Punjab-Haryana High Court
Arun Fotedar vs Sanjay Fotedar on 7 May, 2024
Neutral Citation No:=2024:PHHC:062410
2024:PHHC:062410
C. R. No. 640 of 2023 (O&M) and C. R. No.3137 of 2023 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Sr. No.379(2)
Case No. : C. R. No. 640 of 2023 (O&M)
Reserved on : 04.04.2024
Pronounced on 07.05.2024
Arun Fotedar .... Petitioner
vs.
Sanjay Fotedar .... Respondent
Case No. : C. R. No.3137 of 2023
Arun Fotedar .... Petitioner
vs.
Sanjay Fotedar .... Respondent
CORAM : HON'BLE MR. JUSTICE GURBIR SINGH.
* * *
Present : Mr. V. K. Shali, Senior Advocate
with Mr. Kuljit Singh, Advocate
for the petitioner (through Video Conferencing).
Mr. Sandeep Vermani, Advocate
with Mr. Aditya Vermani, Advocate
for the respondent.
* * *
GURBIR SINGH, J. :
1. By this common judgment, both the aforesaid revision petitions
i.e. C. R. No. 640 of 2023 and C. R. No. 3137 of 2023 are being disposed
of.
2. Both the aforesaid revision petitions have arisen against the orders
of learned trial Court passed in Civil Suit No.1946 of 2021 titled Arun
Fotedar vs. Sanjay Fotedar pending before learned Civil Judge (Junior
Division), Gurgaon. Briefly, plaintiff/petitioner (hereinafter referred to as
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"plaintiff") filed a suit for partition against defendant/respondent (hereinafter
referred to as the "defendant"), who is his real brother, inter-alia stating
therein that the plaintiff and defendant are co-owners, having 50% share
each in the built-up house situated on two plots measuring 832 sq. yds. i.e.
Plot No.C-2/72 and Plot No.C-2/73, Lord Krishna Enclave, Sushant Lok,
Phase-I, Gurugram (for brevity - the suit property). The suit property
consists of basement, ground floor, first floor and barsati.
3. The suit property was transferred to the defendant vide registered
deeds dated 19.12.2001 (Annexure-E) and 08.05.2002 (Annexure-F).
Earlier, there was a family understanding to the effect that one plot would be
transferred in the name of the plaintiff. However, on completion of the
built-up structure, the 'Completion Certificate' for the house could not be
granted because of the reason that the two plots, on which it was built, had
two different owners. So, both the aforesaid plots were transferred in the
name of the defendant.
4. Later, vide transfer deed dated 22.07.2014 (Annexure-G), the
defendant transferred half share of the suit property in favour of plaintiff.
5. The basement portion of the suit property is being used to keep
household articles, ground floor is occupied by the defendant, a part of the
first floor is being occupied by Jitender Fotedar as licensee and plaintiff is
residing on barsati. Since plaintiff was facing problem due to paucity of
space for his growing family, he requested Jitender Fotedar to vacate the suit
property but he, in collusion with the defendant, is trying to defeat plaintiff's
right in the suit property. The plaintiff has already filed a separate suit for
mandatory injunction and recovery of mesne profits against Jitender Fotedar,
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wherein the present defendant has been impleaded as proforma defendant.
6. Coming to the lis in hand, it is apt to mention here that C. R. No.
640 of 2023 has been filed against the order dated 22.12.2022 passed in
Civil Suit No.1946/2021 by learned Civil Judge (Junior Division), Gurgaon
(for brevity - the Trial Court) and C. R. No. 3137 of 2023 has been
preferred against the subsequent order dated 13.03.2023 passed by the said
Court in the same suit.
7. An application under Order VIII Rule 1 read with Rule 10 CPC
was filed in the above Civil Suit. On 22.12.2022, the case was fixed for
filing reply to the aforesaid application. However, reply was not filed.
Rather, a short date was requested on the ground that the arguing counsel for
defendant was not available. The said request was vehemently opposed by
the plaintiff, while submitting that the defendant was trying to delay the
matter deliberately and it was prayed that right of the defendant to file
written statement be closed.
8. The learned Trial Court, while observing that the suit was
instituted on 05.07.2021 and even after 01 year and 04 months, defendant
failed to file the written statement, struck off the defence of the defendant
vide order dated 22.12.2022 and case was adjourned for evidence of
plaintiff. The part of this order whereby case was adjourned for evidence of
plaintiff is under challenge.
9. On 13.03.2023, an application on behalf of the defendant has been
filed for recalling the aforesaid order dated 22.12.2022. Along with this
application, written statement was also filed. Copy of the written statement
was supplied to plaintiff and case was adjourned to file reply to the said
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application. This order has been challenged in the second revision petition
i.e. C. R. No. 3137 of 2023.
10. The main grievance of the plaintiff/petitioner is that vide order
dated 22.12.2022, the learned Trial Court failed to pass a preliminary decree
in favour of the plaintiff as well as defendant, declaring both the owners to
the extent of 50% share in the suit property and vide order dated 13.03.2023,
application filed by the defendant has been entertained and written statement
has been placed on record instead of not entertaining the application.
