Surender Malik v. Raj Bala & Ors.

1. This is an application under Order 8 Rule 10 CPC filed by the plaintiff seeking striking out the defence of the defendants and for passing of judgment and decree.

2. It is stated that the plaintiff has filed the present suit for specific performance, ejectment/recovery of possession, recovery of usage charges, damages pertaining to property bearing Plot No.C-120-A, area measuring 137.1/2 (137.5) Sq. Yds. out of Khasra No.731 min to 733, situated in the revenue estate of Village Nawada, Delhi State in the abadi known as Mohan Garden, Uttam Nagar, New Delhi-110059.

3. It is stated that on 20.07.2012 this Court passed the status quo with regard to title and possession of the subject property and the plaintiff served a 2015:DHC:17 complete set of plaint, injunction application and annexure in compliance of Order 39 Rule 3 CPC to the defendants. It is further averred that on 10.09.2012 counsel for the defendants appeared and made a statement that copies supplied to the defendants are incomplete/deficient.

4. It is further averred that the complete set of documents was supplied to the defendants through their counsel on 25.09.2012, against due acknowledgment from the defendants. The defendants despite grant of four weeks failed to file the written statement. On 10.05.2013 a copy of the written statement was supplied tothe plaintiff which has been filed on 13.11.2012. On 07.05.2014 this court noted that the written statement be not taken on record as it is filed beyond the period of 30 days. The submission of the learned counsel for the defendants was noted that an appropriate application for condonation of delay would be filed within one week. Desite lapse of more than seven months no such application has been filed.

5. As far as the present application is concerned, the same was listed before the Joint Registrar on 12.05.2014 when the defendants sought time to file reply. Again no reply to the same has been filed. On 22.09.2014 the Joint Registrar directed that the matter be placed before the Court today. Despite the said order, the appropriate application for condonation of delay or reply to the present application has not been filed. None is also present for the defendant today despite a pass over.

6. The plaintiff has filed the present suit for specific performance, ejectment/recovery of possession, damages, permanent and mandatory injunction and for recovery of usage charges and damages.

7. At the outset, learned counsel appearing for the plaintiff submits that if the suit is being decreed on the present application under Order 8 Rule 10 CPC he does not press the relief for recovery of usage charges and damages.

8. The issue is as to whether, in the light of the conduct of the defendant, the defense of the defendant should be closed and a decree passed. Reference may be had to the judgment of the Supreme Court in the case of Balraj Taneja & Anr. vs. Sunil Madan & Anr. AIR1999SC3381: MANU/SC/0551/1999 where the Supreme Court held as follows: “30. As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his Written Statement nor the Court should proceed to pass judgment blindly merely because a Written Statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a Written Statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the Written Statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the Court may, in its discretion, require any such fact to be proved" used in Subrule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8.

9. I may now see the facts. It is averred in the plaint that plaintiff has purchased the suit property from defendant No.1 on 17-18 day of February,

2011. It is further stated that defendant No.1 has executed documents like, General Power of Attorney, Agreement to Sell, Affidavit, Receipt, Possession Letter qua transfer of ownership of the suit property and also a registered Will in favour of the plaintiff. The transaction took place in the presence of husband of defendant No.1 Mr. Jagdish Sharma and son of defendant No.1 Mr. Anil Kumar.

10. It is further averred that the plaintiff paid a total sale consideration of Rs.35,00,000/- in cash to the defendants. The Will executed by defendant No.1 is said to be a registered Will executed in the presence of the parties. It is further averred that after having received possession, the plaintiff allowed defendant No.1 to occupy a part of the suit property. It is further averred in the plaint that after the transaction was completed, the plaintiff has requested the defendant that she along with her family members should be allowed to occupy some parts of ground floor as well as first floor of the property on the basis of monthly usage charges. This permission was granted to occupy four commercial shops and four rooms, store room, kitchen and bathrooms open area with permissive rights to enjoy the same at the rate of Rs.96,500/- per month.

11. It is alleged that defendant No.1 is enjoying the possession of the above said portion with permissive rights and that defendant No.1 had made the payment of Rs.96,500/- as usage charges for the month of March, 2011 and due amount towards usage against the defendant No.1 is Rs.12,54,500/- i.e. from April, 2011 to April, 2012.

12. The plaintiff has placed on record the original notorized General Power of Attorney executed by Smt. Raj Bala-defendant No.1, original Agreement of Sell, which is duly notorized dated 17.02.2011, Affidavit from defendant No.1 stating that she has received full and final consideration vide the separate receipt. The original receipt dated 17.02.2011 for having received Rs.35,00,000/- as sale consideration and original deed of Will dated 18.02.2011 which is duly registered before the office of Sub-Registrar in the presence of two witnesses Mr. Jagdish Sharma and Mr. Anil Sharma.

13. The Plaintiff has also placed on record copy of legal notice dated 29.03.2012 sent to defendant No.1 through their advocate. The original courier receipts and postal receipts have been placed on record. The AD card showing recipt of legal notice has also been placed on record.

14. Reference may be had to the judgment of the Supreme Court in the case of Prakash Chandra vs. Angadlal & Ors. AIR 1979 SC 1241: MANU/SC/0022/1979 where the Supreme Court in para 9 held as follows: