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Judgment
This is an application on behalf of the Plaintiffs under Order VIII Rule 10 read with section 151 Code of Civil Procedure, 1908 (hereinafter referred to as the „CPC‟) for passing the judgment and decree in favour of the plaintiffs on the basis of the pleadings and documents on record.
The Plaintiffs instituted the present suit seeking, inter alia, a decree of declaration, permanent injunction, damages/mesne profits, possession and specific performance in respect of the upper ground floor and first floor of property bearing No. C-30, Vishwakarma Colony, M.B. Road, New Delhi, built on land measuring about 200 sq. yds. (hereinafter referred to as the “suit property”)
The plaintiffs are the legal heirs and successors of Late Mr. Alamgir Singh, who purchased the aforementioned floors of the suit property and had taken possession thereof in the year 2013, after paying the entire sale consideration to the erstwhile owner. Whereas, Defendant no. 1 is a licensee in the present suit.
It is submitted by the Learned Counsel for the Plaintiff that the father of the Plaintiff, Late Mr. Alamgir Singh purchased the upper ground floor and first floor of the suit property under Bayana Receipt dated 10.09.2013 from Mr. Madan Lal Gera (Defendant No. 2). Thereafter the physical possession of the suit property was taken by Late Mr. Alamgir Singh on 07.10.2013.
It is submitted by the Learned Counsel for the plaintiff that late Mr. Alamgir Singh permitted Defendant no. 1 to occupy the first-floor portion of the suit property merely as a permissive occupant and licensee out of sympathy and humanitarian considerations. The said permission was purely temporary in nature and did not create any right, title or interest in favour of Defendant No. 1 in respect of the suit property.
It is further submitted that after the demise of the late Mr. Alamgir Singh on 04.12.2015, the Plaintiffs received summons of a suit for Permanent and Mandatory Injunction filed by Defendant No. 1 alleging that, he purchased the suit property from late Mr. Alamgir Singh through General Power of Attorney, Agreement to Sale, Receipt cum possession letter, Will and affidavit all dated 09.01.2015.
It is further submitted that the documents prepared by Defendant no. 1 was forged and fabricated, whereby these documents reflected the sale of the suit property by Mr. Jagdish Gera in favour of Late Mr. Alamgir Singh. It is further submitted that these documents contain forged signatures of Late Mr. Alamgir Singh as well as Defendant No. 3.
It is further submitted that in the suit filed by Defendant No. 1, a joint written statement was filed by Mr. Jagdish Gera and Mr. Madan Gera (Defendant No. 2 & 3) stating that they received the entire sale consideration from Late Mr. Alamgir Singh and apart from Bayana Receipt dated 10.09.2013, no other document has been executed by them in favour of any other party.
It is submitted by the Learned Counsel for the Plaintiff that on 16.07.2016, an FIR was registered against the Defendant no. 1 pursuant to the Order dated 13.07.2026 passed by the Learned Metropolitan Magistrate under Section 420/468/471/120B Indian Penal Code, 1860 (hereinafter referred to as “IPC”) at P.S. Pul Prahladpur. During the investigation, the police authorities sent the documents filed by Defendant No. 1 to Forensic Science Laboratory (hereinafter referred to as „FSL‟). FSL submitted a report that the signatures on the admitted documents were not similar to the signatures on the questioned documents. Therefore, proving that the documents relied by Defendant no. 2 showing his ownership over the suit property were forged and fabricated.
It is submitted by the Learned Counsel for the Plaintiffs that on 11.02.2025, right of Defendant No. 1 to file affidavit of Admission/Denial of Documents was closed and it was recorded in the order that non-filing of affidavit of Admission/Denial would follow the consequences as per law.
It is further submitted that on 19.01.2026, I.A. No. 17990/2023 under Order VIII Rules 1 & 10 of CPC for striking down the defence of Defendant no. 1 was allowed and Written Statement filed by Defendant No. 1 was removed from the record and the documents filed by Plaintiff was deemed to be admitted.
Further it is submitted that two Chamber Appeals were filed by Defendant no. 1, being OA No. 110/2025 whereby right to file reply to IA no. 17990/2023 was closed and Chamber Appeal no. 111/2025 against Order dated 11.02.2025 whereby the right to file affidavit of Admission Denial was closed. Prior to the closure of the right for almost 5 years, Defendant no. 1 did not file an Affidavit of Admission/Denial of documents.
It is further submitted that vide Order dated 11.11.2025, the Chamber Appeal no. 110/2025 against Order dated 11.02.2025 filed by Defendant no. 1 was withdrawn. However, the aforementioned Order categorically records that the Appeal, which was withdrawn by Defendant no. 1, was the Appeal arising out of Order dated 18.02.2025.
The stand of Plaintiffs are that the written statement of Defendant no. 1 has not been accepted and right of Defendant no. 1 to file the affidavit of admission/denial was closed. It is submitted that, it means that contents of the plaint and documents remain unrebutted. Consequently, it is prayed by the learned counsel for the plaintiff that the suit should be decreed under Order VIII Rule 10 CPC.
