Delhi District Court
Memo Of Parties vs Smt. Savitri Devi on 16 August, 2010
IN THE COURT OF CIVIL JUDGE - 02 (NORTH)
PRESIDING OFFICER SAMAR VISHAL
SUIT NO. 527/08
Memo of Parties
Smt. Anita Sharma
W?o Sh. Yogender Kumar
R/o 102F, Gali No.5,
Krishna Nagar,
Safdarjung Enclave,
New Delhi29. ..........Plaintiff
Versus
Smt. Savitri Devi
Wo Sh. Lakhmi Chand,
rd
R/o Flat No.120A, (Back Side), 3 Floor,
Gali no.5, Krishana Nagar,
Safdarjung Enclave,
New Delhi. ..........Defendant.
ORDER
After hearing the applications filed by the defendant, one for the review of the order dated 7.7.2010 by which the objections of the plaintiff to a particular questions in the cross examination was allowed by this Court and another to frame additional issues u/O 14 R 5 CPC a request was made by the plaintiff counsel to struck of the defence of the defendant.
This point was also heard on behalf of both the parties. Before proceeding to decide the applications mentioned above, it will be expedient to decide the request of striking off the defence of the defendant as it has a direct bearing on the disposal of the application of review and framing of additional issues mentioned above.
A brief history of this case will be pertinent to understand the reason which prompted Suit No. 527/08 1 the plaintiff to make a request to strike off the defence of the defendant.
Plaintiff has filed this suit against the defendant alleging her as her tenant in the tenanted premises. This suit was filed on 18.8.2008. The suit proceeded. Plaintiff has claimed that the rent of the suit premises is Rs.8,000/ per month. The defendant took the defence that the rent of the tenanted premises is Rs.1,000/ per month. An application was made by the plaintiff seeking the directions to the defendant to deposit the arrears of rent as well as rent @ Rs.8,000/ per month. The application was disposed off vide order dated 12.2.2009 by this court holding that since the defendant has admitted the rate of rent as Rs.1,000/ per month only, the rate more than that cannot be awarded. By that order it was directed to the defendant th to pay Rs.1,000/ by 5 of every month.
Against this order, the plaintiff filed a CM(M) in Hon'ble High Court of Delhi numbered as 154/09. It was observed in that order that the Trial Court proceeded on the basis of admissions and the defendant has pleaded himself as a tenant of Rs.1,000/ instead of Rs.8,000/ per month. It is mentioned in that order that " it has been enquired from the counsel for the respondent as to how the respondent, in the event of the petitioner succeeding and obtaining a decree for possession and money decree against the respondent, would secure the said amount. The counsel for the respondent states that the respondent shall furnish the security to the satisfaction of the Trial Court for satisfaction of the money decree at the rate of Rs.8,000/ per month or above and till the date of vacation being passed against the respondent. He further states that the daughter of the respondent is an advocate and not only the respondent but also her daughter will give an undertaking that in the event of a money decree being passed in the suit pending before the Trial Court and the same attaining finality, to pay to the petitioner or her successor the decreetal amount and Court accepting the said statement of the counsel for the respondent and Suit No. 527/08 2 directing her to give an undertaking as aforesaid i.e. the undertaking of herself and her daughter to be filed within two weeks before the Trial Court as well as the security to the satisfaction of the Trial Court within a period of eight weeks from the date of the order.
With this observation, the CM(M) was disposed off.
Later on the defendant tried to change their stand and filed a review petition in Hon'ble High Court of Delhi. The Hon'ble Court ordered that "The application seeks to withdraw from what had transpired in this Court on 6.10.2009. The counsel for the respondent on that date had also pointed out to the daughter of the respondent who was stated to be an advocate. The order was dictated in the presence not only of the counsel for the respondent but also of the daughter of the respondent who was informed to be an advocate. The respondent cannot be permitted to renege from the consent given on that date. The application is mala fide and is dismissed." This order was made on 13.11.2009".
When the defendant tried to renege from her earlier stand in Hon'ble High Court of Delhi, she moved an SLP in Hon'ble Supreme Court of India and the Hon'ble Court vide its order dated 26.2.2010 ordered that "On the facts of the case we modify the impugned judgment dated 6.10.2009 by directing that the petitioner shall furnish surety instead of security to the satisfaction of the Trial Court within eight weeks from today. The hearing of the case is also expedited".
After this order was passed by Hon'ble Supreme Court of India, the parties appeared in this Court. On the next date, the plaintiff has moved an application of preponement in pursuance of the direction of Hon'ble Supreme Court of India to expedite this case. The application was allowed the case was preponed. By that time, the plaintiff has moved an applications for striking off the defence of the defendant. A surety was also filed by the Suit No. 527/08 3 defendant in the Court in the meantime. Later on plaintiff took objection regarding the genuineness of the surety alleging that the vehicle on which a surety is given is a stolen vehicle and the residential address given by the surety is also false. An inquiry was conducted and the allegations of the plaintiff's counsel was found to be true. This surety was to be furnished by the defendant in the Court within 8 weeks given by Hon'ble Supreme Court of India vide its order dated 26.2.2010. When this surety was discharged, one more application of striking off the defence of the defendant was moved by the plaintiff.
