Final Order 3

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH KISHOR KUMAR,
ADDITIONAL DISTRICT JUDGE-04,
NORTH DISTRICT : ROHINI COURTS : DELHI
CS DJ No.394/2023
CNR No. DLNT01-005682-2023
Gaurav Anand
S/o Late Sh. Ashok Anand
R/o H.No. 272, Kalyan Vihar,
Dr. Mukherjee Nagar,
Delhi-110009
............Plaintiff
VERSUS
Rajesh Kumar
S/o Sh. Paryag Raj
R/o F-5/119, Swami Shardhanand Colony,
Delhi-110042
ALSO AT:
Plot Area 40 Sq. Yds.
Khasra No. 734, Village Bhalswa Jahangir Pur,
Swami Shardhanand Park,
Delhi-110042
........Defendant
Date of Institution : 27.05.2023
Final Outcome : Suit Decreed
ORDER
1. The plaintiff has filed the present suit for specific
performance of agreement to sell dated 23.11.2022 along with
consequential relief of possession, mandatory and permanent
injunction and mense profits.
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2. Facts in brief are that the plaintiff and defendant are known to
each other for a long period on account of mutual business
dealings. The defendant has informed the plaintiff that he is the
owner and in possession of the above property i.e. Plot of land area
measuring 40 sq yds., out of Khasra No. 734, situated in the area of
Village Bhalswa Jahangir Pur, Delhi, now Abadi known as Swami
Shardhanand Park, Delhi-110042 (hereinafter be referred to as the
suit property). The defendant further informed the plaintiff that he
intends to sell the property for which plaintiff got agreed. Terms and
conditions of sale were mutually discussed and the defendant agreed
to sell the said property to the plaintiff for the sale consideration of
Rs.2,50,000/-. The plaintiff agreed to pay the said sale consideration
to the defendant for purchase of the said property. It is further stated
that the plaintiff already paid the sale consideration amount of
Rs.2,50,000/- which was duly received and acknowledged by
defendant and a receipt to this affect was also executed by the
defendant.
3. It is further stated that on 23.11.2022, the defendant
approached the plaintiff with documents for the transfer of the said
property. The documents i.e. General Power of Attorney,
Agreement To Sell, Affidavit, Receipt, Deed of Will, all dated
23.11.2022 were executed and signed by the parties in
acknowledgement of the said sale transaction. The defendant also
assured the plaintiff that upon execution of the documents the
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plaintiff would acquire the ownership rights in respect of the said
property. On 23.11.2022, the defendant however, sought some time
to hand over the peaceful and vacant possession of the property to
the plaintiff since the defendant required some time to find the place
to shift his belongings. It is further stated that on 31.03.2023, the
plaintiff reminded the defendants to hand over the possession as the
defendant had already received the entire sale consideration,
however, to shock and dismay the defendant picked up quarrel with
the plaintiff, abused and threatened him and declared that the
defendant shall not be honouring their commitments towards the
plaintiff as per agreed terms and conditions. The defendant further
declared that the documents executed by him do not confer the
ownership rights upon the plaintiff and that he has malafidely
cheated the plaintiff by making him part with to the tune of
Rs.2,50,000/-.
4. It is further stated that the plaintiff served legal notice dated
12.05.2023 upon the defendant by way of speed post and courier
calling upon him to perform their part of agreement to sell, however,
despite service the defendant has failed to either comply or respond
to the same. The defendant having received the entire sale
consideration from the plaintiff is legally liable to execute the
registered sale documents/ sale deed in favour of plaintiff, further
liable to vacate the suit property and handover its peaceful and
vacant possession to the plaintiff. The defendant is further liable to
handover all the original documents of title and other relevant
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documents relating to the suit property to the plaintiff. The
defendant is in unauthorized use and occupation of the suit property
since 23.11.2022 having received the entire sale consideration of
from the plaintiff, thus, liable to pay damages / mense profits for
unauthorized use and occupation of suit property to the plaintiff at
the rate of Rs. 10000/- per month from 23.11.2022. The plaintiff is
entitled to the decree of Rs. 60000/- towards mense profits till filing
of the suit. Hence, the present suit.
