TMI Blog2007 (12) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... which is said to have been executed by Mrs. Tara Sarup on 30.3.1968 in favour of the first appellant. Indisputably, Respondents claim their right, title, interest and possession on or over the land in suit in terms of an agreement of sale purported to have been executed by the appellants herein in their favour on or about 23.10.1969. 4. Appellants' case in relation to the said agreement for sale are: (a) It is a forged document. (b) In any event, the plaintiff No. 1 being minor on the date of execution of the agreement (his date of birth being 8.3.1952), the same is void in law. 5. The claim of the respondents, on the other hand, is that out of the amount of consideration mentioned in the said agreement, namely ₹ 90,000/-, a sum of ₹ 80,000/- has already been paid and they were put in possession there over in part performance thereof, as envisaged under Section 53A of Transfer of Property Act. 6. Various proceedings appear to have initiated before the Revenue Courts in regard to inclusion of the name of the respondents in the Revenue Records. It is further accepted that the first appellant herein had executed three deeds of assignment in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said prayer, an observation was made that the trial court shall consider the question in regard to the amendment of plaint without in any way being influenced by the observations made by the learned trial Judge in the impugned order. Although, the High Court allowed the appellants to withdraw the appeal, it directed the parties to maintain status quo for a period of two weeks. 8. A chamber summons thereafter was taken by the appellants on or about 1.12.2006 wherein not only amendment of the plaint was prayed for but an interim order of injunction during the pendency of the said application was also prayed for. We may notice the amendments sought for by the appellants in the said Notice of Motion: (a)(i) That it may be declared that the Defendants or any of them have no right, title or interest of any nature in respect of the plots of land bearing at C.T.S. Nos. 6A and 7/1A of village Powai, Taluka Kurla admeasuring about 37,673 sq. mtrs. and C.T.S. Nos. 20 and 22 of village Tirandaz, Taluka Kurla admeasuring about 27,582 sq. mtrs. or any part/s thereof by virtue of the alleged Agreement for Sale dated 23rd October, 1969, being Exhibit A10 hereto or otherwise or at all; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts have stated on affidavit that the Original copy of the said document has been lost in respect of which police complaint is already instituted. In such a case, however, it is possible for the Respondents to establish the fact of existence of such Agreement by relying on secondary evidence on fulfilling the required norms in that behalf. Be that as it may, prima facie, it is seen from the record that the execution of the suit documents has been disputed by the Appellants as back as in 1984, which stand has been dealt with by the Authorities. Suffice it to observe that the Appellants would succeed only if they were to challenge the subject Agreement, inasmuch as the Defendants were asserting rights in respect of the suit land on the basis of the said Agreement. The fact that the Original copy of the said Agreement is not in existence does not alter the situation so as to absolve the Appellants from claiming relief that the said Agreement is null and void and to set it aside. On the said findings, the judgment and order of the City Civil Court was upheld. 11. A Special Leave Application was filed before this Court against the said order which was marked as SLP (C) No. 1218 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. I, therefore, pass the following order: ORDER Notice of motion stands dismissed. No order as to cost. The same may be registered for statistical purpose. By reason of the impugned judgment, the High Court has upheld the said order. 13. Mr. R.F. Nariman, learned senior counsel appearing on behalf of the appellant, inter alia, would submit that the appellants have never been heard on merit of the matter. The learned Counsel argued that keeping in view the nature and purport of the order of this Court dated 2.2.2007, the City Civil Court could not have relied upon its earlier order. Consequently, the High Court had also committed a manifest error in applying the principles of res judicata which have no application in the instant case. It was contended that the purported finding of the learned Judge, City Civil Court to the effect that the defendants had been found to be in actual physical possession of the suit property on the date of institution of the suit was clearly erroneous inasmuch as no such finding had been arrived at by the said court while passing its order dated 13.10.2006. It was urged that the report of an officer appointed by the Revenue Minister fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them in part performance of agreement of sale or not is essentially a question of fact. Genuineness or otherwise of the said agreement also involves determination of a disputed question. 16. Plaintiffs, while praying for the relief of interim injunction, were bound to establish a prima facie case. They were also bound to show that the balance of convenience lay in their favour and unless the prayer is granted, they will suffer an irreparable injury. The learned Judge, City Civil Court clearly found that prima facie, the plaintiffs' suit was not maintainable in absence of any prayer for cancellation and setting aside of the said agreement for sale having been made for in the suit. Appellants although had been contending that such a relief was not necessary as it was merely a defence of the respondents, why they did not raise such a question in the original suit is a matter of guess. We do not know as to why the plaintiffs, despite opportunities having been given to them, failed to make such a prayer even while seeking the Court's 'leave' to amend the plaint. 17. The order of the City Civil Court dated 13.10.2006 may be bad but then it was required to be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants was that the suit, by reason of amendment made in the prayer, has become maintainable. Maintainability of the suit itself does not give rise to a triable issue. The issues which arose for consideration in the suit are the ones we would have noticed hereinbefore, namely, inter alia, the validity of the agreement for sale and/or grant of possession in favour of the defendants/respondents. How, by sheer amendment of the plaint, the plaintiff could prove a prima facie case or show existence of a balance of convenience in their favour, has not been demonstrated. 20. We are, therefore, of the opinion that although learned Judge, High Court, while passing its order dated 13.10.2006 could have considered the merit of the application filed by the appellant in regard to the relief for injunction, the same by itself, in our opinion, did not warrant a direction to consider the matter afresh by the learned Judge, City Civil Court. We are, therefore, are of the opinion that the impugned judgment do not suffer from any in infirmity. We would, however, having regard to the peculiar facts and circumstances of the case, request the learned Judge, City Civil Court to consider the desira ..... X X X X Extracts X X X X X X X X Extracts X X X X
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