In support of the submissions Learned Counsel for the Plaintiffs has relied upon an Order dated 03.09.2024 of this Court in Sunil & Ors Vs. Sh. Sripal & Ors., CS(OS) 181/2023, whereby it is held that when an affidavit of admission/denial of documents is not filed along with the written statement, the written statement cannot be taken on record. The same is reproduced hereunder:
“15.In this regard, Coordinate bench of this Court in Unilin Beheer B.V. v. Balaji Action Buildwell, 2019 SCC Online Del 8498 has after examining the Rules of Chapter VII, Original Side Rules, 2018 held that when an affidavit of admission/denial is not filed along with the written statement, the written statement cannot be taken on record. The relevant paragraphs reads as under:
"30.Under Order VIII Rule 10 of the CPC, upon non-filing of written statement, the Court has discretion, depending on facts, to either pronounce judgment forthwith or direct the plaintiff to prove his claim. Deemed admission by the defendant of the documents of the plaintiff, under Rule 4 supra, will also result in the Court, where defendant has not filed affidavit of admission / denial with written statement, on the basis of admission of documents pass a decree forthwith rather than relegating the party to proof of his claim based on documents.
31.I thus hold, that in the event of the written statement being filed without affidavit of admission/denial of documents, not only shall the written statement be not taken on record but the documents filed by the plaintiff shall also be deemed to be admitted and on basis of which admission the Court shall be entitled to proceed under Order VIII Rule 10 of the CPC.”
I have considered the submissions of the learned counsel for the Plaintiffs.
In the present suit, the Plaintiffs are seeking a decree of declaration to the effect that General Power of Attorney, Agreement to Sell, Receipt-cum-possession Letter, Will and Affidavit dated 09.01.2015 purportedly executed by Late Mr. Alamgir Singh in favour of Defendant no. 1 are forged and fabricated.
It is argued by the Learned Counsel for the plaintiff that an FIR was registered by plaintiff under section 420, 468, 471 read with 120B of IPC for forging the aforesaid document.
I am of the opinion that conclusions of the police investigation, even if based upon the FSL report, has to be proved in evidence, so that this Court is able to scrutinise the same
I may mention that this is not a simple suit for recovery of money. This suit is for Specific Performance of Agreement dated 10.09.2013, Declaration, Possession, Permanent Injunction and Damages. A decree of declaration and a relief of Specific Performance of Agreement requires very careful examination of documents and appreciation of evidence.
The Apex Court in Asma Lateef & Anr. v Shabbir Ahmad & Ors., 2024 INSC 36, in order to examine the scope and extent of power excercisable under Order VIII Rule 10 CPC observed as under:
“15.We have no hesitation to hold that Rule 10 is permissive in nature, enabling the trial court to exercise, in a given case, either of the two alternatives open to it. Notwithstanding the alternative of proceeding to pronounce a judgment, the court still has an option not to pronounce judgment and to make such order in relation to the suit it considers fit. The verb „shall‟ in Rule 10 [although substituted for the verb „may‟ by the Amendment Act of 1976] does not elevate the first alternative to the status of a mandatory provision, so much so that in every case where a party from whom a written statement is invited fails to file it, the court must pronounce the judgment against him. If that were the purport, the second alternative to which „shall‟ equally applies would be rendered otiose.
16.At this stage, we consider it apposite to take a quick look at Balraj Taneja (supra) to examine the scope of Rule 10 of Order VIII. Therein, this Court ruled that a court is not supposed to pass a mechanical judgment invoking Rule 10 of Order VIII, CPC merely on the basis of the plaint, upon the failure of a defendant to file a written statement. The relevant paragraphs of the judgment are reproduced below for convenience:
“29.As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it 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 plaint. It is a matter of the court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression „the court may, in its discretion, require any such fact to be proved‟ used in sub-rule (2) of Rule 5 of Order 8, or the expression „may make such order in relation to the suit as it thinks fit‟ used in Rule 10 of Order 8.” No doubt this decision was rendered considering that the verb used in the provision is „may‟, but nothing substantial turns on it.
17.What emerges from a reading of Balraj Taneja (supra), with which we wholeheartedly concur, is that only on being satisfied that there is no fact which need to be proved on account of deemed admission, could the court pass a judgment against the defendant who has not filed the written statement; but if the plaint itself suggests involvement of disputed questions of fact, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts. Balraj Taneja (supra) also lays down the law that provision of Rule 10 of Order VIII, CPC is by no means mandatory in the sense that a court has no alternative but to pass a judgment in favour of the plaintiff, if the defendant fails or neglects to file his written statement.
In brief, it is held by the Hon‟ble Supreme Court in the above quoted judgment that in complicated matters, it is not safe for the Court to pass a judgment simply on the basis of pleadings and in such cases Plaintiff should be required to prove the facts of the matter. Same is the situation in the present case.
Therefore, I am not inclined to pass a decree under Order VIII Rule 10 CPC straight away.
Accordingly, the application is dismissed.