Satpal Buggal vs Gursharan Buggal
2013 Latest Caselaw 4923 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 28th October, 2013

+                    RFA 447/2013 & CM No.14622/2013 (for stay).

       SATPAL BUGGAL                                          ..... Appellant
                   Through:              Ms. Anita Kapoor, Adv.

                                      versus

       GURSHARAN BUGGAL                                      ..... Respondent

                  Through:               Mr. S.C. Singhal, Adv.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree (dated 25th April, 2013

of the Court of the Addl. District Judge-06, West District, Tis Hazari Courts

in Civil Suit No.729/2012 filed by the respondent/plaintiff) for recovery of

possession of immovable property and for recovery of mesne

profits/damages for use and occupation from the appellant.

2. The said suit was filed by the respondent/plaintiff pleading:-

(a). that her husband Shri Subhash Buggal was the owner of the

following two properties:-

(i). Property No.29-A, ad measuring 75 sq. yds. and

comprising of three rooms situated in the colony of Om

Vihar, Uttam Nagar in Khasra No.789 and 790 of the

Revenue Estate of Village Nawada, Delhi.

(ii). Shops No.6&7 built on land measuring 16 ft. x 30 ft.

being part of plot No.18 of Khasra No.951 in the area of

Village Navada, now known as Gulab Bagh, Block-C,

Uttam Nagar, New Delhi.

(b). that the husband of the respondent/plaintiff died on 5th

November, 1997, whereafter the aforesaid properties were

mutated in the Municipal records in the name of the

respondent/plaintiff and the respondent/plaintiff was assessed to

and paying Property Tax thereof;

(c). that the respondent/plaintiff and her husband have been living

in United Kingdom;

(d). that the appellant/defendant is the brother of the deceased

husband of the respondent/plaintiff and lives in India and was

looking after the aforesaid properties;

(e). that the appellant/defendant illegally and unlawfully

represented himself to be the owner of shop No.7 aforesaid and

in February, 2001 received Rs.50,000/- as bayana for sale

thereof to one Shri Rajender Pal; the respondent/plaintiff on

coming to know thereof had to settle with the said purchaser

and to pay back the said amount of Rs.50,000/- with penalty;

and,

(f). that the respondent/plaintiff came to India and visited the

aforesaid properties on 5th October, 2011 and asked the

appellant/defendant to vacate and handover possession thereof

but which the appellant/defendant refused; a legal notice got

issued to the appellant/defendant also did not serve any

purpose,

accordingly, the suit for possession and for recovery of mesne

profits/damages for use and occupation was filed.

3. Summons of the suit and notice of the application for interim relief

were served on the appellant/defendant on 1st December, 2011. The

appellant/defendant appeared before the learned Addl. District Judge on 12th

January, 2012; even though 30 days for filing written statement had by then

expired, the learned Addl. District Judge, observing that the time for filing

written statement had not expired till then adjourned the suit to 14th

February, 2012.

4. On 14th February, 2012 the appellant/defendant again appeared and

sought adjournment. The learned Addl. District Judge finding that the

appellant/defendant had been served with the summons of the suit on 1 st

December, 2011 and further finding that nearly 74 days had lapsed

therefrom, did not find any ground for adjournment and struck off the

defence of the appellant/defendant and vide interim order restrained the

appellant/defendant from creating any third party interest in the properties

and listed the suit next on 27th September, 2012 for the evidence of the

respondent/plaintiff.

5. Though the suit was so adjourned for more than six months but the

appellant/defendant did not take any steps i.e. neither challenged the order

striking off his defence nor filed any application before the learned Addl.

District Judge.

6. The respondent/plaintiff filed her affidavit by way of evidence on 27 th

September, 2012. The counsel for the appellant/defendant also appeared on

that date and filed his Vakalatnama; still neither any application for setting

aside of the order striking off of the defence was filed nor was the written

statement filed. The learned Addl. District Judge adjourned the suit to 17 th

December, 2012 for tendering of the affidavits by way of evidence of the

respondent/plaintiff.

7. The suit was on 17th December, 2012 adjourned to 5th March, 2013.

Still neither any application nor written statement was filed. The

respondent/plaintiff on that date tendered her affidavit by way of

examination-in-chief into evidence and even though there was no defence of

the appellant/defendant but was allowed to be cross examined by the counsel

for the appellant/defendant. The suit was adjourned to 17 th April, 2013 for

final arguments.

8. Still no steps were taken by the appellant/defendant. On 17th April,

2013 the counsel for the respondent/plaintiff addressed arguments and the

suit was adjourned for pronouncement on 25 th April, 2013.

