Brij Madanlal Sharma; Ajay Sharma; Ebasco Finance Company Private Limited v. Pushpalata Sohanlal Sharma

11. What we have stated in paragraph 10 above is only a summary of some of the instances which would clearly establish the falsity of the Appellant’s case, not to mention the dishonesty of the case. We shall now deal with the same in detail.

12. The Appellants have attempted to deceive this Court, by deliberately and falsely stating that the criminal proceedings initiated against Brij / Appellant No.1 in Punjab regarding the forgery of her Birth Certificate had been dismissed. This is obviously to give an impression to this Court that there was no merit in the contention that the birth certificate was forged or fabricated and that Appellant No.1 was indeed Pushpa S. Sharma. In Interim Application No.393 of 2021 in the Appeal filed by Appellant No. 2 on behalf of himself and Appellant No.1, the Appellants sought to place on record screenshots purporting to show that Appellant No.1 had been acquitted in the aforesaid case by the Chief Judicial Magistrate on 21st October 2013. In the Affidavit in Rejoinder to Interim Application No.393 of 2021 in the Appeal, Appellant No.2 stated that no charges were ever framed in this case, that Appellant No.1 was never called upon by the court for any purpose and that the case had not been prosecuted and was therefore dismissed. However, in the course of the hearing, the Advocates for Respondent No.1 tendered across the bar true copies of the record of proceedings in the aforesaid case, which clearly showed that Appellant No.1 was in fact granted bail in these proceedings, and even tendered a Surety Bond of Rs.50,000 dated 11th June 2010 of one Gurjit Singh, as well as a Personal Bond of Rs.50,000 June 2010. In fact, the Roznama / orders produced before us clearly show that the case was pending, and would resume once Appellant No. 1 attended court. It has been rightly pointed out to us that this is also borne out by the testimony of both Appellant No.1 (Question Nos.57-65 of Cross Examination of Appellant No.1) and original Defendant No.2 (Question Nos.60-72 of Cross Examination of Defendant No.2), who admitted in the course of cross-examination that such a case was pending in which they had both been released on bail. Original Defendant No.2 was aware of the aforesaid order, and stated that he had appeared in person before the Amritsar Court to submit Appellant No.1’s bail bond (Question Nos.100-106 of Cross Examination of Defendant No.2). Appellant No.1 stated that she was unaware as to the details of this case, but that her son was handling the matter and may be aware of the same (Question No. 66 of Cross Examination of Defendant No.1). We find that Appellant No.1 has stated in evidence that she had only two children, being one son and one daughter. We also find that this affidavit in rejoinder was filed by Appellant No.2, who is the son of Appellant No.1. Accordingly, Appellant No.2 was personally aware of the details of the aforesaid case, and has falsely stated that no charges had been framed in the aforesaid case; that Appellant No.1 had never been called upon by the court for any purpose and that the case had not been prosecuted and was therefore dismissed. It appears that the case has been put on hold since Appellant No.1 has been declared a proclaimed offender and that the case would resume once Appellant No.1 appeared before that Court. The matter has by no means been closed as falsely alleged by the Appellants. The Appellants are and were aware of this fact. Yet, they sought to falsely contend that the case had been closed. This was obviously done so as to bolster the case in the Appeal and benefit thereby, by contending that the case against Appellant No. 1 of producing a fabricated document (the birth certificate) was false. This was clearly done to mislead the court so as to contend in the Appeal that the Birth Certificate was not forged and/or fabricated. A party who approaches the court must do so with clean hands. The Appellants have most certainly not approached this Court with clean hands. Apart from this, as would be made clear later in this Judgment, the entire case of the Appellants is based on falsehoods and is thoroughly dishonest.

13. During the course of the hearing, Mr. Madon, Ld. Senior Counsel appearing on behalf of Respondent No.1, pointed out to us that the Appellants had sought to dishonestly even alter the addresses of the parties in the cause title by tampering with the records of the case by altering the cause title of the Plaint. This controversy has been set out by us in our order dated 5th April 2021, which is reproduced by us hereinbelow:

2. Since Advocate Deepak Chitnis was appearing along with the Counsel for the Appellants, but was not present in Court on that day i.e. 30th March, 2021, the bench asked the Learned Counsel for the Appellants to inform Advocate Deepak Chitnis that his presence is required in Court. In the evening of 30th March, 2021, the bench was told that Advocate Deepak Chitnis was in some difficulty and the hearing of the above Appeal was therefore adjourned to 31st March, 2021, to enable Advocate Deepak Chitnis to remain present in Court on the adjourned date, i.e. to 31st March, 2021.

3. On 31st March, 2021 when the parties concluded their arguments, the bench called upon Advocate Deepak Chitnis to explain as to why the address in the Cause Title of the said Interim Application was changed to the above extent, as compared to what was shown in the Memo of Appeal and other earlier Pleadings and Affidavits. Advocate Deepak Chitnis informed the bench that he has not drafted the said Interim Application and the Docket of the said Interim Application shows that the said Interim Application has been filed through Advocate Prashant D. Jadhav. Though the arguments in the above Appeal were concluded on 31st March, 2021, the bench passed an Order calling upon Advocate Prashant

4. Today, (i.e. 5th April, 2021), Shri Asif Lampwala, Partner of Advani and Company and Advocate Chirag Bhatia are both present before the bench now comprising of S. J. Kathawalla and Surendra P. Tavade JJ. Initially, Advocate Chirag Bhatia informed us that he had made a mistake whilst drafting the Cause Title of the said Interim Application. This Court reminded Advocate Bhatia that the address of the Cause Title in an Interim Application in an Appeal is never dictated and the same is always picked up from the principal pleading, which in the present case is the Memo of Appeal, and also that Advocate Bhatia should without fear speak the truth before the Court, instead of shielding anyone who may be playing tricks through him, which observation, the Counsel appearing for the Appellants also agreed to and reiterated the same. Advocate Bhatia informed the Court that he had changed the address in the Cause Title of the said Interim Application to the extent of showing the same as Flat No. 1 instead of Flat Nos. 1 and 2 as shown in the Memo of Appeal as well as other pleadings, only because Shri Ajay Sharma – Appellant No. 2 had asked him to do so.

5. We will in our final order to be passed in the above Appeal, spell out the dishonest intention of Appellant No. 2, in making a Junior Advocate change the address from Flat Nos. 1 and 2 shown in the Memo of Appeal, only to Flat No. 1 in the said Interim Application.

6. The above Appeal is reserved for final orders. Liberty is granted to file written submissions.”

14. Apart from this conduct being completely dishonest, it also amounts to tampering with the records of the court. There is a reason why Appellant No.2 has gone through this trouble. The prayers in the Plaint refer to “Flat Nos.[1] and 2, Servant Quarters and garage situated at Indrayani.” In the verification clause in the Written Statement filed by Appellant No.1 and Original Defendant No.2, Original Defendant No.2 had stated that he resided at “Flat Nos.[1] and 2, Indrayani”. Throughout the Suit, both Appellant No.1 and Respondent No.1 claimed ownership of these premises. The Suit was decreed with respect to these premises. In the cause title of the Appeal, Appellant No.1’s address is specified as being “Flat Nos.[1] and 2” of Indrayani building. However, it has been brought to our notice that in proceedings pending before the Commissioner for determining the Mesne Profits payable to Respondent No.1 pursuant to the Impugned Judgment, the Appellants filed an Affidavit in Reply dated 21st January 2021 wherein they for the first time submitted that the Impugned Judgment was wrongly passed for Flat Nos.[1] and 2, claiming that Flat No.2 is an entirely different flat belonging to one Mumtaz Shermahomed. Appellant No.2 has reiterated this statement at paragraph 13 of his Affidavit in Rejoinder dated 1st 2021 to Respondent No.1’s reply to Interim Application No.393 of 2021 in the Appeal. This fact is of particular importance, as it shows that the Appellants have now taken up the belated and dishonest plea that it is only Flat No.1 which is in dispute, and not Flat Nos.[1] and 2. The Appellants failed to raise this issue at any point during the Suit. Further, to advance this dishonest argument, Appellant No.2 has gone so far as to compel a junior Advocate (from the office of the then Advocate on record) to change the address in the cause title of the Interim Application from that mentioned in the Memo of Appeal. Such behaviour is not expected of a litigant. The Suit Premises comprise of Flat Nos.[1] and 2 and other areas as correctly described in paragraph 2 of the Plaint. The decree passed by the Ld. Single Judge is in respect of Flat Nos.[1] and 2 and other areas as described in paragraph 2 of the Plaint. The Appellants cannot be permitted to dishonestly contend otherwise. It is shocking that the Appellants can go to such lengths and it is equally surprising that Advocates on record would aid litigants in this endeavour. This is truly a sorry state of affairs and deeply disturbing. For the sake of clarity and in order to avoid any confusion we clarify that the Suit Premises are Flat Nos.[1] and 2 together with servant quarters and garage on the ground floor of the building known as Indrayani, situated at Sophia College Lane, 61-D, Bhulabhai Desai Road, Mumbai – 400 026. The Appellants cannot be permitted to contend that Flat No.2 is not a part of the Suit Premises. We have perused the Affidavit in Reply filed by Respondent No.1 to Interim Application No.393 of 2021 in the Appeal, wherein they have dealt with this contention raised by the Appellants by submitting that the Suit Premises, i.e. Flat Nos.[1] and 2, constituted the entire habitable area of the ground floor of the building excluding the lobby and staircase areas. They have rightly submitted that this was common ground between the parties until 2019-20, when the Appellants altered the title in various interim applications in the Appeal and also in proceedings before the Ld. Commissioner for Taking Accounts, from Flat Nos.[1] and 2 to only Flat No.1, thereby seeking to contend on the basis of the building’s list of residents placed on the entrance board that Flat No.2 was occupied by one Mumtaz Shermohammed, and therefore was not part of the Suit Premises. In the aforesaid affidavit in reply, Respondent No.1 annexed a photograph of the board placed at the entrance of the building showing the list of residents. This board displays the details of the flats in three columns: “SR.No.”, “FLOOR”, and “MEMBERS NAMES”. Therefore, the board does not list the flats / occupants by flat number, but has assigned each one a serial number. Accordingly, the Suit Premises belonging to Pushpa

15. The Appeal was reserved for final orders on 5th April 2021, at which time the parties were given liberty to file their written submissions/further written submissions.

16. As the Further Written Submissions filed by the Appellants contained various new arguments which were never made before us, we directed the Advocates for the Appellants to mention the matter over video conference and renew their request that we take the same on record. On 6th May, 2021, we passed the following order:

17. There is an error in the third sentence of the Order dated 6th May 2021 and the same should read and is corrected as: “We had therefore asked the Advocates for the Appellants to mention the matter through video conferencing and renew their request to take on record the said ‘Further Written Submissions’.” Pursuant to this order, the Appellants’ Advocates filed their Additional Written Submissions on 12th May 2021, and Respondent No.1’s Advocates filed their reply to the same on 18th May 2021.

18. We therefore find that the Appellants have behaved in a dishonest manner. They have come to court with unclean hands. The circumstances of this Appeal fall squarely within the situation contemplated in S.P. Chengalvaraya Naidu v. Jagannath[1], wherein the Supreme Court of India stated that:

19. We think that on this ground alone the Appeal ought to be dismissed. Not only do we find the conduct of the Appellants reprehensible, but their defence is also one that is quite unbelievable and dishonest, as we shall advert to later in this Judgment. We could have just noted their conduct and dismissed the Appeal on that ground itself. However, since the parties have addressed detailed arguments over the course of several days of hearing, we have proceeded to deal with the rival contentions of the parties on merits as well. What is recorded in this Judgment is what was argued by the Ld. Advocates. Apart from what is recorded herein, no other points were canvassed by the parties. We have with the assistance of the Ld. Counsel appearing on behalf of the parties perused the pleadings, evidence and Impugned Judgment and find absolutely no reason to interfere with the well-reasoned order of the Ld. Single Judge. Who is Pushpa S. Sharma?

20. Mr. Malcolm Siganporia, Ld. Counsel on behalf of the Appellants, submitted that Appellant No.1 went by the name Pushpa prior to her marriage with Appellant No.1. However, as there was already one lady in the family with the name of Pushpa, i.e. Respondent No.1, in order to avoid any confusion, she (Appellant No.1) was given the name “Brij” in addition to her maiden name of “Pushpa Singh”. In support of the same, Appellant No.1 annexed to her written statement Birth Certificate No.3154 issued by the Chief Registrar (Births and Deaths) Punjab (Chandigarh) registered on 4th October 1943 disclosing her date of birth as 29th August 1943 under the name “Pushpa Singh” (Ex 1 to the Written Statement of Defendant Nos. 1 & 2). It may be noted that this birth certificate was never marked in evidence, and rightly so. He submitted that, original Defendant No.2 had stated in his affidavit in lieu of examination in Chief that at the time of his marriage to Appellant No.1 on 2nd December 1960, her name was Pushpa Singh Sharma and that it was customary in the family traditions in Punjab to change the maiden name of the bride. Appellant No.1 has stated that it was not uncommon for persons to add Singh to their name. Appellant No.1 stated that, as her parents had died, she could not produce her school documents. In the course of her cross examination she stated that her father was a Punjabi Hindu who believed in the Sikh religion, and that, although it may not be a religious custom to change the name of the bride, it is dependent upon the family members. She stated during her cross examination that her father was a Punjabi Hindu who followed both the Sikh and Hindu religions. She stated that her brother was born a Hindu but was then made a Sikh by ‘mannat’. She stated that in the Sikh community, it was not in all cases that Singh was used as a last name. She stated that her maiden name was “Pushpa S. Sharma”. Mr. Siganporia submitted that original Defendant No.2 (now deceased) had produced a ration card issued in the year 1995 (Ex. D-9) in which the name “Pushpa” was present in brackets. During the course of his cross examination, original Defendant No.2 (deceased husband of Appellant No.1) had categorically denied that the name Pushpa had been inserted before the name Brij Sharma. Mr. Siganporia submitted that this ration card showed that Appellant No.1 was in occupation of and the owner of the Suit Premises.

21. Mr. Siganporia, Ld. Counsel for the Appellants, submitted that Respondent No.1 had failed to prove that her name was Pushpa S. Sharma. He denied that Respondent No.1 had changed her name at the time of marriage, and stated that since marriage, she was known as “Pushpalata Sohanlal Sharma”. He submitted that, under cross examination, Respondent No.1 had stated that at no point did she have a ration card or a telephone connection, but had a bank account in Mumbai in the year 1975, which bank account was not on record. Mr. Siganporia denied that Respondent No.1 was known as “Pushpa Kumari” or “Pushpa” prior to marriage. He disputed the authenticity of the certificates issued by East Punjab University and Punjab University relied upon by Respondent No.1. He submitted that neither of the certificates state that Respondent No.1’s name was “Pushpa S. Sharma”, but only show her name as “Pushpa Kumari”. He submitted that the passports produced by Respondent No.1 show that her name was “Pushpa Lata” at the time that the Suit Premises were purchased. He submitted that similar passports bear the name of “Pushpalata”. He submitted that the signature of “Pushpa S. Sharma” does not match the signatures of Respondent No.1 as per various passports given in evidence. He submitted that the only documents bearing Respondent No.1’s name as “Pushpa S. Sharma” are those addressed by her to the Indrayani Co-operative Housing Society (“Society”). He submitted that in the letter dated 10th January 1984 addressed by Respondent No.1 to original Defendant No.2, she had referred to the Suit Premises as that of Pushpa S. Sharma, and has not referred to herself as the owner of the same. She also signed the said letter as “Pushpa Lata”. Original Defendant No.2 (deceased husband of Appellant No.1) had stated in his affidavit in lieu of examination in chief that Respondent No.1 had changed her name from “Pushpa Kumari” to “Pushpa Lata” after her marriage to his brother Sohanlal, and that Respondent No.1 herself (and not the agent) had filled in the details in the application form for issuance of the passport in the presence of original Defendant No.2. Mr. Siganporia submitted there was no cross examination in this regard of original Defendant No.2.