11. Learned counsel for the plaintiff has argued that after giving
sufficient time to file written statement, when the defendant failed to do the
needful even after 529 days from the date of having filed the suit, his
defence was closed only after plaintiff moved application under Order 8
Rule 1 read with Rule 10 CPC to close his right. Since there was no
defence, so, only preliminary decree was required to be passed under Order
20 Rule 18 CPC. It has been further brought to the notice of this Court that
at present, the plaintiff is in occupation of master bedroom and one room on
the first floor and also, barsati floor. The entire ground floor area is in
possession of the defendant which is much more than his entitlement.
Reliance in this regard has been placed on a judgment of Hon'ble Supreme
Court passed in case Renu Devi vs. Mahendra Singh - Appeal (Civil)
No.4231 of 1999, decided on 04.02.2003.
12. Learned counsel for the defendant has argued that the defendant
has already moved an application seeking recalling of order dated
22.12.2022, whereby right of defendant to file the written statement was
closed. Learned Trial Court, vide order dated 13.03.2023, had already taken
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on record written statement filed by the defendant. The plaintiff is the
co-owner of half of the undivided unspecified share in the suit property and
other half share is owned by the defendant.
13. I have heard the submissions of both the parties and perused the
case files carefully.
14. Order 8 of CPC deals with filing of written statement, the grounds
of defence and the procedure for the party to present the written statement to
the Court. The suit was instituted by the plaintiff on 05.07.2021 and the
defendant appeared in the case on 09.08.2021. Case was adjourned for filing
written statement but defendant failed to file the same for a period of more
than 1 year and 4 months. So, the learned trial Court was fully justified in
not granting further adjournment for filing written statement. If no written
statement is filed, then the provisions of Order 8 Rule 10 CPC are attracted.
15. In case Vittal Daulat Lad Versus Ashok Govind Tawade, 2002(3)
Current Civil Cases 253, the Bombay High Court held that while disposing
of the suit under Order 8 Rule 10 CPC, the Court can either dispose of the
same on the basis of the case pleaded by the plaintiff in the plaint, or the
Court can require the plaintiff to prove said case by producing necessary
evidence in support thereof. In case Balraj Taneja Versus Sunil Madan,
1999(4) R.C.R. (Civil) 438, the Hon'ble Apex Court held that merely
because written statement has not been filed, the court cannot proceed to
pass judgment blindly. The Court should be little cautious in proceeding to
pass judgment and 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
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plaint. It is a matter of satisfaction of the court which must be recorded in
the judgment showing application of mind on the facts and law warranting a
judgment to be passed. Under such circumstances, it can be held that
provisions of Order 8 Rule 10 CPC are not mandatory. Passing of judgment
in favour of plaintiff in case of non-filing of written statement by the
defendant is subject to the satisfaction of the Court that there are no disputed
facts in the plaint and judgment can be passed without asking the plaintiff to
lead evidence. If Court comes to the conclusion that evidence is required to
be led by the plaintiff to prove the claim by the plaintiff, then it cannot pass
a judgment in favour of the plaintiff by invoking provisions of Order 8 Rule
10 CPC.
16. In the case in hand, suit was filed for partition on the ground
that the plaintiff and defendant, who are brothers, are co-owners to the
extent of 50% share in the property comprised in the suit. The learned trial
Court in the impugned order dated 22.12.2022 without application of mind
whether plaintiff is required to lead evidence or not, adjourned the case for
evidence of the plaintiff. Since there was no written statement filed by the
defendant, so trial Court was required to record its satisfaction whether suit
deserves to be decreed on the basis of pleadings supported by documents
annexed with the plaint or the plaintiff was required to prove its claim by
leading evidence. Thus, part of the order dated 22.12.2022 whereby case was
adjourned for leading evidence of the plaintiff, is not sustainable in the eyes
of law. So, the Civil Revision No.640 of 2023 deserves to be allowed to that
extent.
17. The order dated 13.03.2023 which has been challenged in Civil
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Revision No.3137 of 2023, reads as under:-
"Today the case was fixed for evidence of plaintiff. However,
at this stage an application for recalling the order dated 22.12.2022
under Section 151 of CPC has been moved on behalf of defendant.
Copy supplied. Written-statement on behalf of defendant has also
been filed. Copy supplied. Now the case stand adjourned to
19.05.2023 for filing reply to the aforesaid application."
18. Since defendant has only moved an application for recalling order
accompanied by written statement and no substantive order has been passed
by the learned trial Court on the said application, so keeping in view that no
order has been passed by the trial Court, so Civil Revision No.3137 of 2023
is premature and deserves to be dismissed on this ground.
19. In the light of above discussion, Civil Revision No.640 of 2023 is
partly allowed. The learned trial Court shall pass speaking order in view the
provisions of Order 8 Rule 10 CPC recording its satisfaction. Civil Revision
No.3137 of 2023 is premature and is dismissed. However, it is hereby made
clear that the learned trial Court shall pass speaking order as per Order 8
Rule 10 CPC and thereafter, if necessary, will consider in accordance with
law the application moved by the defendant for recalling the order dated
22.12.2022.
20. Pending application, if any, shall also stand disposed of.
May 07, 2024 (GURBIR SINGH)
Monika/sanjeev JUDGE
Whether speaking/reasoned ? Yes/No.
Whether reportable ? Yes/No.
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