9. On 25th April, 2013 the counsel for the appellant/defendant addressed

arguments and vide judgment pronounced on the same day the suit of the

respondent/plaintiff was decreed for recovery of possession of the two

properties aforesaid as well as for recovery of mesne profits.

10. The appellant/defendant still did not act promptly and this appeal

came up first before this Court only on 17 th September, 2013 i.e. after nearly

five months of the impugned judgment. Upon enquiry from the counsel for

the appellant/defendant as to what was wrong with the judgment and decree

on the basis of the ex parte pleadings and evidence of the

respondent/plaintiff, the counsel for the appellant/defendant sought

adjournment. The appeal was thus adjourned to 23rd September, 2013 when

further adjournment was sought by the counsel for the appellant/defendant.

11. On 1st October, 2013 the counsel for the appellant/defendant informed

that the appellant/defendant had preferred CM(M) No.1044/2013 in this

Court against the order of striking off of the defence of the

appellant/defendant in the suit and which had been dismissed vide order

dated 1st October, 2013. Notice of this appeal was issued and the Trial Court

record requisitioned and subject to the appellant/defendant maintaining

status quo qua possession, execution was stayed.

12. Though the notice issued to the respondent/plaintiff remains unserved

but the counsel for the respondent/plaintiff has appeared and the counsels

have been heard and the Trial Court record perused.

13. The counsel for the appellant/defendant has argued that the defence of

the appellant/defendant was struck off for non-filing of written statement;

that the law provides a maximum period of 90 days for filing the written

statement and the defence could not have been struck off within the said

period of 90 days. Reliance is placed on Rani Kusum Vs. Kanchan Devi VI

(2005) SLT 281.

14. No merit is found in the aforesaid contention and the judgment cited

by the counsel for the appellant/defendant not found applicable to the facts

of the present case. In the present suit, as aforesaid, though the

appellant/defendant was served with the summons of the suit on 1 st

December, 2011 and appeared before the learned Addl. District Judge on

12th January, 2012 but did not file any written statement. By 14th February,

2012, as aforesaid, approximately 74 days had passed since the service of

summons of the suit on the appellant/defendant. The appellant/defendant had

also not filed any application for extension of time. Though, undoubtedly

Order 8 Rule 1 provides that a defendant may be allowed to file the written

statement beyond 30 days and not later than 90 days from the date of the

service of the summons but for reasons to be recorded in writing. In the

present case the appellant/defendant did not give any reasons whatsoever for

having not been able to file the written statement inspite of nearly 74 days

having elapsed since service of the summons of the suit on him. The reason

for the amendment of the year 2002 to the CPC for introducing the time

frame aforesaid for filing of the written statement cannot be lost sight of.

The said amendment was necessitated owing to inordinate delays in filing

the written statement. If inspite of the said legislative amendment it were to

be held that even in the absence of any explanation by the defendant for not

filing the written statement within 30 days, the Court has no power to

proceed against the defendant for not filing the written statement within 30

days prescribed therefor, the same would tantamount to inspite of non-

explanation by the defendant of the cause for not fling the written statement

within 30 days, the time for filing the written statement standing extended to

90 days, doing a great disservice to the legislative amendment.

15. The facts of the present case are gross. It is not as if the learned Addl.

District Judge immediately after striking off of the defence of the

appellant/defendant on 14th February, 2012 decreed the suit. The learned

Addl. District Judge adjourned the suit by more than six months. The

appellant/defendant could have within the said time made an application or

filed the written statement as had happened in Rani Kusum supra. Reference

in this regard may be made to Sada Ram Vs. DDA AIR 1974 Delhi 35, to

Arya Orphanage Vs. Bimla Devi 118 (2005) DLT 152 and Harbans Singh

Vs. Jasbir Singh MANU/PH/0645/2002 holding applications for re-calling

the order striking off of the defence and permitting filing of the written

statement to be maintainable before the same Court. Even after 27th

September, 2012, the suit remained pending for another approximately six

months till 25th April 2013 and during which time the appellant/defendant

though continued to participate in the suit but did not file the written

statement. I may also mention that this Court in Gujrat Co-operative Oil

Seeds Growers Federation Vs. Smt. Ramesh Kanta Jain AIR 1994 Delhi

367 (DB) and in International Airport Authority of India Vs. Arvind

Khanna 59 (1995) DLT 223 (DB) has held the judgment in such a case to be

an ex-parte one, and Order 9 Rule 13 of the CPC to be applicable. No such

application also was filed.