22. Mr. Siganporia, Ld. Counsel for the Appellants, denied that the Appellants had produced a forged birth certificate of Appellant No.1. He submitted that, by a letter dated 20th May 2006 (Ex. GGG-1), Respondent No.1 had forwarded a copy of the aforesaid birth certificate to the Municipal Commissioner of Amritsar (Registrar, Births and Deaths, Amritsar). He submitted that a reply to the same was received on 23rd May 2006 (Ex. GGG-2), informing Respondent No.1’s Advocates that no such entry existed in their records. He submitted that paragraph 36 of Respondent No.1’s Affidavit in Lieu of Examination in Chief does not mention any enclosures or attachments to the letter dated 23rd May 2006. He submitted that Mr. Virinderjit Singh, the Inspector cum Incharge (Births and Deaths), Amritsar (PW-2) was examined as well as cross examined before this Court on 14th January 2009, 4th February 2009 and the 2nd March 2009 (Pgs. 719-746 of Volume II), at which time he inter alia stated that (i) the register of births pertaining to the period 1st June 1943 to 17th October 1943 had been lying in the registry of the High Court at Calcutta for the last 30 to 40 years, (ii) there were no records available with the Corporation of the births registered in the aforesaid period, and (iii) he could produce the register for other entries barring the above. Mr Siganporia submitted that the certificate issued by the local Registrar, Births and Deaths, Municipal Corporation, Amritsar dated 12th January 2009 (Ex. JJJ) was not in English and was translated from the Gurumukhi language. He submitted that PW-2 in the course of this evidence stated that there was no entry 3154 dated 4th October 1943 in the birth register for the relevant period (Pg. 728 – Vol II). He further submitted that, after being shown the letter dated 23rd 2006 (Ex. GGG-2), PW-2 had stated that the pages which were annexed thereto were an extract of the register maintained by his office for the period 24th December 1942 to 30th May 1943 being register No.100 (Pg. 746 – Vol. II). He stated that PW-2 had submitted that the annexure to the letter dated 20th May 2006 (Ex. GGG-1) was not issued by his office (Pg. 728 – Vol. II). Mr Siganporia submitted that the entries in the record of births themselves were made in a random fashion and not in a sequential manner. He submitted that, in the course of his cross examination, PW-2 had stated that he was posted in the Births and Deaths Department from July 2005 to October 2007 and was not working directly under the Municipal Commissioner (Pg. 729 – Vol. II), he had no personal knowledge of the document which he had produced (Pg. 730 – Vol. II), the index of the register maintained at his office showed that the extract of the birth and death register from 1st June 1943 to 17th October 1943 was lying in the Calcutta High Court and the index would show which extract/entry was not available with the office (Pg. 741 – Vol. II). PW-2 stated that it would be false to say that he had deliberately not produced the extract/entry from 1st October 1943 (Pg. 742 – Vol. II), However, PW-2 was unable to state who had made the entries in Urdu in the annexure to Exhibit GGG-2 (Pg. 743 – Vol. II) or whether the same was maintained yearly. PW-2 stated that he did not know Urdu and would not be able to state which year and month the entries pertained to (Pg. 744 – Vol. II), and that somebody else had located the documents and handed them over to him as being relevant to the case (Pg. 744 – Vol. II). Mr. Siganporia submitted that the entire evidence of PW-2 would be required to be ignored considering the primary fact that the index of the register maintained at his office shows that the extract of the Births and Deaths Register from 1st October 1943 was lying in the Calcutta High Court, and he was personally unaware of the entry with regard to the date of birth of Appellant No.1. Accordingly, he submitted that the learned Single Judge had incorrectly held that the evidence led by the inspector (PW-2) was sufficient to disprove the birth certificate of Appellant No.1.

23. Mr. Madon, Ld. Senior Counsel appearing on behalf of Respondent No.1, submitted that, prior to marriage, Respondent No.1 was known as “Pushpa Kumari” or “Pushpa”, which she changed to “Pushpalata Sohanlal Sharma” after her marriage in 1955, Sohanlal being her husband’s name. He submitted that Respondent No.1 had consistently stated so in the Plaint, in her Affidavit in lieu of Examination in Chief and under cross examination. He submitted that, in the course of her cross examination, she positively answered that her name was “Pushpa”, and that she used the names “Pushpalata Sharma”, “Pushpa Sharma” and “Pushpa S. Sharma”. Respondent No.1 has placed on record a certificate dated 1st March 1950 issued by East Punjab University (Ex. A) and a certificate dated 13th August 1951 issued by Punjab University (Ex. B), both of which showed her name as “Pushpa Kumari”. She has also placed on record a bank passbook issued in 1964 by the Indian Overseas Bank, Amritsar (Ex. V) which clearly records her name as “Mrs. Pushpa Sharma”. She has placed on record numerous letters issued by her under the name “Pushpa S. Sharma”, viz., the letter dated 6th March 1983 addressed to the Chairman of the Society (Ex. BB), the letter dated 26th March 1983 addressed to the Chairman of the Society (Ex. DD), the letter dated 16th July 1983 addressed to the Chairman of the Society (Ex. GG), the letter dated 10th January 1984 addressed to the Chairman of the Society (Ex. MM), the letter dated 10th January 1984 addressed to Appellant No. 1’s husband (Ex. NN), the letter dated 19th May 1985 addressed to the Chairman of the Society (Ex. QQ), the letter dated 17th February 1990 addressed to the Chairman of the Society (Ex. XX), and the letter dated 24th February 1992 addressed to the Chairman of the Society (Ex. CCC). He submitted that the Appellants had themselves admitted that Respondent No.1 was known as “Pushpa”. He pointed out that Appellant No.1 had contended in Paragraph 9 of her Written Statement that she had changed her name from Pushpa to Brij after marriage “Since there was already one lady in the family by name of Pushpa i.e. the Plaintiff…”, and had further stated at Paragraph 4 of her Affidavit in lieu of Examination in Chief that “I understand that when my brother-in-law Sohanlal got married to the Plaintiff, as per the custom, the name of Sohanlal’s wife, the Plaintiff was changed from Pushpa Kumari to Pushpalata…” He submitted that, once it was established that Respondent No.1’s name was in fact Pushpa, and since there was no dispute that her husband’s name was Sohanlal Sharma, it is but obvious that she would go by the name “Pushpa Sohanlal Sharma”, or, “Pushpa S. Sharma”. It was submitted that there is no dispute that Respondent No.1’s name was and is Pushpa.

24. Mr Madon, Ld. Senior Counsel, submitted that Appellant No.1 has given conflicting evidence in order to prove her case that she was “Pushpa S. Sharma”, which stood for “Pushpa Singh Sharma”, and that she has produced false documents in support of the same. Mr. Madon submitted that Respondent No.1 had conducted enquiries with respect to the Birth Certificate of Appellant No.1 produced by the Appellants, and discovered that the same was a forgery. He submitted that Respondent No.1’s Advocates had addressed a letter dated 20th May 2006 (Ex. GGG-

1) to the Commissioner, Municipal Corporation of Amritsar requesting that the pages of the Birth Register for the period 25th September 1943 to 11th October 1943 be provided so that they may be produced in Court. In reply thereto, the Local Registrar, Births & Deaths, Municipal Corporation of Amritsar addressed a letter dated 23rd 2006 (Ex. GGG-2) stating that Entry No. 3154 did not exist in its records, as, due to a clerical error, entry no. 3099 was directly followed by entry no. 4000, inadvertently skipping entry nos. 3100 to 3999. Accordingly, he stated that the aforesaid birth certificate was bogus. He further annexed thereto a copy of the original Birth Register. He drew our attention to the Order dated 2nd March 2009, by which this Court recorded the evidence of one Mr. Virinderjit Singh, Inspector cum Incharge (Births & Deaths), Amritsar as PW-2, in support of the Birth Register annexed to the aforesaid letter dated 23rd May 2006, at which time the Appellants had occasion to crossexamine him on the same. He submitted that Appellant No.1 is currently facing prosecution in relation to the forgery of this Birth Certificate. He submitted that neither Appellant No.1 nor original Defendant No.2 had led any evidence with regard to the aforesaid Birth Certificate in their respective Affidavits in lieu of Examination in Chief. He submitted that this document was neither produced nor tendered in evidence, and was only annexed to the Written Statement. Accordingly, this document cannot be relied upon by Appellant No.1. He submitted that, it is pertinent to note that the Affidavits in lieu of Examination in Chief of Appellant No.1 and the original Defendant No.2 were filed after the evidence of the Plaintiffs was closed. It is obvious that since they realised that the forgery had been caught out, neither Appellant No.1 nor original Defendant No.2 led any evidence with regard to the aforesaid Birth Certificate in their respective Affidavits in lieu of Examination in Chief.

25. Mr. Madon, Ld. Senior Counsel, submitted that the ration card (Ex. DW-9) produced by the Appellants is also a false and fabricated document. He submitted that a perusal of the same indicated that it was a ration card issued in the year 1995 to “Brij M. Sharma”, with the name “Pushpa” interpolated in Hindi manuscript. He submitted that this ration card was issued in 1995, long after the disputes between the parties had arisen, and after Appellant No. 1 had begun to falsely assert that her name was Pushpa. He submitted that Appellant No.1 had admitted that she signed this ration card as “Brij M. Sharma”, and the only explanation given by her as to why the name “Pushpa” was added is that it was her maiden name (Question Nos.39-42 of Cross Examination of Defendant No.1). He submitted that, when specifically asked in cross-examination as to whether she had inserted the name “Pushpa” with a view to falsely lodge a claim on the Suit premises, Appellant No.1, rather than simply denying the same, evasively stated that “Since this is very old matter I do not remember.” (Question No.43 of Cross Examination of Defendant No.1). Accordingly, he submitted that this document was clearly a fabricated document, and did not prove that Appellant No.1 was known as “Pushpa”.

26. Mr. Madon, Ld. Senior Counsel, submitted that, in Paragraph 5 of her affidavit in lieu of examination in chief, Appellant No.1 had for the first time contended that her maiden name was “Pushpa Singh Sharma”, and not “Pushpa Singh” as contended in her Written Statement. She also stated at Paragraphs 13, 17 and 18 of this affidavit that her father’s name was “Uttamchand Sharma”. He submitted that the Appellants had led no evidence whatsoever to show that Appellant No.1’s maiden name was “Pushpa”, let alone “Pushpa Singh” or “Pushpa Singh Sharma”. Save and except for a forged birth certificate (which was not even tendered or marked in evidence), she did not produce any documents of the period prior to her marriage in support of the same. He stated that the evidence on record itself indicated that this was a false case. He submitted that Appellant No.1’s case was that her parents were Punjabi Hindus (Question Nos.121-125 of Cross Examination of Defendant No.2), and not Sikh. Therefore, it was inconceivable that she would be known as ‘Singh.’ He submitted that even assuming that her parents were Sikh, she would have been known as ‘Kaur’ and not ‘Singh’. He submitted that neither of Appellant No.1’s parents bore the surname “Singh” or “Sharma”, and there was no proof that either of these were her maiden name. He submitted that original Defendant No.2 had stated that Appellant No.1’s father’s name was “Uttamchand Gurudattamal” (Question No.116 of Cross Examination of Defendant No.2) and that Appellant No.1 had herself stated that her father’s name was “Pandit Uttam Chand” and her mother’s name was “Mrs. Maya Devi” (Question No.18 of Cross Examination of Defendant No.1). He submitted that, according to Appellant No.1’s own husband, her family referred to her by the nick name “Bholi” (Question No.138 of Cross Examination of Defendant No.2), and that this was her maiden name (Question No.144 of Cross Examination of Defendant No.2). He submitted that this was contrary to the statement in the Written Statement that Appellant No.1’s father referred to her as “Pushpa” even after marriage, “because she was still known in his family as such” (Paragraph No.9 of Defendant Nos.[1] & 2’s Written Statement). He submitted that it was clear that Appellant No.1 was not known as Pushpa prior to marriage. He submitted that Appellant No.1’s husband had failed to show that any other family members had changed their names after marriage (Question Nos.144-150 of Cross Examination of Defendant No.1), and specifically admitted that there was no religious custom to this effect, and that this was purely a personal choice (Question No.150 of the Cross Examination of Defendant No.1). He submitted that this belied Appellant No.1’s submission that “It is customary in our family traditions in Punjab to change the maiden name of the bride” (Paragraph No.5 of Defendant No.1’s Affidavit in lieu of Examination in Chief). No evidence of such custom was led by the Appellants. He submitted that Appellant No.1 had herself stated that she had three sisters and one brother (Question No.19 of Cross Examination of Defendant No.1), but had failed to show that any of them had changed their names after marriage. He submitted that Appellant No.1 had stated in evidence that her parents had adopted the name “Singh” only for herself and her brother (Paragraph No.5 of Defendant No.1’s Affidavit in lieu of Examination in Chief). He submitted that it was highly unlikely that they would have done so for only two of their children, without changing their own names or those of their other children.

27. Mr. Madon, Ld. Senior Counsel, submitted that Appellant No.1 had not tendered in evidence any contemporaneous documents demonstrating that her name was in fact Pushpa. He drew our attention to the various documents on record which demonstrated that Appellant No.1 regularly used the name “Brij”, viz., the Passport issued on 30th May 1974 (Ex. DW-3), the Additional Passport Booklet issued on 27th October 1979 (Ex. DW-4), the Passport issued on 30th April 1984 (Ex. DW-5), the Passport issued on 19th October 1994 (Ex. DW-6), and the Ration Card (Ex. DW-9).

28. We have heard the parties on the aspect of the identity of Pushpa S. Sharma, which we think is the central question in this Appeal and the Suit.

29. There is no dispute that the Suit Premises are owned by one Pushpa S. Sharma. However, both Appellant No.1 and Respondent No.1 claim to be Pushpa S. Sharma.

30. We may first examine the case put forward by Respondent No.1. It is her case that her name prior to marriage was “Pushpa Kumari” or “Pushpa”, which she changed after marriage in 1955 to “Pushpalata Sohanlal Sharma” (Sohanlal being her husband’s name). Respondent No.1 has submitted that it was but obvious that this name would be shortened to “Pushpa Sohanlal Sharma” or “Pushpalata S. Sharma”, and that she used the names “Pushpalata Sharma”, “Pushpa Sharma” and “Pushpa S. Sharma”. We have noted that Respondent No.1 has consistently stated so in the Plaint, her Affidavit in lieu of Examination in Chief and under cross-examination. She has placed on record certificates issued by the East Punjab University dated 1st March 1950 (Ex.A) and the Punjab University dated 13th August 1951 (Ex. B), in both of which she is referred to under her maiden name of “Pushpa Kumari”. She has placed on record the bank passbook (Ex.V) issued in 1964 by the Indian Overseas Bank, Amritsar which clearly records her name as “Mrs Pushpa Sharma”. She has also placed on record various letters addressed by her between 1983 and 1992 to the Chairman of the Society, which she has issued under the name “Pushpa S. Sharma”. Her bank account (Ex.V) also shows her name as “Pushpa Sharma” in 1964, well after her marriage.

31. Our attention has also been drawn to the admissions made by Appellant No.1 herself that Respondent No.1 was known as Pushpa. At Paragraph 9 of her Written Statement, Appellant No.1 submitted that she had changed her name from Pushpa to Brij after marriage “Since there was already one lady in the family by name of Pushpa i.e. the Plaintiff…” Further, at Paragraph 4 of her Affidavit in lieu of Examination in Chief Appellant No.1 stated that “I understand that when my brother-inlaw Sohanlal got married to the Plaintiff, as per the custom, the name of Sohanlal’s wife, the Plaintiff was changed from Pushpa Kumari to Pushpalata…” This is as clear an admission as any that Respondent No.1 was known as “Pushpa” prior to marriage, and that she continued to use this name after marriage as well. In fact, Appellant No. 1’s entire case hinges upon the fact that Respondent No.1 was known as “Pushpa” even after her marriage. Another important aspect to be considered is that if Respondent No.1 had ceased using the name “Pushpa” after marriage, there would have been no need for Appellant No.1 to change her own name after marriage as alleged. There is no answer to this point from the Appellants.

32. Accordingly, based upon the documents produced by Respondent No.1, as well as the clear admissions by Appellant No.1 herself, we find that Respondent No.1 was known as “Pushpa” both before and after her marriage in 1955. It is clear that she was given the name “Pushpa” at birth, and used the names “Pushpa” and “Pushpalata” interchangeably after marriage. Further, there is no dispute that her husband’s name was Sohanlal Sharma, or that she used the name “Pushpalata Sohanlal Sharma”. Accordingly, we find that it is but obvious that she would have been known as “Pushpa Sohanlal Sharma”, which could be abbreviated to “Pushpa S. Sharma”, and that she would have been known under this name at the time of purchase of the Suit Premises.

33. Appellant No.1’s case, on the other end, appears fraught with complications, falsehoods, inconsistencies and blatant lies. Her case is that her maiden name was “Pushpa Singh Sharma”, which, after marriage, was changed to “Brij” in order to avoid confusion with Respondent No.1.

34. Before turning to the documents produced in support of this contention, we may note that Respondent No.1 vehemently denied that Appellant No.1 was ever known by the name “Pushpa”. Further, our attention has been drawn to the statement of original Defendant No.2, i.e. the deceased husband of Appellant No.1, in the course of his cross-examination that Appellant No.1’s family referred to her by the nickname “Bholi” and that this was her maiden name (Questions 138 & 144 of the Cross Examination of Defendant No.2). It was not contended by original Defendant No.2 in his cross-examination that Appellant No.1’s name was “Pushpa”. We think that this admission alone is sufficient to disprove Appellant No.1’s entire case, with her own husband having admitted that her maiden name was “Bholi” and not “Pushpa”. In any event, we shall examine the documents produced by Appellant No.1 in support of this contention.

