O R D E R

% 09.09.2024 CM APPL. 52339/2024 (Exemption)

Exemption allowed, subject to all just exceptions.

FAO 286/2024

1. The appellant is defending a suit for eviction/possession, injunction and damages.

2. Copy of the plaint filed by the respondent has also been placed on record.

3. Let us take note of the averments appearing therein.

4. According to plaintiff (respondent herein), he had purchased the flat in question from the defendant by virtue of documents executed on 7th October, 2014 and got registered the flat in her favour.

5. According to plaintiff, since defendant requested her to allow her and FAO 286/2024 1 her family members reside in the same very flat, which she had sold to the plaintiff, such permission was granted to her and, accordingly, one rent agreement was executed by which the defendant agreed to pay the rent @

Rs.17,000/- per month.

6. It is in the aforesaid factual circumstances that the plaintiff had filed the aforesaid suit.

7. According to the defendant, she had never sold the property to the plaintiff and the documents allegedly executed on 7th October, 2014 are forged and fabricated. The defendant also denies that she had ever entered into rent agreement and was paying any rent much less @ Rs.17,000/- per month.

8. During course of the pendency of the aforesaid suit, the palintiff moved an application under Order XXXIX Rule 10 read with Section 151 CPC seeking direction to defendant to pay arrears of rent and the learned Trial Court allowed the same and directed the defendant to pay an amount @ Rs.17,000/- per month with effect from 6th October, 2022. The order was passed in this regard on 6th June, 2024 and since the amount was not deposited, the defence has been struck off on 14th August, 2024.

9. Such order is under challenge.

10. The prime grievance of the appellant/defendant is that no direction under Order XXXIX Rule 10 CPC could have been passed, unless there was some kind of admission from the side of the defendant.

11. It is contended that on the other hand, besides controverting the stand of plantiff, the defendant had also filed a separate suit seeking cancellation of said documents.

12. Nobody appears on advance notice.

FAO 286/2024 2

13. Issue notice to the respondent through all permissible modes including dasti, returnable on 8th January, 2025. Notice be also issued through counsel. 14. The operation of impugned orders shall remain in abeyance till the next date of hearing and, therefore, as a necessary corollary, the defendant would be permitted by learned Trial Court to participate in further proceedings in the suit in accordance with law.

MANOJ JAIN, J SEPTEMBER 9, 2024/ss FAO 286/2024 3