Pawan Chaudhry & Anr. v. Nimesh Jain & Ors.

15. She further submits that the Plaintiffs are the victims of the fraud that the Defendant No. 1 and 2 have perpetuated on them with deliberate mala fide intentions of beguiling them of their property. She submits that the fraud would be evident from the fact that - (i) the Plaintiffs have at no point in time executed any document in favour of the Defendant No. 2; (ii) the Plaintiffs continue to be in possession of all the original title documents pertaining to the suit property including original perpetual lease deed and the conveyance deed, executed in favour of the Plaintiffs.

16. Further inviting attention of the court to the orders dated 29.07.2022 & 10.11.2022, Ms. Agnihotri submits that the right of the Defendant no. 1 and 2 to file the written statements stood closed vide the aforementioned orders. She submits that failure on part of both the defendants to file their written statements in time granted by this court has bestowed a right upon the plaintiffs to approach this court with a prayer to pronounce judgment in their favour and against the defendants.

17. She submits that though the law proscribes the courts from exercising their jurisdiction under order VIII Rule 10 CPC in a mechanical manner in the absence of written statements of the Defendants, but at the same time the law mandates that the court must satisfy itself of the veracity of the case of the Plaintiff prior to exercising its jurisdiction under order VIII Rule 10 CPC. She submits that it is a matter of record that the documents which are the basis of Plaintiffs’ title in the suit property, are registered, while all the documents that have been fraudulently executed by and/or between the Defendants are unregistered.

18. She contends that of the four fraudulent documents, only two are purported to have been executed by the Plaintiffs. A bare perusal of the said documents would establish that two different individuals have signed the affidavit dated 13.11.2006 which claims that the property has been sold by the Plaintiffs to the Defendant No.2. Further most pertinently the Plaintiff No. 1 was in Germany on the date on which the fraudulent documents are alleged to have been executed by the Plaintiffs. That apart the Will that the defendants seek to rely upon is a cut, copy of paste of the Will of the predecessor-in-interest of the plaintiffs.

19. She submits that the Defendant No. 2 who claims to have bought the property from the Plaintiffs has not only failed to file his written statement, but has also been set down ex-parte by this court vide order dated 24.01.2024. She submits that the mere fact that the Plaintiff no. 1 was in Germany on the date of execution of the documents in favour of the Defendant No. 1 is enough to establish that the said documents were fraudulent in nature.

20. While concluding her arguments, Ms. Agnihotri has placed reliance upon the decisions of the Hon’ble Supreme Court passed in Gujrat Maritime Board vs G.C. Pandya (2015) 12 SCC 403; Gapadibai vs State of Madhya Pradesh (1980) 2 SCC 327; Prem Singh & Ors vs Birbal & Ors (2006) 5 SCC 353 and of Coordinate Benches passed in Late Sh. Munish Grover vs Amandeep Singh & Ors. (CS (OS) 345/2019); Suman Lata vs Bank of India & Anr 2015 SCC OnLine Del 12649; The Christian Broadcasting Network, Inc. vs CBN News Private Limited 2018 SCC OnLine Del 11666.

21. Having heard the learned counsel for the petitioner and having perused the record, the limited question which arise for consideration in the present matter is whether merely on account of failure on part of the defendants to file their written statement can it be presumed that the pleadings in the plaint are admitted and the suit can be decreed under Order VIII Rule 10 of CPC.

22. To address the question at hand, it necessary to advert to the legal position as to the scope and extent of power exercisable under Order VIII Rule 10. The rule outlines the procedure to be followed when the defendants fail to submit their written statement after being directed to do so by the Court. Rule 10 postulates as follows:

10. Procedure when party fails to present written statement called for by Court.—Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up: Provided further that no Court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement.