35. The first document produced by Appellant No.1 is a ration card (DW-9) issued in the year 1995 to “Brij M. Sharma”, with the name “Pushpa” interpolated in Hindi script. Our attention has been drawn to Appellant No.1’s explanation for this interpolation in the course of her cross-examination, that she had signed this ration card as “Brij M. Sharma”, but that the name “Pushpa” was added as it was her maiden name (Question Nos. 39-42 of Cross Examination of Defendant No.1). However, our attention has also been drawn to the fact, that when specifically asked in crossexamination whether she had inserted the name “Pushpa” with a view to falsely lodge a claim on the Suit Premises, Appellant No.1, rather than simply denying the same, had evasively stated that “Since this is very old matter I do not remember.” (Question No.43 of Cross Examination of Defendant No.1). We have also noted her evasive answers to the entire line of cross-examination in this regard (Question Nos.37 to 48 of Cross Examination of Defendant No.1). We find Appellant No.1’s answers in this regard to be wholly unsatisfactory. Such evasive answers which skirt the issue do not inspire much confidence in the veracity of the aforesaid ration card or of the evidence deposed to by the Witness. In any event, we have noted that this ration card was issued in the year 1995, and that Respondent No.1 had filed the dispute against Appellant No.1 in the Co-operative Court on 20th April 1995. Disputes between the parties had already arisen. This ration card was issued around the time that litigation between the parties commenced. Accordingly, we think that it is but obvious that the name “Pushpa” was interpolated in this ration card solely with a view to create false evidence that Appellant No.1 was known as “Pushpa”. There is no evidence led by the Appellants to show why the name “Pushpa” was interpolated on the said document or as to when the same was done. In the course of her cross examination, Appellant No.1 was confronted with the ration card showing different ink in the word “Pushpa” before the words “Brij Sharma”. She feigned ignorance citing the distance of time. She has not deposed that there was no interpolation. This is a document produced by Appellant No.1 and it is incumbent upon her to explain the same, especially since her case hinges on this document.

36. We may now consider Appellant No.1’s purported Birth Certificate bearing No.3154 issued by the Chief Registrar (Births and Deaths) Punjab (Chandigarh) registered on 4th October 1943 and disclosing her date of birth as 29th August 1943 under the name “Pushpa Singh” (Ex. 1 to the Written Statement of Defendant Nos.[1] & 2). This document, though annexed to the Written Statement of Defendant Nos.[1] and 2, was not tendered by the Appellants in evidence, and was therefore not marked in evidence. There has been much controversy surrounding this birth certificate. Respondent No.1 has vehemently argued that the same is a forged and fabricated document.

37. Appellant No.1 has not submitted the original Birth Certificate in evidence. Respondent No.1 has claimed that this document is a forged and fabricated document, and has led evidence in support of the same.

38. Respondent No. 1 relied upon the evidence of the Inspector-In-Charge (Births and Deaths) of the Nagar Nigam / Municipal Corporation of Amritsar (PW-2), who produced the authority issued by his office to appear and give evidence.

39. Mr. Madon, Ld. Senior Counsel, submitted that Respondent No.1 had conducted enquiries with regard to the Birth Certificate of Appellant No.1 produced by the Appellants, and discovered that the same was a forgery. He submitted that Respondent No.1’s Advocates had addressed a letter dated 20th May 2006 (Ex. GGG-

1) to the Commissioner, Municipal Corporation of Amritsar requesting that the pages of the Birth Register for the period 25th September 1943 to 11th October 1943 be provided so that they may be produced in Court. In reply thereto, the Local Registrar, Births & Deaths, Municipal Corporation of Amritsar addressed a letter dated 23rd 2006 (Ex. GGG-2) stating that Entry No. 3154 did not exist in its records, as, due to a clerical error, entry no. 3099 was directly followed by entry no. 4000, inadvertently skipping entry nos. 3100 to 3999. Accordingly, he stated that the aforesaid Birth Certificate was bogus. He further annexed thereto a copy of the original Birth Register. He drew our attention to the Order dated 2nd March 2009, by which this Court recorded the evidence of one Mr. Virinderjit Singh, Inspector cum Incharge (Births & Deaths), Amritsar, in support of the Birth Register annexed to the aforesaid letter dated 23rd May 2006, at which time the Appellants had occasion to cross-examine him on the same. He submitted that Appellant No.1 is currently facing prosecution in relation to the forgery of this birth certificate in the Court of the Judicial Magistrate 1st Class, Amritsar. He submitted that neither Appellant No.1 nor original Defendant No.2 (deceased husband of Appellant No.1) had led any evidence with regard to the aforesaid Birth Certificate in their respective affidavits in lieu of examination in chief. He submitted that this document was neither produced nor tendered in evidence, and was only annexed to the Written Statement. Accordingly, this document is of no avail to Appellant No.1. He submitted that, it is pertinent to note that the Affidavits in lieu of Examination in Chief of Appellant No.1 and the original Defendant No.2 were filed after the evidence of the Plaintiffs was closed. It is obvious that since they realised that the forgery had been caught out, neither Appellant No.1 nor original Defendant No.2 led any evidence with regard to the aforesaid Birth Certificate in their respective Affidavits in lieu of Examination in Chief. However, in the course of crossexamination, Respondent No.1 asked both Appellant No.1 (Question Nos. 55 to 66 of D1’s Cross Examination) and her husband original Defendant No.2 (Question Nos. 60-72 of D2’s Cross Examination) questions on the aforesaid birth certificate and the resulting criminal case in relation to the forgery thereof.

40. Our attention has been drawn to paragraphs 24 to 35 of the Impugned Judgment, where we find that the Ld. Single Judge has correctly dealt with the aspect of Appellant No.1’s Birth Certificate. After examining the rival contentions of the parties, and the evidence produced by them in support thereof and in particular the evidence of PW-2, the Ld. Single Judge found that the Birth Certificate of Appellant No.1 produced by the Appellants was forged and fabricated. The Ld. Single Judge found that the Appellants were unable to damage the testimony of PW-2 in the course of cross-examination. We are unable to come to a contrary finding.

41. PW-2 was one Mr. Virinderjit Singh, the Inspector cum Incharge (Births & Deaths), Amritsar. He deposed that the Register of Births pertaining to the period 1st October 1943 had been lying in the Registry of the Calcutta High Court for about 30 to 40 years, as it had been forwarded there. He stated that there was no record available in the Municipality for births registered during the aforesaid period. He produced the record for the period 12th April 1943 to 18th August 1943 (Ex. JJJ) which is otherwise the relevant period. This document makes very interesting reading. It covers entries from Registration No.3081 to Registration No.4022. Appellant No.1’s Birth Certificate ought to be reflected in this document, as it bears Registration No.3154. However, we find that in this document, Registration No.3099 was followed by Registration No.4000, and the evidence is that due to a clerical error Registration Nos.3100 to 3999 were skipped and never allotted. While this document is in the Gurumukhi script, the serial numbers are written in English and can be identified without translation.

42. Accordingly, it is clearly established that due to this clerical error, no Birth Certificate bearing Registration No.3154 was ever issued. It seems clear to us that this Birth Certificate is a forged and fabricated document. We have also noted that Appellant No.1 is currently facing criminal prosecution in this regard.

43. It is also seen from the record that Appellant No.1 regularly used the name “Brij” in official documents, viz., the Passport issued on 30th May 1974 (Ex. DW-3), the Additional Passport Booklet issued on 27th October 1979 (Ex. DW-4), the Passport issued on 30th April 1984 (Ex. DW-5), the Passport issued on 19th October 1994 (Ex. DW-6), and the Ration Card (Ex. DW-9).

44. The Appellants have not produced any evidence whatsoever in support of their contention that Appellant No.1 used the names “Singh” or “Sharma” prior to marriage, or that her father’s name was Uttamchand Sharma. On the contrary, in his answer to Question 116 of his cross-examination, the original Defendant No.2 admitted that Appellant No.1’s father’s name was “Uttamchand Gurudattamal”, and in her answer to Question No.18 of her cross-examination, Appellant No.1 admitted that her father’s name was “Pandit Uttam Chand” and that her mother’s name was “Maya Devi”.

45. We, therefore, agree with the Ld. Single Judge that Appellant No.1 has failed to prove that her maiden name was Pushpa Singh, or that she was referred to as Pushpa Singh after her marriage. Title to the Suit Premises

46. Mr. Siganporia, Ld. Counsel for Appellant No.1, argued that Respondent No.1 had failed to establish her right, title and interest in the Suit Premises. He argued that she had produced neither the sale agreement for the Suit Premises nor any documentary proof of having made payment for the purchase of the same. He submitted that Respondent No.1 admittedly had no personal knowledge regarding the purchase of the flat. He submitted that Respondent No.1’s case in the Plaint that she had purchased the suit flat from her own independent savings and source of funds was false. He submitted that, while in the Plaint, Respondent No.1 had stated that she had paid the sale consideration of Rs. 99,000 to one Shashikant Garware through Advocate Mr. V.A. Phadke, in the course of cross-examination she stated that she had paid the purchase consideration of Rs. 99,000 to original Defendant No.2, partly in cash, and partly from bank deposit/s. He submitted that along with these contradictory statements, there was no documentary evidence of these payments to original Defendant No.2 (deceased husband of Appellant No.1). He further submitted that in the Dispute application before the Co-operative Court, Respondent No.1 had stated that the purchase consideration for the Suit Premises was partly provided by her parents and partly from her own savings. He also submitted that Respondent No.1 had never been employed and in the course of cross-examination appeared unaware of the matters relating to the manner in which the consideration of the Suit Premises was actually affected. He submitted that while Respondent No.1 had contended that it was original Defendant No.2 who was in charge of the entire transaction, she stopped short of stating that he had sold her jewellery for the purpose of purchase of the suit flat. He submitted that as Appellant No.1 had in her Written Statement denied that Respondent No.1 had purchased the Suit Premises from her own independent savings and source of funds and had also denied the payment by Respondent No.1 of Rs.99,000 to Mr. Phadke, the onus was upon Respondent No.1 to prove her case.

47. Mr. Siganporia argued that, in her Affidavit in lieu of Examination in Chief, Respondent No.1 had stated that she had a savings account in Amritsar with the Indian Overseas Bank Ltd bearing Savings Account No. 1094, and that she had purchased the Suit Premises in or about May 1970 from her own funds and savings from the previous owners, viz., Mr and Mrs Shashikant Garware. He argued that a perusal of the passbook maintained for the period December 1964 to January 1970, which was marked as Exhibit V, indicated that the entries therein had been handwritten by an officer of the bank, who had not been examined, and that, as per the bank’s own requirements, none of the entries had been signed by an officer of the bank. Mr. Siganporia submitted that the writer of a document must depose to the truth of contents. He further argued that the aforesaid passbook did not reflect the entry of the two cheques issued by the Royal Western India Turf Club Ltd. in favour of Respondent No.1, which had been relied upon by her. He argued that Respondent No.1 had no knowledge of the contents of the slips issued by the Royal Western India Turf Club Ltd. He argued that while the amount of Rs. 25,000 did appear, it was for a period which was unknown to the parties. Accordingly, he contended that the Ld. Single Judge had assumed that the amount of Rs. 25,000 had been utilised by Respondent No.1 for the purchase of the Suit Premises without any positive evidence being led with respect to the same by Respondent No.1. He argued that this was an incorrect assumption, as the Suit Premises were purchased in May 1970 although the Ld. Single Judge had recorded that the entry was of 6th July 1970, which was subsequent to the purchase. He further argued that, although Respondent No.1 had not stated that her jewellery was sold for the alleged purchase of the Suit Premises, the Ld. Single Judge had assumed that the same was sold by the original Defendant No.2 (deceased husband of Appellant No.1) and that the proceeds thereof were utilised for the aforesaid purchase. Mr. Siganporia submitted that the aforesaid bank account was closed in the year 1970, and that in the course of her cross examination, Respondent No.1 had stated that she did not hold a bank account in the year 1966. As the passbook produced was for the year 1964 to 1970, the Appellants argued that this proved that Respondent No.1 had no idea about the aforesaid bank account, which was the account shown for the purposes of purchase of the Suit Premises.

48. Mr. Siganporia submitted that Respondent No.1 had admitted to being a non-resident Indian at least since 1972 and had stated that she did not know how such status was acquired. He argued that Respondent No.1 had not in any manner evidenced how the Suit Premises had been recorded in her statutory records and had clearly failed to adhere to the prevailing laws. He argued that this was evidenced from the fact that she had no knowledge of filing a declaration regarding the ownership of properties by her in India and elsewhere, that she had not reflected an amount of Rs.99,000 in the year 1970 in her Income Tax or Wealth Tax returns by stating that she was not a taxpayer, and that she had stated that she had never paid income tax, despite acquiring the status of a non-resident Indian only in the year 1972 while the Suit Premises were allegedly purchased by her from her own funds in the year 1970.

49. Mr. Siganporia submitted that Respondent No.1 had failed to produce on record any document evidencing that she was the owner of the Suit Premises. He made reference to her passports, which were marked as Exhibits D[2] and D[3] during the course of her cross examination, none of which bore the Suit Premises as her permanent address. He made reference to the letter dated 10th January 1984 (Ex. NN) signed by Respondent No.1 as ‘Pushpa Lata’, and which referred to the Suit Premises as ‘Pushpa S. Sharma’s Flat.’ He submitted that Respondent No.1 had never signed as Pushpa S. Sharma, and always as Pushpa Lata. He submitted that there was no document on record evidencing the fact that Respondent No.1 had signed as Pushpa S. Sharma. He submitted that from a reading of the aforesaid, as well as from the fact that Respondent No.1 had last visited the Suit Premises in April 1983, it was clear that Respondent No.1 never considered the Suit Premises to be her own or herself to be the owner of the same.

50. Mr. Siganporia submitted that when the families of Appellant No.1 and Respondent No.1 were residing in Dubai, the documents regarding the suit flat were taken to Dubai and were thereafter stolen by Respondent No.1. However Appellant No.1 did not file a complaint with regard to the same as it was a family matter. He submitted that original Defendant No.2 had given similar testimony in his evidence, but had not been cross-examined in respect of the stolen documents. He submitted that the evidence led by Appellant No.1 and the original Defendant No.2 in this regard ought to be believed. He submitted that, despite certain letters between the parties, the Society had handed over the original share certificate for the suit flat to Appellant No.1 and that Respondent No.1 had made no grievance regarding the same at the relevant time. He submitted that admittedly, the society dues were paid by original Defendant No.2 and his brother Mr. Harish Sharma, and that Respondent No.1 only paid the same when in Mumbai. He submitted that Respondent No.1, being the Plaintiff and the party who filed the proceedings, had clearly failed to prove or discharge the burden of proof that she was in fact the owner of the said flat.

51. During the course of hearing, Mr. Siganporia, Ld. Counsel for the Appellants, tendered across the bar two documents – being (i) a declaration dated 12th May 1993 issued by Appellant No.1’s father inter alia stating that her name was Pushpa prior to marriage and that in the year 1969 he had given a sum of Rs. 99,000 to daughter for the purchase of the suit premises, and (ii) a photocopy of Appellant No.1’s statement of wealth for the assessment year 1999-2000, which at the foot inter alia stated that she was the owner of the suit premises.

52. Mr Madon, Ld. Senior Counsel for Respondent No.1, submitted that the question of who had paid the consideration for the suit flat was absolutely irrelevant. He submitted that it was not Appellant No.1’s case that she had paid the purchase price but that the Suit Premises were purchased benami in Respondent No.1’s name. He asserted that Respondent No.1 was the owner of the Suit Premise. Nevertheless, he submitted that she had purchased the Suit Premises using her own funds and savings. He submitted that Respondent No.1 had stated in evidence that she held Savings Account No. 1095 in Amritsar with the Indian Overseas Bank, that she had won jackpots / winning tickets on 23rd March 1969 of the Royal Western India Turf Club for Rs.11,475 and 22,950, the cheques for which were encashed in the said account, and that she had entrusted various jewellery and valuables with original Defendant No.2, who had utilised and sold the same as per her directions. He submitted that Respondent No.1 had also tendered in evidence the receipts for the aforesaid winning tickets (Ex. U-1), the forwarding letter of the Royal Western India Turf Club (Ex. U-3) by which she received the aforesaid cheques, and the Bank Pass Book of the Indian Overseas Bank, Amritsar (Ex. V), reflecting deposit of the same. He submitted that Respondent No.1 had stated that the consideration paid for purchase of the Suit Premises was Rs. 99,000. Appellant No.1, on the other hand, had failed to demonstrate the source of consideration for purchase of the Suit Premises. He submitted that while Appellant No.1 had stated in evidence that her father had in her presence paid Rs.99,000 in cash to Mr. Phadke, the common Advocate for the transaction, (of which Rs.89,500 was the consideration for the Suit Premises, and the balance Rs.9,500 was retained by Mr. Phadke towards his professional fees and other charges), she had failed to provide any evidence to prove the same. He argued that Appellant No.1 had admitted in her answer to Question No.117 of her cross examination that she had not produced any evidence to show payment of any amounts whatsoever.

53. Mr Madon submitted that there were contradictions in Appellant No.1’s story as to the circumstances of purchase of the Suit Premises. He submitted that Appellant No.1 had stated that she got married on 2nd December 1960, after which she and her husband were residing in various homes in Mumbai for about three years until her husband purchased a flat in one “Shanti Building”, and that their family members (including Respondent No.1 and her family when they visited Mumbai) were staying either with them or in another flat obtained by her husband on rent at one Dev Ashish CHS. Appellant No.1’s case was that her father had often visited her during this period, and, noticing the frequent quarrels between family members, especially the women, was desirous of purchasing a separate flat for her and her husband. Accordingly, her father accompanied her and her husband to the office of Mr. Phadke, the common Advocate for the transaction, and paid Rs.99,000 in cash. She stated that her father had asked for the suit flat to be purchased in her maiden name of “Pushpa S. Sharma”. He submitted that there were crucial contradictions in this story which disclose the falsehood thereof. He submitted that Appellant No.1 had stated in her cross-examination that she was abroad from 1969 to 1973, and that she had never met Mr. Phadke. Since she was abroad during this period she could not have gone to Mr. Phadke’s office. He submitted that this belied her story that her father purchased the Suit Premises for her in 1970. He further submitted that, if this story were true, her father would have asked for the flat to be purchased in the name of “Brij M. Sharma” in order to avoid any confusion, as Respondent No.1 was admittedly known as Pushpa.

54. Mr. Madon then submitted that Appellant No.1 was in India between 1980 and 1984, during which time the society addressed correspondence to “Pushpa S. Sharma” in the UAE. He argued that Appellant No.1 had produced four Indian passports, being Passport No. J890811 issued on 30th May 1974 and extended on 25th April 1979 in Hong Kong (Ex. DW-3), Additional Booklet No. P606263 issued on 27th October 1979 in Dubai (Ex. DW-4), Passport No. U691558 issued on 30th April 1984 (Ex. DW-5) and Passport No. T388966 issued on 19th October 1994 (Ex. DW-6). He submitted that, although it was Respondent No.1’s submission that Appellant No. 1 had illegally acquired a Nepali Passport issued on 26th April 1981 under the name of “Brij Maya Sharma” (Article-1), Appellant No.1 had denied having done so. He submitted that, in light of Appellant No.1’s denial of acquiring a Nepali passport, as far as the present dispute was concerned, Appellant No.1’s stand appeared to be that the only valid passports in her possession between 1980 and 1984 were the aforesaid Indian passports. He submitted that Appellant No.1 was arrested for smuggling by Customs at Mumbai Airport on 6th October 1980, and her passport was impounded. Accordingly, there was no question of her leaving the country thereafter. A perusal of Appellant No.1’s Indian passports for the period 1980 to 1984 discloses stamps by July 1980, 8th August 1980 and 21st September 1980) and September 1980, 5th October 1980 and 28th April 1984), indicating entry and exit to foreign countries during this period. He submitted that it was clear from the same that Appellant No.1 did not travel outside of India between the period 6th October 1980 to 27th April 1984.

55. Mr. Madon submitted that, during this very period the Society exchanged numerous correspondence with Pushpa S. Sharma / S.L. Sharma in Dubai, which could only be assumed to be a reference to Respondent No.1 and her husband Sohanlal Sharma. In this regard, he drew our attention to the Letter dated 23rd February 1983 addressed by the Society to Mr. S.L. Sharma (Ex. AA-3), the Letter dated 6th March 1983 addressed by Pushpa S. Sharma to the Chairman of the Society (Ex. BB), the Letter dated 15th March 1983 addressed by the Society to Mrs. Pushpa S. Sharma (Ex. CC), the Letter dated 26th March 1983 addressed by Pushpa S. Sharma to the Chairman of the Society (Ex. DD), the Letter dated 13th April 1983 addressed by the Society to Mrs. Pushpa S. Sharma (Ex. EE), the Letter dated 16th July 1983 addressed by Pushpa S. Sharma to the Chairman of the Society (Ex. GG), and the Letter dated 10th January 1984 addressed by Pushpa S. Sharma to the Chairman of the Society (Ex. MM). He also drew our attention to the Minutes of the Meeting of the Society held on 10th May 1983 (Ex. FF) which clearly recorded that “There was no representation from Mrs. Sharma since she was away in Dubai.” He submitted that it was also clear from the letter dated 25th April 1983 (Ex. KK), addressed by Mrs. Masani (a resident of the building) to “Mrs. Sharma” that the Suit Premises had been locked for the past 4 years as Respondent No.1 and her husband were abroad. He argued that it was clear that from 1979 to 1983, before the disputes arose, the Society itself considered Respondent No.1 to be the owner of the Suit Premises. He submitted that the Society would have been well aware that Appellant No.1 was residing in her flat in the very same building, and would not have addressed correspondence to Dubai, and even addressed letters to “S.L. Sharma” (which could only be a reference to Respondent No.1’s husband Sohanlal Sharma) if they had considered Appellant No.1 to be the owner of the Suit Premises.

56. Mr. Madon then submitted that all correspondence addressed by the Society was clearly intended to be addressed to Respondent No.1 and not Appellant No.1 (viz., The Letter dated 23rd February 1983 addressed to Mr. S.L. Sharma (Ex. AA-3), the Letter dated 15th March 1983 addressed to Mrs. Pushpa S. Sharma (Ex. CC), the Letter dated 13th April 1983 addressed to Mrs. Pushpa S. Sharma (Ex. EE), the Letter dated 25th March 1985 addressed to Mrs. Pushpa Sharma (C/o Mr. S.L. Sharma) (Ex. PP), the Letter dated 18th July 1985 addressed to Mrs. Pushpa Sharma (Ex. RR), the Letter dated 27th October 1989 addressed to Mrs. Pushpa Sharma (Ex. UU-1), the Letter dated 7th December 1989 addressed to Mrs. Pushpa Sharma (Ex. XX), and the Letter dated 4th February 1992 addressed to Mrs. Pushpa Sharma (Ex. BBB)). He submitted that Respondent No.1’s husband was admittedly the owner of P.O. Box 1769, Dubai and P.O. Box 3535, Abu Dhabi, which were used by Appellant No.1’s husband when he left India for Dubai in 1974. He submitted that the original Defendant No.2 had stated in his affidavit in lieu of examination in chief that Appellant No.1 and her family had returned to Mumbai from Dubai in 1975. He then invited our attention to a series of correspondence addressed by the Society to these P.O. Boxes from the years 1983 to 1992. He submitted that the fact that the Society continued to address such correspondence to these P.O. Boxes after the Appellants ceased to reside in Dubai (i.e. post 1975) indicates that these letters were in fact intended for Respondent No.1. He submitted that while many of the letters were addressed to “Pushpa S. Sharma”, some were even addressed directly to “Mr. S.L. Sharma”, i.e. Respondent No.1’s husband Sohanlal Sharma.

57. Mr. Madon submitted that, even when addressing correspondence to Respondent No.1 and her husband calling upon them to prove their ownership of the Suit Premises, the Society nevertheless requested them to pay the Society dues. This indicates that the Society was always aware that Respondent No.1 and her husband were the true owners of the Suit Premises. He invited our attention to the following letters addressed by the Society to Respondent No.1 and her husband calling upon them to make payment of Society dues: the Letter dated 23rd February 1983 addressed to Mr. S.L. Sharma (Ex. AA-3), the Letter dated 15th March 1983 addressed to Mrs. Pushpa S. Sharma (Ex. CC), the Letter dated 13th April 1983 addressed to Mrs. Pushpa S. Sharma (Ex. EE), the Letter dated 25th March 1985 addressed to Mrs. Pushpa Sharma (C/o Mr. S.L. Sharma) (Ex. PP), the Letter dated 18th July 1985 addressed to Mrs. Pushpa Sharma (Ex. RR), the Letter dated 14th October 1991 addressed to Mrs. Pushpa Sharma (Ex. AAA), and the Letter dated 4th February 1992 addressed to Mrs. Pushpa Sharma (Ex. BBB). Mr. Madon submitted that, by her letter dated 11th August 1985, Respondent No.1 (on her letter head “Pushpa S. Sharma”, and from P.O. Box 1769, Dubai) had called upon the Society to contact Appellant No.1 and his wife to pay the Society dues on her account (Ex. SS).

58. Mr. Madon further submitted that, while Appellant No.1 had stated in her cross-examination that she was in Hong Kong from 1969 to 1973, there was no correspondence whatsoever addressed by the Society to any address in Hong Kong. This is another factor to establish that the Society never considered Appellant No.1 to be the owner of the flat.

59. Mr. Madon then submitted that the Appellants were in wrongful occupation of the Suit Premises. He submitted that Respondent No.1 had stated in evidence that, after purchasing the Suit Premises, she had filed an application for transfer of the flat with the society and a copy of the original agreement for sale with the society. He submitted that Respondent No.1 had stated under cross-examination that she had handed over the relevant documents to the society and to original Defendant No.2 (deceased husband of Appellant No.1), and did not ask for them from him as relations between the two were cordial at the time. He submitted that it was but natural that Respondent No.1 would have done so, as she was not living in India at the time.

60. Mr. Madon submitted that Appellant No.1 had stated in her Affidavit in lieu of Examination in Chief that the original agreement for sale had been submitted to the Society at the time of transfer of the share certificate, and was subsequently misplaced by the Society. He submitted that, at the time of hearing of the Suit, she had appeared before the Ld. Single Judge and once again stated that the aforesaid agreement was lost. He submitted that, by a letter dated 20th February 1984 (Ex. OO), Mr. Ashok Zaveri, the Secretary of the Society, had forwarded to original Defendant No.2 the original share certificate and stock certificate from the society files, as per his request. He submitted that if Appellant No.1 or her husband original Defendant No.2 had in fact submitted the original agreement for sale to the Society, they would surely have requested return of the same at this time. He accordingly submitted that this indicated that the original agreement for sale is in the possession of Appellant No.1, who had concealed the same. He submitted that the parties were ad idem that the original agreement for sale was with the Appellants.

61. Mr. Madon then submitted that the fact that the Appellants were in unlawful possession of the Suit Premises was borne out by the dispute regarding Nirmala Joshi, a sister of the husbands of Respondent No.1 and Appellant No.1. He submitted that the Suit Premises were not occupied between the years 1979 and 1983, as reflected in the letter dated 25th April 1983 addressed by Mrs. Masani, an occupant of the building, to Respondent No.1 (Ex. KK). He submitted that, later that year, the Suit Premises were occupied by Nirmala Joshi with the permission of Respondent No.1, as was recorded in Respondent No.1’s letter dated 16th July 1983 (Ex. GG). He submitted that, from 1983, Respondent No.1 permitted Appellant No.1 and her husband to reside in the Suit Premises along with Nirmala Joshi. He submitted that disputes then arose, and in January 1984 original Defendant No.2 forcibly removed Nirmala Joshi and her family member from the Suit Premises and began to occupy the same. He submitted that Respondent No.1 immediately addressed a letter dated 10th January 1984 (Ex. MM) to original Defendant No.2 (with a copy marked to the Society) requesting that he vacate the Suit Premises, and a letter dated 10th January 1984 (Ex. NN) to the Society stating that original Defendant No.2 was an unauthorised occupant who should not be permitted to reside in the Suit Premises.

62. Mr. Madon submitted that the Society and its Secretary, Mr. Ashok Zaveri, had fabricated or concealed documents in order to assist the Appellants at the expense of Respondent No.1. He submitted that Mr. Zaveri had appeared before the Ld. Single Judge on 11th June 2008 pursuant to the issuance of a Witness Summons, and stated that the Society was not in possession of any documents save and except those produced by him, as the documents were kept in a cupboard in the basement of the Society, and several of the documents were destroyed in the floods of 26th July

2005. He placed reliance upon Interim Application No. 1546 of 2019 in the Appeal, wherein Appellant No.2 had stated that, a few days after the Decree was passed, Mr. Zaveri met Appellant No.2 and informed him that the Society did in fact have certain other documents in its possession which could be of assistance to the Appellants, but which could not be produced earlier as the file produced before the Ld. Single Judge was not complete and various documents were not available at the relevant time before the Ld. Single Judge. He submitted that neither Mr. Zaveri nor the Appellants have been able to explain as to how these documents were suddenly discovered after the decree was passed, nor have they produced any chain of custody for the same. We agree with the submissions of Mr.Madon. We fail to understand why the society would want to get involved and aid or assist the Appellant. The society should take a neutral stand and abide by the orders passed by the court. The society in its zealousness to assist the Appellants could land itself into trouble.

63. Mr Madon finally submitted that the two documents tendered across the bar by the Appellants during the course of hearing, viz. the declaration dated 12th 1993 issued by Appellant No.1’s father and the photocopy of Appellant No.1’s statement of wealth for the assessment year 1999-2000, had been produced for the first time in the course of hearing of the Appeal and had never been placed before the Ld. Single Judge. He submitted that these documents had never been marked in evidence and that the Appellants had filed an application seeking that they be marked as exhibits for the first time in Appeal. That Application was not pressed by the Appellants and, therefore, Mr. Madon stated that he had not advanced any arguments as to why the same should not be taken on record in the Appeal. Accordingly, he submitted that the Court ought not to consider the aforesaid documents.

64. Mr. Madon submitted that the Appellants’ case had changed dramatically over the years. He first drew our attention to the Letter dated 25th 1985 (Ex. PP), addressed by the Society to “Mrs. Pushpa Sharma, C/o. Mr. S L. Sharma”, at P.O. Box 1769, in which the Society clearly stated that, “Mr. Madan Sharma is also claiming rightful ownership of the said flat”. He submitted that this letter showed that in 1985, original Defendant No.2 (deceased husband of Appellant No.1) claimed ownership of the Suit Premises in his own right, and did not claim that Appellant No.1 was the owner thereof.

65. Mr. Madon then drew our attention to various letters which showed that Appellant No.1’s case had changed from time to time, as she had some times sought transfer of ownership of the Suit Premises to herself from Respondent No.1, and at other times had claimed ownership of the same under the name “Brij Sharma”, but not that she was herself “Pushpa S. Sharma”. In this regard, he first drew our attention to the Letter dated 18th February 1992 (Ex. DDD), addressed by Mr. Phadke on behalf of his client “Mrs. Brij Sharma” to the Society, and in which he stated that: “… our client does not understand why the bills are made out in the name of Mrs. Pushpa Sharma though the flat is legally and equitably owned by our client and no steps have been taken to have our client’s name substituted for Mrs. Pushpa Sharma.”

66. Mr. Madon then drew our attention to the Letter dated 21st February 1992 (Ex. EEE), addressed by the Society to Mr. Phadke (with copies marked to both “Mrs. Brij Sharma”, i.e. Appellant No.1, and “Mrs. Pushpa Sharma”, i.e. Respondent No.1) stating that Pushpa Sharma / Respondent No.1 had objected to the proposed transfer of the Suit Premises to Brij Sharma / Appellant No.1. Accordingly the Society requested Mr. Phadke to, “send us a letter of approval from Mrs. Pushpa Sharma for the transfer of the said flat in the name of Mrs. Brij Sharma.” and requesting him to obtain a no-objection certificate for the same from Pushpa Sharma / Respondent No.1. He submitted that this once again indicated that the Society had always considered Respondent No.1 to be the owner of the Suit Premises. He submitted that this was borne out by the fact that the Society forwarded a copy of this letter to Respondent No.1 at the Dubai P.O. Box (Ex. EEE). He submitted that it was clear from this letter that at this time Appellant No.1 sought transfer of the Suit Premises, and herself acknowledged Respondent No.1 as the rightful owner of the Suit Premises.

67. Mr. Madon then drew our attention to the Letter dated 10th March 1992 (Ex. FFF), addressed by Mr. Phadke on behalf of his client “Smt. Brij Sharma” to the Society, once again stating that “… our client does not understand how the said Mrs. Pushpa Sharma is interested in the flat in question.”

68. Mr. Madon then took us to original Defendant No.2’s Affidavit in Lieu of Examination in Chief, at paragraphs 2 and 17 wherein he has stated that “My wife Defendant No.1 and I are the rightful owners of the Suit Premises specifically flats No.1&2……”. He submitted that this was contrary to Appellant No.1’s case at paragraph 2 of her Affidavit in Lieu of Examination in Chief that she alone was the owner of the Suit Premises.

69. Accordingly, he submitted that the Appellants had not made out a consistent case as to how they claimed ownership of the Suit Premises.

70. Mr. Madon submitted that Appellant No.1 was a habitual offender. He submitted that on 6th October 1980, Appellant No.1 was arrested by Customs Officials at Mumbai Airport on the charge of smuggling diamonds and currency from Hong Kong. She later procured a Nepali passport, and absconded from the country. She has fabricated her Birth Certificate and is being prosecuted for the same.

