as to costs. (R.Y. Ganoo, J.)