One more controversy arose between the parties. It was contended by the defence counsel that the defendant was liable only to furnish a surety in view of the fact that the order of Hon'ble High Court of Delhi dated 6.10.2009 was modified by Hon'ble Supreme Court of India. On the other hand, the counsel for plaintiff has contended that the Hon'ble Supreme Court of India has modified the order dated 6.10.2009 only to the extent that instead of security the defendant was directed to furnish a surety within eight weeks from the date of the order i.e. 26.2.2010. It was further argued by counsel for plaintiff that even after the modification of the order of Hon'ble High Court of Delhi dated 6.10.2009, the defendant was liable to give her undertaking in the Court. Defence counsel has refused to give any such undertaking alleging that the order was completely modified by Hon'ble Supreme Court of India and in view of that order, the defendant was not obliged to give her undertaking as directed by Hon'ble High Court of Delhi. The issue was resolved in favour of the defendant and it was directed to her that if she do not want to give her undertaking as stated by her counsel in Hon'ble High Court of Delhi, she must at least obey the order of Hon'ble Supreme Court of India and furnish a sound security in this Court.
Both the applications were considered on merits and vide order dated 5.6.2010, both the applications were disposed off discharging the surety but rejecting the plea of the plaintiff to Suit No. 527/08 4 struck off the defence of the defendant. A cost of Rs.2,000/ was imposed on the defendant, which is still not paid and it was also observed that a mischief was committed by the surety probably within the knowledge of the defendant by giving false information in his surety bond.
Taking the lenient view, this Court extended further time of 15 days to the defendant to produce a sound surety. It was also made clear in that order that if the surety is not produced in 15 days, defendant may be liable for their defence to be strucked off. Complying the order, the defendant again brought a surety Sh. Jayanand Negi. He was examined in the Court. He was also not found having sufficient assets to satisfy the huge claim which may be awarded in this case and since it was ordered that the surety should be furnished to the satisfaction of the Court, this court was not satisfied with the financial capacity of that surety to pay the damages which may be awarded in this case. That surety was also refused by this Court. On that date, again a request was made by the plaintiff that the defence of the defendant be struck off on the ground that he malafidely not bringing the sound surety in this case and is trying to avoid her liability in case she lose this case.
On 20.7.2010, again an order was made giving one more opportunity to furnish a sound surety within 15 days and it was also made clear in that order that this shall be the last opportunity for the defendant to furnish her surety so that the orders of Hon'ble High Court of Delhi and Hon'ble Supreme Court of India shall be fulfilled in its true spirit. The plaintiff's counsel has also submitted that this Court is more lenient to the defendant by not striking off her defence and the defendant is taking undue advantage of this latitude given to her. The order for furnishing a security within 15 days was made on 20.7.2010 and in that order the surety was to be filed on or before 5.8.2010. In this way, the defendant has not complied the order dated 26.2.2010 of Hon'ble Supreme Court of India in its true spirit and till today there is no sound surety who can said to be in the position to satisfy the money decree which may be Suit No. 527/08 5 passed in this case against the defendant. More than five months have been passed but the defendant is unable to arrange a surety to the satisfaction of this Court and for this reason again after the conclusion of arguments on the applications of defendant a fresh request was made by counsel for plaintiff that the defendant is not deliberately complying the orders of this Court and on one pretext or another is bringing the sureties which are not sufficient enough to satisfy any claim in the event of plaintiff being successful.
I have heard counsel for both the parties and perused the records of the case. To support his view, the plaintiff has relied upon the judgment of Hon'ble Andhra Pradesh High Court in D. Ram Mohan Rao Vs. M/s Sridevi Hotels Pvt. Ltd 2003 AIHC 2126 that the order for striking off the defence in the facts of the case can be made under section 151 of Civil Procedure Code.
On the other hand counsel for defendant has relied upon the judgment of Vimal Chand Jain Vs. Gopal Aggarwal wherein it was observed that the order of striking off the defence is in the nature of penalty. A serious responsibility rests on the court. There is a reserve of the discretion vested in the Court.
I agree with the counsel for defendant that the order of striking off the defence shall be made only in exceptional circumstances and that too in special circumstances warranting the use of such exercise by the Court and not on technical grounds or in a mechanical way.