23. The law is well settled that merely the non-presence of pleadings on part of the defendants cannot, ipso facto result in relief in favour of the plaintiff. There may be facts presented in the plaint that require substantiation through evidence. Disposing of a suit solely based on the plaint, without the submission of a written statement, constitutes a complete disregard of the procedural requirements outlined in the Code. Therefore, a Court is not invariably bound to pronounce judgment solely on the basis of the fact presented in the plaint. It retains the discretion to render a judgment only when it considers appropriate to do so. In the alternative, the Court always has the power to issue such orders or directions as it deems fit, in accordance with the circumstances of the case.

24. The Apex Court in Balraj Taneja vs. Sunil Madan: (1999) 8 SCC 396 held that the court should not act blindly on the averments made in the plaint because the written statement has not been filed by the defendant traversing the facts set out by the plaintiff therein. It was also held that the court can in appropriate cases proceed to decree a suit on the basis of averments contained in the plaint. However, the word ‘shall’ as stated in Order VIII Rule 10 has not been held to be mandatory in nature, rather the same is discretionary in nature enabling the courts to exercise either of the two alternatives available with it. The Hon’ble Apex Court also ruled that a Court is not supposed to pass a mechanical judgment invoking Order VIII Rule 10 merely on the basis of the plaint, upon the failure of a defendant to file the written statement. The relevant para of the said judgment reads as under:

29. 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 should the court 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 the 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 sub-rule (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. (emphasis supplied)

25. Likewise, in a recent decision in Asma Lateef vs. Shabbir Ahmed: (2024) 4 SCC 696, the Supreme Court held that only on being satisfied that there is no fact which needs to be proved on account of deemed admission, could the court pass a judgment against the defendant who has not filed the written statement; but if the plaint itself suggests involvement of disputed question of fact, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts. Further in a given case, if the defendant defaults in filing written statement and the first alternative of Order VIII Rule 10 was the only course to be adopted, it would tantamount to a plaintiff being altogether relieved of its obligation to prove his case to the satisfaction of the Court. The relevant para of the said judgment reads as under:

28. What emerges from a reading of Balraj Taneja [Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396], with which we wholeheartedly concur, is that only on being satisfied that there is no fact which needs to be proved on account of deemed admission, could the court pass a judgment against the defendant who has not filed the written statement; but if the plaint itself suggests involvement of disputed questions of fact, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts. Balraj Taneja [Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396] also lays down the law that provision of Order 8 Rule 10CPC is by no means mandatory in the sense that a court has no alternative but to pass a judgment in favour of the plaintiff, if the defendant fails or neglects to file his written statement.

29. If indeed, in a given case, the defendant defaults in filing written statement and the first alternative were the only course to be adopted, it would tantamount to a plaintiff being altogether relieved of its obligation to prove his case to the satisfaction of the court. Generally, in order to be entitled to a judgment in his favour, what is required of a plaintiff is to prove his pleaded case by adducing evidence. Rule 10, in fact, has to be read together with Order 8 Rule 5 and the position seems to be clear that a trial court, at its discretion, may require any fact, treated as admitted, to be so proved otherwise than by such admission. Similar is the position with Section 58 of the Evidence Act, 1872. It must be remembered that a plaint in a suit is not akin to a writ petition where not only the facts are to be pleaded but also the evidence in support of the pleaded facts is to be annexed, whereafter, upon exchange of affidavits, such petition can be decided on affidavit evidence. Since facts are required to be pleaded in a plaint and not the evidence, which can be adduced in course of examination of witnesses, mere failure or neglect of a defendant to file a written statement controverting the pleaded facts in the plaint, in all cases, may not entitle him to a judgment in his favour unless by adducing evidence he proves his case/claim. (emphasis supplied)

26. In Bogidhola T & Trading Company Ltd. vs. Heera Lal Somani: (2007) 14 SCC 606, the apex court had observed that a decree under Order VIII Rule 10 should not be passed unless the averments made in the plaint are established.

27. Clearly, the relief under Order VIII Rule 10 is discretionary and the court has to be cautious while exercising such power where the defendant fails to file the written statement. The Court must be satisfied that there is no fact which needs to be proved in spite of deemed admission by the defendant.