71. Mr. Madon submitted that the Appellants have given contradictory statements to this Court with regard to Appellant No.1’s educational qualifications. Appellant No.1 stated in evidence, without producing any evidence in support thereof, that she had completed the eighth standard, and that her medium of instruction was Hindi, English and Punjabi. He submitted that Appellant No.1 had stated in her evidence that she had signed the agreement to purchase the Suit Premises. He submitted that her signature is present throughout the court records. However, in the course of cross-examination, the Appellants sought to avoid difficult questions being posed to Appellant No.1 by objecting on the ground that she was illiterate and did not understand the questions. Further, Appellant No.2 has, in his application seeking to bring on record additional documents, stated that Appellant No.1 was unable to bring these documents on record after the death of her husband as she was “an uneducated housewife”.

72. Mr. Madon finally submitted that the Appellants had come to court with a false case, and had relied upon forged and fabricated documents. He relied upon the Judgment of the Supreme Court in S.P. Chengalvaraya Naidu (supra) in support of the proposition that a person whose case is based on falsehood has no right to approach the court, and can be summarily thrown out at any stage of the litigation. He submitted that the Appeal ought to be dismissed due to the Appellants’ conduct.

73. In the backdrop of these submissions, let us examine the issue of title. Firstly, as correctly and rightly contended by Mr. Madon, Ld. Senior Counsel, the question of title is not really important in the peculiar facts of this case. The share certificate issued by the Indrayani Co-operative Housing Society stands in the name of “Mrs. Pushpa S. Sharma”. This is an admitted position. The share certificate constitutes title to the Suit Premises. Both Appellant No.1 and Respondent No.1 have claimed to be Pushpa S. Sharma, and thus the owners of the Suit Premises. The principal question that arises in this matter is as to who is “Pushpa S. Sharma”. That question has already been decided by us hereinabove, that it is Respondent No.1 who is “Pushpa S. Sharma”. Once it has been determined that Respondent No.1 and not Appellant No.1 is Pushpa S. Sharma, and that the share certificate stands in the name of Pushpa S. Sharma, we have no hesitation in holding that it is Respondent No.1 who is entitled to the Suit Premises and that the Suit was rightly decreed by the Ld. Single Judge in favour of Respondent No.1, the original Plaintiff.

74. We will now deal with the two documents tendered across the bar by the Appellants during the course of hearing, viz. the declaration dated 12th May 1993 issued by Appellant No.1’s father and the photocopy of Appellant No.1’s statement of wealth for the assessment year 1999-2000. Mr Madon, Ld. Senior Counsel, has rightly pointed out that these documents were produced for the first time in the course of the appeal. They have never been marked in evidence. The Appellants had not filed any application seeking that these documents be marked in evidence. The Appellants had made out no case whatsoever as to why such documents ought to be marked for the first time in appeal. These documents were simply tendered across the bar. Accordingly, no reliance can be placed on these documents.

75. The parties have argued at length on the source of consideration for the suit premises. Both sets of parties have contended that they had purchased the suit premises, and had arranged for the consideration. Both sets of parties also argued that the opposing parties had not sufficiently proved that they had the requisite source of income to make payment of the consideration for the purchase of the Suit Premises. However, we think that this point does not really take us anywhere. Both sets of parties are ad idem on the fact that the Suit Premises were purchased in the name of one “Pushpa S. Sharma.” Both sets of parties are ad idem on the fact that the aforesaid Pushpa S. Sharma is in fact the owner of the Suit Premises. Both Appellant No.1 and the Respondent No.1 claim to be Pushpa S. Sharma. They both claim that they had purchased the suit premises, and arranged for the consideration, and, therefore, owned the same. It is neither party’s case that the Suit Premises had been purchased benami by the other party on their behalf. Accordingly, we feel that it is of no relevance whatsoever as to who made payment of the consideration, as the real issue in controversy is the identity of Pushpa S. Sharma.

76. Nevertheless, as the parties have argued at great length on the point of payment of consideration, we shall deal with the same. Appellant No.1’s case is that her father had paid Rs. 99,000 in cash to one Mr Phadke, the common Advocate for the transaction, towards purchase consideration for the Suit Premises. However, she has produced no evidence in support thereof. On the other hand, Respondent No.1 had stated that she had purchased the suit premises for Rs. 99,000 out of her own funds and savings. She has produced the passbook to her savings account, as well as the receipts and other documentary evidence such as the forwarding letter dated 1st April 1969 issued by the Royal Western India Turf Club at Mumbai by which she received cheques in the sum of Rs.11,475 and Rs.22,950 respectively, being the two jackpots which she won from betting on horse races at the Royal Western India Turf Club at Mumbai. She has also stated in evidence that she had entrusted various items of jewellery and valuables to the original Defendant No.2, who had sold the same as per her directions. Accordingly, we find that Respondent No.1 has adequately proved that at least a part of the source of consideration for purchase of the Suit Premises emanated from her, while Appellant No.1 has failed to produce any material to show that either she or her father had paid any amounts whatsoever for purchase of the Suit Premises.

77. We may now examine the case put forward by Appellant No.1 that the Suit Premises were purchased in her name. Appellant No.1’s case is that her name prior to marriage was Pushpa S. Sharma. She claims that after her marriage to the original Defendant No.2, she changed her name to Brij, in order to avoid confusion with Respondent No.1, the wife of the original Defendant No.2’s brother Sohanlal. She stated that after marriage, the various branches of the family lived together in one flat in Mumbai. However, there were frequent quarrels between the various branches, especially amongst the women. Her father then visited her at her home in Mumbai, and seeing the unhappy atmosphere, decided to buy her an independent flat. In order to protect her security, he purchased it in her maiden name, which she says was Pushpa S. Sharma, short for Pushpa Singh Sharma. Accordingly, he accompanied her and original Defendant No.2 to the office of Mr. Phadke and paid him an aggregate amount of Rs.99,000 in cash.

78. Appellant No.1’s case in this regard is self-contradictory. While on the one hand Appellant No.1 has stated that she changed her name after marriage from Pushpa to Brij to avoid confusion with Respondent No.1, yet, on the other hand she has stated that, her father had purchased the Suit Premises for her in her alleged maiden name of Pushpa S. Sharma as disputes had arisen between herself and other members of her marital family (including Respondent No.1). It does not stand to reason as to why her father would have purchased the Suit Premises in the name of Pushpa S. Sharma when Appellant No.1 had found Respondents No.1’s name to be so similar to her own that she had changed her name after marriage. That apart, we find that Appellant No.1 has failed to sufficiently prove that she was ever known by the name Pushpa, as has been set out in detail hereinabove and by the Ld. Single Judge in the Impugned Judgment. In addition, as rightly pointed out by Mr Madon, Ld. Senior Counsel, Appellant No.1 had stated in her answers to Question Nos. 51 and 111 of her cross-examination that she was abroad from 1969 to 1973, and had never met Mr. Phadke. This belies her case that she was physically present along with her father at the office of Mr. Phadke at the time of purchase of the suit premises in 1970. Appellant No.1’s case fails miserably on this count. If according to Appellant No.1 she was abroad at the relevant time, there was no question of her being present at the time of purchase of the Suit Premises. In fact she has in effect admitted that she was not present by stating that she has never met Mr. Phadke.

79. We may now turn to the issue of Appellant No.1’s passports. Appellant No.1 produced in evidence four Indian passports. A perusal of these passports show that she did not travel outside India during the period between 1980 and 1984. It appears that this is because Appellant No. 1 was arrested by Customs at Mumbai on 6th October 1984 on the charge of smuggling, at which time the passport was impounded. It is after this that the story gets murkier. Respondent No.1 has alleged that Appellant No.1 had illegally acquired a Nepali passport issued on 26th April 1981 under the name of “Brij Maya Sharma” (Article-1). Appellant No.1 has denied having obtained any such passport. It is worth noting that criminal proceedings are pending against her in this regard.

80. Mr Madon, Ld. Senior Counsel, has drawn our attention to the fact that the Society addressed numerous correspondence to Pushpa S. Sharma in the UAE between the years 1980 and 1984. He has also drawn our attention to the Minutes of the Meeting of the Society held on 10th May 1983 (Ex. FF) which recorded that “There was no representation from Mrs. Sharma since she was away in Dubai” as well as the letter dated 25th April 1983 (Ex. KK), addressed by Mrs. Masani (a resident of the building) to “Mrs. Sharma” that the Suit Premises had been locked for the past 4 years as she and her husband were abroad. He has also drawn our attention to the letter dated 23rd February 1983 addressed by the society to “Mr. S.L. Sharma” (Ex. AA-3). The only S.L. Sharma in this entire dispute is Sohanlal Sharma, the husband of Respondent No.1. It is worth noting here that Appellant No.1’s husband, the original Defendant No.2 was known as Madanlal Sharma. Clearly, according to the Society, the owner of the Suit Premises was in Dubai and not India during the years 1980 and 1984. During this period, Respondent No.1 and her husband were in Dubai, while Appellant No.1 and original Defendant No.2 seem to have been in India. Appellant No.1 is clearly in a predicament here. According to the Indian passports produced by her, she did not travel outside India between 6th October 1980 and 27th April 1984. She has denied having obtained any other passports. If she was to admit to having been issued the Nepali passports produced by Respondent No.1, the same would have a bearing on the criminal proceedings already initiated against her in relation thereto. Therefore, in the absence of any documentary evidence to the contrary, we can safely assume that Appellant No.1 was in India between 1980 and 1984, during which time the Society had addressed correspondence to Pushpa S. Sharma and S.L. Sharma, in Dubai. It is clear from the aforesaid that these were addressed to Respondent No.1 and her husband, and not to Appellant No.1. The aforesaid correspondence clearly shows that the Society and the residents of the building believed Respondent No.1 to be “Pushpa

81. There is no dispute about the fact that Respondent No.1’s husband was the owner of P.O. Box 1769, Dubai and P.O. Box 3535, Abu Dhabi, which were used by original Defendant No.2 when he left India for Dubai in 1974. It is the Appellants’ case that Appellant No.1 and her family returned to Mumbai from Dubai in 1975. However, the Society addressed a series of correspondence to these P.O. Boxes between 1983 and 1992, well after the Appellants had returned to India. Once again, these letters are addressed to Pushpa S. Sharma, Pushpa Sharma and S.L. Sharma. It is clear that these letters could only have been intended for Respondent No.1 and her husband. It is hard to believe that the Society would have been addressing correspondence to Dubai, if they believed Appellant No.1 to be the owner of the Suit Premises and she was residing in the Suit Premises itself. The only reason why the Society would have been addressing correspondence to Dubai would be because they believed Respondent No.1, who was living in Dubai, to be the owner of the Suit Premises. This bears out the falsity of the Appellants’ case.

82. The Appellants’ only response to the voluminous correspondence issued to Respondent No.1 in Dubai is an allegation that Appellant No.1 and original Defendant No.2 had taken the documents regarding the Suit Premises to Dubai, at which time they were stolen by Respondent No.1. Appellant No.1 has admittedly not filed any complaint with reference to the same. In any event, this does not appear to be a credible explanation. Even if the Appellants are correct in this regard, and Respondent No.1 had in fact stolen the aforesaid documents, that would not be an explanation as to why the Society would address correspondence to Respondent No.1 in Dubai, if Appellant No.1 was in fact the true owner of the Suit Premises and was residing in the Suit Premises. This appears to be an argument of desperation and does not take the Appellants’ case any further.

83. Mr Madon, Ld. Senior Counsel, has also pointed out numerous letters addressed by the Society to Respondent No.1 and her husband in which the Society had requested Respondent No.1 to pay the Society dues. He also pointed out the letter August 1985 (Ex. SS), by which Respondent No.1 (writing from P.O. Box 1769, Dubai, under the letter head “Pushpa S. Sharma”) had called upon the Society to contact Appellant No.1 and original Defendant No.2 to pay the Society dues on her account. When read in the context of the other evidence on record, this once again substantiates Respondent No.1’s case that not only is she the owner of the Suit Premises, but that the Society itself considered her as such.

84. Further, we may note that, although Appellant No.1 has stated in cross examination that she was in Hong Kong from 1969 to 1973, there is no correspondence whatsoever addressed by the Society to any address in Hong Kong. This only goes to show that the Society never considered her to be the owner of the suit premises.

85. We may now examine the parties’ respective cases regarding the agreement for sale by which the Suit Premises were purchased. The original agreement for sale has not been produced before us. Respondent No.1’s case is that, after purchasing the Suit Premises, she had filed with the Society an application for transfer of the Suit Premises, and deposited along with it a copy of the original agreement for sale. Her case is that she handed over the relevant documents to the Society and to original Defendant No.2, and did not ask for them from him as relations between the two were cordial at the time and as she was not living in India. Appellant No.1’s case is that the original agreement for sale was submitted to the Society at the time of transfer of the share certificate, and was subsequently misplaced by the Society. We may note that the Ld. Single Judge during the final hearing of the suit had requested Appellant No.1 to remain present, at which time Appellant No.1 appeared in person before the Ld. Single Judge and stated that the aforesaid agreement was lost.

86. In this regard, Mr Madon, drew our attention to a letter dated 20th February 1984 (Ex. OO) by which Mr Ashok Zaveri, the Secretary of the Society, forwarded to original Defendant No.2 the original share certificate and stock certificate from the Society’s files, as per his request. In our view, if the aforesaid agreement for sale was in the possession of the Society at this time, the Society would have surely handed it over to original Defendant No.2 along with the other documents. There is no documentary evidence suggesting that the Society had in fact lost the aforesaid agreement for sale. One thing that is evident from the case of both parties is that they are in agreement on the fact that the original agreement for sale was in the possession of Appellant No.1 and/or the Society, and not with Respondent No.1. It seems clear to us that Appellant No.1 is in possession of the original agreement for sale and has concealed the same from this Court. Further, the conduct of the aforesaid Mr. Zaveri leaves much to be desired, due to which we cannot rule out the possibility that the Society and Appellant No.1 have acted in collusion in respect of the agreement for sale and various other aspects of this matter. However, since Mr. Zaveri is not appearing in these proceedings and we have not had the benefit of hearing him, we are not going to dwell on this aspect.

87. On 11th June 2008, Mr Ashok Zaveri, the Secretary of the Society, had appeared before the Ld. Single Judge pursuant to the issuance of a witness summons. At that time, he had stated that the Society was not in possession of any documents save and except those produced by him, as “… the documents were kept in a cupboard in the basement of the Society. In the floods of 26.7.2005, several of the documents were destroyed”. However, a perusal of paragraph 20 of Interim Application No.1546 of 2019 filed in the Appeal discloses that, only a few days after the Impugned Judgment was passed, Mr Zaveri had met Appellant No.2 and informed him that the Society did in fact have certain other documents in possession which could not be produced earlier as the “file produced before the Hon’ble Court was not complete and various documents were not available at the relevant time before the Hon’ble Court”. Neither Mr. Zaveri nor the Appellants have ever attempted to explain how these documents were suddenly discovered at such a belated stage, why they were never produced at the time of hearing of the Suit, nor have they produced any chain of custody for these documents. We find this to be very suspicious. There is no credible explanation provided as to Mr. Zaveri’s sudden change in stance.

88. Mr. Madon, Ld. Senior Counsel, has also drawn our attention to a dispute regarding one Nirmala Joshi, a sister of both original Defendant No.2 and Respondent No.1’s husband, which according to him bears out his case that the Appellants and original Defendant No.2 were in unlawful possession of the Suit Premises. It seems that the Suit Premises were not occupied between the years 1979 and 1983, as reflected in the letter dated 25th April 1983 (Ex. KK). It appears that later that year, the Suit Premises were occupied by the aforesaid Nirmala Joshi with the permission of Respondent No.1. This is recorded in Respondent No.1’s letter dated 16th July 1983 (Ex. GG). From 1983 onwards, Respondent No.1 appears to have permitted Appellant No.1 and her husband to reside in the suit premises along with Nirmala Joshi. It seems that disputes arose soon thereafter, and that in January 1984 Appellant No.1 had forcibly removed Nirmala Joshi and a family member of hers from the Suit Premises and began to occupy the same. What is clear, though, is that by a letter dated 10th January 1984 (Ex. MM), Respondent No.1 requested original Defendant No.2 (with a copy marked to the Society) to vacate the Suit Premises. Further, by another letter dated 10th January 1984 (Ex. NN), Respondent No.1 informed the Society that original Defendant No.2 was an unauthorised occupant who should not be permitted to reside in the Suit Premises. This contemporaneous correspondence strongly indicates that the Appellants were not the owners of the Suit Premises, and were unlawfully in occupation of the same.

89. We would also like to note the manner in which the Appellants’ case has changed with the passage of time. The letter dated 25th March 1985 (Ex. PP) addressed by the Society to Respondent No.1 clearly recorded that, at the relevant time, original Defendant No.2 claimed rightful ownership of the Suit Premises. By the letter dated 18th February 1992 (Ex. DDD), Appellant No.1’s Advocate requested the Society to transfer the flat from “Mrs. Pushpa Sharma” to “Mrs. Brij Sharma.” By the letter dated 10th March 1992 (Ex. FFF), Appellant No. 1’s Advocate once again denied that “Mrs. Pushpa Sharma” had any interest in the Suit Premises. Finally, in his affidavit in lieu of examination in Chief, the original Defendant No.2 stated that both he and Appellant No.1 were the owners of the Suit Premises. Therefore, at various times, (i) original Defendant No.2 has claimed sole ownership of the Suit Premises,

(ii) Appellant No.1 has sought to have the suit premises transferred to her name (i.e. from Pushpa Sharma to Brij Sharma) and (iii) original Defendant No.2 has claimed that both he and Appellant No.1 were joint owners of the suit premises.