In the present case when for the first time, a surety with false credentials was furnished in the Court, even the persistent request of the plaintiff to struck off the defence was not allowed and leniency was shown and it was considered that there may be myriad situation in which a default may be committed. An equitable approach was taken by the Court and the applications of striking off the defence were dismissed and considering the demands of justice, the defendant was given another chance to furnish a sound surety but the defendant again failed to Suit No. 527/08 6 furnish the same. Again the Court repeated the same exercise and instead of striking off the defence of the defendant, one more opportunity was given to furnish a sound surety within 15 days and when this order was not complied, this Court is satisfied that the non furnishing of the surety is intentional and is one way to avoid the directions of the Hon'ble Superior Courts.
The intention of Hon'ble High Court of Delhi for directing the defendant to give an undertaking as well as a security was that in case the plaintiff succeeds, she shall not remain remedyless and should have the means to execute that decree. The undertaking of the defendant was not given in the Court alleging that the order has been modified by Hon'ble Supreme Court of India. The only remedy for the plaintiff was a surety who can be approached in case of success. The surety is not available till today on the records of this case and the purpose for which the Hon'ble High Court of Delhi and Hon'ble Supreme Court of India has directed that the surety may be furnished has frustrated.
In view of the judgment of Hon'ble Supreme Court of India, defence should be struck off only in exceptional cases as it is in the nature of the penalty. It is also a settled law that the provisions of striking off the defence should be resorted to in extreme cases where obstimacy or contumacy on the part of the defendant or willful attempt or disregard to the order of the Court is established. The power of striking off defence should be used only where the defaulting party is guilty of prolongation of trial or inordinate or inexcusable delay, which may cause serious or substantial prejudice to the opposite party. The non filing of a sound surety will no doubt have a direct affect on the plaintiff and will also prejudice the plaintiff upon being successful in this case. I cannot imagine any more serious case than lack of bonafides to obey the Court's orders , which would be sufficient to invoke the provisions of section 151 CPC i.e. the inherent powers of the Court to struck off the defence of the defendant. Therefore the defence of the defendant is strucked off for not furnishing a sound surety as directed by the Suit No. 527/08 7 Hon'ble Supreme Court of India vide its order dated 26022010.
As far as the application for framing off the additional issues is concerned, this application is made on the basis of pleadings in the written statement. Since the defence of the defendant is already struck off by this order, her written statement cannot be taken in view and therefore, this application for framing of additional issues has become infructuous.
As far as the application regarding review of the order made during the cross examination of the plaintiff witness by which the objections were sustained is concerned, I am of the view that no ground is made out for the review of the orders as there is no error apparant on the face of the record nor there is any discovery of new facts or any other sufficient reasons to the review of this order. Where any question is excluded by the Court as irrelevant or objectionable after all submission, the examiner should accept the Court's ruling without demur, display of temper.
JEFFERIES CJ said "It is always been the practice heretofore that where the Courts have delivered their opinion the Counsel should sit down and not dispute it any further [ Case of Titur Dates 1865, 10 how St Tr 1186] (cited in Sarkar's Law of Evidence Volume 2 16 Edition 2007 page 2346).
This is a suit between the landlord and the tenant for the eviction. The counsel for defendant was repeatedly asking questions about the legality of the premises which was given on the rent to the defendant. If the defendant is of the view that the premises, which was given on the rent was unauthorizedly constructed or illegal, she should not have taken it on rent and once she has taken it on rent, she is estopped from alleging or pleading or proving that the tenanted premises is unauthorizedly constructed. The question of unauthorized construction is between the State and the plaintiff and the tenant has no business to challenge that construction once she has with her own free will and consent taken it on rent as the tenant has Suit No. 527/08 8 also become a party in perpetuation of that illegality.
The question for which the review was sought was regarding the completion certificate as well as regarding the sanction plan of the building. Now since the defence of the defendant is struck off, one of the defence taken by the defendant that she is a tenant in the fourth floor and not in the third floor also does not remained to be adjudicated and therefore, there is no need to further review this question after the defence being struck off. No such question regarding this averments in the written statement could be asked by defence counsel.
With these observations, both the applications are dismissed.
The defence of the defendant is struck off.
However in view of the judgment of Hon'ble Supreme Court of India in M/s Babbar Sewing Machine Company Vs. Triloki Nath Mahajan 1979 (2) RCR (Rent) 581, the defendant shall have the right to cross examine the plaintiff witness and to take part in final arguments.
Announced in the open Court SAMAR VISHAL
On 16.08.2010 Civil Judge02
(North)/Delhi
16.08.2010
Suit No. 527/08 9
16.08.2010 Suit No.527/08
Vide separate order, both the applications one for the review of the order dated 7.7.2010 and another to frame additional issues u/O 14 R 5 CPC has been dismissed and the defence of the defendant has been strucked off. Plaintiff's evidence is continuing in this case.
To come up for rest of the PE on 13.9.2010.
SAMAR VISHAL Civil Judge02 (North)/Delhi 16.08.2010 Suit No. 527/08 10