Delhi District Court
Jasim Ahmad vs Shakil Ahmad on 14 August, 2024
RCA DJ 85/24 Jasim Ahmed Vs. Shakil Khan
IN THE COURT OF SH. ANKUR JAIN-II, DJ-02, SHAHDARA
DISTRICT, KARKARDOOMA COURTS, DELHI
RCA DJ 85/24
Sh. Jasim Ahmed
S/o Sh. Sharif Ahmed
R/o C-187/17, Gali No.4,
Near Kalyan Cinema,
Chauhan Bangar,
Seelampur, Delhi-53. ...Appellant/defendant
Versus
Sh. Shakil Khan
S/o Sh. Jail Khan
R/o H. No.1025, Gali No.32,
Idgah Road, Jafrabad, Delhi - 53.
...Respondent/plaintiff
JUDGMENT
1. The present appeal has been filed against ex-parte judgment and decree dated 11.04.2023 passed by Ld. CJ-01, Shahdara, Karkardooma Courts, Delhi in Suit No.1188/2019, whereby the suit of the plaintiff was decreed against the defendant.
2. For the sake of convenience, parties are referred as per their status in the original suit i.e. appellant is referred as 'defendant' and respondent is referred as 'plaintiff'.
Brief Facts :-
3. It is stated that the respondent/ plaintiff had filed the suit for permanent and mandatory injunction, damages and mesne profits against the appellant/defendant thereby seeking Page 1 of 8 RCA DJ 85/24 Jasim Ahmed Vs. Shakil Khan directions to the appellant/ defendant to remove himself from the suit property in the premises i.e. upper ground floor and first floor without roof rights of property no.1/10393-A/19, Lalit Enclave, West Gorakh Park, Pocket- B, Shahdara, Delhi - 32 (hereinafter referred as suit property); further to restrain the appellant/ defendant from creating any third party interest in the suit property and seeking mesne profits @ Rs.10,000/- per month for use and occupation charges of the suit property.
4. It is the case of the respondent/ plaintiff that respondent/ plaintiff is the absolute owner of the suit property and he had purchased the same from the defendant/ appellant by way of Agreement to Sell, Will, affidavit, possession letter, payment receipts all dated 15.02.2019 for a sale consideration of Rs.20 lakhs; that after 2-3 days from the execution of said documents, the defendant/ appellant had approached the respondent/ plaintiff to allow him to reside in the suit property; that the respondent/ plaintiff had allowed the defendant/ respondent to reside in the same as a licensee for 5-6 months.
5. It is further the case of respondent/ plaintiff that after expiry of five months, the respondent/ plaintiff had asked the defendant/ appellant to give possession of suit property but defendant/ appellant had refused to handover the same; thereafter, respondent/ plaintiff had served a legal notice dated 02.09.2019 thereby terminating the license of the Page 2 of 8 RCA DJ 85/24 Jasim Ahmed Vs. Shakil Khan defendant/ appellant; that despite service, the defendant/ appellant had not vacated the suit property. Hence, the suit bearing CS No. 1188/2019 was filed by the respondent/ plaintiff against the appellant/ defendant.
Proceedings before Ld. Trial Court :-
6. Pursuant to issuance and receipt of summons by the defendant, none appeared on behalf of the defendant, nor any WS was filed on behalf of defendant; that vide order dated 01.06.2022, defendant was proceeded ex-parte. Thereafter, the matter was listed for ex-parte PE.
7. Thereafter, the matter was fixed for ex-parte PE before the Ld. Trial Court and Plaintiff examined himself as PWl who tendered in evidence his affidavit Ex.PW1/A. The witness relied upon Site plan Ex.PW1/1, Agreement to Sell, Payment receipt, Possession letter, deed of Will, Affidavit/ undertaking Ex.PW1/2 (Colly), legal notice dated 02.09.2019 Ex.PW1/3, two postal receipts Ex.PW1/4 (colly) and two tracking status Ex.PW1/5 (colly).
8. Subsequently, plaintiff closed his ex-parte evidence vide order dated 07.12.2022. Thereafter matter was fixed for ex- parte final arguments and after hearing arguments on behalf of plaintiff, the Ld. Trial Court vide judgment dated 11.04.2023 was pleased to decree the instant suit in favour of the plaintiff/ respondent and against the defendant/ appellant.
Page 3 of 8RCA DJ 85/24 Jasim Ahmed Vs. Shakil Khan
9. By virtue of this appeal, the appellant/ defendant has assailed the impugned judgment dated 11.04.2023 passed by Ld. Trial Court and prayed that the same may be set aside in favour of the appellant and against the respondent alongwith condonation application.
10.Due to the reasons mentioned in the condonation application, the same is allowed and the present appeal is heard on merits on behalf of the appellant.
SUBMISSIONS OF APPELLANT
11. It is submitted by Ld. Counsel for the appellant that the documents relied upon the plaintiff/ respondent are forged and fabricated and those are simply notarized documents; that plaintiff/ respondent obtained a ex-parte order as he was very well aware that mental condition of the appellant/ defendant was deteriorating and was not able to recognize anyone and that the appellant was also not a much educated person; that appellant/ defendant had taken a friendly loan of Rs.10 lakhs from the respondent/ plaintiff and signed some security documents; that before admitting in the hospital, appellant/ defendant had paid part payment of loan amount of Rs.5 lakhs to the respondent/ plaintiff.