90. All of these stands are diametrically opposite and wholly inconsistent to what has been argued before us in the Appeal and what was argued before the Ld. Single Judge – that Appellant No.1 alone had purchased the Suit Premises under the name of “Pushpa S. Sharma”, and that Respondent No.1 never had any right to the same. The shifting stands taken by the Appellants demonstrates that they are themselves not clear as to their own case, and strongly indicates that they have come to this Court with a dishonest case. Limitation

91. In the course of his rejoinder, Mr. Siganporia, Ld. Counsel appearing on behalf of the Appellants, for the first time submitted that the Suit was barred by the law of limitation. This point was not argued by him in his opening submissions, but for the first time in rejoinder. This was objected to by Mr. Madon, Ld. Senior Counsel appearing on behalf of Respondent No.1. We however permitted Mr. Siganporia, Ld. Counsel, to argue the point of limitation and gave an opportunity to Mr. Madon, Ld. Senior Counsel, to reply to the same. Mr. Siganporia, Ld. Counsel, submitted that Respondent No.1’s case in the Plaint was inter alia that Appellant No.1’s occupation of the Suit Premises was initially that of a family member with gratis permission from Respondent No.1, and that the same was revoked by Respondent No.1 by her letter dated 10th January 1984 (Plaint – Para 50 at Pg. 156 Vol. 1 r/w Pg. 449 Vol. 2). Though not categorically stated in the Plaint, the cause of action was assumed to have arisen on such date. On 20th April 1995, Respondent No.1 (on legal advice) filed Dispute Application No. 188 of 1995 against Appellant No.1 and the Society before the Court of the Judge, Co-operative Court No.2, Mumbai, inter alia for declaration. The prayers in the aforesaid dispute application as originally filed contained no prayer for possession. Mr. Siganporia, Ld. Counsel, submitted that the period of limitation under Article 58 of the Limitation Act, 1963 for such an application seeking declaration was 3 years from the time the right to sue first accrued. According to him, the aforesaid dispute application ought to have been filed on or before 10th January 1987.

92. Mr. Siganporia, Ld. Counsel, submitted that it was only thereafter that Respondent No.1 filed an amendment application in the aforesaid dispute application, seeking to amend the same by adding an additional prayer for possession of the suit flat. This application was allowed by the Co-operative Court by an Order dated 19th January 1998. According to Mr. Siganporia, Ld. Counsel, Respondent No. 1 sought the benefit of Article 64 of the Limitation Act, 1963, which permits a party to seek possession of immovable property based on previous possession and not on title, when the Plaintiff while in possession of the property has been dispossessed, within a period of 12 years from the date of dispossession. According to Mr. Siganporia, Ld. Counsel, by introducing this prayer for possession, Respondent No.1 sought to extend the period of limitation from 3 years, as originally filed, to 12 years. Mr. Siganporia, Ld. Counsel, submitted that the dispute application filed in the co-operative court was already beyond the prescribed period of limitation in the first instance, and the institution of the dispute application on the basis of the prayer for amendment would relate back to the date of the amendment and not earlier than that. Mr. Siganporia, Ld. Counsel, placed reliance on paragraphs 9 and 10 of the Judgment of the Supreme Court in Vishwambhar and Others v. Laxminarayan (Dead) through her Legal Heirs & Another[2], for the proposition that proper relief must be sought within the period of limitation and that an amendment, though properly made, cannot relate back to the date of filing of the suit and cure the defect of limitation.

93. Mr. Siganporia, Ld. Counsel, submitted that on 2nd July 1999, Appellant No. 1 had filed an application under the provisions of section 9A of the Court of Civil Procedure, 1908 in the aforesaid dispute application, seeking that a preliminary issue be framed with regard to the jurisdiction of the Co-operative Court and maintainability of the dispute application under Section 91 of the Maharashtra Cooperative Societies Act, 1960. Mr. Siganporia, Ld. Counsel, argued that at least as far back as 2nd July 1999, Respondent No.1 had been put to notice that the dispute application was not maintainable, yet nevertheless continued to pursue the aforesaid dispute application in a Court which it was ultimately held had no jurisdiction.

94. Mr. Siganporia, Ld. Counsel, submitted that by an order dated 19th July 2002, the Co-operative Court had dismissed Appellant No.1’s application under

Section 9A of the Code of Civil procedure, 1908 inter alia holding that it had jurisdiction to entertain and try the dispute. The matter was thereafter fixed for hearing of the interim application of Respondent No.1 (that is the Disputant in the Cooperative Court). Appellant No.1 challenged the aforesaid decision by filing Appeal No. 140 of 2002 before the Maharashtra State Co-operative Appellate Court. By an order dated 31st March 2003, the appellate court allowed the appeal and dismissed the dispute application. Thereafter, Respondent No.1 filed the present suit on 23rd 2003 against Appellant No.1, original Defendant No.2 (since deceased and represented by his legal heirs Appellant No.2 and Respondent No.2) and Appellant No.3.

95. Mr. Siganporia, Ld. Counsel, submitted that Respondent No.1’s reliance upon Section 14 of the Limitation Act, 1963 was misplaced. Appellant No.1 and original Defendant No.2 had in their written statement categorically denied Respondent No.1’s contention that she had been prosecuting the dispute application with due diligence or in good faith. Original Defendant No.2 died on 4th June 2013. Appellant No.2 and Respondent No.2 were then brought on record as his legal heirs. Respondent No.2 has filed her written statement dated 12th December 2013 adopting the written statement filed by Appellant No. 1 and original Defendant No.2.

96. Mr. Siganporia, Ld. Counsel, argued that the dispute application as filed before the Co-operative Court was at the first instance barred by limitation as it was filed over 7 years beyond the prescribed period under Article 58 of the Limitation Act,

1963. Mr. Siganporia submitted that time spent prosecuting proceedings filed beyond the time period prescribed under the Limitation Act, 1963, could not be excluded under Section 14 thereof to save limitation in subsequent proceedings. Further, the amended prayers for possession would not save the period of limitation as the initial proceedings as filed in the co-operative court themselves were filed beyond the period of limitation. He submitted that, even assuming without admitting that the amendment for including the prayer for possession was filed in the proceeding which was within time in the first instance, the amendment would relate back to the date of the amendment and not to the date of filing of the dispute application. Further, the dispute application was filed against Appellant No.1 and the Society, and original Defendant No.2 and Appellant No.3 were not parties thereto. He placed reliance upon the Judgment of the Oudh Judicial Commissioner’s Court in Ram Pher v. Ajudhia Singh & Anr.[3] in support of the proposition that Section 14 of the Limitation Act, 1963 excludes the time taken in proceeding bona fide in a court without jurisdiction against that particular Defendant. He placed reliance upon the Judgments of the Calcutta High Court in Nilmadub Surnokar & Anr. v. Kristo Doss Surnokar & Ors.[4] and Lahore High Court in Chanda Singh v. Secretary of State for India[5] in support of the proposition that the exclusion of time contemplated by Section 14 of the

4 5 WR 281 5 AIR 1926 Lah 575(1) Limitation Act, 1963, would only be applicable if the Defendants to both the prior and subsequent proceedings were the same.

97. Mr. Siganporia, Ld. Counsel, submitted that the suit was filed on 23rd April 2003 against Defendant No.1, original Defendant No.2 and Appellant No.3. Since Respondent No.1 could not have availed of the benefit of the provisions of Section 14 of the Limitation Act, 1963, the suit itself ought to have been dismissed as the same was filed approximately 19 years after the alleged cause of action, which was approximately 7 years after the period of limitation prescribed under Article 65 of the Limitation Act, 1963. In the alternative thereto, he submitted that the suit against original Defendant No.2 and Appellant No.3 was the first proceeding initiated against them by Respondent No.1. As the same was filed approximately 19 years after the alleged cause of action, the suit against original Defendant No.2 and Appellant No.3 ought to be dismissed as being ex facie barred under the provisions of the Limitation Act, 1963.

98. Mr. Siganporia, Ld. Counsel, submitted that the mandatory requirements of Section 14 of the Limitation Act, 1963, were that the previous legal proceeding (i) must be prosecuted with due diligence in the Court of first instance or of appeal or revision, (ii) should relate to the same matter in issue, (iii) should be against the same Defendant and (iv) should be prosecuted in good faith in a Court which is unable to entertain it due to want of jurisdiction or other causes of like nature.

99. Mr. Siganporia, Ld. Counsel, submitted that there was no evidence whatsoever that Respondent No.1 had acted in good faith or prosecuted the dispute application with due diligence. He submitted that this mandatory requirement of law was absent in the present case. In her affidavit of evidence, Respondent No.1 had merely narrated events and stated that she was advised to file the dispute application. He stated that such a broad and general plea was insufficient. He further submitted that the initial burden of proof to bring a case under the ambit of Section 14 of the Limitation Act, 1963 lay upon Respondent No.1 as the Plaintiff. It was absolutely necessary for Respondent No.1 to lead evidence to show that she had acted in good faith, i.e., with due care and attention, in instituting and prosecuting the dispute application. Mr. Siganporia relied upon the Judgment of the Supreme Court in the case of Madhavrao Narayanrao Patwardan v. Ram Kumar Govind Bhanu & Ors.[6] in support of the proposition that the burden lay on the Plaintiff to show that the case is covered by Section 14 of the Limitation Act, 1963. He further relied upon the Judgment of a Single Judge of this Court in Foreshore Co-operative Housing Society v. Praveen D. Desai[7] which followed the principles laid down in Madhavrao (supra), which set out the test for application of the provisions of section 14 of the Limitation Act, 1963 that a mere broad and general plea that a Plaintiff had on legal advice and bonafide belief prosecuted the suit with due diligence was insufficient to bring the suit 6 (1959) 1 SCR 564 7 2006 (2) Mh.L.J. 870 under the ambit of Section 14 of the Limitation Act, 1963. Mr. Siganporia submitted that the Judgment of the Single Judge of this Court in Foreshore (supra) was affirmed in appeal by both a Division Bench of this Court [(2009) 1 Bom CR 757] and the Supreme Court of India [(2015) 6 SCC 412], and that the principles set out therein had not been set aside in any manner whatsoever.

100. Mr. Siganporia, Ld. Counsel, submitted that in the course of cross examination, Respondent No.1 had admitted to the fact that the original Defendant No.2 and Appellant No.3 were not parties to the dispute application. He submitted that although Respondent No.1 affirmed the dispute application on 10th February 1995, the same was only filed in the co-operative Court on 20th April 1995. He submitted that it was evident from the lack of evidence led by Respondent No.1 and from her responses to the questions put to her, and particularly her answer to question No. 443, that the aforesaid dispute application was not prosecuted with due diligence or in good faith. He submitted that the documents in respect of the dispute application were in fact called upon by Appellant No.1’s Advocates and that apart from the fact that Respondent No.1 had failed to prove that she had prosecuted the dispute application in good faith and with due diligence, the documents did not assist her in discharging the burden of proof required for availing/invoking the provisions of Section 14 of the Limitation Act, 1963.

101. Mr. Siganporia, Ld. Counsel, submitted that although the Ld. Single Judge had referred to Section 14 of the Limitation Act, 1963, the Ld. Single Judge had not considered the ingredients required to take benefit of the same. He submitted that the dispute application itself was barred under the Limitation Act, 1963, and that, therefore, the Suit as filed was barred by the law of limitation.

102. Mr. Madon, Ld. Senior Counsel for Respondent No.1, submitted that the Appellants had raised the argument that the proceedings before the Co-operative Court were barred by limitation for the first time in rejoinder, and had not argued the same in their opening submissions. Vague submissions had been made in the Written Statement of Appellant No. 1 and original Defendant No.2. There was no crossexamination on this aspect. No arguments were advanced before the Trial Court, that the Co-operative Court proceedings were themselves barred by limitation. The Appellants did not frame any ground in their Memorandum of Appeal in this regard. He submitted that the question of whether the dispute application was barred by the law of limitation was not one that could be decided by this Court, but only by the Cooperative Court.

103. Mr. Madon, Ld. Counsel, submitted that the Suit had in fact been filed within the prescribed period of limitation, which was 12 years from the cause of action. He submitted that Appellant No.1 and her family had initially occupied the Suit Premises with Respondent No.1’s permission, without any consideration or creation of any right, and purely in the capacity of a close family member. Respondent No.1 revoked the aforesaid permission by her letter dated 10th January 1984 addressed to the Society and to Appellant No.1’s husband (the original Defendant No.2). Accordingly the cause of action to file the Suit arose on 10th January 1984. Respondent No.1 was advised to approach the Co-operative Court in this regard, and accordingly filed Dispute Application No. 188 of 1995 before the Co-operative Court on 20th

1995. The Appellants challenged the jurisdiction of the Co-operative Court to hear the aforesaid dispute application, which objection was dismissed by the Order dated 9th July 2002. However, Appellant No.1 filed Appeal No.140 of 2002 challenging the same, which was allowed by the Co-operative Appellate Court by an Order dated 31st March 2003, by which it held that the Co-operative Court had no jurisdiction to entertain or try the dispute. Respondent No.1 applied for a certified copy of the aforesaid Order of the Co-operative Appellate Court on 1st April 2003, which was ready on 3rd April 2003 and delivered to Respondent No. 1 on 4th April 2003. The Suit was filed promptly thereafter on 22nd April 2003. Mr. Madon, Ld. Senior Counsel, submitted that Respondent No.1 had bonafide prosecuted the dispute in a wrong forum, and the period between 20th April 1995 and 31st March 2003 should be excluded from the period of limitation as per Section 14 of the Limitation Act, 1963.

104. Mr. Madon, Ld. Senior Counsel, submitted that it was beyond doubt that Respondent No.1 had prosecuted the aforesaid dispute before the Co-operative Court bonafide and in good faith. By its Order dated 9th July 2002, the Co-operative Court itself found that it had jurisdiction to hear the Dispute. While this Order was set aside in appeal on 31st March 2003 by the Appellate Bench, the fact that one court had indeed held the dispute to be maintainable shows that Respondent No.1 had acted bonafide and in good faith by filing the dispute. Mr. Madon placed reliance on paragraph 10 of the Judgment of the Supreme Court in Ragunath Das v. Gopalchand[8], in support of the proposition that, where a lower court had held the issue of jurisdiction in the Plaintiff’s favour, which was later overruled in appeal, there could be no question of want of due diligence and good faith on the part of the Plaintiff.

105. Mr. Madon, Ld. Senior Counsel, submitted that Respondent No.1 had adequately pleaded and proved the aforesaid case. It was clearly stated at Paragraph 50 of the Plaint that Respondent No.1 had bonafide prosecuted the dispute in a wrong forum. Further, at paragraph 39 of Respondent No.1’s Affidavit in lieu of Examination in Chief, she stated that she filed the aforesaid Dispute before the Co-operative Court based on advice. Further in the course of cross-examination, Respondent No.1 had produced photocopies of the proceedings before the Co-operative Court, which were marked as Exhibit D-1. However, the Appellants failed to cross-examine Respondent No.1 on this aspect.

106. Mr. Madon, Ld. Senior Counsel, placed reliance on paragraphs 20 and 21 of the Judgment of the Supreme Court in J. Kumaradasan Nair & Anr. v. Iric

Sohan & Ors.[9] in support of the proposition that the provisions of Section 14 of the Limitation Act, 1963 must be interpreted in such a manner as to advance the cause of justice and not to terminate proceedings, and that a Plaintiff must not be denied the benefit of the section unless it is found that there was lack of due care. Respondent No.1 further placed reliance on paragraphs 8, 9 and 49 of the Judgment of the Supreme Court in M.P. Steel Corporation v. Commissioner of Central Excise10 in support of the proposition that a mere averment in an application for condonation of delay that the Plaintiff was pursuing a remedy before another forum which ought to be excluded was sufficient under Section 14 of the Limitation Act, 1963, and that what was necessary under the section was the absence of negligence or inaction.

107. Mr. Madon, Ld. Senior Counsel, submitted that the Appellants were not prompt in raising the issue of maintainability before the Co-operative Court. While Respondent No.1 filed the Dispute on 20th April 1995, it was only on 2nd July 1999 that the Appellants filed an application challenging the maintainability thereof.

