Mahender Sharma v. Babu Lal and Ors.

1. Appeal was dismissed in default on 14.3.2013 when no one was present. The application for restoration will be effectively under Order 9 Rule 4 of Code of Civil Procedure, 1908 (CPC) and therefore no notice is required to the respondents before restoration. Application is allowed and the appeal is restored to its original number. C.M. stands disposed of. 2014:DHC:500 + FAO No.90/2013

2. This appeal is filed under Order 43 of Code of Civil Procedure, 1908 (CPC) impugning the order of the Court below dated 7.1.2013 by which the application filed by the appellant/plaintiff under Order 39 Rule 10 CPC for directions to respondent Nos.[3] to 5-tenants to deposit the rent in the Court has been dismissed.

3. The case as set up by the appellant/plaintiff is that he purchased the suit property by means of a sale deed dated 25.6.2009 from the respondent No.1 herein, and who is defendant No.1 in the trial Court. This sale deed is a registered sale deed. The respondent No.1 is disputing the sale deed on the alleged ground that he is a victim of fraud perpetuated by the appellant/plaintiff and his signatures were obtained in undue influence, however, this is an aspect of which onus will be upon the respondent No.1/defendant No.1 and will have to be established during the course of the suit, however, for the present we are concerned with the position that admittedly the registered sale deed was executed in favour of the appellant/plaintiff. Once the admitted position is that there is a sale deed in favour of the appellant/plaintiff Order 39 Rule 10 CPC will come in and the respondent Nos.[3] to 5/tenants have to deposit the admitted rent in the Court. Respondent Nos.[3] to 5 are not represented in this Court in spite of service.

4. In view of the above, the appeal is allowed and the application under Order 39 Rule 10 CPC filed by the appellant/plaintiff will stand allowed by directing the respondent Nos.[3] to 5/defendant Nos.[3] to 5/tenants to pay to the plaintiff, all the arrears and future rent month by month, at the last admitted rate of rent paid by them to the appellant/plaintiff or to deposit the same in Court. If the amount is deposited in the Court, then, the amount will be put regularly in a period of six months in a fixed deposit by the Court below and the amount deposited alongwith accrued interest will be subject to final orders which will be passed in suit filed by the appellant/plaintiff.

5. Appeal is allowed in terms of aforesaid observations, leaving the parties to bear their own costs.

JANUARY 27, 2014 VALMIKI J. MEHTA, J. Ne