Bombay High Court
Ajay Gokuldas Shah And Anr vs John Edwerd Gomes And Ors on 1 March, 2019
Author: G.S. Patel
Bench: G.S. Patel
921-NMS401-14.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 401 OF 2014
IN
SUIT NO. 818 OF 1983
WITH
NOTICE OF MOTION NO. 616 OF 2014
Ajay Gokuldas Shah & Anr ...Plaintiffs
Versus
John Edwerd Gomes & Ors ...Defendants
Mr KJ Kukreja, with Suraj Dubey, i/b Arvind Mangharmalani, for
the Applicant.
Mr Pesi Modi, with Neville Lashkari & Anuj Jaiswal, i/b Little &
Co., for the Plaintiffs.
Mr Snehal Shah, with Dipanwita Ghosh & Kirtida Chandarana, i/b
Mehernosh Humranwala, for Respondent No. 1.
CORAM: G.S. PATEL, J
DATED: 1st March 2019
PC:-
1. The appearances in the orders dated 14th January 2019 and 5th February 2019 will be read as follows:
"Mr KJ Kukreja, with Suraj Dubey, i/b Arvind Mangharmalani, for the Applicant. Mr Pesi Modi, with Neville Lashkari & Anuj Jaiswal, i/b Little & Co., for the Plaintiffs.Page 1 of 7
1st March 2019 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 12/03/2019 21:32:28 ::: 921-NMS401-14.DOC Mr DJ Khambata, Senior Advocate, with Snehal Shah, Naira Jeejeebhoy, Dipanwita Ghosh & Kirtida Chandarana, i/b Mehernosh Humranwala, for Respondent No. 1".
2. Mr Kukreja for the Applicants submits that in regard to the issues framed on 14th January 2019 some corrections are necessary as also some additions. He points out that issue No. 2 should be recast to read:
"2. Whether the Applicants prove that if none of the Defendants were properly served a writ of summons as required by law, the Applicants are entitled to have the Consent Decree set aside on that ground as alleged by the Applicants?"
3. In issue No. 4 the words "paragraph 33" will be substituted with the words "paragraphs 33 and 43".
4. In issue No. 7, the reference in brackets will be to Exhibit "C" instead of Exhibit "61" and the date of the Affidavit is to be corrected to read 28th April 2014.
5. Mr Kukreja also submits that additional issues arise. He has tendered a list. The additional issues are in sub-paragraph "D" to this list. There are six suggested issues. I will accept issues Nos. 1, 2 and 3 as placed.
6. Issue No. 4 in the suggested list is to read:
"Whether possession of the suit property was with the Plaintiffs and Respondent No. 3 from 6th August 1980 as Page 2 of 7 1st March 2019 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 12/03/2019 21:32:28 ::: 921-NMS401-14.DOC alleged by the Plaintiffs in paragraph 3.1 (pages 401-402) of the reply dated 28th April 2014?"
7. In view of this the suggested additional issues Nos. 5 and 6 are not necessary.
8. The additional issues will be added after issue No. 8 and issues Nos. 9, 10, 11 and 12 and all issues will be renumbered accordingly.
9. For convenience and clarity, the issues as corrected and additional issues are appended to this order.
10. Mr Kukreja seeks another four weeks to file and serve Evidence Affidavit, affidavit of documents and compilation. This is to be done on or before 2nd April 2019.
11. List the matter for marking the Applicants' documents on 12th April 2019.
(G. S. PATEL, J) Page 3 of 7 1st March 2019 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 12/03/2019 21:32:28 ::: 921-NMS401-14.DOC ISSUES FRAMED ON 1ST MARCH 2019 NOTICE OF MOTION NO. 401 OF 2014 IN SUIT NO. 818 OF 1983 WITH NOTICE OF MOTION NO. 616 OF 2014
1. Whether the Defendants in the suit were properly served with the Writ of Summons and a true copy of the plaint?
2. Whether the Applicants prove that if none of the Defendants were properly served with the writ of summons in accordance with law, the Applicants are entitled to have the consent decree set aside on that ground as alleged by the Applicants?
3. Whether the Applicants prove that the signatures of the Defendants or the thumb impression of Defendant No. 2 or both were taken on blank papers as alleged by the Applicants inter alia in paragraphs 4(i) and 5(b) of the Affidavit dated 28th February 2014 in Support of the Notice of Motion No. 401 of 2014?
4. If the answer to issue No. 1 above is in the affirmative, then whether the Applicants prove that such blank sheets of paper as signed and impressed with the thumb impression of Defendant No. 2 were misused to fabricate the "Receipt", "Vakalatnama" and "Consent Terms"
(being Exhibits "52-A", "61" an "62" to the Affidavit dated 28th February 2014 in Support of the Notice of Motion No. 401 of 2014) as Page 4 of 7 1st March 2019 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 12/03/2019 21:32:28 ::: 921-NMS401-14.DOC alleged by the Applicants in paragraphs 33 and 43 of the Affidavit dated 28th February 2014 in Support of the Notice of Motion No. 401 of 2014?
5. Whether the Applicants prove that the signature of Defendant No. 1 on the revenue stamp on the Agreement/ Receipt dated 26th December 1982 (being Exhibit "52-A" to the Affidavit dated 28th February 2014 in Support of the Notice of Motion No. 401 of 2014) is a forged signature as alleged by the Applicants at page 71, paragraph (vi), of the Affidavit dated 28th February 2014 in Support of the Notice of Motion No. 401 of 2014?
6. Whether the Applicants prove that the signature of the Defendant No. 1 on the vakalatnama dated 27th April 1983 (being Exhibit "61" to the Affidavit dated 28th February 2014 in Support of the Notice of Motion No. 401 of 2014) is a forged signature, as alleged by the Applicants at page 73/ paragraph (a) of the Affidavit dated 28th February 2014 in Support of the Notice of Motion No. 401 of 2014?
7. Whether the Applicants prove that the Power of Attorney (being Exhibit "C" to the Affidavit dated 28th April 2014 of Plaintiff No. 2 in Reply to the Notice of Motion No. 401 of 2014) is a forged and fabricated document as alleged by the Applicant No. 8 at page No. 585 in his Affidavit in Rejoinder dated 25th November 2014?
8. Whether the Applicants prove that the Consent Terms dated 28th April 1983, pursuant to which the Consent Decree dated 28th April 1983 in Suit No. 818 of 1983, was passed by the Court, Page 5 of 7 1st March 2019 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 12/03/2019 21:32:28 ::: 921-NMS401-14.DOC is a bogus/ fabricated document, as alleged by the Applicants at page Nos. 74 to 77 in the Affidavit dated 28th February 2014 in Support of the Notice of Motion?
9. Whether the Applicants prove that the Consent Decree dated 28th April 1983 in the above suit is liable to be set aside/recalled on the ground of collusion between the Plaintiffs, Respondent No. 1, Respondent No. 2 and Respondent No. 8 with one another as alleged in paragraph 1(b) of the Affidavit dated 28th February 2014?
10. Whether the Applicants prove that the Consent Decree dated 28th April 1983 in the above suit is liable to be set aside/recalled on the ground of fraud played by the Plaintiffs, Respondent No. 1, Respondent No. 2 and Respondent No. 8 upon the Hon'ble Court as alleged in paragraph 1(b) of the Affidavit dated 28th February 2014?
11. Whether the Applicants prove that the alleged receipt dated 28th April 19083 (Exhibit "B") to the reply dated 28th April 2014 is bogus, fabricated and misused as alleged in paragraph 13 of the rejoinder dated 25th November 2014?
12. Whether possession of the suit property was with the Plaintiffs and Respondent No. 3 from 6th August 1980 as alleged by the Plaintiffs in paragraph 3.1 (pages 401-402) of the reply dated 28th April 2014?
13. Whether the present Notices of Motion are barred by the law of limitation?
14. Whether the Applicants are entitled to any reliefs as prayed for in the present Notice of Motion?
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15. What order, including as to costs?
(G. S. PATEL, J.) Page 7 of 7 1st March 2019 ::: Uploaded on - 04/03/2019 ::: Downloaded on - 12/03/2019 21:32:28 :::