108. Mr. Madon, Ld. Senior Counsel, submitted that the Appellants’ argument that Respondent No. 1 would not be entitled to exclusion of time under S. 14 of the Limitation Act, 1963 because the parties in both proceedings were not the same and the reliefs sought for were different was based on an incorrect reading of the provisions of the Limitation Act, 1963. S. 14(1) applies to Suits while 14(2) applies to other proceedings. This is clear from the definitions of “applicant” in S. 2(a) and “suit” in S. 2(l). S. 14(1) does not require all Defendants to be the same in both the proceedings. That is a requirement of S. 14(2). S. 14(1) uses the phrase “the defendant”, whereas S. 14(2) uses the phrase “the same party”. S. 2(e) defines “defendant” inclusively as “(i) any person from or through whom a defendant derives his liability to be sued; (ii) any person whose estate is represented by the defendant as executor, administrator or other representative;”. In both the proceedings the main Defendant was Appellant No.1 who was claiming ownership of the Suit Flats. The other Defendants, namely original Defendant No.2 or his heirs, were not claiming to be members of the Society and could not be joined to the Co-Operative Court proceedings. Respondent No.1 made reference in this regard to S. 91(b) of the Maharashtra Co-Operative Societies Act, 1960. The other Defendants in the Suit claim through Appellant No.1, and their liability to be sued was through her, since they were in occupation of the Suit Flats. Further, Appellant No.3 did not contest the Suit by filing a Written Statement. In addition, S. 14(1) requires that the prior proceeding “relates to the same matter in issue” whereas S. 14(2) (which does not apply to suits) states that it should be “against the same party for the same relief”. In this case, the matter in issue was the same in both proceedings; namely who was the owner of the Suit Flats.

109. Mr. Madon, Ld. Senior Counsel, distinguished the Judgment of the Lahore High Court in Chanda Singh (supra) relied upon by the Appellants. It was submitted that this Judgment proceeded on an entirely different factual conspectus from the present case. In that matter, the prior suit had been filed against the Manager of the Railways, whereas the subsequent suit had been filed against the Secretary of State. The Court held that there could be no exclusion of the time spent prosecuting a suit against the Manager of the Railways, as the subsequent suit against the Secretary of State could not have been deemed to have been instituted until he was made a party. It was not argued before the Court that the Secretary of State derived any liability from or through the Manager. In that case, the Secretary of State and Manager were distinct persons with distinct liabilities. The two suits were against two different parties entirely. In this case, Appellant No.1 was a party to both proceedings. Mr. Madon, Ld. Senior Counsel also distinguished the Judgment of the High Court of Judicature at Calcutta in Nilmadhub Surnokar (supra) relied upon by the Appellants. He submitted that this Judgment was delivered in the context of S. 14 of the Limitation Act, 1859, the ingredients of which were very different from those of S. 14 of the Limitation Act. 1963. S. 14 of the Limitation Act, 1859, provided that the previous suit should have been filed against either the Defendant, or some person whom he represents (emphasis supplied). However, S. 14 of the Limitation Act, 1963, provides that the previous suit should have been filed against the Defendant, and the definition of “defendant” found in S. 2(e) of the Limitation Act, 1963 includes “any person from or through whom a defendant derives his liability to be sued.” Mr. Madon, Ld. Senior Counsel, further distinguished the Judgment of the Oudh Judicial Commissioner’s Court in Ram Pher (supra) relied upon by the Appellants. He submitted that this Judgment proceeded on different facts. In that case, the Plaintiff had initially filed a suit against one Ajudhiya Singh, as the sole purchaser of a certain property. He later learnt that one Sarju was a co-purchaser of the aforesaid property under the same sale deed, and applied to implead him in the same suit. However, this application for impleadment was dismissed as the suit was by then time barred against Sarju. It is in this context that the Court held that S. 14 of the Limitation Act would not be applicable, as there were no prior proceedings taken in any court against Sarju. As the Plaintiff had not filed any prior suit against Sarju, there was no question of applying for exclusion of time spent bonafide pursuing civil proceedings in a court without jurisdiction. Accordingly, he submitted that this Judgment could only be an authority for the proposition that S. 14 of the Limitation Act would not apply when no prior suit had been filed.

110. Mr. Madon, Ld. Senior Counsel, submitted that the Appellants’ reliance upon the Judgments of a Single Judge and a Division Bench of this Court in Foreshore (supra) was misplaced. It was submitted that the matter had been finally decided by the Supreme Court in Foreshore Co-Operative Housing Society Ltd. v. Praveen Desai & Ors.11. Accordingly, the aforesaid Judgments of the Ld. Single Judge and the

Division Bench of this Court stood merged under Article 141 of the Constitution of India with the decision of the Supreme Court, and could not be looked at for any purpose. Further, the decision of the Supreme Court in Foreshore (supra) did not deal with the aspect of Section 14 of the Limitation Act, 1963. It was further submitted that the facts in this case were very different from those in Foreshore (supra). In Foreshore (supra), no evidence was led and only the proceedings of the prior litigation were tendered across the bar, whereas in this case Respondent No. 1 had pleaded and proved the relevant details of the prior litigation. It was further submitted that in Nusli Neville Wadia v. Ivory Properties & Ors.12, the Supreme Court had held that the decision of the Supreme Court in Foreshore (supra) was no longer good law and therefore ought not to have been cited by the Appellants. Accordingly, none of the Judgments in Foreshore (supra) are binding legal precedents for any legal proposition, and could not and ought not to be relied upon.

111. Mr. Madon, Ld. Senior Counsel, further distinguished the Judgment of the Supreme Court in Madhavrao (supra) relied upon by the Appellants. Mr. Madon submitted that the Supreme Court had noted at paragraph 7 of this Judgment that the Plaintiff therein had argued and conducted the previous suit in person, without having engaged an Advocate, and at paragraph 8 that he had not brought on record any evidence that he had instituted the prior suit with due diligence, such as the order 12 (2020) 6 SCC 557@Para 88 sheets or equivalent evidence to demonstrate that the prior suit had remained pending for over ten years in that court in spite of his due diligence. It is in this context that the Supreme Court had stated at paragraph 8 that the initial burden lay upon the Plaintiff to bring his case within S. 14 of the Limitation Act. However, in the present matter, Respondent No. 1 had undoubtedly discharged the initial burden. Respondent No.1 had pleaded the same in the Plaint, and proved it in her Affidavit in lieu of Examination in Chief, as stated more particularly at paragraph 54 of the Written Note on Arguments on behalf of Respondent No.1. The burden had therefore shifted onto the Appellants, who failed to cross-examine Respondent No.1 on this aspect.

112. Mr. Madon, Ld. Senior Counsel, submitted that Respondent No.1 had filed the Dispute on 20th April 1995, and subsequently sought to amend the same to inter alia include prayer (bb), being a prayer for possession of the Suit Flats. The Appellants objected to the aforesaid amendment on the ground that the same was barred by limitation. By an Order dated 19th January 1998, the Co-operative Court was pleased to reject the Appellants’ contentions and allowed the amendments unconditionally holding that the same were not barred by Limitation. Accordingly, the amendments to the Dispute must relate back to the date of filing of the Dispute. It was not in dispute that, as on the date of the filing of the Dispute, the aforesaid prayer for possession was within limitation. The Appellants failed to challenge the aforesaid order and the same has attained finality. Once the Co-operative Court has decided the issue, the same is res judicata and cannot be re-opened by the Appellants in these proceedings. Therefore, there is no question of the Dispute before the Co-operative Court having been barred by limitation. Apart from the fact that this Court cannot hold that the dispute filed by Respondent No.1 in the Co-operative Court was barred by the law of limitation, it is only the Co-operative Court which could hold that the dispute filed before it was barred by the law of limitation.

113. Mr. Madon, Ld. Senior Counsel, submitted that Respondent No.1 had led evidence and was cross-examined on the same. No questions were put to the witness as to whether the previous Dispute before the Co-operative Court was not bona fide or diligently prosecuted. The case in the Plaint that the aforesaid Dispute was bona fide and in good faith prosecuted was uncontroverted, accepted and admitted.

114. Mr. Madon, Ld. Senior Counsel, further submitted that the Judgment of the Supreme Court in Vishwambhar (supra) relied upon by the Appellants in support of the proposition that an amendment could not relate back to the date of filing of the suit to cure the defect of limitation, did not lay down the correct law. He placed reliance on paragraph 10 of the Judgment in the case of Siddalingamma v. Mamtha Shenoy13, wherein a bench of three Judges of the Supreme Court invoked the doctrine of relation back and held that, unless for reasons mentioned the court excluded the application of this doctrine in a specific case, the amended petition would be deemed to have been filed originally as such and the evidence would have to be appreciated in the light of the averments made in the amended petition. Respondent No.1 also placed reliance on paragraph 16 of the Judgment in the case of Vasant Balu Patil v. Mohan, wherein a bench of two Judges of the Supreme Court held that the amendment to the plaint to incorporate the relief of declaration of title would necessarily relate back to the date of filing of the suit, and that once the said amendments were allowed and were not challenged by the Defendants, the issue with regard to limitation had to be decided in favour of the Plaintiffs. He submitted that the Judgment in Siddalingamma (supra) was delivered by a bench of three Judges of the Supreme Court, and the interpretation of law contained therein would prevail over that contained in the Judgment in Vishwambhar (supra) which was delivered by a bench of two Judges of the Supreme Court. Further, as in the case of Vasant Balu Patil (supra), the Appellants failed to challenge the amendments to the prayers in the Dispute before the Co-operative Court. Therefore, it was not open for them to dispute the same at this stage.

115. Mr. Madon, Ld. Senior Counsel, submitted that limitation being a mixed question of fact and law could only be decided on the basis of evidence. The Appellants had failed to ask any questions in cross-examination in the Suit on the same. While in Grounds U, V and W of the Memorandum of Appeal the Appellants have submitted that the Suit was barred by the law of limitation, there is no ground raised in the Memorandum of Appeal that the Co-operative Court proceedings themselves were barred by the law of limitation. Accordingly, there was no question of the Appellants raising this point for the first time in the course of arguments in the appeal, and that too in Rejoinder. He, therefore, submitted that the Suit was filed within the prescribed period of limitation.

116. Mr. Siganporia, Ld. Counsel for the Appellants, sought to distinguish the Judgments relied upon by Respondent No.1. He submitted that the date of the amendment to the aforesaid Dispute Application filed before the Co-operative Court would be crucial and that, if the amendment was carried out after 10th July 1996, the suit even with the prayer for possession would be barred under the provisions of the limitation Act, 1963. He submitted that Respondent No.1’s Additional / Further Written Submissions disclosed that the aforesaid Dispute Application was allowed to be amended by an order dated 19th January 1998. He submitted that the aforesaid amendments could not relate back to the date of filing of the Dispute Application. He reiterated that, as held in Vishwambhar (supra), proper relief must be sought within the period of limitation and an amendment though properly made cannot relate back to the date of filing of the suit and cure the defect of limitation.

117. Mr. Siganporia, Ld. Counsel, submitted that Siddalingamma (supra) could not be applied in the facts of the case. He submitted that the rent act proceedings referred to therein were filed within the period of limitation and beyond that, the amendment as sought was in respect of a changed circumstance. There was a bonafide need for an amendment in that case, where the appellant landlady had originally based her eviction proceeding on the requirement of her ailing husband who passed away during the pendency of the proceedings. Thereafter, her requirements changed, and she, therefore, sought to plead that she required the premises for her adopted children’s requirements. There was no additional prayer sought by way of amendment, which prayer would secure the proceeding and ensure that the entire cause of action would fall within the period of limitation. In that case, the question of the plea sought to be introduced by way of an amendment being barred by limitation was never raised and did not fall for consideration of the Court. The principle laid down in that decision would not apply to a situation where an amendment was made in a proceeding which itself was filed beyond the period of limitation and where the plea or claim sought to be introduced by the amendment was itself barred by limitation, i.e., if a fresh suit was filed on the basis of the amendment, the same would be barred by limitation. Mr. Siganporia submitted that the decision in Vishambhar (supra) squarely dealt with a situation where a plea or claim was sought to be introduced by an amendment, where such plea or claim was in fact barred by limitation. He submitted that the decision in Vasant Balu Patil (supra) did not consider the decision in Vishambhar (supra) at all and further, contained no reasoning whatsoever as to why and in what circumstances the amendment of a plea would relate back to the date of filing of the suit. He submitted that paragraph 16 of this Judgment merely stated that, once the amendments were allowed and not challenged, the issue with regard to limitation had to be decided in favour of the Plaintiffs / the party who had sought the amendments. He submitted that the decision relied upon the decision of Siddalingamma (supra) which was the only decision qua the doctrine of relation back therein. He submitted that this decision did not consider a scenario where the suit would have already been filed beyond the period of limitation and also the correct interpretation of the doctrine of relation back. He submitted that the Judgment of the Supreme Court of India in Nusli Wadia (supra) did not deal with the provisions of Section 14 of the Limitation Act, 1963, and was a reference with respect to the interpretation of provisions of S. 9-A of the Code of Civil Procedure, 1908, and thus had no effect on the findings in Foreshore (supra).

118. Mr. Siganporia, Ld. Counsel, sought to distinguish the Judgments relied upon by Respondent No. 1 by stating that they were not applicable to the case, as (i) they did not consider the Judgment in Madhavrao (supra), and (ii) that there was no question of invoking the provisions of Section 14 of the Limitation Act when the previous proceedings themselves were filed beyond the prescribed period of limitation. He, therefore, submitted that the suit was barred by the provisions of the Limitation Act, 1963 and that the appeal ought to be allowed on that ground alone.

119. Mr. Madon, Ld. Senior Counsel, submitted that Appellant No.1 was Opponent No.1 in the Dispute Application filed by Respondent No.1 before the Cooperative Court, and was therefore aware of all aspects of those proceedings. He submitted that Appellant No.1 was aware of the contents of Respondent No.1’s amendment application, and had filed a reply thereto. He submitted that Appellant No.1 had specifically raised the issue of limitation before the Co-operative Court, which objection was specifically rejected by the Co-operative Court by its order dated 19th January 1998. That order has not been challenged, and has thus attained finality. The question as to whether or not the proceedings filed before the Co-operative court were barred by limitation has been decided in favour of Respondent No.1 and is now res judicata. He submitted that it was not open for the Appellants to re-open this issue and contend that the Co-operative court proceedings or the amendment application filed therein were barred by limitation. He submitted that the Appellants had wrongly placed reliance upon the Judgment of the Supreme Court of India in Vishwambhar (supra), particularly in view of the Judgment of a larger bench in Siddalingamma (supra) and a co-ordinate bench in Vasant Balu Patil (supra), which clearly laid down the proposition of law that amendment of pleadings would ordinarily relate back to the date of filing, unless specifically stated otherwise in the order allowing such amendment, particularly where such order was not challenged. He submitted that the Appellants’ attempts to distinguish on facts the Judgments relied upon by him did not affect the clear pronouncement of law contained therein, and especially by the larger bench in Siddalingamma (supra).

120. We have heard the parties on the aspect of limitation.

121. The Plaint states that the cause of action arose on 10th January 1984. The Suit (which includes a prayer for possession) was filed on 23rd April 2003. Respondent No.1 has sought to bring the Suit within the period of limitation by invoking S. 14 of the Limitation Act, 1963. This exclusion is sought on the basis of Dispute Application No. 188 of 1995, which was filed on 20th April 1995 by Respondent No.1 against Appellant No.1 and the Society before the Co-operative Court. Appellant No.1 had objected to the same on the ground of maintainability. This objection was dismissed by the Co-operative Court by its order dated 9th July 2002. However, Appellant No.1 challenged the same by filing Appeal No. 140 of 2002. By an order dated 31st 2003, the Maharashtra State Co-operative Appellate Court allowed the appeal and dismissed the aforesaid Dispute Application as being not maintainable. Respondent No. 1 thereafter filed the Suit, seeking exclusion of the time spent bona fide prosecuting the aforesaid Dispute Application before a wrong forum, i.e., the period from 20th April 1995 to 31st March 2003 spent pursuing the Dispute Application before the Co-operative Court. On the contrary, the Appellants have argued that the aforesaid period cannot be excluded, and that the same cannot fall within the scope of

122. Respondent No.1 filed Dispute Application No. 188 of 1995 before the Co-operative Court on 20th April 1995 against Appellant No.1 and the Society, seeking the relief of declaration of ownership. Respondent No.1 subsequently filed an application to amend the aforesaid dispute to inter alia include a prayer for possession of the suit flat, being prayer (bb). By an order dated 19th January 1998, the Cooperative Court was pleased to allow this amendment. The admitted position is that no appeal was filed challenging this order and that it has attained finality.