12. It is further submitted that summons were served upon son of the appellant/ defendant and not upon the appellant/ defendant as he was admitted in the hospital, however, Ld. Trial Court had considered the same as service upon appellant/ defendant and proceeded appellant/ defendant as Page 4 of 8 RCA DJ 85/24 Jasim Ahmed Vs. Shakil Khan ex-parte and subsequently, the impugned judgment was passed against the appellant/ defendant.
13. It is further submitted by Ld. Counsel for the appellant that plaintiff/ respondent had filed the suit for mandatory and permanent injunction claiming himself to be owner of suit property by virtue of unregistered agreement to sell which does not confer any title qua the suit property and therefore, the impugned judgment and decree dated 11.04.2023 passed by Ld. Trial Court is liable to be set aside.
14. It is also submitted that when the appellant came to know about the pendency of the execution proceedings before the Ld. Trial Court, he immediately filed an application U/o 9 Rule 13 CPC for setting aside the ex-parte judgment dated 11.04.2023 but the said application was also dismissed by Ld. Trial Court on 24.07.2024, without properly appreciating the facts and the documents placed on record.
ANALYSIS:-
15.I have heard submissions of Ld. Counsel for the appellant and perused the record.
16.It is contended on behalf of Ld. Counsel for appellant that the impugned ex-parte judgment is bad in law as the appellant was never served with the summons of the instant suit and that at the relevant time, the appellant was admitted in the IHBAS hospital for his medical treatment. However, Ld. Counsel for appellant fairly concedes that the process Page 5 of 8 RCA DJ 85/24 Jasim Ahmed Vs. Shakil Khan was duly received the son and mother of the appellant on his behalf, which is also due and proper service as per Order 5 Rule 15 CPC.
17. Further, it is not the case of the appellant that the appellant is a person of unsound mind as admittedly, the application U/o 9 Rule 13 CPC and the present appeal has been filed by the appellant in his personal capacity through his counsel and not under the provisions of Order 32 CPC.
18. It is also argued by Ld. Counsel for appellant that plaintiff is only having unregistered documents of GPA and Agreement to Sell qua the suit property. However, the appellant nowhere disputed the execution of said documents qua the suit property by him in favour of the respondent/ plaintiff.
19. Rather, Ld. Counsel for the appellant fairly conceded that even the appellant does not have any registered sale deed qua the suit property in his name and the appellant was also having the similar documents i.e. Agreement to Sell, GPA etc. qua the suit property, as executed by him in favour of the respondent herein.
20.It is also contended by Ld. Counsel for appellant that appellant had executed the said documents qua the suit property in favour of the respondent only as the security for the purpose of securing a loan amount of Rs.10 lakhs admittedly taken by the appellant from the respondent, out Page 6 of 8 RCA DJ 85/24 Jasim Ahmed Vs. Shakil Khan of which, the appellant has also returned the amount of Rs.5 lakhs to the respondent. However, in this regard, neither any WS has been filed by the appellant nor any cross-
examination was conducted by the appellant/ defendant w.r.t. to the respondent/ plaintiff/ PW1 before the Ld. Trial Court.
21.While dismissing the application of the appellant/ defendant U/o 9 Rule 13 CPC vide order dated 24.07.2024, Ld. Trial Court has rightly observed that the appellant/ defendant has not filed any document on record to show the period of his admission in the hospital nor filed any document to show as to when he was discharged therefrom, and the documents filed by the appellant rather shows that the same are mere out-patient slips and it nowhere recommends any admission of the appellant/ defendant in any hospital.
22.Ld. Trial Court has also not granted any relief to the respondent/ plaintiff of mesne profits claimed against the appellant/ defendant @ Rs.10,000/- per month, as sought by the respondent/ plaintiff against the appellant/ defendant in the instant suit on the ground that respondent/ plaintiff has failed to lead any documentary evidence in that regard.
23.Also, the appellant/ defendant has not challenged the order dated 24.07.2024 passed by Ld. Trial Court in the present appeal, whereby the application U/o 9 Rule 13 CPC filed by the appellant/ defendant for setting aside the ex-parte Page 7 of 8 RCA DJ 85/24 Jasim Ahmed Vs. Shakil Khan judgment dated 11.04.2023, was dismissed by Ld. Trial Court, and has rather filed a condonation application alongwith the present appeal for seeking condonation in delay in filing the present appeal against the order dated 11.04.2023 passed by Ld. Trial Court.
CONCLUSION
24.Accordingly, I find no error or illegality in the impugned judgment dated 11.04.2023 passed by Ld. CJ-01, Shahdara, KKD Courts, Delhi and in view of the above stated discussion, no ground is made out for allowing the present appeal.
25. Hence, present appeal stands dismissed.
26. No order as to costs.
27. Decree sheet be prepared accordingly.
28.Appeal file be consigned to record room after due compliance, as per rules.
Digitally
Announced in the Open Court signed by
ANKUR JAIN
ANKUR
on this 14th day of August, 2024 JAIN
Date:
2024.08.14
16:07:54
+0530
(ANKUR JAIN-II)
DISTRICT JUDGE -02,
SHAHDARA, KKD COURTS, DELHI
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