16. Even otherwise, I am of the opinion that the appellant/defendant in

this appeal cannot make grievance with respect to the order striking off his

defence. The appellant/defendant, as aforesaid, took separate remedy by way

of CM(M) No.1044/2013 against the said order and which already stands

dismissed. Though undoubtedly the Bench dismissing the said petition has

observed that it was not inclined to interfere with the order striking off

defence when the decree had been passed, but that, to my mind, would not

make any difference. When one Bench of this Court has already found no

merit in the challenge to the order striking off of the defence, no different

view can be taken in this proceeding.

17. The scope of this appeal is thus limited to whether the decree could

not have been passed in the face of the pleadings and evidence, even though

ex parte, of the respondent/plaintiff.

18. On the aforesaid aspect, the counsel for the appellant/defendant has

raised only two contentions. Firstly, it is contended that the

respondent/plaintiff did not place on record the original documents of title to

the two shops in her favour and thus no decree for the relief of recovery of

possession at least of the shops could have been passed. Secondly, it is

contended that the husband of the respondent/plaintiff had transferred the

properties to the appellant/defendant.

19. As far as the first of the aforesaid arguments is concerned, the

respondent/plaintiff in her affidavit by way of examination-in-chief deposed

that the original documents of title of the two shops had been lost and

proved the copies thereof as Ex.PW1/7 to Ex.PW1/10. The learned Addl.

District Judge, when the said affidavit was tendered into evidence, finding

the said documents to be photocopies, instead of exhibiting the same, put

marks on the same. The appellant/defendant as aforesaid had cross examined

the respondent/plaintiff. In the said cross examination, a suggestion was

given that the said shops were purchased from the sale consideration of a

family property and which was denied by the respondent/plaintiff. A further

suggestion was given that the said shops were in possession of one Ms.

Veena and that she was the owner of the said shops. It is worth mentioning

that the said Ms. Veena had applied in the suit for impleadment pleading that

the husband of the respondent/plaintiff had sold the said shops to her; the

said Ms.Veena is none other than the wife of another brother of husband of

the respondent/plaintiff. However the said Ms. Veena chose not to pursue

the said application for impleadment which was dismissed by the learned

Addl. District Judge.

20. It would thus be seen that the non-filing of the original documents

of title in favour of the husband of the respondent/plaintiff is immaterial

in as much as the appellant/defendant by suggesting to the

respondent/plaintiff in cross examination that the said shops were

purchased with sale consideration of a family property and by suggesting

ownership of Ms. Veena who had claimed to have acquired the property

from the husband of the respondent/plaintiff, has admitted the ownership

of the husband of the respondent/plaintiff of the said property.

21. As far as the second argument of the counsel for the

appellant/defendant, of the husband of the respondent/plaintiff having

sold the property to the appellant/defendant is concerned, the counsel for

the appellant/defendant on enquiry states that there is no document of sale

but there is a Will of the husband of the respondent/plaintiff in favour of

the appellant/defendant.

22. Though such argument by way of defence which has been struck

off cannot be considered but to satisfy the judicial conscience I have still

enquired from the counsel for the appellant/defendant whether the said

Will has been set up at any time since the year 1997 when the husband of

the respondent/plaintiff died.

23. The counsel for the appellant/defendant is forced to admit that the

same was not set up or filed at any place.

24. The counsel for the respondent/plaintiff, again to satisfy the

judicial conscience of this Court, has invited attention to a letter dated 4th

October, 2010 sent by the appellant/defendant to the respondent/plaintiff

in his own handwriting and proved before the Trial Court as Ex.PW1/17

and where no such case is set up and which letter is written treating the

respondent/plaintiff as the owner of the properties.

25. The counsel for the appellant/defendant has no explanation

therefor.

26. The counsel for the appellant/defendant has also argued that the

husband of the respondent/plaintiff, besides the respondent/plaintiff has

left other heirs also and the respondent/plaintiff alone as heir of her

husband could not have filed the suit for recovery of possession of the

properties belonging to her husband.

27. Again, though it is a matter of defence which stands struck off and

thus cannot be considered, but the position in law as succinctly summarized

by the Full Bench of Patna High Court in Sharfuddin Vs. Bibi Khatija AIR

1988 Pat. 58 is that a suit for recovery of possession against an unauthorized

occupant/trespasser can be filed by one of the owners /co-sharers also,

without the necessity of bringing the other co-owners either as co-plaintiff or

defendants.

28. There is thus no merit in the appeal which is dismissed. The appeal

having been disposed of expeditiously, no order as to costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J

OCTOBER 28, 2013 pp