5. Summons of the present suit were issued to the defendant and
the defendant was duly served with summons on dated 08.06.2023.
Thereafter, the defendant appeared through his counsel on
02.09.2023 who sought time to file written statement and
considering the request of Ld. Counsel for defendant, thirty days
time was granted to the defendant to file written statement with
advance copy to Ld. Counsel for the plaintiff. However, till
13.12.2023, the defendant failed to file written statement and even
no advance copy of the same has been supplied to Ld. Counsel for
the plaintiff.
6. Order VIII Rule 1 lays down the period within which the
defendant must file a written statement. The written statement
should be filed by the defendant within thirty days from the day
when the summons was served to him. However, this period can be
extended up to ninety days from the date of service of summons by
the court for reasons to be recorded in writing. Further, as per Order
VIII Rule 10, if any person who is required to file a written
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statement does not do so within the time period prescribed or
permitted by the court, the court shall pronounce the judgment
against him or issue an order, and a decree shall be drawn up on the
pronouncement of the judgment.
7. Perusal of record shows that since the inception of present
suit, defendant has been appearing on each and every date of
hearing after his service. The defendant had put his first appearance
on 02.09.2023 after being served with summons on 08.06.2023. On
02.09.2023 the defendant did not file any written statement. Even on
13.12.2023, the defendant has not filed any written statement nor
any advance copy of the same has been supplied to Ld. Counsel for
the plaintiff.
8. In the case of Christian Broadcasting Network Inc. v. CBN
News (P) Ltd. CS(Comm) 815/2017 decided on 30.08.2018, the
Hon’ble Delhi High Court held that the Court can invoke Order VIII
Rule 10 of CPC if the defendant fails to file a written statement. It
is held that the Civil Courts can invoke its provisions to curb
dilatory tactic which are often resorted to by defendants.
9. Records itself speaks about the conduct of defendant in the
present case. It is apparent on record that defendant has/had no
regards to the directions of Court and it is clearly evident that
defendant has been gaining time on one pretext or the other just to
delay the trial. No plausible reason assigned for not filing the
written statement on behalf of the defendant. In these
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circumstances, the right of defendant to file written statement has
been closed.
10. Consequently, in view of provisions of Order VIII Rule 10
CPC and as held in Christian Broadcasting Network Inc.(supra),
the suit of the plaintiff is hereby decreed in following terms :
i) A decree is passed in favour of plaintiff and against the
defendant of specific performance of the agreement dated
23.11.2022 in respect of property i.e. Plot of land area measuring 40
sq yds., out of Khasra No. 734, situated in the area of Village
Bhalswa Jahangir Pur, Delhi, now Abadi known as Swami
Shardhanand Park, Delhi-110042 and defendant is directed to
execute the sale deed in favour of the plaintiff in respect of the suit
property within 30 days from today.
ii) A decree of mandatory injunction is passed in favour of
plaintiff and against the defendant and the defendant is directed to
handover the previous title documents pertaining to the above
property to the plaintiff, after execution of the sale deed, as directed
above.
iii) A decree of permanent injunction is passed in favour of
plaintiff and against the defendant and the defendant is restrained
from transferring the suit property in any manner or any portion
thereof.
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iv) A money decree of Rs.60,000 is passed in favour of plaintiff
and against the defendant as mense profits/damages from
23.11.2022 till filing of the suit and further @ Rs.10,000/- per
month from the date of filing of the suit till the actual vacant
peaceful possession of suit property is handed over to the plaintiff.
11. The plaintiff is also awarded costs of the suit.
12. Decree sheet be prepared accordingly.
13. File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT,
On 13th December, 2023.
(Kishor Kumar)
ADJ-04, North, District,
Rohini Courts , Delhi
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