ARUNA GAJANAN BHATTE Vs. GOVINDBHAI APPAJI BHATTE

JUDGEMENT

(1.) BY this revision application, the original respondents challenge the order of the learned Judge of the City Civil Court, Bombay, directing that an enquiry be made under Section 476 of the Code of Criminal Procedure.

(2.) THE facts leading to this revision application which are not in dispute, are briefly these : The four plaintiffs-respondents filed suit No. 6132 of 1970 against seven defendants first revision petitioners for dissolution of partnership and accounts. It appears that thereafter defendants took out a Notice of Motion directing the plaintiffs to complete an agreement of sale which was entered into by the firm in favour of the President of India, The Court having granted the motion, an appeal against the Order No. 227 of 1971 was filed against that order. On 6th March, 1972, the defendants took put another Notice of Motion for a direction against the plaintiffs to complete another alleged transaction of agreement of sale of the land of the firm in favour of one Himatlal Wadilal, revision petitioner No. 9. That Notice of Motion was resisted by the plaintiffs. Having regard to the fact that a similar order in the earlier notice of motion was the subject-matter of appeal against the order No. 227 of 1971, the learned Principal Judge passed an order on 13th April 1972 staying the subsequent notice of motion. In spite of that on 4th December, 1972, the plaintiffs took out a Notice of Motion for the Court to take action against the defendants and one Deepchand S. Gardi, the legal adviser of the suit firm who is revision petitioner No. 8 and one Himatlal Vadilal Shah, revision petitioner No. 9 for taking action under Section 476 of the Code of Criminal Procedure, by contending, inter alia, that the alleged agreement of sale relied upon by the defendants in the Notice of Motion was a fabricated document and that the second defendant had intentionally given false evidence on affidavit in support of the second notice of motion taken out by the defendants. On 7th February, 1973, the appeal against the Order No. 227 of 1971 against the order of the earlier notice of motion with which we are not concerned, was allowed by this Court, holding inter alia that the Court had no power to direct the completion of an agreement of sale pending a suit for dissolution of partnership and accounts. In view of that decision of this Court on 20th February 1973, the defendants withdrew their notice of motion on 6th March 1972 by which a request was made for a direction to the plaintiffs to complete an alleged transaction of sale in favour of Himatlal Shah, revision petitioner No. 9, which had given rise to the notice of motion dated 4th December 1972 taken out by the plaintiffs for action being taken under Section 476 of the Code of Criminal Procedure, In spite of the notice of motion being served on the defendants they did not file an affidavit in reply. The matter was, however, argued before the learned Judge of the City Civil Court and he directed that the Court will merely hold an enquiry preliminary to the making of a complaint if any and that it would be open to the respondents viz. the present revision petitioners to urge all the points which they had urged before him, in addition to other points which they may like to urge.

(3.) IT is the propriety of this order which is challenged by this revision application.