Delhi High Court
Uma Shanker Sharma & Ors vs Rajesh Sharma & Ors on 27 May, 2015
Author: Manmohan
Bench: Manmohan
21
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1442/2011
UMA SHANKER SHARMA & ORS ..... Plaintiffs
Through: Mr. W.N. Gujral, Advocate with
Mr. I.D. Tyagi, Advocate.
versus
RAJESH SHARMA & ORS ..... Defendants
Through: Mr. Sarvendra Mani, Advocate with
Ms. Sampa Sengupta Ray Advocate
for defendant No.1.
Mr. Nalin Tripathi, Advocate for
legal representatives of defendant No.3.
% Date of Decision: 27th May, 2015
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. On 18th February, 2015, Mr. Rakesh Tiku, learned senior counsel appearing for defendants No.2 and 3 had stated that the statement of defendant No.2 should be recorded without Oath. In support of his contention, he had relied upon the judgment of the Supreme Court in M/s. Kapil Corepack Pvt. Ltd. vs. Harbans Lal (D) Thr. Lrs. decided on 03rd August, 2010 wherein the Apex Court had quoted with approval the judgment of the Madras High Court in Vasantharoya Koudan & Ors. AIR CS(OS) 1442/2011 Page 1 of 5 1949 Madras 707. The relevant quotation from the Madras High Court's judgment is reproduced hereinbelow:-
"At the outset it must be pointed out that this (Order 10 Rule 2) does not provide for an examination on oath. This provision was intended to be used to elucidate the matters in controversy in suit before the trial began. This is not a provision intended to be used to supersede the usual procedure to be followed at the trial."
2. Undoubtedly, the statement under Order 10 Rule 2 has to be record with a view to elucidate the matter in controversy in the suit. While it is true that the scope of the aforesaid Rule is not to take evidence, but certainly the statements so recorded are a part of the pleading.
3. By virtue of amendment in Civil Procedure Code w.e.f. 01st June, 2002 in Order 6 Rule 15(4) now every pleading has to be supported by way of an affidavit. The amended Order 6 Rule 15(4) CPC reads as under:-
"ORDER VI Pleadings Generally xxx xxx xxx
15. Verification of pleadings.
xxx xxx xxx (4) The person verifying the pleading shall also furnish an affidavit in support of the pleadings."
4. In the opinion of this Court, the Madras High Court judgment being of the year 1949 did not take into account the aforesaid amendment.
5. Consequently, the statement under Order 10 CPC has now to be recorded under Oath.
CS(OS) 1442/2011 Page 2 of 56. As far as the option of defendant No.1 to refuse to be examined under Order 10 CPC is concerned, this Court is of the view that the consequence for the same is provided in Order 10 Rule 4(2) of CPC which reads as under:-
"Order X Examination of Parties by the Court
4. Consequence of refusal or inability of pleader to answer.
xxx xxx xxx (2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."
7. With the aforesaid clarifications, the issues raised by Mr. Tiku, learned senior counsel on 18th February, 2015 stand addressed.
8. List the matter for recording of statement of defendant No.1 under Order 10 CPC on 17th September, 2015.
I.A. 10097/2015 in CS(OS) 1442/2011 Present application has been filed by the plaintiffs for depositing the rent of the suit premises in this Court.
It is pertinent to mention that the present suit has been filed for declaration, possession, cancellation of Agreement to Sell dated 17th October, 2003 and registered Sale Deed dated 17th August, 2009 with regard to the property bearing No.Y-17, Hauz Khas Enclave situated at Village Kharera Qutab Road, New Delhi.
CS(OS) 1442/2011 Page 3 of 5On 21st June, 2003, plaintiffs purchased the suit property from defendant No.1 vide a registered Sale deed.
Subsequently, on 17th October, 2003, the defendant No.1 executed an Agreement to Sell with defendant No.2. On 13th August, 2009, a Sale Deed was executed in favour of defendant No.2 at the instance of the Court in an execution proceeding as an ex parte decree had been passed against defendant No.1.
On 17th August, 2009, the Sale Deed was executed by defendant No.2 in favour of defendant No.3.
Learned counsel for legal representative of defendant No.3 states that the alleged Sale Deed dated 21st June, 2003 in favour of the plaintiff is only for Rs.5,00,000/-. He points out that the value of the Agreement to Sell executed in October, 2003 between defendant No.1 and defendant No.2 was for Rs.70,00,000/- He contends that the drastic differences between the two transactions within the span of four months reflects on the credibility of the earlier transaction dated 21st June, 2003.
However, this Court is prima facie of the opinion that in view of the registered Sale Deed dated 21st June, 2003, the defendant No.1 had no right, title or interest in the suit property and he had no power to execute another Agreement to Sell in October, 2003.
Consequently, the legal representatives of defendant No.3 are directed to deposit the entire rental amount being received by them with the Registry of this Court after deducting the TDS within a period of six weeks. Even future rentals shall be deposited with the Registry of this Court.
Registry in turn, is directed to keep the amounts in an interest bearing Fixed Deposit Receipt.
CS(OS) 1442/2011 Page 4 of 5The legal representatives of defendant No.3 are also directed to furnish the statement of accounts to the plaintiffs.
The legal representatives of defendant No.3 are given liberty to file an application seeking reimbursement of expenses and taxes in regard to the suit property.
With the aforesaid directions, present application is disposed of.
MANMOHAN, J MAY 27, 2015 js CS(OS) 1442/2011 Page 5 of 5