SURESH KUMAR Vs. SAROJ ATAL

JUDGEMENT

(1.) The challenge by means of this Regular First Appeal (RFA) filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 29.1.2011 decreeing the suit filed by the respondent/plaintiff for possession and mesne profits with respect to the property being Flat No. T-1, 3rd Floor (Front Side), P-92A, Mayur Vihar Phase-I, Delhi. The impugned judgment is an ex parte judgment as the appellants/defendants failed to appear in the suit in spite of service. I am informed that the appellants/defendants had filed an application under Order 9 Rule 13 CPC to set aside the impugned exparte judgment dated 29.1.2011, however, the application under Order 9 Rule 13 CPC has been dismissed, and the counsel for the appellants/defendants admits that the order dismissing the application under Order 9 Rule 13 CPC has not been appealed against. The scope of the present appeal is thus confined to deciding the merits of the impugned judgment, on the position that there is no pleading filed or evidence led on behalf of the appellants/defendants.

(2.) The facts of the present case are that the respondent/plaintiff filed a suit for possession and damages of the suit property on the ground that the appellants/defendants had purchased a flat being the first floor, back side, in the subject property from Smt. Kamlesh Gautam, wife of Sh. Raj Kumar Gautam, and which flat was sealed by the bank, inasmuch as, the appellants/defendants failed to repay a loan for which this first floor flat was equitably mortgaged. When this flat was sealed by the bank, the appellants/defendants asked the respondent/plaintiff for a short stay in the suit property, which is the third floor flat, and this was allowed by the respondent/plaintiff on account of humane consideration. Since the appellants/defendants failed to vacate the property even after the original period for which they were allowed to occupy and for the extended period which is pleaded, ultimately, the subject suit for possession and mesne profits came to be filed.

(3.) The respondent/plaintiff proved the documents with respect to the suit property executed in their favour, being the Agreement to Sell, General Power of Attorney, Special Power of Attorney and receipt, all of which are dated 25.9.2001. Out of the aforesaid documents, the General Power of Attorney and Special Power of Attorney have been duly registered with the office of Sub-Registrar, Delhi. The respondent/plaintiff also proved and exhibited before the trial Court an election card, Ex. PW1/6, the legal notice dated 18.8.2010 as Ex. PW1/7, and the postal receipts pertaining to the same as Ex. PW1/8 to Ex. PW1/14.