28. Now coming back to the facts of the present case, it is clear that the suit is premised largely on the allegations of forgery with regard to the following documents: i) Agreement to Sell dated 13.11.2006 allegedly executed by plaintiffs in favour of defendant no. 2; ii) General Power of Attorney dated 13.11.2006 executed by plaintiffs in favour of defendant no. 2; iii) Agreement to Sell dated 28.05.2007 executed by defendant no. 2 in favour of defendant no. 1; and iv) Registered General Power of Attorney dated 28.05.2007 executed by defendant no. 2 in favour of defendant no. 1.

29. The genuineness of the aforesaid documents has been questioned by the plaintiffs in the plaint, inter-alia, on the grounds that – (i) the plaintiffs have at no point in time executed any document in favour of defendant no. 2; (ii) the plaintiffs do not know the defendant no. 2; (iii) the plaintiff no.1 was not in the country when the Agreement to Sell and the registered General Power of Attorney is alleged to have executed by the plaintiffs in favour of defendant no.2, on 13.11.2006;

(iv) the plaintiffs continue to be in possession of the original titled documents; (v) the plaintiffs are in actual physical possession of the suit property; and (vi) the impugned documents have been registered at the office of Sub-Registrar-I, even though the jurisdiction of Dwarka vests in the Sub-Registrar-VII.

30. A perusal of the plaint shows that only material facts have been pleaded therein and not the evidence and rightly so, as in terms of Order VI Rule 2 of the Code of Civil Procedure, the plaint is meant to set forth the facts and not the evidence. The evidence is to be presented during the examination of witnesses in Court.

31. No doubt, the right of the defendant nos. 1 and 2 to file the written statement was closed and the defendant no.2 was set down exparte, but in the absence of oral or documentary evidence worthy of credence, by merely placing reliance on the averments in plaint, filed by the plaintiffs, it is not possible for the Court to record a finding that the impugned documents are forged and fabricated. To record such a finding, the Court will have to first arrive at a conclusion that the impugned Agreement to Sell and General Power of Attorney purportedly executed by the plaintiffs in favour of defendant no.2 on 13.11.2006 have not been signed by them and their purported signatures on the said documents are forged. Once that is established, then the subsequent documents executed by the defendant no.2 in favour of the defendant no.1 will automatically fall through.

32. The burden of proof of fraud and forgery rests on person who alleges the same, therefore, the plaintiffs are obliged to prove the forgery in accordance with law, either by obtaining opinion of handwriting expert and/or by adducing oral evidence, as the facts and circumstances of the case may warrant.

33. Undoubtedly, the Court has the power to compare the admitted writing with the disputed writing and decide the matter under Section 73 of the Evidence Act [Section 72 of the Bharatiya Sakshya Adhiniyam, 2023] when the expert evidence regarding handwriting is not available, but it is trite that as a matter of extreme caution and judicial prudence the Court should not normally take upon itself the responsibility of comparing disputed signatures with admitted signatures or hand-writing, and leave the matter to the wisdom of experts.[1]

34. Insofar as contention that plaintiff no.1 was not in India on 13.11.2006 when the Agreement to Sell and the General Power of Attorneys were allegedly executed by plaintiffs in favour of defendant no. 2, the said fact also needs to be established by proving on record the passport of the plaintiff no.1 and the immigration stamps appended thereon. AIR (1997) SCC 3255; AIR (1997) SCC 14

35. In the above backdrop, even if the averments contained in the plaint, are treated as admitted, it would still keep the controversy as regards the allegations of forgery alive. Accordingly, this Court is of the view that the issues and controversy outlined in the plaint involve the facts that would require proving the same by adducing evidence and the judgment declaring the impugned documents as fraudulent, non-est / illegal, null and void cannot conveniently be passed under Order VIII Rule 10 of CPC on account of deemed admission.

36. In view of the above discussion, the plaintiffs’ application is devoid of merit and is accordingly, dismissed.

VIKAS MAHAJAN, J NOVEMBER 20, 2024