Mahender Sharma vs Mr. Babu Lal And Ors
2014 Latest Caselaw 504 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.90/2013

%                                                    27th January, 2014

MAHENDER SHARMA                                      ..... Appellant
                          Through:       Mr. S.M. Tripathy, Advocate.


                          versus


MR. BABU LAL AND ORS                                       ..... Respondents
                  Through:               Mr. S.N. Gupta, Advocate for
                                         respondent Nos.1 and 2.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M. No.5431/2013(restoration)

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.

FAO No.90/2013                                                  Page 1 of 3
 + 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.
FAO No.90/2013                                                  Page 2 of 3
 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.

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