123. A perusal of the aforesaid order dated 19th January 1998 discloses that Appellant No.1 was heard at the time, and had specifically objected to the amendment being allowed on the ground that the same was barred by limitation. The Ld. Judge heard the parties on this point, and specifically held that the amendment was not barred by limitation. Appellant No.1 could very well have appealed from this order if she was aggrieved by it. Her failure to do so amounts to an acceptance of the same. Accordingly, this order has attained finality. At the very least, the finding that the amendment to the dispute application to include the prayer for possession was not barred by limitation has become res judicata between Appellant No.1 and Respondent No.1 and is binding on them. Respondent No.1 has rightly placed reliance on the Judgment of the Supreme Court in Vasant Balu Patil (supra) in this regard. In that case, it was argued by the Advocates for the Defendant that the suit was barred by limitation, as the Trial Court could never have granted the relief of declaration of title. The suit in that case was originally filed for injunction. The Advocates for the Defendants therein submitted that they had disputed the Plaintiff’s title to the suit land in the written statement filed in 1985, and that the Plaintiff had only subsequently amended the suit to incorporate a prayer for declaration, which amendment was allowed on 16th July 1995. Accordingly, they submitted that the prayer for declaration of title was barred by limitation. The Supreme Court dismissed this objection of limitation by holding that the amendment to the plaint must necessarily relate back to the date of filing of the suit, and that, once the amendments were allowed and were not challenged by the Defendants, the issue with regard to limitation had to be decided in favour of the Plaintiffs. Similarly, in the matter at hand, Appellant No.1 raised before the Co-operative Court the very point that it has raised before us in the course of hearing of the appeal, that the amendment to the dispute application to include the prayer of possession was barred by limitation. This plea was not raised before the Trial Court. Once the Co-operative Court had rejected the contention and allowed the amendments and Appellant No.1 had accepted the same by not filing an appeal, it is no longer open for the Appellants to once again raise this very same argument before us. Accordingly, this argument raised by the Appellants must be rejected. The Appellants cannot be permitted to revive the same issue again in the Suit. Once the Co-operative Court has held that the prayer for possession was not barred by the law of limitation, and the order dated 19th January 1998 having not been challenged, it attains finality. Whilst deciding this Appeal it is neither possible nor permissible for us to take a contrary view. It is only the court before which the dispute was filed (in this case the Co-operative Court) which could decide whether the dispute before it was barred by the law of limitation and that Court has done so.

124. Mr. Siganporia, Ld. Counsel for the Appellants, further argued that the amendment to the Dispute Application would operate from the date on which the same was allowed. In support of the same, he relied upon the Judgment of the Supreme Court in the case of Vishwambhar (supra). Mr. Madon, Ld. Senior Counsel for Respondent No.1, argued that the amendment would relate back to the date of filing of the Dispute Application. In support of the same, he relied upon the Judgments of the Supreme Court in the cases of Siddalingamma (supra) and Vasant Balu Patil (supra). A perusal of these Judgments indicates that, whereas the Judgment in Vishwambhar (supra) stating that an amendment would take effect only from the date of the order by which it was allowed, was passed by bench of two Judges of the Supreme Court of India, the Judgment in Siddalingamma (supra) stating that an amendment would relate back to the date of filing of the suit, unless otherwise specified in the order allowing the amendment, was passed by a bench of three Judges of the Supreme Court of India. It is well settled that, in the event of a conflict between two Judgments of the same Court, the Judgment passed by the larger bench must prevail over that passed by the smaller bench. Accordingly, we are bound by the decision rendered by the bench of three Judges of the Supreme Court of India in Siddalingamma (supra), which states that an amendment would ordinarily relate back to the date of filing of the suit, unless otherwise specified in the order allowing the amendment. The order of the Co-operative Court dated 19th January 1998 allowing the amendment does not specify the date from which the amendment would take effect. The Co-operative Court rejected the plea that the amendment was barred by limitation. Accordingly, this amendment must necessarily relate back to the date of filing of the Dispute Application, i.e., 20th April 1995, and the Dispute Application (as amended) was undoubtedly filed within the prescribed period of limitation, having been filed within a period of 12 years from the date the cause of action accrued.

125. Mr. Siganporia, Ld. Counsel for the Appellants, next contended that Respondent No.1 had not prosecuted the Dispute Application bonafide and/or with due diligence. He argued that, by filing an application under Section 9-A of the Code of Civil Procedure, 1908 on 2nd July 1999, Appellant No.1 had put Respondent No.1 to notice of the fact that the Dispute Application was not maintainable. He submitted that, accordingly, Respondent No.1 ought to have proceeded in a Court of competent jurisdiction at least in 1999, and that by pursuing the Dispute Application thereafter, they were no longer prosecuting the same bona fide or with due diligence. However, it must be noted that by an order dated 19th July 2002, the Co-operative Court had dismissed the application under Section 9-A, and held the aforesaid Dispute Application was maintainable. It was only in appeal that the Maharashtra State Cooperative Appellate Court, by its order dated 31st March 2003, held the Dispute Application was not maintainable. Respondent No.1 filed the suit shortly thereafter. What is important to note is that at least one Court held in favour of Respondent No.1, namely that the Dispute Application was maintainable. This indicates that it was at least a possible view that the Dispute Application was maintainable. In this regard, Mr. Madon, Ld. Senior Counsel for Respondent No.1, has rightly placed reliance upon the Judgment in the case of Ragunath Das (supra), wherein the Supreme Court held that there was no question of want of due diligence and good faith on the part of the Plaintiff where one Court had held the issue of jurisdiction in his favour, even though the same was overruled in appeal. The submission made on behalf of the Appellants that when the Appellants took out an application under S. 9A of the Code of Civil Procedure, 1908, Respondent No.1 was put to notice that the court had no jurisdiction and, therefore, ought to have taken cognizance of the same and filed the Suit is untenable and baseless. Just because an application is taken out challenging the jurisdiction of the Court it does not presuppose that such an application would be allowed. Just because a Plaintiff contests the application and ultimately may even lose, does not by itself mean that the Suit was not filed or prosecuted with due diligence. This submission as a rule of law just cannot be accepted. Courts are overburdened with work and by the time such an Application is decided, the period of limitation may have expired. A party cannot be prejudiced by such delay. To accept this as a proposition of law would cause untold harm to several Plaintiffs. Accordingly, we hold that Respondent No.1 had prosecuted the aforesaid Dispute Application bona fide and with due diligence.

126. The Appellants’ next contention was that Section 14 of the Limitation Act, 1963 would not be applicable, as all of the Defendants to the Suit were not Respondents to the aforesaid Dispute Application. Respondent No.1 had filed the aforesaid Dispute Application against Appellant No.1 and the Society. Appellant No. 3 and original Defendant No.2 were not parties to the same. In support of this argument, the Appellants relied upon the Judgments of the Lahore High Court in Chanda Singh (supra), the Calcutta High Court in Nilmadhbu Surnokar (supra) and the Oudh Judicial Commissioner’s Court in Ram Pher (supra). Respondent No.1 sought to distinguish the same, both on facts and on the basis that they were rendered under a different legal framework.

127. We must first examine the provisions of Section 14 of the Limitation Act, 1963 to see whether Mr. Siganporia, Ld. Counsel for the Appellants, is right in his contention that the parties to both proceedings must be the same. We are concerned in this case with Section 14 (1) of the Limitation Act, 1963 which applies to suits. Mr. Madon, Ld. Senior Counsel for Respondent No. 1, drew our attention to the fact that while subsection (1) of section 14 contemplates exclusion of time of proceedings prosecuted against “the defendant”, subsection (2) of section 14 restricts the same to “the same party”. He further took us through Section 2(e), which gives the term “defendant” an inclusive definition, being “(i) any person from or through whom a defendant derives his liability to be sued; (ii) any person whose estate is represented by the defendant as executor, administrator or other representative;”. We are of the view that the scheme of the Limitation Act, 1963, is clear, namely that the parties in both proceedings need not be identical, and it is sufficient if they included persons from whom a Defendant derived his liability to be sued. The Appellant’s defence to the suit is that Appellant No. 1 was in fact the owner of the Suit Premises. The other Defendants to the suit did not claim title over the said flat. They claimed their rights through Appellant No.1, and their liability to be sued is through her, since they were in occupation of the Suit Premises on the basis of her claim of title. It may be noted that Appellant No.3 did not file any Written Statement to the Suit. Our attention was also drawn to section 91(b) of the Maharashtra Co-operative Societies Act, 1960, in accordance with which the other Defendants could never have been joined to the Dispute Application, as they had never claimed to be members of society. Therefore, Appellant No.1 was undoubtedly a person from whom Appellant No.3 and the original Defendant No.2 derived their liability to be sued, as contemplated under S. 2(e)(i) of the Limitation Act, 1963.

128. We now come to the Judgments cited by Mr. Siganporia, Ld. Counsel for the Appellants, on this point. The Judgment in Chanda Singh (supra) is clearly distinguishable on facts. That was a case where, in a suit filed against the Secretary of State for India, the Plaintiff had sought exclusion of time on the basis of a prior suit filed against the Manager of the Railways. It was in this context that the Lahore High Court held that that the time spent prosecuting the suit filed against the Manager of the Railways could not be excluded for the purposes of this suit filed against the Secretary of State for India, both being entirely different persons with distinct liabilities. It was never argued in that matter that the Secretary of State for India derived any liability from or through the Manager of the Railways. This is entirely different from the present case, where we have already held that Appellant No.3 and original Defendant No.2 undoubtedly derived their liability through Appellant No.1, who was admittedly a party to the Dispute Application. The Judgment in Ram Pher (supra) is similarly distinguishable. That was a case where the Plaintiff had filed a suit against a particular Defendant on the basis that he was the sole owner of the property. On later discovering that there was a co-purchaser of the aforesaid property under the same sale deed, he sought to implead that purchaser as a party Defendant to the suit. He placed reliance on Section 14 of the Limitation Act in order to bring his application within the period of limitation. However, the Court held that there was no question of Section 14 of the Limitation Act being applicable, as there were no prior proceedings taken in any Court against the party sought to be impleaded. As the Plaintiff had not filed any prior suit against the prospective Defendant, there was no question of applying under Section 14 for exclusion of time spent bonafide pursuing civil proceedings in a Court without jurisdiction. In our opinion, this case is only an authority for the proposition that Section 14 of the Limitation Act would not be applicable when no prior suit had been filed. The Judgment in Nilmadhub (supra) is also clearly distinguishable. That was a case under Section 14 of the Limitation Act,

1859. A perusal of this Judgment indicates that the ingredients under section 14 of the Limitation Act, 1859 are very different from those under section 14 of the Limitation Act, 1963. S. 14 of the Limitation Act, 1859 required that the previous suit be filed against either the Defendant, or some person whom he represents. However, S. 14 of the Limitation Act, 1963 requires that the previous suit should have been filed against the Defendant, the definition of which includes “any person from or through whom a defendant derives his liability to be sued.” Accordingly, this interpretation of Section 14 of the Limitation Act, 1859 is inapplicable to Section 14 of the Limitation Act, 1963, in view of the sharp legislative departure from the previous law.

129. Accordingly, we hold that the time spent prosecuting the Dispute Application could be excluded against all of the Defendants to the Suit, despite the fact that all of them were not parties thereto.

130. The next ingredient of S. 14 of the Limitation Act, 1963 is the subject matter of the two proceedings. We once again note that S. 14(1) requires that the prior proceeding “relates to the same matter in issue” whereas S. 14(2) (which does not apply to suits) states that it should be “against the same party for the same relief”. The legislature has clearly drawn a distinction between the “same matter in issue” and the “same relief”. The “same relief” must mean the same prayers, and so the term “same matter in issue” must be given a far more expansive meaning. The matter in issue in both the suit and the dispute application is the same, namely the question of ownership of the suit flat. Accordingly, this ingredient of Section 14 has been fulfilled.

131. The final contention of Mr. Siganporia, Ld. Counsel for the Appellants, on this point was that Respondent No. 1 was required to plead and prove its case that it had bona fide and with due diligence pursued a remedy in a court without jurisdiction, in order to seek exclusion of the same. The Appellants have relied on the Judgment in Madhavrao (supra) in support of the proposition that the burden of proof was on Respondent No. 1 to show that it is covered by Section 14 of the Limitation Act, 1963, and that it was necessary for them to lead evidence to show that they had acted with good faith, i.e. with due care and attention in instituting and prosecuting the Dispute Application. The Appellants have also relied upon the Judgment of a single Judge of this Court in Foreshore (supra) in support of the proposition that a mere broad and general plea that the Plaintiff had under legal advice and bonafide belief prosecuted a suit with due diligence was insufficient, and that the burden of claiming the exemption under Section 14 of the Limitation Act, 1963 lay upon the Plaintiff.

132. We may first deal with the Judgment in Foreshore (supra). Mr. Siganporia, Ld. Counsel for the Appellants, fairly submitted that the Judgment of the Ld. Single Judge in Foreshore (supra) was taken in appeal to a division bench of this Court and finally to the Supreme Court. However, he argued that, as both appeals were dismissed, and the finding on the point of Section 14 of the Limitation Act was not disturbed, the Judgment of the Single Judge remained good law on this point. On the contrary, Mr. Madon, Ld. Senior Counsel for Respondent No. 1, argued that the Judgment of the Single Judge had merged with the Judgment of the Supreme Court and could no longer be looked at. We are in agreement with Mr. Madon. The Judgment of the Single Judge having been taken in appeal all the way to the Supreme Court, we can only look to the Judgment of the Supreme Court (as under Article 141 of the Constitution of India it has merged) for the law that it lays down. Neither the Division Bench of this Court nor the Supreme Court have discussed the issue of Section 14 of the Limitation Act, 1963 at all. Accordingly, the aforesaid proposition of law rendered by the Single Judge no longer has precedentiary value and cannot be relied upon. Further, in Nusli Neville Wadia (supra), the Supreme Court of India held that the decision of the Supreme Court in Foreshore (supra) was no longer good law. Once the Supreme Court has held that the law laid down in the judgment of Foreshore (supra) is no longer good law, it holds no evidentiary value and cannot be relied upon. In any event, Mr. Madon has rightly pointed out that the facts in the present case were very different from those in Foreshore (supra), where no evidence was led on this point and proceedings of the prior litigation were merely tendered across the bar. However, in the matter at hand, Respondent No.1 pleaded in the Plaint that she had bonafide prosecuted the Dispute Application in the wrong forum, and had stated in her Affidavit in-lieu-of Examination in Chief that she had filed the same before the Cooperative Court based on advice. In the course of cross-examination, she produced photocopies of the proceedings before the Co-operative Court, which were marked Exhibit D-1. The Appellants ought to have cross-examined her on this aspect. However, our attention has not been invited to any such questions in the course of Respondent No.1’s cross-examination. Accordingly, Respondent No.1’s evidence has gone uncontroverted.

133. Similarly, Madhavrao (supra) does not take the Appellants’ case any further. That was a case where the Plaintiff, who had argued and conducted the previous suit in person, without having engaged an Advocate, failed to bring on record any evidence, such as order sheets, to show that he had instituted the prior suit with due diligence, or equivalent evidence to demonstrate that the prior suit had remained pending for over ten years in spite of his due diligence. It was in this context that the Supreme Court held that the initial burden lay upon the Plaintiff to bring his case within the scope of S. 14 of the Limitation Act. However, as rightly pointed out by Mr. Madon, Ld. Senior Counsel for Respondent No.1, in the present matter Respondent No. 1 has clearly discharged the initial burden placed upon her. She both pleaded and proved her case within the scope of S. 14 of the Limitation Act, and produced the papers and proceedings of the Co-operative Court Dispute Application. However, the Appellants failed to cross-examine her on the same. Accordingly, we find that Respondent No.1 has discharged the initial burden placed on her, and that it was the Appellants who, by failing to cross-examine her on this point, and having not adduced any evidence to the contrary, have failed to disprove the same.

134. Mr. Madon, Ld. Senior Counsel for Respondent No.1, has relied upon paragraphs 20 and 21 of the Judgment of the Supreme Court in Kumaradasan Nair (supra) in support of the proposition that the provisions of S. 14 of the Limitation Act must be interpreted in such a manner as to advance the cause of justice and not to terminate the proceedings, and that a Plaintiff must not be denied the benefit of the section unless it was found that there was lack of due care. Mr. Madon, Ld. Senior Counsel, has also relied upon paragraphs 8, 9 and 49 of the Judgment in M.P. Steel (supra), wherein the Supreme Court has held that even a mere averment in an application seeking condonation of delay that the Plaintiff was pursuing a remedy before another forum, which time ought to be excluded, would be sufficient compliance with S. 14 of the Limitation Act, 1963, and that what was necessary under the section was the absence of negligence or inaction. We think that both of these Judgments are apposite to this case. Respondent No.1 has both pleaded and proved the relevant facts. It is the Appellants who have failed to cross-examine her on the same. Respondent No.1 has acted with due care, and there is an absence of negligence and inaction on her part.

135. Accordingly, we find that Respondent No.1 has met the necessary ingredients of S. 14 of the Limitation Act, 1963, and that the time spent from 20th 1995 (when the aforesaid Dispute Application was filed before the Co-operative Court) to 31st March 2003 (when the Maharashtra State Co-operative Appellate Court found that the Co-operative Court did not have jurisdiction to entertain the aforesaid Dispute Application) ought to be excluded from the period of limitation of the Suit. Accordingly, we agree with the Ld. Single Judge that the Suit was filed within the period of limitation.

136. We accordingly find that the Appeal has no merit and deserves to be dismissed. That apart, the Appellants and their Advocates on record have attempted to deceive this Court and the Ld. Single Judge, and have placed reliance upon false and fabricated documents. Their case is based upon falsehood and deceit.

137. The Appeal and all Interim Applications filed therein are accordingly dismissed. ( MILIND N. JADHAV, J. ) ( S.J. KATHAWALLA, J. )